181 Mo. App. 642 | Mo. Ct. App. | 1914
(after stating the facts). — The averments of negligence relied upon in the petition go to the effect that defendant moved the locomotive and box car backward as plaintiff’s husband was about to pass through the aperture between the. car attached to the engine and the refrigerator car, without giving any warning as by sounding the bell or otherwise. The last chance or humanitarian doctrine is not counted upon in the petition and, indeed, it does not appear that plaintiff’s husband might have been saved if his dangerous situation was discovered by those in charge of the locomotive. Neither is an ordinance of the city relied upon, but the case proceeds, as stated, on the the
Though it be conceded that defendant were negligent in not sounding the bell before moving the en
No one can doubt that railroad tracks are an ever present signal of danger, and especially is this true when one attempts to pass between cars standing thereon with locomotive attached. [See Dyrcz v. Mo. Pac. R. Co., 238 Mo. 33, 47, 141 S. W. 861; Gurley v. Mo. Pac. R. Co., 104 Mo. 211, 16 S. W. 11.] Because of this fact one must always look and listen for approaching trains before entering thereon, and especially is this true in the circumstances of the instant case, for the cars are present at hand in the railroad private yards where switching is usually in progress and within a foot or two at most of the party and the entire train, consisting of car and locomotive, all within the range of his vision.
“Moreover, given daylight and no obstructions, given a situation where to look is to see, then such person is conclusively held to see; for on that hypothesis looking is equivalent to seeing. Hence, for one to say . . . that he did not see an engine bearing down upon him and so close to him as to strike him as he crossed the track, is precisely the same as if he had said he did not look at all. No judgment should stand on an impossibility; for.- example, on the fact that one saw around a corner with a naked eye, or through a solid stone wall, or in broad day looked and did not see a locomotive engine hard by on a straight .and unobstructed track.” [Dyrcz v. Mo. Pac. R. Co., 238 Mo. 33, 47, 141 S. W. 861.] It is clear that plaintiff must be denied a recovery because of the concurrent negligence of her husband which at least co-oper.ated proximately to his injury.
The judgment should be reversed. It is so ordered.