*1 Suрreme CouRT OK 317. [April Term, 996 Yol. rights property, actual situs where of creditors resident at the in question.” situs are statutory judicial
It has in been so declared our law and decisions. 253, 320; Brinkop, R. S. State ex rel. v. 238 c. Mo. l. [Sec. McPherson, Pip v. 163 Spraddling Locke Mo. l. c. & v. Keeton 134; Wyatt kin, White, App. 15 l. c. v. 392 Mo. l. c. 557.] interpreted. The laws Nebraska have been judicially likewise v. 12 Neb. Woodruff, [Minkler 267.] correctly
We are thus led to the conclusion that trial court intangible property found that question consisting in here corporation in represented stock Nebraska certificates located in Nebraska, but owned the decedent in whose domicile was Mis- souri at death, passed of his time under the intestate laws of Mis- souri, was, therefore, subject to Missouri’s tax. inheritance questions
While we must treat in suggested the constitutional appellant’s assignment third untimely raised, they of errors as not having presented below, at all to court we call attention to harmony the fact that the conclusion is in we have reached Supreme decision of the United in Frick v. Court States Pennsylvania, Sup. by appellant Rep. 603, Ct. much relied questions passed upon, and which similar constitutional for decision, well as the more recent decision of the same court Sup. Hospital Doughton, Rhode Island Ct. Trust Company Rep. clearly distinguishes tangible intangible personal prop- 256, erty tangible footing and holds the latter to be “on a different personalty.” judgment
For court is the reasons above of the circuit stated sitting. affirmed. concur, except Gantt, J., All Margaret L. Sulli E. Administratrix of Estate of John Topeka & van, Appellant, Fe Atchison, Santa Railroad Delong W. Hosford. 297 S. W. William A. and C. Company, One, July 30, 1927.
Division Ques- Testimony: Contradictory 1. NEGLIGENCE: Plaintiff’s Witnesses: Jury. having plaintiff’s testified that was on tion for flat car One of witnesses hacking towards the street at the rear end and the train signal stop, engineer others that gave other brakeman given, question defend- the car and that no no one was on ant’s railroad requiring failing alleged negligence an ordinance to observe top end car company man stationed to have a jury, warning signals, give one hacking became of a Fjs T. & SullivaN v. A. Santa IIailROAd given timely warning whether the brakeman could also to have approaching discovering peril. of an automobile after Imputed Passenger 2. CONTRIBUTORY NEGLIGENCE: in Automo- person riding between him and the driver exists as by would owner, A in an bile. automobile driven where no such impute relation *2 him, approaches safety, is all of the driver to not absolved from care for his own when crossing by a railroad street and is a struck train, required injury ordinarily pru- to use such care but is to avoid as an person dent would exercise under like circumstances. Danger. -: properly gave per- -: The trial 3. Obvious court a emptory company plaintiff’s for instruction the defendant railroad where that deceased was killed an and evidence was automobile owned by by street; backing public driven his sister was struck a train a across automobile, customarily by the he never drove but it was and that driven her her; crossing accоmpanied they town, often drove he that to the and the them; surroundings and its afternoon of were well known to the the that middle of day, crossing a clear automobile was driven towards the at fifteen, hour, twelve, perhaps point ten or and miles an and as it reached a sixty-five ever towards the direction from which the seventy crossing or feet from the what- away, was no obstruction train, thirty forty or feet hour; coming speed a six miles an feet curb was line in that that ten from the direction, side, track and and thirteen feet from the on their high, wig-wag signal, placed pole on a a fourteen was which was a twenty-four “Stop” diameter, disc inches in on which was the round word they approached crossing gong, a that was and and gong swinging ringing; opposite and that on thе side of track thirty it, stopped; had that automobile feet from another automobile fairly feet; possessed stopped have in ten or twelve and that he could good hearing; sight and that made no effort to avoid collision and he attempt An track under such circumstances the train. to cross the with Nor, negligence, driver and her in view on the of both brother. recovery facts, the humanitarian doctrine. based on of such can be Presumption presumption -: of Due Care. The that a 4.-: traveler indulged crossing using approaching a due care is railroad indulged in only It cannot no he was. be when there is evidence unaware of light it is incredible that he was which show facts similarly train, every saw one else situated and -which which, heard, heard, and insist- сonstituted an immediate seen and and and danger. warning of ent permit doctrine Rule. humanitarian does -: Humanitarian 5. a by railroad recovery injured an struck for the presumption had been crossing, that if a brakeman at a train stationed street auto- backing have seen the train would car oh the rear stopping them, to have effected the warn or in time to mobile hour, crossing they approaching twelve miles an at ten or where space stop hear, ample before every to and and with opportunity see plain wig-wag stop tráck, coming signal, warned to and were to the opposite which had and an automobile brakeman, had been stationed if one such circumstances Under track. they presume right would see cаr, had a rear would have track; driving upon such stop hear, being warned before would after, brakeman, presumed failing, presumption it cannot be further dangers, warning have would seeing that were oblivious engineer signaled stop in time to have failure observed brakemen mobile reached before stopping of train aryto- to have secured in time miles traveling twelve ten or where it _ Supreme op [Apru 317. Court You. forty hour traveling six five or miles an hour half distance. Presumption CONTRIBUTORY NEGLIGENCE: Humanitarian Rule: Presumption. upon conjecture A verdict cannot be based one conjecture. is founded another itself Railroads, 1071, Juris-Cyc. Cye., p. 1017, Corpus p. n. References: 1105, p. 1129, 7; p. n. n. 68. n. Hugh ex, Judge, Appeal Ralph from Carroll Circuit Court. —Ron. Affirmed. appellants. <&
Franken
Timmons
provisions
(1)
defendants to observe the
The failure of the
Cai'rallton, requiring
Section 29
28 of the
of Ordinance No.
Town
*3
every
backing
employee
to be stationed on the rear
of
end
sig-
giving danger
within
purpose
the limits of said town for the
of
520;
negligence
287
nals,
per
Railway
Hale v.
Mo.
Co.,
se.
Cytron
716;
Go.,
Transit
191 Mo.
v. Transit
205
Hovarka v.
Co.,
Mo.
Bergman
88
441;
107;
Railroad,
Mo.
v.
Sluder v.
189
Transit Co.,
Ry. Co.,
Union
678;
Ry.
525; Kelly
Mo.
108 Mo.
v.
Co.,
Dahlstrom v.
(2)
the automobile
the said ordinary of ordi- saw, after the exercise care, exercise seen, position nary perilous care of said could have danger, warning obliviousness to automobile and their prevented upon in could have heard and acted time to have thé Bergman 678; Kelly 88 Railroad, Mo. v. death of Sullivan. v. 525; 108 Mo. Ry. 279; Ry. Co., v. S. Union 95 Dahlstrom Co., Mo. Maginnis Ry. Co., 268 680; 234 v. Mo. Pac. Mo. Railroad, Ellis v. Mo. 383; 92; Bush, 279 v. 280 Mo. Mo. Tavis 667; Railroad, Murrell v. 611; 300 Rys. 204; Logan Ry. Hill v. Mo. Co., v. K. 289 Co., C. Mo. 1000-; Morgan 260 Ry. Trimble, "W- State ex Wabash Co. v. S. rel. v. 159 Co., Railroad Mo. 281.
Gyrus
respondents.
Grane, S.
Withers for
J. Jones
8am
(1)
sustaining
err in
the demurrer at
close
The court did not
evidence,
guilty
(a)
himself
plaintiff’s
deceased
negligence. Burge
94;
Railroad,
244
v.
Mo.
Tannehill
Railroad,
v.
168; Leapard
Rys. Co.,
268;
279
214 W.
Friedman
v. K.
S.
C.
Ry.'
462;
Co.,
Rys.
247 W.
Payne,
v.
S.
Co., Mo.
Sorrell v.
(2d) 912;
(2d)
Ry. Co., Fed.
Sellers,
5 Fed.
v.
Paramore
negli-
Ry.
(b)
(2d)
The admitted
Co.,
Trenholm v.
Fed.
gence
negligence,
ear,
deceased’s own
the driver of the
Peterson
proximate
either or
the death.
bоth were the
cause of
(e)
W. 988.
190 S.
Railway,
Forney,
LINDSAY, plaintiff of C. The asked alty ail au- for killed the death of John who was L. de- freight of 'train by tomobile in a riding he was was struck Term, [April Court oe SurREME You. Bailway Company, opеrated defendants, by the individual fendani; company. employees railway gave
At evidence per- the close of the the court emptory of appeal instructions for each the defendants. The is from overruling plaintiff’s involuntary the order motion set aside the nonsuit taken.
At question, January 1923, at 3, the time in a little before three riding afternoon, touring o’clock the deceased was in a Ford car, driven his sister, Evaline Sullivan. The curtains were up. only They car, were the and John L. Sullivan sat right-hand in the front on They seat of sister. lived side on Carrollton, a farm six north miles of the time on way depot city of Carrollton, "Wabash the south expected meet some friends to arrive on the They afternoon train. driving Street, south on Main a much travelled street city, whiсh railway is crossed tracks the defendant com- pany. dry. The weather clear and the street was Fe The Santa tracks do not cross south Main direction, Street in a due east and west but run somewhat from northeast to southwest. Defendant has two point. main-line tracks at that The north track main-line carries westbound trains, and the south main-line track carries eastbound trains. The distance between them is feet. The collision in twelve question occurred on the north main-line track. At- a or westbound point about 165 feet east of spur the eénter of the a track leads out from the track, north and runs somewhat main-line thence parallel northeasterly spur with the north track. The main-line easterly in its spur course also connects another track. foregoing especially are tracks connected with the facts attending the collision between defendant’s train and automo- bile. However, showing scene, completely somewhat more is going reference In made certain other tracks defendant. track, south on Main Street, the first track is an crossed east-and-west spoken asof coal track. This crosses Main Street about north track, Also, the north place main-line of the collision. point at a sixty-five track, track, about is feet south the coal another which does not Street, stops cross Main but east of Main spur Street. It is a track off-shoot-of the coal that has been men- tioned. Going south on Main last-mentioned passing Street and track, track, which is sixty-five about main-line feet north of the traveller has a clear the east- view the tracks of defendant to ward, for point about one-half thirteen feet north mile. At about of the north main-line or feet east westbound ten east signal. street-curb This wig-wag of Main was a Street, line high. is a pole round disc disc about fourteen *5 is twenty-four printed about on it in diameter, and has inches in v. A. T. & n Fe Railroad Santa word, “Stop.” gong large tbe There is a letters, or a on, of, signal. approaching, standing "When trains are or are this within swings gong rings. distance the the disc a certain the by persons approaching The disc can be seen from the north at a dis- tance of several hundred feet. one hour before the collision About oc- freight curred, train of west, a local defendant сame or eastbouncl track. the south main-line Several the cars of this standing train left eastbound track at some distance to engine the west of Main Street. The and other cars thence went east- purpose switching setting ward for the cars, certain just prior to approached the time when the deceased and his sister engine the north track, main-line or westbound and cars freight along westward, spur returned —backed track that leading has been described as out of north track main-line at a point 165 along feet east of the and thence on and north crossing. main-line westbound track over the Main Street The train engine, consisted of which was at the east end of the facing east, train and was and nine cars. The two ears at the west bаcking end were flat cars. along spur In westward and thence oil the north track, main-line or westbound cars slight curve, prevented engineer, which right who was on the crossing. fireman, of the engine, seeing The who was on the hand, left or north engine, looking side of westward, could see crossing. Upon points certain testimony is no material variance witnesses, all plaintiff. of whom were called by The it moved along spur back westward the north main-line or westbound track, moving slowly, or at about six miles an hour. gong The wig-wag signal sounding, and the disc was moving. testimony crossing There was that the whistle sounded as the train back, engine started to and that the bell ringing approaching day was clear. As the train slowly was thus westward, approached backed coming testimony from the north. of several witnesses was, it, seventy- point first saw at a about five feet north of the westbound main-line track on which the train approaching, moving speed automobile was at a of about ten mües an hour. As we have indicated, heretofore when the automobile reached the
point opposite the track Street, which ended on Main the east side of sixty-five or about track, feet north from the westbound main-line there was no obstruction Vir- whatever to the view to eastward. tually all testimony is, of those who saw the accident that when the automobile in riding, deceased was was about seventy seventy-five feet north of the main-line the west end of the ad- op SupReme Court [April Term, Missouri, Yol. *6 car at end tbe train in
vancing question, thirty of flat crossing. thirty-five testimony east of the The is that at that speed about time, speed of the train was one-half the of the auto- also, automobile, coming mobile. that time an At the south on point a Street, stopped at about feet south of the north IVCain pass. to allow the train to in main-line The automobile which moving south, center, by deceased was struck near its riding, pushed the end of the flat car the train. The automobile was of west- ward, partly and John L. Sullivan was thrown or out fell between the beyond rails, point at a a west little line of the street. The wheels neck, passed killing instantly. of the flat car over his him The au- pushed tomobile farther somewhat westward to or near the platform of a Sullivan, car, water crane. Evaline of driver injured only was thrown out and so that she a livеd few minutes. The called as witnesses the individual defendants who operating train, were the occupants also of the automobile which track; had on the south of also another wit- ness, who, standing point seventy-five away, at a some witnessed testimony the occurrence. The shows that the in riding sisters, his deceased owned Evaline Mar- garet administratrix; Sullivan, E. L. that John Sullivan had no automobile; single interest in the ivas a man he and lived with his two sisters said farm that has been mentioned. The tes- timony habitually farther is that of both the women drove the auto- mobile, it; but that John in good L. Sullivan did not drive that it was gear steering good condition—the was in and the brakes in shape, condition; perfect good eyesight that Miss Evaline Sullivan had good hearing; that frequently, she and John L. Sullivan came to tоwn and both familiar with As L. to John Sullivan himself, testimony years previous was that some time in question, head, injury through being he had received an to his kicked by horse; result, partial paralysis that as a there was a of his left side. His L. brother Ambrose Sullivan testified that John Sullivan didn’t have; have the real of use his left side he should that he was a ear; little deaf “fairly good, in one ear—the left that his vision was normal;” speech, action; that he was slow slow of that he readily ordinarjr person; not talk or an move as that John L. many Sullivan crossing; had ridden times in automobile over that knew swinging crossing; about the often came to at the Carroll- in ton automobile, driven the one or the other of said sis- Mlargaret testifying sight hearing Sullivan, ters. Miss as to the John L. indefinite and her was somewhat evasive state- mеnts. However, testimony was that John L. Sullivan could her engaged hear, ordinary conversation, sometimes went to town by himself, went around with the neighborhood, about “chored Fjb A. T. & Santa Sullivan Railroad Co. farm,” on the and that “supposed” stock she ap- could see an proaching car a “reasonable distance.” plaintiff pleaded provisions anof city ordinance of making- duty
Carrollton it of defendant when backing a train, to top have man on the stationed car at the end farthest from engine, give danger signals; pleaded discharge failure .to duty, and failure ordinary to exercise care-to persons; warn L. John Sullivan and Evaline Sullivan were unaware and that the death of the former was due failure performing defendant and its servants in duties. thоse pleaded contributory answer L. of John Sulli- van, and alleged also engaged and Evaline lie *7 joint mission, or undertaking, alleged at of the time the in occurrence petition, negligence the and that the of Evaline Sullivan was to be imputed to John L. Sullivan.
It is plaintiff conceded counsel for was Evaline Sullivan guilty negligence of aas matter of law.
On the of are, the contentions of that failure de- fendants to provisions negligence per observe the of ordinance was the se; that imputed the of Evaline Sullivan cannot to be deceased, riding passenger guest; who as L. SVdli- was a or that John guilty law; van was contributory negligence not as a of matter though guilty contributory negligence, even he was there was ample require evidence to submission to the of the jury ample whether defendants its time warn said Eva- and servants had to train; line and John L. near Sullivan of the danger perilous position could have seen and obliviousness given ordinary warning the exercise of care could have and L. prevented Sulli- and acted in time to have the death John van. train. He
Plaintiff brakeman of the called H. the rear Conklin, car, riding of the end that he was corner testified the southwest car; that stirrup and that his foot that corner of the was the at the cross- feet from when he first saw automobile it was about the crossing; 120 feet from the and train the rear of the was about ing, thirty,” forty feet, about “thirty-five, was automobile horn*, six miles four, five or crossing, from the it down to slowed its increased stopping, it going stop, if it were but to instead and stop to he hollered speed; going saw-it when he was not they saw when he gave signal stop, hand, waved them the to testi- Conklin signal, signaled brakeman. did heed his the other going was not that at automobile time, fied when he saw train signaled rear end stop, brakeman, he gave street; that he was about ten feet from the east curb of stationed signal” brakeman, stopping, middle “violent Term, 317. Yon. [April Court of SUPREME got engine; that he off car and continued bimself between engineer from was. He could not where he signal; that he see right it him automobile swerved to a little as it semed to going was track. Sportsman, fireman, testified that he was on the left side
G-. engine, looking westward, ringing and he was as the the bell ap- crossing; saw train backed toward the that he twenty-five twenty'or proaching from the north and it was high a it; travelling track rate when he first saw that it like it as if the speed crossing, toward the and “seemed lurched for- slip going stop, jumped clutch would and the car engineer— speed.” ward increased He said he hollered to the engi- goes out;” “There car; a that at about the same time look got applied neer the brakes. from the brakeman got engineer Sports- witness, and testified that when he called signal from the brake- warning, man’s same at about the time man, everything stop train. he could to up drew Cooney passenger
John in the automobile stopped to let south side of at the go by. Cooney train was about said this side; right track; south of the the rear seat on the that he east; first saw that he saw when he backing from the thirty-five feet the front flat ear was about end of the rear occupied he first saw the automobile that when seventy-five it feet from the was about Sullivans, *8 cars, Cooney any flat testified that see on either of the he one that anybody and said of those cars. He said there was not on either street, after east of the the collision he saw Conklin about fifteen feet going very slowly— was south of train. He said the train hour; passengers were two about five miles an he noticed there that north; up. coming in the that the curtains were automobile from the collision, it but any He said before the he did not hear one holler occurred; that seemed he holler after the collision like heard some one suddenly. looking De- straight north; stopрed that the train he was Cooney inquest, given by at the coroner’s testimony fendant read the slowing up of apparent the automo- wherein he testified there was no they if they right just as hadn’t bile, across, but said the same “came seen train.” stopped which on the Brockmeier,
Ed the automobile the driver of backing toward saw the train track, south side of the testified that he one, two west; saw no on either of the one, that no or he there was cars; north of the flat that saw automobile on the he track. tes- eighty He when he first saw it was it about the train struck just tified the time that he one holler about heard some said that automobile; voice. Brockmeier that it was a man’s r Fjs (cid:127) T. & v. A. Go. BailROAd Sakta SullivaN
1927\ automobile, bis tbe end of tbe train was about when be street; upon that bis centеr of the automobile was tbe feet from tbe other part street; tbe street tbe west of tbe east plain anybody approaching to be seen to thought that it would be be passing that this train north, from the over the a-signal give a man crossing. throwing up He said he saw ‘‘ say way band, looking: but he could not man was There many things happening;” that were too his mind was centered on the wondering why they stop. didn’t He said he didn’t automobile— up' any that slacked or that it notice swerved over to approached. as it “just the west Brockmeier also testified right that shortly met,” before the automobile and the" he noticed the sitting right side; that was man on the said get he started to up, and, just “it seemed as it ways to me struck he was about half out of they car ear, hit, over, turned and that’s the last I laying saw of him I him saw there and until wheel passing just over his neck.” He further said it almost when struck get that he saw the man start out. Long
E. C. walking also saw the collision. He was on the sidewalk about seventy-five feet north it, and on the west side plain of the street. He he had a crossing. view of the if anybody Asked on the flat ear said: he “Not I saw, only I the fireman. saw him back the cab.” He said sawhe automobile; man-fall lay right out of the that he he fell where sets three of trucks ran over 'him. wig-wag He said he saw sign swinging, and ringing; bell was going, judged, hour, about fifteen miles an it moving while was so the train backing; right was still they met on the and the man in right out; “just the automobile fell as soon (automobile) the car right tilted over—crushed over—he fell out.” He and some of the others did not think the automobile swerved to right сrossing. as it came
As has been indicated, there is a testimony variance between the Conklin, brakeman, the rear Cooney, and of Brockmeier Long, standing whether Conklin was stirrup approached the end flat car it named, The three Conklin, than said there was ear, although no one on the flat as has stated, give signal. Brockmeier said he saw a man On the other *9 hand, engineer signal the and fireman said a received the en- gine brakeman, three four cars back of engine, and received about the same time the fireman warned engineer, brakeman, automobile to track. The who was three four ears engine, back of not called to testify, but engineer got testified that he the brakeman who was near the middle of train, and on the south it. Be Hiu'Reimjs OouRTOR \A.pril Von. Term,
1006 3L7. may, although all it- and that as witnesses question plaintiff’s witnesses, question whether Conklin was on the fiat required by ordinance, jury question. ear as was’a testimony The stopping engineer was that push would a lever to steam, pull shut off the and the brake handle, valve to set the brakes. eighteen The end of the throttle he was about inches above the brake Both within valve. reach of his hand from his seat in the cab. His was turned to the west. body He testified that, as the train watching backing, out, required he was and that it two motions hand, turning and also the around of body, to shut the brakes; throttle and also set the that on this occasion he shut the throttle, and turned and valve, set the and brake things these quickly receiving signal. could he
A qualified witness who as an testified that a expert, train such as and this, with such an engine, going at six miles an hour, could be stopped in twelve feet from the time of the movement of the throttle the brake valve engineer as described operating engine. engineer said he did not know the distance the rear car was from got signal. at the time he railway There was a street along track Main west side of passed beyond Street. The end car railway line, the street not Ear from the water crane platform which was 102 feet west of the center of Main A Street. witness touring testified that a Ford question, car the kind in good condition, going Street, ten miles an hour on Main along place in question, stopped by ordinarily could be skillfrd. driver in ten or twelve feet. As we have said, enough negli there is conflict on the
gence of the failing by having defendant the ordinance observe a man stati°necT-011 ear at end °f the Question jury question. make that a Jury. chiefly ques discussion in the briefs turns contributory guilty negligence, John L. Sullivan was tion whether so, evidence, if whether under the the case was one submissible under the humanitarian rule. As to the first: insist that Counsel imputed the conceded of Evaline cannot be guilty contributory negli John L. and that was not gence citing Mahany City Rys. Co., as a matter of v. Kansas law, Mahany City Rys. (second 286 v. Kansas Co. 601, appeal), 16; Treadway Rys. Co., 156; S. 300 Mo. W. v. United Rawie v. C. Q. Ry., 1031; Co., B. & W. Melican v. Whitlow Const. S. S. 78; 361; City Rys. W. 228 W. Co., Corn v. Kansas S. Durbin v. St. 358; Railroad, 200 Mo. Ry., Louis-San 275 S. W. Stotler Francisco Bland, 237 W. State ex rel. Shaw State ex rel. Hines S. 396, 250 S. W. numerous cases from Trimble, Transfer v. jurisdictions. *10 Fjs v. A. T’. & Santa Railroad 1007 SulliváN Counsel defendants call attention to v. Railroad, Tannehill 158; Leapard City Rys., .268; v. Kansas 214 W. S. Friedman Mo. Co., 235; Burge
Railway 244 Mo. Railroad, 76, and also from jurisdictions. cases great variance, parties There is in the circumstances of the con-
cerned, Broadly speaking they per- in these cases. are casea wherein riding automobile, driving it, sought recovery Sons in an but not agai]lst person, injury alleged a third for an to be due Imputed negligence person. to the of the third In the course of Negligence. discussion, considered, varying there were under the circumstances, injured party driver; the relation of the their ages experience; knowledge knowledge relative their or want of surroundings; they joint "vehicle, of the whether were owners of the engaged joint enterprise; injured party or were in a whether the was guest driver; authority pas- a mere of the of the senger driver; injured party occupying over the whether the was a seat; opportunity observe, front or a rear and(cid:127) to act under placed. them, the situation in which he was In all of where there person injured was no such relation between the driver and the impute negligence injured person, would of the driver to the recognized person riding automobile, was the rule that the in an driven by another, safety, is not absolved from all care for his own but is required ordinarily prudent person to use such care as an would exer- case, purpose cise under like circumstances. In this and as to the journey by parties, taken these the evidence shows that John L. together; Sullivan and his two sisters lived that the automobile was sisters, ~rjfl owned the two left to them Contributory drove the au- n father; other, that the one or the Negligence. tomobile; it; L. Sullivan that John drive it, and accompanied her. All Sullivan often drove Evaline question, purpose trip was, as to the is stated “friend, or a acquaintances,” met a train ex- going to depot. They drove to pected to at the Wabash often Carroll- arrive well known them. surroundings, and its ton, and this afternoon, day, middle of the of clear shows that The evidence crossing at ten being driven toward the or twelve, point sixty- hour, and as it reached fifteen miles an perhaps or no obstruction seventy from there was feet five or coming. from which east, the direction whatever spur heretofore men- shed or offiсeon the There was some sort of coal sixty fifty front, feet sign swinging, warning tioned. ringing. to it of-them; gong attached little to the east south, stopped coming just time, At also an automobile thirty track, main-line beyond them, almost in front of backing slow- train from the east very and also this time, Supiushis op [April Term, Von. Court forty westward not more ly than away crossing. disregard warnings In of all of these visible eye audible to ear of automobile, it was driven If was not L. driver, sitting of both the John as he did *11 testimony shows, possessed front fairly the and as seat, the of good sight imagine and it difficult hearing, would be to conduct con stituting negligence. theory is We think this whether so, be taken that speed of the automobile was checked at ox- forty feet from its track, speed or, and then that increased, it hour, cаme on at an speed ten miles an unchecked or twelve it either event within ten or feet. could have been twelve Under inevitable, either is we that theory, think, the conclusion attempt an It to beat train across the track. seems incredible ap under all the shown, they were circumstances that unaware of proach caught nothing give train; eyes their and to that ears warning’. argue only them that the Counsel reasonable speed is, went into low inference fx*om facts that Evaline Sullivan event, prevent any the fact stalling and, to that in from track, forty that down within slowed law, occupants track, said, it cannot as a matter of that be it attempted automobile saw and beat across. Counsel the train to forty argue slowed down also that the automobile ivas since the time forty than end even nearer of the train was notwithstanding facts, the au these that, feet from the and to show facts, combined, all tend tomobile increased its these speed, approaching that automobile were unaware of the if un- course, they were train, trying to it. Of and were beat not it over approaching they trying were to beat train, awai’e of a cross appi*oaching a traveller presumption The that no evidence ing indulged only, there is using care, due is M,o. Ily. Co., [Burge v. Wabash 76.] to show what he did. shown and light of facts indulged in the presumption cannot be things, heard the similarly saw and everyone situated where else warn and insistent immediate and constituted an which, heal'd, seen going at a ing railroad danger. They near a known other stopped on the speed; up and an drew moderate just in ivas sign front “stop” view, the opposite, plain and in almost not dis train was sounding'; approaching swinging; gong its they and crossing were, than moving but swiftly, tant and nearer body turning to slowly. without moving them It was visible to they were unaware is look, and it unbelievable approaching train they unaware of train. To say eyes and their equivalent they closed saying that would be immediately them near sights ears and sounds warning, Fe A. T. & Santa Railroad place known to them as railroad well and that advantageous not hear from their did not see and did situation what person every near saw and heard. open him, word, deceased sat where all this was where hand, warning
or a touch of the would havе been a aor token of If had approaching very high restraint. the train at a rate of speed, a different conclusion would be warranted. all Here, testimony approaching is to the effect this train was at five or hour; automobile; six miles that the struck the center of the automobile, except instant, or unless it was checked for an only during instant, moving point toward the of con- speed tact at about double the the end of the train point automobile, was then nearer the of contact than the yet giving ample space stop automobile was at a distance it before reaching Evidently the track. the trial court this evidence fairly good concluded that John L. situated as was, sight knowing hearing, driver, and related as he was to the things, timely effort, ordinary these no made and failed to exercise *12 safety. care for his own
It is insisted that under humanitarian the case submissible rule; if car, a man stationed had been on the rear he would have seen the Sullivan occupants, or, automobile time to warn the to This is stopping ^iave effected tlie of the train. Humanitarian Rule. theory rear car that Conklin was not on the as who was, but that the other witnesses he said car, purposes of the were correct. For the one on there was no is inquiry witnesses to be taken the statement those other immediate upon assumption contention is based true. But this were unaware occupants of automobile any presumption on the consideration
train. It also leaves out of occupants of the сar, that the brakeman, if was on the rear one hour, miles an crossing at ten or twelve approaching the automobile to and opportunity see shown, every circumstances under the coming on the ample space before stop, to hear, and with actually driving upon stop, before hear, and and would would see Co., 308 Mo. It & N. I. Railroad v. 48.] track. G. 'the [Sullivan although theory upon proceeds further approaching a fact that gave no heed to swinging stop signal crossing; warning from got no known railroad track; no automobile saw a'ringing gong, them and between them, clear in front stop, almost up draw on the other side crossing than track nearer daylight; moving saw no given by outcry they were; and heeded yet, have heard would being thus seen, uрon they had not which brakeman failing or, automobile, warned, could and would have Sup. 317 Mo. —64. 317. [April Term, Court or SUPREME Vol. that, seen, their failure
do
brakeman
secured the
could have
stopping, of
train before it reached
To
hold,
so
would
upon conjecture
mean that a verdict could
speculation
be reached
upon
conjecture
upon
contingent
one
founded
another.
Bland,
ex rel. Wabash Railroad
690;
Co. v.
281 S. W.
[State
v. Railroad,
Railroad,
Rollison
Burge
v.
Mo.
Railroad,
Counsel for many hai^e cited cases under their claim that this ease was rule; submissible under the humanitarian but we have reached the conclusion that' case, given under the facts construction most plaintiff, favorable to there is no evi- substantial apply rule; dence err; trial court did not judgment its G., concurs; is Secldon, Ellison, G., affirmed. not sitting. PER foregoing C., opinion adopted CURIAM: The is LiNdsay, opinion
as the judges concur, except Gantt, the court. All of the J., sitting.
Margaret
Hastey
George
T.
al., Appellants.
J.
et
Kaime
Division Liability 1. NEGLIGENCE: of Lessee of Basement: Hole in Sidewalk. sidewalk, square, against There was a coal hole in the four feet located building hole door, hung hinges, and covered with an iron and a ladder in the permitted basement, an entrance to the in which the lessee conducted basement, duty a lessee to furnish heat for the whole had hotel. She sole control of the and it was her building. janitor Her raised the lid through hole, plaintiff, pedestrian and went into the basement on the sidewalk, through hole, basement, fell into thе twelve *13 petition charged negligently below. Her the lessee left the hole Held, open, unlighted unguarded. charge, facts sustain the and the lessee is liable. Repetition. permit EVIDENCE: A refusal 2. question witness to answer a repetition already specific calls for a of his full and testi-. mony is not error. permit JURY: 3. ARGUMENT TO Intoxicated Plaintiff. It is not error to plaintiff argue counsel for that a verdict for defendants would her brand being sidewalk, intoxicated that she could not see the so where she is contributory negligence, janitor charged de- has testified for as she came fendants that saw out restaurant the base- edge sidewalk, ment, stagger stagger her out of the door to the saw going restaurant, if she were back into the back toward then into which she door door,' stagger coal in the sidewalk three feet hole injuries fell and received for which she sues.