Sullivan v. Gideon & North Island RailroadSullivan v. Gideon & North Island Railroad
Division One, April 13, 1925.
- APPELLATE PRACTICE: Demurrer to Plaintiff’s Case. In determining whether the evidence made a case which entitled plaintiff in an action at law to go to the jury, where a demurrer to the evidence was overruled by the trial court and the jury returned a verdict for her, the appellate court gives to her the most favorable view of the most favorable testimony in the whole case; and if the defendant did not see fit to call as witnesses the engineer and fireman of the train which ran over and killed plaintiff’s husband, the inference will be indulged that their testimony would have been unfavorable to defendant.
NEGLIGENCE: Contributory: Matter of Law: Railroad Crossing: Neither Looking nor Listening. A pedestrian, of mature years, with eyesight and hearing capacity unimpaired, who, in broad daylight, at a railroad crossing in a main public street, with which he is familiar, and where the view for a quarter of a mile is unobstructed, without looking or listening for an approaching train, when to look is to see a train of flat cars, moving at the rate of from five to eight miles an hour, backing towards the crossing and only a car-length from it, steps, from a place of safety between the tracks, upon the track on which the train is backing, is guilty of contributory negligence, as a matter of law, where plaintiff’s own evidence without contradiction shows such facts, and if he is struck and killed his widow cannot recover damages for his death, although no bell was rung, no whistle was sounded, no trainman was on the rear car to warn him of its approach, and there were noises of saw and planing mills in the neighborhood. - ——: Humanitarian Rule: Stopping Train after Peril Discoverable. The railroad company cannot be charged with negligence for failure to stop a backing train of fifteen cars within eighteen seconds after a pedestrian’s peril of being struck could have been discovered. The train of fifteen flat cars was being backed towards a public street crossing, at a speed of from four to eight miles an hour; a mature pedestrian was guilty of contributory negligence in attempting to cross the track without looking or listening, when to look was to see; the railroad company could not be charged with notice of his peril until he entered the danger zone, which was a space requiring only one or two steps for him to cross; when the car struck him on the west side of the street he grabbed hold of it and was carried eastward a distance, by the furthest possible expansion of the evidence in plaintiff’s behalf, of 108 feet, and then fell and was crushed by the wheels of the car; the train was moving, at the lowest estimate of four miles per hour, six feet per second; even if a trainman had been on the lead car and immediately, upon discovering the pedestrian’s peril, had signaled the engineer to stop, it would have required three or four seconds for the engineer to receive the signal and effectively apply the stop appliances, and after they were applied the lead car, in taking up the slack, would have traveled seven and a half feet; and after the lead car had thus traveled, it must have been stopped within 8.5 seconds if stopped before he fell, and it could have been stopped in those few seconds only by using the most exact promptitude and under the most favorable circumstances shown by the evidence. Held, that the humanitarian rule is not applicable under these circumstances, and a verdict for plaintiff cannot be permitted to stand on the theory that the railroad employees were guilty of
negligence in not sooner stopping the train after it became their duty to know the pedestrian’s peril.
Citations to Headnotes: Headnote 1: Appeal and Error, 4 C. J. sec. 2708. Headnote 2: Railroads, 33 Cyc. pp. 1003, 1032. Headnote 3: Railroads, 33 Cyc. p. 1049 (Anno).
Transferred from Springfield Court of Appeals.
REVERSED.
Gallivan & Finch for appellant.
(1) The deceased having walked from a place of safety onto the railroad track and in front of a moving train without looking or listening, in the daytime, when the view was unobstructed, while he traveled for a distance of twelve or fifteen feet, was guilty of such contributory negligence as bars a recovery, and the court should have sustained defendant’s demurrer to the evidence. Burge v. Railroad, 244 Mo. 76; Rollison v. Railroad, 252 Mo. 525; Laun v. Ry. Co., 216 Mo. 563; Underwood v. West, 187 S. W. 84; Keele v. Railroad, 258 Mo. 62; Farris v. Railroad, 167 Mo. App. 392; Blain v. Mo. Pac. Ry. Co., 184 S. W. 1142; Schmidt v. Mo. Pac. Ry. Co., 191 Mo. 215; Green v. Mo. Pac. Ry. Co., 192 Mo. 131; Dyrcz v. Railroad, 238 Mo. 33; Holland v. Railroad, 210 Mo. 338; Mockowik v. Railroad, 196 Mo. 550; Sanguinette v. Railroad, 196 Mo. 466. (2) Where a pedestrian walks in daytime from a place of safety onto a railroad track and immediately in front of a moving train and is struck, there is no grounds for the application of the humanitarian doctrine, even though those in charge of the train were negligent in their operation of the train. Dyrcz v. Railroad, 238 Mo. 33; Burge v. Railroad, 244 Mo. 76; Keele v. Railroad, 258 Mo. 62; Laun v. Railroad, 216 Mo. 563; Reeves v. Railroad, 251 Mo. 169; Rollison v. Railroad, 252 Mo. 525; Farris v. Railroad, 167 Mo. App. 392. (3) No competent testimony having been offered to prove that the train could have been stopped in time to have avoided running over deceased is another reason why no recovery can be had under the humanitarian rule. Burge v. Railroad, 244 Mo. 101.
(1) Before the court will hold that the deceased was guilty of contributory negligence the evidence must be such as to permit no other conclusion than that he was negligent, giving the plaintiff the benefit of every reasonable inference that may be drawn from the evidence. Ruenzi v. Payne, 231 S. W. 294; Easley v. Mo. Pac. Ry. Co., 113 Mo. 236; McNown v. Wabash Ry. Co., 55 Mo. App. 585; Carter v. Wabash Ry. Co., 193 Mo. App. 223; Donohue v. Railway, 91 Mo. 357; Kelley v. Railway, 75 Mo. 138. (2) The rule that one approaching a crossing must look both ways or be guilty of contributory negligence as a matter of law is not so unyielding that it must be applied in all its rigor under all circumstances. Baker v. Railroad, 122 Mo. 533; Kennayde v. Railway, 45 Mo. 255; Russell v. Railway, 70 Mo. App. 88; Harshaw v. Railroad, 173 Mo. App. 459; Weller v. Railroad Co., 120 Mo. 635. The measure of precaution to be observed by a traveler depends upon the circumstances and surroundings of that particular case. (3) A person may be so situated as to be disabled, without fault on his part to look or listen for perils by which he may be menaced, his attention may have been distracted to legitimate objects. Contributory negligence will not in all cases be imputed as a matter of law to a person who receives an injury from a danger simply from the fact that it might have been seen. The surrounding circumstances may be such as to distract his attention to other objects. Only after a failure to look and listen can it be said to be negligence as a matter of law. The issue is ordinarily for the jury to determine. 20 R. C. L. 112, 115; 1 Thompson on Negligence, sec. 189; Ruenzi v. Payne, 231 S. W. 294. (4) The humanitarian doctrine applies in this case. If deceased was uninjured until the rear trucks of the front car passed over his body then, under the testimony most favorable to appellant, said train would have had at least one hundred four feet from the time deceased was in a position of peril to have stopped the train. Ruenzi v. Payne, 231 S. W.
OPINION
SEDDON, C.—Respondent (plaintiff) sues for the alleged wrongful death of her husband, J. W. Sullivan, arising out of the alleged negligence of appellant (defendant), in the town of Gideon, Missouri, on September 6, 1919. Her petition charges defendant with negligence in these respects: That, on September 6, 1919, as the said J. W. Sullivan was attempting to cross the railroad main track at a public crossing in Gideon from the south, while exercising due care and caution, he was struck by a flat car of defendant, dragged for a long distance, crushed and run over by said car, from the effects of which injuries he immediately died; that the steam engine of defendant was at the time pushing about fifteen small flat cars from the west, and that said engine was about four hundred feet west from said public crossing; that defendant was operating said locomotive and train by unskilled and incompetent employees, and that the brakes being used on said train were wholly inadequate to be effective in operating said train; that the front car being so pushed by said engine was the car which struck deceased at said public crossing; that the agents, servants and employees of defendant who were operating said train at the time negligently failed to sound the whistle on said locomotive engine or ring the bell attached to said engine within eighty rods of said public crossing; that defendant had no one at said public crossing, nor on the car that struck deceased, nor anywhere else, to be on the lookout for persons on said railroad, or approaching said railroad, at said public crossing, to give warning or signals of the approaching train; that said flat cars were not over four or five feet high, and did not extend in height above a team and wagon standing by the track; that said cars were coming noiselessly down the track and deceased had no warning of their approach and did not and could not, by the
Defendant’s answer was a general denial, coupled with the defense that “J. W. Sullivan, by his own negligence, directly contributed to his own death by walking, in broad daylight, from a place of safety onto the railroad track over which defendant operated its trains and immediately in front of a train moving over said track, when if he had either looked or listened he could and would have seen said train and avoided being struck thereby.”
No reply is shown upon the record, but the cause was tried as though a reply, denying generally the new matter set up in the answer, had been filed.
The evidence adduced by plaintiff tends to show that the casualty occurred between eight and eight-thirty o’clock on the morning of September 6, 1919, at a point
Sam J. Harris testified: “I was in a coal car loaded with gravel or road material. The street runs north and south as it crosses the railroad. The local train came backing east, and there was a flat car or two ahead, past the car I was in, and I heard the screams of some women, and I seen Mr. Sullivan with his left arm up on top of the flat car. I didn’t see the car hit him. He went about fifty or sixty feet, about the length of two cars, in that position before he fell off. I did not see Mr. Sullivan on the track at the time the train was backing up and before he grabbed the car. There was one car of gravel between me and the crossing; one car of gravel right up against the street, and I was in the second car from the street. I never measured it, but I judge the main line track and the switch track at that crossing anywhere from twelve to fifteen feet or eighteen, something like that, apart. There were cars on both sides of the crossing. There is a little feed barn about fifty or sixty feet of the crossing, on the east side. I was the length of one flat car from the crossing. I never noticed this train backing up from the west until it was right even with us. I don’t know how fast it was going; it wasn’t going very fast. I did not hear any whistle. No bells were ringing. I did not see any person on the end car going east as it approached that crossing. There was no one on the crossing to give warning to passengers. I don’t know how high the cars were the engine was push-
C. W. Smith testified: “I was in Gideon on the morning of the 6th of September, 1919. I saw Mr. Sullivan on that date. I judge it was about 8:30 in the morning, or possibly a little earlier, that I saw him. I saw him at what we call the supply house of Gideon Anderson. That is located about a hundred yards southeast of the public crossing of the railroad. I went to the depot; he came to see me about getting some red oil for the bandmill, and I went to the depot to see whether the red oil had come in the evening before on the local. He went along with me, and just as we crossed the switch of the Gideon-North Island track I passed on ahead of him; I go over
“Q. Did you see this train coming down as you crossed the track? A. Just as I was crossing the track. It was about thirty feet, I guess, a car-length up the line. I don’t know what rate of speed; about what a man would walk. It was going slow. I did not hear any whistle or bell ringing. It seems as I heard a whistle just as we left the supply store, but not on the crossing. A whistle was not blowing and a bell continuously ringing from that time until I saw the train strike Mr. Sullivan. I did not see Mr. Sullivan all of the time from the time he first hung on that car on the west side of the crossing until he fell off and was run over. When I saw him hanging that way I looked away, and when I looked back he was down under the cars. I saw one car run over him—the west end of the east car, what you would call the back trucks of the front car they were pushing. I don’t know how far it was from the west line of the public crossing to where Mr. Sullivan was run over by the back trucks of that car. I don’t know what the width of that crossing is; I judge it to be a forty-foot crossing, but the main crossing that is used is only about, possibly, not over half of that. It’s about a forty- or fifty-foot street, and this crossing narrows when it reaches the railroad to about half of that distance. I observed cars on the switch or side track of the Frisco Railroad when I crossed it that morning. They were Frisco coal cars; cars that are boxed up four or five feet up the sides. I don’t know just how close they were to the west line of this public crossing where it crosses the railroad. They were not far, though. They were pretty close. I did
Bill Chadd testified: “I remember the time when Mr. Sullivan was killed on or near the railroad crossing. I was something like twenty feet from him. I was driving a delivery wagon. At the time the accident happened I was located about twenty feet north of the Frisco Railroad. I saw the train strike Mr. Sullivan. I saw him just a little bit before it struck him. I was on the north side of the Frisco tracks. It was the Gideon-North Island train. I was coming south back to the store, and when I got about fifty feet of where I stopped I heard a whistle blow, and I came on up by the depot and stopped there. I didn’t pay any attention to how many times the whistle blew, just knew a train was coming. I don’t recollect about hearing a bell ringing. There was
Sam Wilhelms testified: “I am an engineer. I worked for Gideon-North Island Railroad Company. I had had twelve years experience as an engineer. I was not in Gideon on the 6th day of September, 1919, when Mr. Sullivan was killed. At that time, it had been five months since I had been in the employ of the Gideon-North Island. I am familiar with the operation of the kind of engines they had.
“Q. I will ask you to state, if you know, whether or not those engines have brakes on them, and if so, what kind of brakes they were with reference to being adequate to stop the train within the shortest time possible. A. I don’t know the condition of that engine. It was equipped with steam-jam in place of air.
“Q. How is it operated? A. By the throttle in your cab and the engineer’s valve—steam valve.
“Q. Assuming the engine was equipped with steam-jam brakes, and connected up with the engine and with the cars, and there were fifteen flat cars unloaded, being pushed by this engine, and that the brakes were in good condition, operating conditions, and the train going four or five miles an hour, in what distance could the train be stopped? And also assuming the ground was level at that place, and there was no grade, and the track was dry? A. I would judge twenty to twenty-five feet would be a reasonably good stop.
“Q. Might it not be stopped under those conditions in a less distance than that? A. No, sir. Might be made in eighteen feet. I don’t know anything about what was the condition of the brakes on this engine. If the steam-jam brakes was not working and you had to stop
George Fowler testified: “I was switching for this train that ran over Mr. Sullivan on that day. I was between 200 and 250 feet from the car that ran over Mr. Sullivan, I was east on the main line track of the Frisco.
“Q. Now, assuming that the track at the point where Mr. Sullivan was run over was level, and that the track was dry on that day, and that this train which was pushing flat cars, contained about fifteen freight cars, unloaded flat cars, and that they were running about four, five or six miles an hour, how long would it take, the shortest possible distance, to stop that train at that time, assuming also that the train was equipped with adequate steam-jam brakes? A. Its owing to the condition of the slack in the cars whether you could stop the train—how far you can stop, owing to the circumstances if you’ve got any slack; I don’t know how much slack there was in the cars.
“Q. Ordinarily? A. Why, a couple of car-lengths. I don’t just exactly know how many minutes. I don’t believe it could be stopped in less than two car-lengths; according to the slack the cars had in them. The cars attached to this train were log cars, thirty-four-foot flat cars. The cars were equipped with ordinary couplings and they had equipment on them for air brakes, but they hardly ever used the air brakes. Most of the cars were in good condition except a little worn out in the drawbars, causing four to six inches of slack. Being worn out in the drawbars would cause the drawbars to pull out and make it longer. Then when the train would be pushing fifteen cars ahead, even after the engine stopped dead, still those cars would run out until the slack ran out; in fact, until all the looseness in those couplings would
The defendant offered no evidence. At the close of plaintiff’s case, defendant offered a demurrer to the evidence, which the trial court overruled, to which action defendant at the time duly excepted. The case was submitted to the jury upon several instructions asked by the respective parties. The jury returned a verdict for plaintiff in the sum of $4500. After unsuccessfully seeking a new trial, defendant was allowed an appeal to the Springfield Court of Appeals. A majority opinion was delivered by that court holding that the trial court had properly overruled defendant’s demurrer to the evidence, but reversing and remanding the cause because of errors in the given instructions. Farrington, J., dissented, and asked that the cause be certified to this court, because he deemed the majority opinion to be contrary to the following previous decisions of this court: Degonia v. Railroad, 224 Mo. 564; Burge v. Wabash Railroad Co., 244 Mo. 76; Rollison v. Wabash Railroad Co., 252 Mo. 525, and Keele v. Atchison, Topeka and Santa Fe Railway Co., 258 Mo. 62. In accordance with the constitutional mandate (
I. The first question, therefore, which confronts us is whether appellant’s demurrer to respondent’s evidence should have been given. In other words, did respondent’s evidence make a case for the jury? If not, then the judg-
The casualty occurred about eight or eight-thirty in the morning in broad daylight. It was not raining or sleeting; at least, there was no “falling weather.” Deceased was struck by the train on a public crossing. One witness leads us to believe it was the most used of three public streets or crossings in the town, and within but a short distance of the railroad depot. Appellant had no lookout or flagman stationed at, or in near proximity to, the crossing to warn pedestrians of approaching trains. Neither did it have a switchman stationed on the first or lead car of the train. The evidence tends to show no bell was ringing as the train approached the crossing. The evidence is conflicting as to whether a crossing whistle was blown, but it would appear that no whistle was blown immediately preceding the fatal casualty. There were some cars loaded with gravel or other material on both sides of the public crossing standing upon the switch track, which was immediately south of and parallel with and some twelve feet distant from the main line track. A saw-mill and a machine shop were hard by, in operation and making the usual noises incident to their operation. The road or street was forty or fifty feet wide, but narrowed to half that width in crossing the railroad tracks. De-
As respecting the effect of the foregoing circumstances or state of facts, the Springfield Court of Appeals, in its majority opinion in the instant case, says: “It is contended that the evidence shows as a matter of law that the deceased was guilty of contributory negligence and
The above conclusion of the Court of Appeals coincides with that arrived at by this court after a careful study and consideration of the testimony shown by the record before us. It is also in consonance with the decisions of this court cited in the majority opinion, and other cases, as well, not therein cited. There is no escape from the conclusion that deceased in the instant case was guilty of contributory negligence as a matter of law.
In Dyrcz v. Railway Co., 238 Mo. l. c. 47, a case where a pedestrian stepped in front of a moving freight train, we said: “Accordingly, as a general rule, in the administration of justice in this kind of case, a person in the act of crossing such track must before entering on it look and listen. If he does not and is injured in crossing he is guilty of negligence, he contributes to his own injury and is hurt by his own fault. In such case, the best the law can do is to leave him where he puts himself; for no action lies. Moreover, given daylight and no obstruc-
In another pedestrian case, Vandeventer v. Railroad Co., 177 S. W. l. c. 838, we said: “The contributory negligence of plaintiff’s husband bars her from a recovery in this case. It may be conceded for the purposes of the argument that the question as to whether the cars upon switching track and the buildings south of same obstructed, to some extent, the view of deceased as he traveled north on the board walk, was one for the jury; but as soon as deceased stepped over the north rail of the switch track he had a clear, unobstructed view west for more than a mile, and could not help seeing the approaching train, with its brilliant headlight, had he looked in that direction. The distance between the north rail of the switch track and the south rail of the main track at the board walk was 8.8 feet. The train was approaching from the west on the main track. . . . It was the duty of deceased to look and listen for the approaching train
Again, in the later case of Rollison v. Railroad Co., 252 Mo. l. c. 542, we said: “Furthermore, the case on the facts is also brought within the rule of the law of negligence, to-wit, that when a man without looking moves from a place of safety beside a railroad track to a place of danger on the track, and immediately before a coming locomotive, then, in the eye of the law, his negligence in so doing becomes the proximate cause of his consequent hurts, hence there is no room for the play of the humanity doctrine in any of its phases or for recovery.” [Citing cases in support of the rule.]
Nor can we agree with respondent that the facts in the instant case bring it within the rule announced by the Kansas City Court of Appeals in Ruenzi v. Payne, 231 S. W. 294. In that case the humanitarian rule was held to apply because the attention of deceased was attracted to what she thought was apparent danger from a freight train approaching in the opposite direction on the next parallel track, making it impossible for her to hear and distracting her attention from the approach of the passenger train which struck her on the adjoining track. In delivering the opinion of that court, Trimble, P. J., recognizing the general rule above stated, however, said: “It has been several times held by the Supreme Court, and it is well settled not only in decisions of that but of the other courts of our State, that when one knowingly approaches a railroad crossing he must look both ways, and, if he does not, it is negligence that will defeat a recovery.” [Citing numerous cases.]
Here there is no evidence that deceased might have been confused or alarmed by an apparent approaching
II. We now come to respondent’s contention, strenuously urged here as it was in the Court of Appeals, that, since deceased was not knocked down and killed when first struck by the flat car, but succeeded in hanging onto the car for a space of some seventy to eighty feet, the train could have been stopped and his life saved while the train was traveling that distance and within the space of time within which the train might reasonably have been stopped. The majority opinion of the Court of Appeals adopted respondent’s viewpoint on this contention, for that court says in the majority opinion: “The accident occurred at a public street crossing in town where persons might be expected to be on the track at any time. This imposed on those in charge of the train the duty to keep a lookout for persons on the track. The track was straight, the ground level, the train consisted of fourteen or fifteen flat cars, hence there was nothing to prevent the engineer or a person stationed on the train as a lookout from having seen Sullivan at the time he was struck. The defendant, then, must be held to the same responsibility, as would attach if he had been, in fact, seen by those in charge of the train when he was struck.” The majority
Let us then examine the record, having in mind, as did the Court of Appeals, the facts most favorable to respondent’s theory of recovery under the humanitarian rule. Deceased was struck at approximately the west side of the road crossing and carried, according to most of the witnesses, to a point fifty or sixty feet east of the east line of the road crossing, where he lost his hold on the car and met his death. The road was about forty feet wide, but narrowed to half that width, or twenty feet, where it crossed the railroad tracks. It therefore follows, under the evidence, that deceased was carried from seventy to eighty feet by the moving train before he fell from the car. If the train were traveling four miles per hour, the slowest rate of speed fixed by any witness, it was moving at the rate of slightly less than six feet per second. According to the expert witness it would require about
Distance Traveled at 4 Miles Per Hour. Time.
24 feet while engineer reaches appliances, takes . . . . 4 seconds
25 feet distance in which train may be stopped, takes . . . . 4 2/12 seconds
7½ feet slack in train, takes . . . . 1 3/12 seconds
56½ feet in which train might have been stopped in . . . . 9 5/12 seconds
56½ feet in which train might have been stopped in . . . . 9 5/12 seconds
13½ feet over the dead line, or . . . . 2 3/12 seconds
If, on the other hand, deceased was carried a distance of 80 feet, then he was carried 23½ feet over the dead line, or 3.9 seconds. And, going one step farther and assuming the engineer could have received the signal and used the appliances in three instead of four seconds, deceased was then carried 29½ feet over the dead line, or 4.9 seconds, less than five ticks of the watch.
But respondent says that, under the evidence most favorable to respondent, we must presume that deceased was struck on the west side of the road, and that the road was forty feet wide at the railroad crossing (a fact not borne out by the testimony), and that deceased was carried not less than two car-lengths, or sixty-eight feet, east of the east line of the road, being a total distance of 108 feet, before he was killed. But even allowing respondent the benefit of that extreme presumption, deceased was carried but 51½ feet over the dead line, and it takes just 18 seconds, slightly more than a quarter of a minute, for the train to travel the total distance of 108 feet, or 8½ seconds over the time required to stop the train under the most favorable circumstances shown by the testimony. But let us now pass from the realm of mathematics to the application of the established principles of law to the proven facts in the instant case.
Even though we may assume (although we do not find it necessary to so rule) that appellant is chargeable with negligence in not placing a lookout or switchman upon the lead car of the backing train for the purpose of signaling to the engineer in case it became necessary to suddenly stop the train, such lookout or switchman, had he been so placed on the lead car, would have had the right to rely on the deceased looking and listening for the approaching train and stopping until it had passed;
In Keele v. Railway Co., 258 Mo. l. c. 79, this court, in banc, said: “The duty to use care to avoid injury on the hypothesis discussed in paragraph 2, arises only on discovery of peril, or on negligence in discovering it when there is a duty to keep an outlook and make discovery of the peril. In either hypothesis it is essential to note that there must be peril, a danger zone. . . . But a person sui juris approaching a railroad track at a crossing, at an ordinary gait on foot at right angles to the track or angling toward the engine and in complete control of his own movement, is not in the danger zone until he takes the last few fatal steps, or, oblivious to his danger, does such things as fairly indicate a present intention to take them. The danger zone on such hypothesis is narrow indeed—a step or two or three at most. We have uniformly ruled that the engineer seeing such a person approaching the track on foot in an ordinary walk may act on the presumption the person will stop before stepping thereon immediately before his engine. He has the right to rely in the first instance on such person looking and listening, and, where looking is seeing and listening is hearing, he has a right to presume such person knows the peril and will stop.”
On the question of time within which the railroad operatives in charge of a train must act under the humanitarian rule, we said in Burge v. Wabash Railroad Co., 244 Mo. l. c. 102: “Taking the outside limit of 1,000 feet, the engineer only had 11 4/11 seconds, from the time his engine rounded the curve, to discover the peril of de-
Again, in the later case of Rollison v. Railroad Co., 252 Mo. l. c. 541, we said, in banc: “To predicate negligence on two seconds of time is in and of itself a monumental refinement. We cannot adjudicate negligence on such pulse beats and hairsplitting, such airy nothings of surmise.”
We agree with Judge Farrington, as he remarks in his dissenting opinion, that “the time within which to act after the deceased was struck through his own negligence until he was run over by the train was too short.” The demurrer offered by appellant at the close of the evidence should have been given by the trial court.
The judgment nisi should be reversed outright, and it is so ordered. Lindsay, C., concurs.
PER CURIAM: The foregoing opinion by Seddon, C., is adopted as the opinion of the court. All of the judges concur.