*1 48 SUPREME COURT OF MISSOURI, &
Sullivan v. N. I. Railroad G-. Co. earn, anything, able to and conld walk no considerable except npon compound distance crntcbes. There was fracture of the first and second bones of the metacarpal right foot. of Some came out. There was bones testimony that at the trial time of the he had a sore place top showing of his foot evidence of some diseased bone the arch. There was a difference of opinion support, any as to whether an arch shoe could be made that him enable con would walk using very extent, siderable that foot. clear1that It is plaintiff permanently following is disabled from former-calling. opportunity In consideration jury, trial court and the and of what been held has (Brickey appeal similar somewhat cases on v. St. Ry. M. B. T. Co., Louis Depot S. 480;W. Ernst v. Union 222) opinion T. B. & Co., are S. W. we point that also the action of the trial court should sustained. judgment follows should be affirmed.
Seddon, concurs. C., foregoing opinion
PER GURIAM: The of Lind- adopted opinion sat, 0., as the of the court. All except judges sitting. concurs, Atiaood, J., SAMANTHA SULLIVAN v. GIDEON & NORTH IS- Appellant.
LAND RAILROAD COMPANY, One, April 13, Division 1925.
1. APPELLATE PRACTICE: Demurrer to Plaintiff’s Case. In deter- mining plaintiff whether the made a evidence case entitled go jury, in an action at law to where a demurrer jury evidence was overruled the trial returned a court her, appellate gives verdict for court to her favor- the most testimony case; able of the most favorable the whole .view engineer if the defendant did not see fit to call as witnesses the plaintiff’s and fireman which ran hus- killed band, indulged testimony the inference will be their been unfavorable defendant. TERM, 1924. &N. I. Railroad
Sullivan v. G. Co. Crossing: Contributory: NEGLIGENCE: Matter of Law: Railroad. years, Looking Listening. pedestrian, Neither nor A mature day- eyesight hearing capacity unimpaired, who, in broad *2 crossing public street, light, in which at a railroad a main with quarter familiar, is un- a a is and where the view for of mile train, looking listening obstructed, approaching for without or an cars, moving rate flat at of look is to see a train of the when to hour, backing eight and five to miles towards the from an steps, place safety only car-length it, the a of a from from between backing, guilty tracks, of track is the the law, plaintiff’s contributory negligence, own as. a matter of facts, such and if he is struck contradiction shows evidence without death, damages al- his widow cannot recover for his and killed sounded, rung, though whistle was no trainman was no no bell approach, its rear him of and there were noises car to warn neighborhood. planing mills in the and of saw Stopping Rule: Train after Humanitarian Peril Discover- -:3. charged company negligence be for The railroad cannot able. eighteen backing stop within a of fifteen cars to failure peril pedestrian’s being of struck could have been after a seconds being fifteen flat cars to- The train backed discovered. of crossing, speed eight public a from four to wards a street of guilty contributory neg- pedestrian hour; an a mature of miles attempting looking ligence listen- in cross the track without or see; company ing, not be when to look the railroad peril danger zone, charged with of his he entered the notice until only steps cross; space requiring two for him to which was one or grabbed the street he when the car struck him on west side of the by distance, pos- the hold of it and was eastward a furthest carried behalf, feet, expansion plaintiff’s the 108 and sible evidence car; by fell and the the train was then moving, was crushed wheels hour, per per at the lowest estimate of four miles six second; immediate- even if a trainman had been the lead and engi- discovering pedestrian’s peril, signaled ly, upon stop, required three four for it would have seconds neer ap- signal effectively apply stop engineer to receive the taking they applied up pliances, car, the lead and after were feet; (cid:127)slack, and after have traveled seven and a half stopped traveled, 8.5 it must have been car had thus within lead stopped fell, been if before he and it could have seconds only using promptitude the most exact few seconds those evidence. circumstances shown the most favorable under applicable Held, these humanitarian rule is not under plaintiff permitted verdict cannot circumstances,_ theory employees guilty railroad stand Sup. 308 Mo. —4. 50 OF MISSOURI, SUPREME COURT &G. N. I. Railroad Co.
Sullivan v. negligence stopping tbeir it became not sooner train after duty pedestrian’s peril. to know the Appeal Error, sec. 1: J. Citations to Headnotes: Headnote O. Cyc. Railroads, pp. 1003, 3i: Rail- 2: 2708. Headnote Headnote Cyc. p. (Anno). roads, 33 Appeals. Springfield Transferred Court Reversed. appellant. Finch for
Gallivcm &
(1)
having
place
The deceased
walked from a
safety onto the railroad track and in front
aof mov-
looking
listening,
daytime,
train without
when the view was unobstructed, while he traveled for
guilty
distance of twelve or fifteen
feet, was
such
contributory negligence
recovery,
as bars
and the court
*3
should have sustained
demurrer
defendant’s
to the evi-
Burge
dence.
alleged death of her J. husband, W. Sullivan, arising negligence alleged appellant (de- out of the fendant), September town Missouri, Gideon, petition charges negligence 1919. Her 6, defendant with respects: September in these That, on as the 6, 1919, attempting said J. W. cross the railroad public crossing main track aat in Gideon from the south, exercising by while due care and he was caution, struck dragged long fiat car of for a defendant, distance, by and run over crushed said from the car, effects of injuries immediately which gine died; that the steam en- pushing- of defendant was at the time about fifteen west, engine small cars flat from the and that said public crossing; about four hundred feet west said operating that defendant was said locomotive and train by incompetent employees, unskilled and that being inadequate brakes wholly used train were said operating to be effective in said train; the front being pushed engine by so the car said public crossing; struck agents-, deceased at said that the employees operat- servants and of defendant who were ing negligently said train at the time failed to sound engine ring whistle on said locomotive or the bell engine eighty pub- attached to said within of said rods crossing; lic public that defendant had no one at said crossing, any- nor on the car that struck nor deceased, persons where else, the-lookout for on said approaching public railroad, said railroad, at said crossing, give warning signals approaching train; said flat cars were over four or five feet high, height not extend did above a team and wagon standing the track; that said cars com- ing noiselessly down the track and no deceased had warn- approach of their and did not and could not, *5 & N. v. G. I. Railroad Co. ordinary of have seen or heard train until care, use said upon by same; he that said train was struck by ordinary him the exercise he before, care, of could it; said car that, have heard as- struck deceased, seen long grabbed on to it of said car and held for he hold perilous position, finally, and, in his hold distance giving way, dragged under said train while the by yet moving and train; same was killed said de- by ordinary could have care, the use of dis- fendant, position perilous in of time have covered deceased being prevented it had a over, run if had man backing up, look- rear so or somewhere else, persons public out railroad track said said danger give signals warning of to such and required persons, duty had, to have in bound stopped ordinary by the of care have and use prevented death said train in to have said time agents, employees servants Sullivan; J. W. that the charge ran over deceased and of said train which ordinary by care could killed the exercise him, saw, place danger peril, in in a deceased seen, ordinary to have care, the exercise time, killing running him. said train and avoided over coupled general denial, was a Defendant’s answer neg- by his own that “J. W. Sullivan, with the defense walking, ligence, directly own death contributed his> place daylight, safety onto the rail- from a broad operated trains its defendant road track over which track, moving said immediately front of a he could and or listened if he either looked had being struck avoided said train and have seen ’’ - thereby. reply but cause record, .the No is shown generally though reply, mat- denying the new tried up filed. been ter set answer, by plaintiff show tends adduced evidence eight-thirty eight and casualty occurred between point September aat morning 1919, 6, o’clock on of Gideon public in the town road or street where a SUPREME COURT OF MISSOURI, & Sullivan v. G. N. I. Railroad Co.
crosses the tracks of the St. Louis & San Francisco Rail- jointly Company, road' used the latter railroad and company. defendant There are two railroad tracks public across this one a main line road, and track, parallel running other a switch track, with said main immediately track and south thereof and about twelve public feet distant therefrom. The runs road north and and the south, railroad run east and west, tracks public intersecting approximately right road at angle. fifty-three fifty-four years Deceased was or age, good, eyesight health hearing his- was and his and unimpaired. were
Sam J. Harris testified: “I in a was coal car loaded gravel or road material. The street north runs south as it crosses the railroad. The local train came backing past and there east, was flat car or two ahead, car in, I was- and I heard women, screams some top and I Mr. up seen Sullivan with his left arm the flat I car. didn’t see the hit him. went He about sixty fifty length or feet, about the cars, two in that position before he fell off. I did not see Mr. Sullivan on backing up the track at the time was before grabbed gravel he the car.- There one car was be- crossing; gravel rig'ht up tween me and the one car of against and I street, was the second car from the judge street. I never measured but I the main it, line anywhere crossing track and the switch track eighteen, something from twelve to fifteen feet or like apart. that, There were cars on both of the cross- sides- ing. sixty fifty There is little feed barn about or length crossing, feet of the on the east I side. was crossing. of one flat car from the I never noticed this' backing right up from the west until it was even going; with us. I don’t know how fast it was wasn’t going very fast. not hear whistle. No bells did ringing. any person were going I did not on the end car see crossing. approached
east There as- passengers. crossing warning give no one on the push- high engine I don’t know how the cars were Vol. &
Sullivan v. G-. N. Co. I. Railroad anywhere ing; judge. from four to four a half feet, They were standard flat cars. There about four engine cars in the train. The teen fifteen at the pushing, going length end west east. The ears, thirty-six average of the cars was about feet, standard length of cars. the train of the Gideon-North Company Company’s Island on1 the Frisco Railroad Immediately tracks. afterward I went to fifty sixty man was killed. east He- was of this when he was run over. "When first* right him arm car, seen he had his left then got ways, down a little and I think it two *7 on the second trucks the first front and one truck railroad ran over him. car on the south side of the that speed of am familiar the and I some movement anywhere moving train was from trains. This five guess eight just at it. There a an miles was hour, ways anywhere of the from train, man down about middle He of the from the east end train. was five to six cars logs they putting flat that load on, stakes on some cars doing something There was those stakes. and he was fifty crossing just the hundred and west of saw-mill day; operation just making the usual that feet. Ordinarily noise. There loud is noise a saw-mill. shop of the and street, side east was machine crossing the that distance from about the same south day. operation Both mill think that I it was the is. making operation shop the and usual mill and were the forty depot thirty day. or about The is on that noises crossing crossing. east That the makes feet west of the prin crossing public depot. the street, That is a the wagons pedestrians cipal crossing town, what time couldn’t tell cars. I and teams and maybe eight day; something a little or o’clock, around morning*. state what as I can don’t know the I after, day. rain Wasn’t the condition ing. the weather shining. go might I am have been The sun raining; no It wasn’t say was it wasn’t. or forty fifty feet or falling street is weather. That SUPREME OF COURT MISSOURI, & N. v. G-. I. Railroad Co. wide. first him ‘Wlieix saw he was on I the west end of crossing hanging and was the car Iwhen saw him. I noticed watched the cars,; cars run over him. He fifty sixty was about feet down the track from the crossing. body hay His down barn. The hay figure forty barn was some feet from the street. I car-lengths from the car where hit him about two until it left him. I don’t know fast how moving; anywhere, judge, eight I from five to miles an something hour; like that. don’t I know distance be- tween those tracks; twelve fourteen or fifteen feet. never measured that. There are two tracks there in front depot. The main line track, which this train operated, is the north track and the one nearest the depot. Parallel with main track this switch track. There were two cars the switch track west of crossing, Going and I was on second car. you north, south to cross the track switch -first. (cid:127) you you After leave the track, switch would cross a space probably something like feet, twelve never meas- space it; ured the usual between a switch a railroad. parties hollering that were between were two coming They and it was the Shaw sisters. were tracks, going end of across the north, my their screams attracted attention and see them between the track and tracks; between main line *8 ’’ side track.
O. Smith “I on the "W. testified: was morn- Gideon September, 6th of the of 1919. I Mr. saw Sullivan morning, judge that date. I about was 8:3fi possibly that him. him little saw I saw earlier, I supply what call the Anderson. That we house of Gideon pub- yards about is located a hundred southeast depot; crossing lic of came the railroad. I went to the he getting to see about red' oil for bandmill, me some depot red oil had and I went to the to see whether the along evening He come in the on the local. went before just and the switch Gideon- crossed me, we go passed I him;; North over Island track I ahead & I. v. G-. N. Railroad Co. Sullivan always along frequently very hurry and often I and crossings, passed and I ahead him,
across those following I the main track and crossed line me, he when twenty and feet behind I saw—heard me, he was about somebody looked and I around saw holler, and caught suppose, hold strike breast, I he him, dragged they him on down of it with left hand public Mr. side east. west crossing when he was struck. coming you you this train down as
“Q. Did see crossing Just the track. crossed track? as was A. I car-length up thirty guess, a It about line. feet, I speed; man rate of about what a I don’t know what would going hear It I not whistle or walk. slow. did ringing. just as I heard a we bell whistle seems crossing. supply not on the whistle store, left the but A continuously blowing ringing a bell was not that time I saw the train Mr. Sullivan. did until strike I time not see all of the time from the Mr. Sullivan hung crossing first on that car on the side of the west run him he fell "When I saw until hanging off over. away, way that I looked and when I looked car run back he down under the cars. one I saw you what car, over him—the west end of the east they pushing. call the back trucks of front car were line of I far it the west don’t know how was from public crossing Mr. run where Sullivan was what width the back trucks that car. don’t know I forty-foot crossing, crossing judge is; of that it to be a I only possibly, crossing about, main but the used is forty- fifty-foot not over half of that. about a It’s when it reaches the narrows street, and this of that observed cars railroad to half distance. Frisco Railroad on the switch or side track They morning. coal cars; Fiasco crossed it that were up up sides. boxed or five feet cars are four just they line don’t how close west know were They public crossing the railroad. it crosses They pretty though. I did close. were far, *9 SUPREME OF COURT MISSOURI, & Sullivan v. N. I. G-. Railroad Co. anyone hacking np
not see that ear there give warning anyone might crossing public crossing. warning given, No far so as I know. ringing judge No bell sounded at whistle that time. I twenty twenty-two it was about feet the east public crossing line of the to where I this car run saw over Mr. Sullivan. I don’t know the train far car- how ried him until he fell off. He was clear east the cross- ing crossing. when he fell off. didn’t fall on He off thirty When I crossed the railroad the train about thought crossing planks feet it. twenty west of I long. traveling In from the oil house I went to the following northwest. Mr. Sullivan me. I came first gravel to the Frisco track that had the cars it. Then I judge about traveled twelve to fifteen, I was twelve I feet, before reached the rail main south line track. It is about twelve feet from inside rail inside rail. I didn’t turn how far .around to see Mr. Sullivan was twenty me. I was behind about feet from him when the got him. struck When I I saw the thirty and think about feet west me com- traveling east. It was as man fast would possibly walk, five miles an not over I don’t hour, that, think. I run across there when I run the this,; saw I way get rest ahead. the train across to I first saw just stepped I crossed over sidetrack. as I Just over the sidetrack then it was about I saw train, thirty feet. I saw the train When crossed sidetrack coming east from the ran on west and I across twelve-foot and ran across the main line track ahead of coming the train. I hurried Mr. across. Sullivan along right there me had the same behind means seeing more was farther than he had, up place back. to the same walked I was When suppose the train had looked. he could have seen if he have been have seen it, He could but up crossing. Mr. didn’t see the closer If foot of the track wasn’t train until he was within a prevent stopping. anything I saw the rear him from *10 Vol. &v. N. I. G-. Railroad Co.
Sullivan twenty- body, car run over the about of tlie front trucks point hanging I where saw him two feet from the crossing. stepped holding car car on the I to the "When thing keep morning there wasn’t a out there that looking seeing and that train if it had been down me from away. quarter a have a I could seen when was of mile away. fifty few Sullivan a seconds after Mr. was raining twenty me. It wasn’t came feet behind me; he sleeting. was shin I remember1whether sun don’t eight ing daylight, or not. It about o’clock was morning. say there is not an when I obstructed view way crossing nothing in from that there is west crossing. quarter a If a mile or more on the Frisco company back car had had a lookout on the the railroad wagon there no or no obstruction between the and was crossing the track he could have seen a footman track, quarter a a man could that for a same as mile, the long stepped I there when across there. didn’t stand I hanging him I looked back onto the' because car, saw around position. right away I I saw when saw his dangerous anybody position. If had been in a was anybody been stationed or if the track had car they the same saw. to warn seen I him, engineer. right signaled judge it I I length.” stopped a half it ran about a train after when the time Bill “I remember testified: Chadd crossing. the railroad Mr. killed on or near Sullivan was driving twenty something I him. was from like feet' I was happened wagon. I delivery a At the accident the time twenty Rail- the Frisco feet north of about located I him saw train Mr. road. I saw the Sullivan. strike just the north him. was on I a bit before it struck little Is- It was Gideon-North side the Frisco tracks. coming store, back land train. I south stopped heard fifty got I I feet of about I depot up came whistle blow, many to how pay attention didn’t there. coming. just knew blew, times whistle hearing ringing. There was bell about don’t recollect SUPREME COURT OF MISSOURI, v. & G-. N. I. Railroad Co. backing’up about fifteen ears in on this occasion. thirty-four length. are cars feet in The whole something quarter long. like of a mile yards. was about three hundred There was no brake- backing up man or lookout on the car that was crossing; not on that end. There was no one on the crossing give warning to footmen it. crossings There are three from the town of Gideon, lead- north the town. The main one ho one *11 something forty on. was hit That one is like I feet, guess, depot, judge from the east. I the back car was fifty sixty stepped or feet Mr. from Sullivan when first he running track. train That was about four or five an miles about fast as can a man walk. I hour, as judge running it was four or five an hour, miles because I can tell about what man can he walk walks that going speed fast. It was about the same aas man can stop walk. I did not the train see after it hit Mr. Sul- going jumped livan. I him saw to hit was I gave signal stop, jumped Iiarry Cook the and I on over down the and looked side of the car saw he was still under run for a car, and cot. I didn’t response! my signal nobody give signal. see else In they coming, slowed little I saw down a bit. the train going saw it was to strike Mr. and after it Sullivan, gave signal. paid any did him strike I never atten- anything tion whether there was between this andj prevent the train that on the train lookout seeing crossing. approaching from Mr. Sullivan straight ordinarily place. an at track that time and suppose. crossing, judge right It is a I I standard-width where it than crosses the railroad it would be narrower paid the street. I never no attention there was whether' wagon anything the south car, obstruction, side of the Frisco call it. Railroad, sidetrack, we eight-thirty morning. That was about The train dragged rail-length him about a after he was struck. backing up. coming This train west, from the I got depot. heard the train whistle before to the I When Sullivan, v. G. & N. Railroad Co. I. depot stopped. got I I I
I looking When crossing down Mr. across the towards Sullivan going north. I south, he came from When seen as fifty within Sullivan about first, Mr. away. sixty At that Mr. com- time, Sullivan was first track —number track. across the one Number track is the Frisco. That one sidetrack is gravel track being the coal cars were loaded with coming He was across there. can’t unloaded. apart you tell those tracks are. I have an idea how far . maybe fourteen sixteen. The feet, about twelve or going as fast a man would walk. The train might going a little faster than the man. have been About something like that. Mr. twice When fast; north rail of the switch track think he reached the Nothing if he had looked. there to could see got keep seeing it. he from After across the switch him quarter he have looked down of a mile and have a turning slightly. the track his head clear vision of something like twelve or fifteen feet ten, That switch line did measure it. the main track. I never When looking in Sullivan, wasn’t direc- first saw Mr. *12 right looking me; he towards 'came; tion the trail they working right road. Seems on the across watching gravel. men unload walk- like was Was looking the railroad north, towards the down looking in front of him. someone else heard track, but I hollered, around and saw and I too. holler and I looked stepping on the Mr. south hollered, When I Sullivan was At that time the train over two rail of the track. somebody up; because he looked believe, I him, up up. as he looked hollered he looked Just just got inside then the rail, him. He struck struck him. He was not
quite track. in the middle of the say corner car hit him. can’t like I Seemed one catching see hand hand. I didn’t his about going up. with hisi ain be down
I think he would knocked would space paying I was I attention. of a feet. wasn’t few signal. trying give now whether don’t recollect I SUPREME COURT MISSOURI, OF &
Sullivan G. N. I. Railroad Co. just whistle twice or not. heard the train heard I I long was about all. so whistle and that has been crossing whistle or wouldn’t state whether was not. say far struck how Mr. Sullivan can’t I I heard it I was from the whistle. didn’t when just at the time it struck before Sullivan; hear whistle you long tell can’t how before. Didn’t hear no that. I bell.” engineer. testified: am an I
Sam Wilhelms “I Company. Island Railroad I worked for Gideon-North years experience engineer. had twelve an I was day September, 6th not Gideon 1919, Mr. Sullivan killed. At that it had been five time, employ I months since had been in the of the Gideon- operation North am familiar Island. with engines they kind of had. “ you you Q. I will ask to state, know, if whether or engines not those if on them, so, brakes what they being adequate kind brakes were with reference to stop possible. the train within the time shortest A. engine. equipped don’t know the condition of that It was steam-jam place with of air. operated? By'the
“Q. is it How A. throttle in your engineer’s cab-and the valve—steam valve. “ Assuming engine equipped Q. steam- with jam up engine and connected brakes, with the and. being cars, and there were fifteen unloaded, cars flat pushed by engine, good and that the brakes were in operating going condition, conditions, four and the train five miles an hour, in what distance could the train be stopped? assuming ground And also was level at place, grade, dry? and there no> and the track was judge twenty A. twenty-five feet would be reasonably good stop. Might “Q. it not under those conditions in less distance *13 Might a than that? A. No, sir. be made eighteen feet. anything don’t know about what was the engine. condition of the brakes on this If the steam-jam working brakes you stop had to TEEM, OCTOBEB &G-. N. I. Railroad Co. your by just using engine lever, it would reverse the By sixty stop fifty probably the train. feet take stop; good twenty-five under that would be feet I mean things That doesn’t were favorable. circumstances of fifteen-cars would train account the distance take into say about I couldn’t known as slack. which is run out, type There is. cars. in those of slack the amount say good cars, in those I can’t deal slack but how twenty-five talking I am the car. The feet about much to that a train of fifteen cars would take account doesn’t into twenty-five of slack. The to fifteen feet ten steam-jam applied. brake is from the moment the is After engineer signal given it takes some the time oper- appliances si,goal, get hold of his to receive ordinary it. it would three ate Under take circumstances signal, get a. man his to four receive seconds for appliances apply point hands begin effective; man mov- it would to be would be ing pretty rapidly four Dur- to do it three seconds. ing ing. three seconds the train would be mov- or four twenty-five don’t count that feet. distance twenty-five application The feet is from the time engine moving, and, stops brakes until course, then train of cars the distance further a’oes many carry. the slack would know how don’t stop seconds it under circum- would take to steam-jam using equipment stances detailed brake they approximately such as It would have. take applied steam-jam three minifies. From the time vou would brakes it would take two before train minutes stop. would be the distances the travel con- distance the train minutes. The would travel in two fairly ditions would have to be favorable in order stop fairly cir- favorable minutes; two under cumstances.”
George switching Fowler testified: “I was for this day. train that ran over Mr. Sullivan on that I was be- tween 200 and 250 feet from the car that ran Mr. Sullivan, I was east on main track line of the Frisco. *14 OP MISSOURI, SUPREME COURT & N. I. Railroad
Sullivan v. G-. Co. ground right is level. station at Gideon The around day charge on that in G. O. Gibson .was Harry engineer. charge I was Cook was in brakeman. certainly charge don’t I in crew. the conductor day equipped with train on that that was know whether any make, adequate ac- after brakes. I didn’t effort cident to find out the brakes. about As well as I can engine I don’t know the condition recollect, that with reference to the brakes. I time, never did a car see equipped steam-jam that with brakes —not cars— coupled up. any the air wasn’t This train air didn’t have day. on it that ‘ assuming point ‘Q. Now, that the track at the Mr. Sullivan was run over was level, and that the track dry day, push- this and that train which was ing' freight flat cars, contained about fifteen unloaded cars, they flat running cars, were five or four, long six miles an hour, how would it take, shortest possible stop' assuming distance, to that train at that time, equipped also that adequate the train was with steam- jam owing' ? brakes A. Its condition the slack you stop you cars whether could the train —how far stop, owing* you’ve can got any to the circumstances if slack; I don’t know much slack how in the cars. Ordinarily? Why,
“Q. couple car-lengths. A. just I exactly don’t many how know don’t minutes. stopped believe it could car-lengths; in less than two according to the slack the cars had them. cars log thirty-four-foot attached were cars, flat equipped cars. The couplings cars were ordinary they equipment they on them for air brakes, but hardly ever used air brakes. Most of the cars good except condition a little worn in the out draw- causing Being bars, four six inches of slack. out worn pull drawbars would cause the drawbars out longer. and make it push- Then when the train would be ing fifteen engine ahead, cars even after the dead, still those cars would run out until the out; slack ran in fact, until all the looseness those couplings would &v. N. I. Railroad
Sullivan G-. Co. Considering couplings the slackness in those come out. weight length considering the cars I don’t trade, and condition think a man cars quicker car-lengths, stop any than two if the train steam-jam equipped with brakes that were in work- order. couldn’t tell from where whether *15 signal given. though Seems as did hear positive. be whistle; wouldn’t didn’t see Mr. Sul- approached crossing; livan as he the didn’t see him start. engine stop good If slack and a the cars had no it could eighteen within feet.” no
The defendant offered evidence. At the close plaintiff’s defendant case, offered a demurrer the evi- to dence, overruled, which trial court to action which time.duly excepted. defendant at the The case was sub- jury upon by mitted respective several instructions asked parties. jury plain- The returned a verdict for unsuccessfully tiff in seeking the sum of After $4500. appeal Spring- new defendant trial, was allowed an to the Appeals. majority opinion field Court of A was delivered by holding properly that court trial court had overruled defendant’s to the re- demurrer but evidence, versing remanding the cause because of in the errors given instructions. J., and asked dissented, Farrington, that the cause be certified to this court, because he deemed majority opinion contrary following pre- to be Degonia vious decisions of court: this v. 224 Railroad, Burge 564; Mo. v. Wabash 244 76; Railroad Mo. Co., Rollison v. Wabash Railroad Co., 252 Mo. and Keele 525, Topeka v. Railway Atchison, Fe Co., Santa 258 Mo. (Sec. 62. In accordance with the constitutional mandate 6, Art. Constitution), Amendment 6, of 1884 to Missouri accordingly the cause was certified our court determination.
I. question, The first us therefore, confronts appellant’s respondent’s whether demurrer to evidence given. should have respondent’s been In words, other did evidence jury? make a judg- case for the not, If then the Sup.
308 Mo. —5. MISSOURI, OF COURT SUPREME & I. Co.
Sullivan v. G. N. Railroad the other nisi must reversed; if, hand, did, ment record examine the before us then we must further error committed if reversible see demurrer, In court. passing trial Contributory Negligence. give required law to rightly arewe view of the most favor most favorable respondent v. Railroad whole case. in the testimony [Zumwalt able 268 Mo. Maginnis Co., v. Railroad 717;W. Co., S. 667.] did not fit appellant fact that see from the Furthermore, witnesses (for or fireman as engineer its either to call we are authorized to trial), testimony offered no inference that their testimony indulge ex rel. Wabash appellant. [State unfavorable been and cases there S. W. Trimble, 1000, Railway Co. prima,ry law principles mind, these With collated.] facts, by the evidence. consider the as disclosed now let us eight eight-thirty occurred casualty daylight. raining broad sleet- morning weather.” Deceased no “falling ing; least, *16 witness crossing. a One public the train on was struck public used of to was most three us leads believe a within but short town, or in the crossings streets had no lookout depot. Appellant the railroad of distance to, the cross- proximity or near flagman at, or stationed trains. Neither of approaching to warn ing pedestrians on the first or lead have a switchman stationed did it no, to show bell was The tends train. evidence evi- crossing. The approached as the ringing as, was a whistle whether conflicting crossing dence is im- that no whistle blown appear but would was blown, There were some casualty. the fatal mediately preceding other material on both sides cars loaded with or gravel track, public standing upon switch crossing some was south with and immediately parallel of and track. A feet distant from the main line saw-mill twelve and mak- shop by, operation and machine were hard operation. the usual incident to their noises narrowed wide, or but fifty road feet street forty tracks. De- the railroad half width G. & N. I. Railroad Co. journey accompanied by fatalMs started ceased were about to cross, As the two crossed, witness Smith. passed and, deceased Smith switch-track, ahead track, the main line deceased crossed when Smith twenty first behind Smith testified he about Smith. just approaching train as he crossed over the saw the thirty then feet west switch or sidetrack. It was about a, “traveling man would Smith, as fast as or, as other from four to walk,” estimated, witnesses way eight miles an hour. ran the Smith rest get approaching ahead said across to train. Smith yards coming he could have seen standing between the two fact, added, tracks. In he stepped morning out “When thing there that wasn’t there keep seeing looking from me down and quarter away. train if it been a had mile Mr. Sul coming along right livan was behind me and seeing the same means of had, train I than more up1 he place farther back. he walked When the same suppose where was I he could have seen the train testified;: if he had looked.” Another Chad, witness, “When I first looking Mr. saw he wasn’t Sullivan, looking direction the right came; he towards right they working me; across on the road. watching gravel. like he Seems walking the men unload Was looking towards the north and not down rail looking road track, but in front of Mm. Mr. When Sul livan reached the rail north the switch track I think oopld see the Nothing train if he had looked. there to keep seeing him got it. After he across the switch he quarter have looked down of a mile and have a clear vision of turning the track slightly.” head *17 fifty-three Deceased fifty-four years old, in the prime very of eyesight life. hearing His good. and respecting" foregoing
As the effect of circum- Springfield stances or state of facts, Appeals, Court of in majority opinion its says; in the instant case, “It is contended that the evidence shows as a matter of law that guilty deceased contributory negligence of and MISSOURI, OP COURT SUPREME v, Co. & N. I. Railroad G-. agree plaintiff that recover. We could reason guilty of the deceased was does show the evidence question negli- negligence contributory of which, recovery. negligence It is would bar
gence alone, or no track is thoroughly that a railroad in State settled this duty danger warning- it is of and of itself a of in and years juris person and and every is sm of mature who sight hearing look possession and faculties of of in his approaching passing a track, railroad in trains out for immediately steps person track a and when such moving looking, if he could without in front of listening’, is in- hear, he if without see, and contributory negligence guilty jured, as a matter he is of Railroad, v. 258 Mo. [Keele of law and cannot recover. Burge Railroad, v. 76; v. 244 Mo. Rollison 62; Railroad, Many Railroad, v. 525; 169.] Mo. Mo. Reeves thing. . . . That same deceased other hold the cases contributory stepping negligence guilty of in immediately backing in train, track front of question first can he been killed be no recovery.” there could struck, no Appeals coin- conclusion of Court above with that arrived at court after careful cides testimony study and consideration of the shown bv record before us. is also in with the consonance de- opinion, majority this court cited cisions escape not therein cited. is cases, other There no well, that deceased in the instant case the conclusion guilty contributory negligence a matter of law. Dyrcz Railway
In c. where Co., 238 Mo. l. a 47, case pedestrian stepped moving freight train, a- front of “Accordingly, general we as a said: in the adminis rule, justice person tration this kind of in the act case, (cid:127) crossing entering such track on it look must before injured If and listen. he does not and is he guilty injury negligence, he contributes to- own and is hurt fault. In his own such the best .case, puts himself; law can do is leave for no him given daylight action no Moreover, lies. obstruc- *18 69 TERM, 1924. v. & N. I. Railroad Co. G-. look such see, to is to then a situation given tions, see; hypothesis to for conclusively is held on that person for to seeing. Hence, say (as to one equivalent looking is an engine he did not see down bearing does) plaintiff him as he him and so close strike crossed him as upon if as had said lie did the same precisely track, he an impos should judgment No stand not look all. that one saw around a for on the fact sibility; example, wall,' a stone through with a naked eye, corner solid a looked and did not see locomotive or in-broad daylight a and unobstructed track. straight engine hard cases, plaintiff’s of own tes many Under doctrine fix man negligently of a who moves puts him the timony place track to a of safety from a beside the place of imme track, locomotive from a danger going In there is diately before it. that view room of no Contra, rule. or humanity last-cloar-chance apply injury. is the cause negligence proximate plaintiff’s 192 191 131; Railroad, v. Mo. Schmidt v. Railroad, [Green l. c. Railroad, v. 196 Mo. 570 215; Mo. Mockowik v. l. c. 733; cited; Railroad, cases Mo. Stotler Eppstein ” 216 Mo. 619; Laun v. Railroad, Railroad, Mo. 563."] In Vandeventer v. Railroad pedestrian case, another negli 838, contributory l. c. we said: “The S. W. Co., her recovery husband bars plaintiff’s gence conceded for may purposes case. to whether the cars argument question buildings track and the south same ob switching trav structed, extent, some the view deceased the board one walk, jury; eled north on for but rail as soon as deceased the north stepped unobstructed view west for switch track he had clear, help than mile, approach more seeing train, brilliant had he looked in headlight, with its that direction. The between the distance rail of north main switch track and rail track at the south 8.8 approaching the board walk feet. The from the the main duty west on track. ... It was the of deceased to look listen the approaching
70, COURT OF SUPREME MISSOURI, v. & I.
Sullivan G-. N. Railroad Co. got clear between tracks, lie the two and be- after passing onto the main track. That he could fore ordinary learned the exercise care under such *19 imputed Avillbe to him a known fact. circumstances as [Citing matter are S!o of we bound cases.] that, law, presented undisputed the record, facts in this hold, place Iaa^o in a deceased, while between the. of tracks, safety, headlight the knew locomotive its brilliant with ’’ approaching from the west on main track. the Again, in the later case Rollison Co., of v. Railroad 252 Mo. l. c. we said: the 542, brought the case on “Furthermore, negli also the rule law facts is within of the of gence, looking to-wit, that when man without moves safety place place from a of beside a railroad track to danger immediately coming of track, before a eye negligence in the locomotive, then, of the law, his in doing proximate consequent becomes the so cause of his play is hence there no room hurts, ity for the of human the phases recovery.” doctrine in of or for [Cit its support rule.] cases of the agree respondent Nor can we the that facts bring by the instant case it within the rule announced the City Appeals Payne, Kansas Court of in Ruenzi 294. In S. W. that case the humanitarian rule held apply because the attention of deceased was attracted thought apparent danger freight to what she from a approaching opposite direction on the next parallel making impossible track, it to hear and her distracting senger approach pas- her attention from the of the adjoining her on the struck track. In which delivering opinion recog- the court, Trimble, P. J., nizing general the rule above “It stated, however, said: Supreme been several lias times held Court, only it is well settled not in decisions of that but ap- knowingly other courts of our that when State, one proaches ways, a railroad must look both and, ’’ negligence recovery. if he does not, is that will defeat a [Citing numerous cases.] might
Here there no evidence that deceased have apparent been approaching confused or alarmed an 3.08] TERM, 1924. v. & N. I. Railroad Co. G. adjoining upon main line track danger the switch substantial evidence is there Neither track. seriously standing im- the switch track
gravel cars usual incident peded nor that vision, his noises prevented machine-shop operation saw-mill freight approach backing hearing At train. his respondent’s the train be- witnesses saw two least crossing, looked or had deceased and, fore reached safety place between the switch listened taking fatal few main line track before track and the ap- immediately brought steps him front injury, escaped proaching as did he would train, preceded immediately companion His him. who Smith, ordinary care for his own failure to use reasonable contributory negligence safety a mat- convicts him of holdings and other the uniform of this ter law under *20 of our State. courts respondent’s strenu- contention, to
II. "Wenow come Appeals, ously urged that, in the of here as it was Court down and killed since was not knocked deceased hanging by onto in first the'flat succeeded car, struck but space seventy eighty the for feet, the some to car of. stopped while train life could have been saved his space traveling the the that distance and within train was might reasonably of within have time which the train opinion Ap- stopped. majority been of the Court of The peals adopted respondent’s viewpoint this contention, on says majority opinion: for that “The court acci- public crossing in dent occurred at town street to persons might expected be the track time. at imposed charge duty This to in train on those the -keep persons track lookout on the track. The straight, ground the the train consisted of fourteen level, prevent nothing fifteen flat the cars, hence there was to engineer person, or a a lookout stationed on the train having seen The the he was time struck. responsibility, defendant, must be then, held to the same as would in attach if he those been, seen fact, charge majority of the train he struck.” The when was SUPREME COURT OF MISSOURI, &
Sullivan v. G-. N. I. Railroad Co. upon opinion based after a mathematical calculation then, being’ struck, carried after the distance deceased was testimony expert wit- with the the taken connection of shortest distance which the ness the within as to might stopped, arrived at this conclusion: “We have been sufficient evidence take to however, think there was, jury question duty charge of the of the those backing train to when the train struck deceased seen position peril hung him and have seen his of question the end and also the whether of car ordinary care, could, have been before de- theory, ceased lost his hold and on fell, only, gone jury. and that should case have properly demurrer to the testimony was overruled.” Far- dissenting opinion, J., holds, “the rington, judgment outright be reversed should because is in- finding negligence sufficient evidence to base a under the humanitarian rule. The time within to act through negligence after the deceased struck his own until he was run A too short. ver- finding agent guilty negligence dict defendant’s only these under wildest circumstances could be based conjecture.” having
Let us. then examine record, in mind, as Appeals, did the Court of most favorable re- facts spondent’s theory recovery the humanitarian under approximately rule. Deceased struck at west side according of the road and carried, to most point fifty sixty witnesses, feet east *21 crossing, east line of the road where he lost his hold on forty the car and met his death. The road was about feet twenty wide, but narrowed to half that or width, feet, where it crossed the railroad follows, tracks. therefore under the evidence, that deceased was carried sev- enty eighty by moving to feet the train before he fell from the traveling per car. If the train were four miles speed hour, the slowest rate of fixed witness, it was moving slightly per at the rate less than six feet second. According expert require witness would 73 Vol. Sullivan, Co. & I. Kailroad v. G. N. signal, engineer to receive the the seconds four
three or apply appliances them proper and get the hands on ££ a man would said, witness and as effective, so as to he rapidly sec moving pretty it in three four to do be eighteen travel train would seconds the onds.” In three twenty-four feet. travel it would and in four seconds feet, to inches slack six there was four shows evidence The assuming fifteen cars in the there were car, and, each allowing to each the car, inches of slack six train and taking and one-half before travel seven feet would train completely stopped. engine up the was slack after expert that, testified under the 'Wilhelms, witness, ££twenty twenty-five feet conditions, favorable most stop,” taking reasonably good without into be a distance traveled while slack account either the using receiving signal engineer the neces Allowing twenty-five appliances stop. sary as a- feet stop twenty-four reasonably adding good thereto feet during four time which traveled seconds of receiving engineer signal applying the instru plus of slack, seven one-half feet hand, mentalities might hanging have been deceased was the car on which Taking stopped feet feet after he struck. 70 56% train, carried as the distance beyond expert said line, dead ran feet 13% stopped;' might car if we assume he or, have been assumption respondent, more favorable feet, ried 80 an might beyond line where it dead the train ran 23% By stopped. reducing distances in feet to sec have been following result: we have the time, onds 4 Time. Hour. Distance Traveled at Miles Per engineer appli- 24 feet while reaches 4 seconds takes..................... ances, may feet distance which stopped, .4 seconds takes .........i.......... 2/12 seconds train, feet slack in takes.......... 7% 3/12 . might have been feet in 56% seconds in...................... 5/12 *22 74 SUPREME COURT OF MISSOURI,
Sullivan v. & G-. N. I. Railroad Co. 70' feet distance deceased carried in.............................11 seconds 8/12 might feet been 56%
stopped in...................... 9 seconds 5/12 feet over the dead or .........2 line, seconds 13% 3/12 If, on hand, the other deceased carried a distance then he was line, carried feet the feet, dead 23% or going. step 3.9 seconds. And, one farther and assum- engineer signal the could have received the and used appliances the in three seconds, instead deceased four was then carried 4.9 over the dead or line, 29% seconds, less than five the ticks of watch. respondent says
But under the evidence most that, respondent, presume favorable to must we that deceased was struck on the west side of the road and that road, forty crossing (a feet wide at the railroad fact not testimony), borne out and that deceased was car- car-lengths, sixty-eight ried not less than feet, east two being of the east line of total of 108 road, distance allowing respondent feet, before he was killed. But even presumption, benefit that extreme deceased was just carried but feet over it the dead takes line, 51% slightly quarter seconds, more minute, than of a for the train to travel the of 108 feet, distance total 8% required stop seconds over the time to/ the train under testimony. the most favorable circumstances shown pass But let now us the realm mathematics application principles "to established of law proven facts in the instant case. though may (although Even we we do assume necessary rule) appellant chargeable find to so negligence placing in not a lookout or switchman backing purpose the lead car train for signaling necessary engineer case became suddenly stop or switchman, such lookout train, placed he been have had the car, so lead right listening rely looking to- on the deceased passed; stopping approaching it had until v. G. N. I. Railroad Co. & *23 presumption might until at least, lie have relied such danger in actual and was deceased reached the zone had thereby indicating peril oncoming his from the train, danger danger. at zone This obliviousness to the step track, main line most or was within but two of the a steps the while within and taken deceased the few danger three seconds than two or zone will not more add operatives rea- wore to the time within which sonably required application under a. liberal to even act, humanitarian rule. the Railway court, this 79, l. c. Co., 258 Mo. In Keele v. duty injury on to avoid in to use care “The banc, said: only paragraph hypothesis arises 2, in the discussed discovering discovery peril, negligence in or keep’ duty dis and make an outlook is a to there hypothesis to covery peril. it is essential In either danger peril, . . zone. . a must be note juris approaching person track at a railroad But a sui right angles crossing, gait to ordinary on foot at an complete engine angling in track or the toward danger zone not movement, control of his own is steps, to his oblivious or, few fatal until he the last takes present fairly things in- danger, indicate such does hypothe- danger such zone on to take them. tention step' at most. We three is indeed—a two narrow sis seeing engineer uniformly such ruled that ordinary walk an person approaching in track on foot stop person presumption before may will act engine. immediately has He his stepping before thereon person look- rely right instance on such first in the ing seeing listen- looking listening, is and, person presume right such hearing, he has stop.” peril and will knows the railroad which the question time within
theOn the hu under charge act must operatives of a train Burge Railroad Wabash said we rule, manitarian “Taking 1,000 limit of outside c. 102: Mo. l. 244 Co., time only seconds, engineer feet, 4/11 peril of de- discover engine curve, rounded the MISSOURI, OF COURT SUPREME & Railroad Go. Sullivan v. G. N. I. apply Hu Ms brakes. to sound Ms and to
ceased, alarms, electricity. beings rapidity of man can’t with the work fingers gathered Thoughts and hands nimble must be They by. put unlike are in motion. fleet Seconds in Degonia say did case as we minutes. We is held liable for l. 596: ‘Yet defendant Mo. c. case, only saving ten seconds—ten ticks life, ’ case at bar if the train to act. In the watch—in which put plaintiff’s going witnesses some as fast as and even act, ten seconds less than there was put there was going it, witness if as slow as defendant’s facts of this believe that the do not but little more. We jury even its submission case authorize ’’ *24 rule. humanitarian Again, Co., Rollison v. Railroad later case of negli predicate said, “To in banc: l. c. we 541, Mo. gence itself monu of time inis on two seconds adjudicate negligence cannot mental refinement. We airy nothings hairsplitting, pulse such beats such ’’ surmise. Judge agree he remarks We Farrington, opinion, dissenting “the time within his negli- through own struck the deceased was act after by gence short.” too run until was appellant close of the at the offered The demurrer given the trial court. have been should evidence outright, judgment reversed should be nisi Lindsay, concurs. G., it is so ordered. foregoing opinion by Seddon,
PER CURIAM: The adopted opinion court. All of 0., judges concur.