145 Mo. App. 232 | Mo. Ct. App. | 1910
This action is prosecuted by Julia Yeatch to recover damages for the death of her husband which she alleges was caused by the negligence of de
The cause of action alleged in the petition and sought to be maintained by plaintiff in her evidence is negligence of defendant under what is termed the “humanitarian rule.” The answer, in addition to a general denial, pleads other defenses, among them that of contributory negligence. The principal contention of defendant is that the jury should have been peremptorily instructed to return a verdict for defendant. ■ Facts disclosed by the evidence of plaintiff pertinent to that contention thus may be stated: The husband of plaintiff, Jacob J. Yeatch, was struck and instantly killed by a passenger train on defendant’s road at DeWitt in Carroll county. The train was a belated west-bound through passenger train which passed through DeWitt without stopping, about six o’clock in the morning of February 10, 1906. Yeatch, who lived on a farm three or four miles east of DeWitt, was on his way to the depot to board a local passenger train scheduled to leave at 6:20 that morning. The railroad at and near the depot runs north and south and Yeatch was walking south when he was overtaken by the locomotive of the through train at a point about eleven hundred feet north of the depot. No witness introduced by plaintiff saw the death of the unfortunate man but a boy who attended to the switch lights found the body at about seven o’clock. There were three tracks at this place. The one to the east was the “house track,” the next was the main track, and the last the passing track. The main line and house track were eight feet and two inches apart. The through train ran south on the main line. The body was discovered on the house track, the feet on or near the west rail, the head near the east rail and northeast of the feet. It was still warm and frost on the rail near the mouth indicated that the stricken man had breathed after his body had rested
The train ran through DeWitt at a speed of thirty or forty miles per hour. The locomotive carried an electric headlight of high power and the main line ran on a tangent a distance of 3870 feet north of the depot. There were no obstructions to vision, and, therefore, there was nothing to prevent the engineer from seeing the pedestrian when he was over two thousand feet ahead of the engine, nor was there any reason for the pedestrian not seeing or hearing the approaching engine, except the fact that he was walking with his back to it. The train consisted of a locomotive and six or eight coaches. As it rushed through the switch yards, the engine sounded danger signals but no effort was made to stop. An ordinary stop could have been made in eight hundred feet and an emergency stop in half that distance. There were two road crossings north of the depot, the one farthest north being about eighteen hundred feet from the depot. Many people were in the habit of using the railroad tracks as a passageway between these crossings and the depot. The evidence tends to show that no warning bell or whistle was sounded except the danger signal which was given at the time of the injury.
The engineer, introduced as a witness by defendant, testified that he whistled for the road crossing and rang
By the Court: “Tell where he was with reference to you, straight out or to the front part of your train? Where was the man when he jumped? Where would that place him? A. He was about one hundred or one hundred and fifty feet ahead of me. By the Court: Q. Whereabouts on the track? A. Placed him just stepping over the west rail of the main track. Q. That is when you first saw him? A. Yes, sir. Q. You said something about the jump, when he jumped where did it place him ? A. Jumped to the left or east toward the house track. Q. Where did that place him with reference to the main track? A. After he jumped and got toward the passing track placed him clear of the main track.”
On cross-examination: “Q. You sounded the station whistle where? A. Just as I rounded the curve. Q. What indication, if any, did he give of hearing that
If the testimony of the engineer is to be believed, the deceased met his death by his own fault or sudden confusion, and not on account of any negligence of the engineer, but in considering the demurrer to the evidence, we shall reject the testimony of the engineer except insofar as it may favor the contention of plaintiff and shall turn to the facts and circumstances adduced by plaintiff to ascertain if they will support a reasonable inference that the death of her husband was due to a breach of duty on the part of the engineer.
In personal injury cases, the burden is always on the plaintiff to prove that the injury was the direct result of the negligence alleged. The principles and rules of the “humanitarian doctrine” have not affected this rule and it is incumbent on the .plaintiff in this case to show affirmatively that the death of her husband was caused by the failure of the engineer to exercise reasonable care to discover his peril and to make reasonable use of the means at hand to avoid injuring him. Plaintiff is not required to prove such emission of duty by direct evidence but she is required to prove it, either by direct or circumstantial evidence and not to leave the inference of its existence to guess work or speculation.
Of the negligence of the unfortunate man there can be no question. It was his business to be on the lookout for a train. He must have known it was coming from the time it rounded the curve over twenty-five hundred feet away, since from that time, he was bathed in the glare of an arc headlight. It was a still night; the
Invoking the rule that “though the deceased by his own negligence had placed himself (in a perilous position on the railroad track, it was still the duty of the engineer to have avoided striking him if he could have done so after the danger became apparent.” [Schlereth v. Railroad, 115 Mo. 87.] Counsel for plaintiff argue that the engineer had a clear view of the. peril of plaintiff’s husband for a 'distance of over twenty-five hundred feet and, therefore, had ample opportunity to save him either by stopping the train or sounding a warning.
In each of the numerous cases cited by counsel in support of this argument, there was something in the appearance of the endangered person or in the peculiarities of the situation to suggest to a reasonably careful and prudent person in the position of the engineer that there was danger and that the person threatened was unconscious of his peril. Thus in Smith v. Railroad, 129 Mo. App. 113, an aged negro was walking on the track on a cold morning with his face to the oncoming train. He stooped as he walked and his head was wrapped up in a “comforter.”' IVe held the inference
The judgment is reversed.