*1 improperly objection, though was, upon prejudicial be treated as it testimony is inadmissible such Appellant’s claim that admitted. in- general “evidence upon rule that prejudicial based which caused subsequent repairs of defect admissible to show also said negligence,” it is injury but purpose proving for the vari- for repairs be shown rule, with “such connection upon circumstances.” reasons, depending [Derrington ous plaintiff But Ry. Co., Southern in the lamp used or defect type kind of did not claim that the itself, caused the lamp .the thereof, defect in structure other lighted lamp not injury thereof, merely, but cause as one day next that on the apparent that the evidence at the time. It is purpose was not for this stand lamp” was a new “there which lamp itself tending show, a defect showing, or tending show, and circumstance injury was rather a caused the but lamp was the accident the claim, after corroborate sought to conceal had and that defendant bent to the north reason, and and for that by replacing lamp new it with a condition testimony admissible. circumstance, we think the aas prejudicial assignments, as for instance other Appellant makes do not deem argument jury by plaintiff, but we counsel complained likely matters necessary as it is to discuss them another trial. will occur on court must be judgment of the trial stated For the reasons Hyde Brad- remanded. It is so ordered. reversed and the cause ley, GG., concur. adopt- Ferguson, C., is foregoing opinion
PER CURIAM:—The judges court. All the concur. opinion ed as the Estate Administratrix of Womack, Nellie Womack, Anna Corporation, Appel- v. Missouri Company, Pacific Railroad lant. 88 S. W. 368. One, Division November 1935. *2 n & Dearmont, SpradMng Thos. J. Cole and appellant; Dalton Edward J. White of counsel. Phillips Phillips for respondent.
L. E. Tedrich and *3 HYDE, wrongful death, action for C. This on behalf of kin, under next Section Revised 1929. Plaintiff’s Statutes daughter, Womack, pub- Nellie killed defendant’s train on a County. crossing only upon lic in Butler The case was submitted negligence failing give under the humanitarian doctrine in warn- ing of of the train. Plaintiff recovered a verdict $10,000, judgment ap- from entered thereon defendant has pealed.
Defendant did not call trainmen stand to the witness and offered except no photographs evidence measurements, but contends plaintiff’s will jury evidence was sufficient to make a case. We viewpoint therefore consider the evidence from most favorable to plaintiff’s country Miss contentions. Womack was the teacher at a right way, schoolhouse located west side of which ran through stayed locality in a She at northerly direction. right the farm Stoeeker, home B. A. 1000 feet east of the about way. day day the accident was the last of school community there was to be a dinner Miss Womack schoolhouse. car, started in A coupe, eight her a Model Ford a. m. make about preparations. The road house the schoolhouse Stoeeker (“some gumbo”), dirt road sand and some which east ran angle. and west. The There railroad crossed it at almost a during had been night about a one-inch rain so that on slick, morning accident, ruts, muddy and full the road was “probably eighteen deep.” a foot to Miss Womack inches started! from the Stoeeker Stoeeker Mrs. house with two small children and daughter, Crenshaw, Stoeeker’s Miss Mrs. Mildred Porter. driving, car; Womack, side of sat on the left the side windows *4 open. Miss Porter was seated on the of the car and riaht side lap, of the one Stoeeker children was on Miss Porter’s the other Only seated between them. Miss Porter the accident survived she of testified to the course car and actions of the the the driver reaching before the track. She time after was unconscious for some the accident. country
The on each side of the road was flat and defendant’s track was on an embankment from three to four feet and one-half point higher surrounding country. the Beginning than at a about 1520 feet of crossing, south the was timber the there which obscured however, of was, view on possible the track the south. It to see south orchard, down the track as far as the passing timber after on road, crossing. the of south side the east was about feet of It the possible points to see farther on south the track from nearer the crossing. fifty At feet east the view Near the was feet south. feet, sixty edge way right track, the and about east of the twenty- trees, were two one nineteen in diameter and inches the other one inches highway in diameter. One-tree in the was little north These this fence. just south of fence, the other highway the south the they obscured shown that together and it was close
trees were spot, they a blind point that made at that so of the track view that There a mudhole seconds, going west. was for a driver a few two with the right-hand the road about even morning side of the mudhole on go had around the trees, “Miss Womack so that to the two put her over next road and that left-hand side the looked Womack Miss both she and Miss trees.” Porter testified that cross- feet from the they passed orchard about 400 south when the woods;” “the train they “down and that ing; that could see to the looked south of the She said that she hadn’t come out woods.” right way passed “had two again when the near the looking or was trees” and Miss Womack was then “either she that just that direction.” She said that she “could turned.around in except space see down the where the two trees scope of woods hid she the view.” Miss Porter that the next time also said track;” part south car that “the the “front of the was on the guard;” train was on the “never heard the train cattle she any. alarm;” sound twice and that Miss Womack “looked had south,” being they passed second time trees. Miss muddy Porter further said that “the road was rather and rather wet morning;” part mudhole was in dirt of the road “might fence;” directly right way have been across from the driving Miss Womack was miles automobile at about'five per hour; and “it speed continued about same rate of on up to crossing.”
The train was about an hour running sixty late and was sixty-five per engine quarter miles hour. stopped The was about of a mile north of where it struck the automobile. The rise of the get road to over following the track was shown measurements: 70 feet east track, of the 3.06 top road was feet below the rails; 60 east, feet below; east, it 2.09 was feet 2.06 feet it was feet below; 40 east, feet below; east, it was 1.09 feet 1.04 'feet it was below; feet east, feet it six only inches below. It had gravel some it way, across the roadway but of sho’pm “the dump would be slick” pictures and the show ruts it. It that a car traveling five miles per hour stopped could be within two feet after putting on the A witnesses, brakes. number of lived who neighborhood, said heard and saw the train. testi- mony of these that, witnesses was highway crossing whistled for a south of the woods but did not whistle for the one where the accident *5 occurred. There were two short alarm blasts blown near cross- the ing. According to some witnesses, these blasts given when the train was one or lengths rail two crossing; according from the to others, they engine were after the was crossing the and auto- mobile was in the air. One witness testified that the he heard train. along. said that house, watched come He from his walked out engi- the engine by, but see when it went didn’t he in the “could see passed house, his was over train which when the neer in the cab” crossing. witness, who the Another quarter mile south of a of a halfway the road about between side of the lived on the south crossing, the train the testified that she heard Stoecker house and window; out of her that she had seen the auto- and looked house; getting her the car was near the passed mobile when it halfway between right way, when she first saw the train about of crossing; engineer getting saw the to the woods and the she got jerked post; up “he down on this and sat the seat and said, engineer “I saw the She never the until he whistle cord.” getting getting up up was on his seat as train was near the cross- the ing, crossing.” She “the said, about 20 the also auto- feet crossing gave mobile was the when the train the two blasts. on just It was of collision.” at the minute the
Did showing facts amount to above-stated substantial finding evidence to warrant a that deceased drove onto defendant’s track running train; fast oblivious and that engineer or, by ordinary care, defendant’s did the exercise of could go position have seen that she oblivious and was about a to into being thereby, peril imminent struck in sufficient time to have (after her purpose thereafter obliviousness and to continue im- mediately position peril reasonably into apparent), a became with enough hand, means at warned her soon so that she could have stopped reaching place before a the train where would strike her? here, Under the evidence this accident not prevented could have been by any warning, enough after deceased drove close to the track path train, to be in she because neither had time get across, away. stop nor to and back Plaintiff’s here evidence also tends actually to show that defendant’s did not see give warning deceased within time to got automobile into a because it keep- was to effect that he ing crossing a for lookout was not even post at his where he keep could It a lookout. does nothing there was prevent seeing him from the automobile all of traveling the time it was (from the last sixty feet passed trees), time it during the two (about eight seconds) which time twelve times as automobile, fast as the traveled feet. lookout, “A place failure to a keep at where duty so, not, do under our Missouri rule, humanitarian excuse failing prevent injury peril to one whose could been dis have covered prevent injury time his such a lookout had been kept. words, In other in spite keep of a failure to lookout, humanitarian doctrine operation, come into not because that is in itself humanitarian negligence, have, places but because we *6 a, keep lookout, duty there is a extended the humanitarian
where to If peril. ... rule to well as discovered discoverable as duty lookout, a seen keep question to a is could he have been ’’ in kept, kept. [Mayfield time if had been not was a lookout it and Ry. Co., (2d) v. City 79, Kansas Southern 337 Mo. 85 S. W. “originally upon actual While the humanitarian doctrine was based superior knowledge by in peril,” a the defendant of jurisdictions (Mayfield (2d) some l. case, supra, still is S. W. c. 123; have, we in this Torts, 479-480), Restatement of Law of secs. State, definitely adopted it applying the rule of also to discoverable peril. proof kept, if ability Since see a lookout was would usually be tending circumstantial to show an evidence or see, perhaps practical application, driver did as a matter of in age rapid transportation, peril this rule of discoverable justified. Anyhow, long by we committed it a line are of decisions. by
As said this Court en Banc: “The Missouri doctrine . . . applies ... to an act of a plaintiff going danger, continuing peril, into or in oblivious of the though being could, his negligence, oblivious is his and he due to own if would, impending danger. per- he avoid the Thus in this State a heedlessly go son deliberately approach a rail- across track head, looking road with bowed or averted neither to the left, nor the surroundings, when, and oblivious to if he his would look, yet, but he injury, would see a train avoid and could if operator of sees, by see, the train proper care would such person going continuing in danger into or zone, but oblivious impending though negligent danger, being so, in he must use all proper injuring words, care and means to avoid him. In other not, (cid:127)he must if he can it, injure man, avoid run down or a careless though very integral part his carelessness is an of his and he (cid:127)could, would, peril. (Citing cases.) he avert such The Missouri requires . . . dangerous rule person operating a a instrumental- ity to diligence use avoiding person injury to a whom he sees peril.” [Bollinger could see in or into v. Louis-San Fran St. Ry. Co., 720, cisco l. c. 990.] our decisions, public highway crossing Under a place is a where engineer, operating a it, locomotive towards has “a continuous duty keep every a lookout approached.” time the place was, therefore, support evidence here finding sufficient to engineer could, by ordinary care, the exercise of have seen auto approaching mobile near go so tracks be as to about to into’ peril being of imminent train, struck time warning have sounded a whistle actually had. reached such position. The evidence was sufficient also that deceased actually oblivious to which is an negligence essentiál of a humanitarian ease of failure to element (Pentecost warn Terminal Railroad because Miss Porter testified that 533), expect, did not. it, because it- was shown that see, or hear the trees hid part last, hardly track when and because it was reasonable the car would have been track, to believe that driven onto the under *7 circumstances, if she had not been things the oblivious. But these (cid:127) enough liability against defendant, were to make a case of in a upon duty this based the to warn purpose pre- case like the venting going immediately person position into a of peril, appeared unless it further that deceased’s obliviousness was suf- ficiently that apparent such obliviousness could have been known engineer ordinary he keeping the exercised in had care lookout. Explaining this in proposition, the Restatement the Law of Torts, 480, enough section it is said: “It is not that the defendant plaintiff dangerous should in position see the which would be were plaintiff the not aware of what is on. The must defendant realize or plaintiff also have reason realize that the is inattentive and, therefore, peril. is in The defendant is entitled to assume plaintiff paying pay the is or will reasonable attention to his sur- roundings; suspect contrary, until he reason to the has he has no plaintiff any danger. Therefore, reason to believe that the is in the defendant is only liable if*he realizes or has reason to realize that the plaintiff is consequently peril. engineer inattentive Thus, in if an highway crossing a train approaching a level ap- sees a traveler proaching the track vehicle, required on foot or in a he is not to take any steps either to warn traveler the an additional blast of his bring special whistle or to the train under control, since he is entitled to assume that traveler has the discovered or will discover the on- coming stop train will reaching crossing. However, the is not necessary that the circumstances be such as to convince the plaintiff defendant is and, therefore, danger. inattentive in enough is It that the circumstances are as such to indicate a reason- able chance that this is the ease. Even plain- such a chance that the tiff will require not discover peril enough* his is the defendant to make a effort injuring reasonable him. Therefore, avoid if there anything is demeanor plaintiff conduct which to a reasonable man in position the defendant’s wotild indicate that the plaintiff and, is therefore, inattentive will or not discover the engineer must take such steps as a reason- able man would think necessary under the circumstances. If a train is at some little distance, blowing ordinarily a whistle would be enough, apparent until it is that the whistle is either unheard disregarded.” short, In in such a situation, negli a defendant “to be free from gence . . . must act appearances on reasonable and at a time when action would be effective.” v. Kessler (Mo.), W. S. [Allen (2d) 630; see, also, Fehse, 861, 440; Martin v. (2d) 55 S. W. 914; L.-S. F. Alexander v. St. (Mo.), Weber
Hart v. (2d) 1023; L. Herrell St. Co., 327 Mo. Railroad 18 W. S. S. F. Railroad breaks at argument case Defendant’s here that defendant’s no evidence -point because there is ap known that deceased was oblivious engineer have could the track. It intended to continue onto proach of the- train and Womack she and Miss pointed Porter said that both out Miss therefore, engineer them and, if he had seen south twice However, both of they train. reasonably believe that saw the could they passed the looked, times, they she said were before when away, least feet trees, at which time the train must have been at hardly way could seen which and the looking. have car even into a was not time, upon be the facts and this case must decided feet, from appeared, traveling sixty last while car was commences, danger where trees to track. Just zone *8 moving proceeding path of a fast person case where a toward the question usually matter, train or a doubtful and it is a automobile is jury particular case, of fact for the under the circumstances of that . question Ry. if there is a about it v. Mo. Pac. reasonable [Homan 61, 617; Co., 334 64 Co., (2d) Mo. Bread S. W. Iman v. Freund 461, (2d) 477; 332 Mo. 58 S. W. Kloeckener v. St. Louis Pub. Serv. Co., 396, (2d) 1043, 331 53 Mo. S. W. Since the and cases cited.] speed hour, defendant, of only per this automobile was five miles citing (2d) 951, v. 335 W. Co., Elkin St. Louis Pub. Serv. Mo. 74 S. 600, argues appearance that there could have been no inten However, tion to drive driving per onto the track. at miles five level, dry, hour on a smooth, paved city very street be a different thing driving speed rough, slick, at the rate of over a same gumbo coming muddy, ruts, through full of deep road or around large mudhole, up a slick incline. Under such circumstances might speed that be almost the maximum which could be attained. muddy cases, Two recent road in which this court that a case held under the humanitarian jury, doctrine was made for on a five per speed, mile hour v. are Hencke St. Louis & Hannibal Railroad 798; 393, (2d) 335 Mo. 72 C., Co. S. W. Willhauck v. R. I. & P. Co., 332 1165, Railroad Mo. 61 S. W. 336.] way What was appearances,” of “reasonable after this approaching automobile was into a to indicate that driver pursuing journey her intent on across the track oncoming oblivious to the train?
First: clearly evidence tends to show that after into engineer the view of (having trees) passed when he was enough close occupants to observe the of the car none of them that (Miss looked just toward the train. Porter as getting track.) onto
1169 pictures testimony and in evidence tend show The oral Second: might reasonably such condition that be was in that the road required stay on it driver’s close attention was inferred recently raining engineer moving. only It had ceased so the keep jury cer- roads were wet and the would have known that must traveling tainly of an automobile that the movements know muddy dry different from slick, noticeably road one on a smooth are speed. road, same at the rate
Third: The evidence tends the car continued at the steady way muddy incline, speed per up five miles all hour fifty which made a rise of three feet in less than feet. that, circumstances, say
We not think can do under these we average it was “so fair plain, minded men cannot it,” reasonably appear differ about that deceased did oblivious oncoming train and part did not show intention on her track, way continue across the after the car entered the up per (during and continued the incline at miles hour time five stopped path when could she have short of the warned); but, hold, contrary, believe, and so that “reason we appearances,” evidence, that, able least “there under were such ground opinion for fair Mo. difference of it.” v. about [Homan Ry. Q. Pac. Co., 61, (2d) 617; Logan 64 C., Mo. S. W. v. B. & Co., 705; 611, Metropolitan 300 Mo. S. W. Railroad Ellis v. Ry. Co., Street 657, therefore, 234 Mo. We, hold correctly the court overruled defendant’s demurrer to the evi assignments dence. Defendant has stated but does not other error argue brief will, them, therefore, be considered aban (2d) 17; doned. v. Schuchardt, Mo. 63 W. S. [Johnson 930; Pence v. City Laundry Kansas 59 S. W. 633; Cunningham, (2d) 1052; Wahl v. Scott *9 Pac. Railroad 62 W. S. judgment Ferguson Bradley, GG., is affirmed. concur. PER Hyde, C., adopted CURIAM: —The foregoing opinion the opinion of'the court. All judges concur. Lee, Administratrix
Isabell of Anna Estate Morris, v. St. Company, Appellant. Louis 337. Public Service One, Division 1935. November