Dutcher v. Wabash Railroad Co.

Citation145 S.W. 63,241 Mo. 137
PartiesMARIE DUTCHER v. WABASH RAILROAD COMPANY, Appellant
Decision Date09 February 1912
CourtUnited States State Supreme Court of Missouri

Appeal from Adair Circuit Court. -- Hon. Nat M. Shelton, Judge.

Affirmed.

James L. Minnis and Higbee & Mills for appellant.

1. The court erred in overruling defendant's demurrer at the close of all the evidence. a. It was admitted by plaintiff's counsel on the trial that defendant's track was inclosed by lawful fences and cattleguards; there was no evidence tending to prove that the track was used by pedestrians as a public highway; or that defendant acquiesced in occasional use of it by pedestrians; the court so found and declared by defendant's instruction 13, and that plaintiff was a trespasser by defendant's instruction 14. No exceptions were saved thereto; plaintiff agreed to the correctness of both instructions. Eppstein v Railroad, 197 Mo. 720; Frye v. Railroad, 200 Mo. 402; Hyde v. Railroad, 110 Mo. 272; 2 Thomp Neg., sec. 1705. b. The petition charges that defendant's servants in charge of the train negligently failed to warn plaintiff of the approach of the engine, or to sound the whistle or ring the bell at any time within one-fourth mile of her, or to use ordinary care to stop the train. These are the specific allegations of negligence, and are alleged to have been the cause of plaintiff's injury. There was a total failure of proof of these allegations, and the case should have been withdrawn from the jury. McManamee v Railroad, 135 Mo. 440. Collins, the peddler, plaintiff's witness, testified danger signals were given until plaintiff was struck, but he did not know which engine gave them; the Katy train passed between him and the Wabash train, and he had no opportunity to observe when the train began checking its speed; his evidence on that point was without probative value. Bennett v. Railroad, 122 Mo.App. 703. c. The evidence was conclusive that plaintiff was guilty of gross negligence continuing down to the time of the accident; that she knew she was walking on defendant's main track; that it was broad daylight, the view unobstructed, and she at no time looked behind her or listened for the approach of a train. She was not only apparently, but in fact, in possession of all her faculties. The engineer had no reason to believe she would not hear the alarms and was not bound to anticipate she would not step aside. Her negligence, according to her own testimony, was unaccountably gross, was subsequent to the alleged negligence of defendant's engineer, continued down to the time of the accident, and was the proximate cause thereof. She had the last clear chance to avoid the injury. 23 Am. & Eng. Ency. Law (2 Ed.), 761, 765; 1 Thomp. Neg. 235-241; Bogan v. Railroad, 129 N.C. 154; 3 Elliott on Railroads, secs. 1253, 1254, 1257a; Davies v. Mann, 10 M. & W. 546; Drown v. Traction Co. (Ohio), 10 L.R.A. (N.S.) 421; Dyerson v. Railroad (Kan.), 7 L.R.A. (N.S.) 132, and annotations; Modiwell v. Railroad, 151 F. 421; Neal v. Railroad, 49 L.R.A. 684; Hoffard v. Railroad, 110 N.W. 446; Copp v. Railroad, 100 Me. 568; Williams v. Railroad, 40 So. 143; Finlayson v. Railroad, 1 Dill. 578; Holmes v. Railroad, 97 Cal. 161; Railroad v. Graham, 46 Ind. 239; Railroad v. McClaren, 62 Ind. 566; Railroad v. Walker, 113 Ind. 196; Campbell v. Railroad, 55 Kan. 536; Syme v. Railroad, 113 N.C. 558; Railroad v. Cook, 42 Neb. 905; Herring v. Railroad, 32 N.C. 402; McAdoo v. Railroad, 105 N.C. 140; Daily v. Railroad, 106 N.C. 301; Norwood v. Railroad, 111 N.C. 236; Cogswell v. Railroad, 6 Ore. 417; Tyler v. Sites, 90 Va. 539; Railroad v. Judd, 10 Ind.App. 213. (d) It was plaintiff's duty to have given attention, heard the signals and left the track. It was her misfortune if she was so absorbed she failed to take notice of the repeated warnings. By subsequently continuing to walk on the track until she was struck she was guilty of such contributory negligence as to defeat her recovery in this cause. Her negligence was the proximate cause of her injury, although the engineer might have been negligent in not stopping the train in time to avoid the collision. Yarnall v. Railroad, 75 Mo. 575; Sinclair v. Railroad, 133 Mo. 233; Prewitt v. Eddy, 115 Mo. 283; Woods v. Railroad, 188 Mo. 229; Candee v. Railroad, 130 Mo. 142; Bell v. Railroad, 72 Mo. 50; Maloy v. Railroad, 84 Mo. 275; Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Barker v. Railroad, 98 Mo. 50; Powell v. Railroad, 76 Mo. 80; Everett v. Railroad, 214 Mo. 54; Dlauhi v. Railroad, 105 Mo. 645; McGauley v. Railroad, 179 Mo. 583; Brockschmidt v. Railroad, 205 Mo. 435; Cahill v. Railroad, 205 Mo. 393; Laun v. Railroad, 216 Mo. 563; Zumault v. Railroad, 175 Mo. 288; Ross v. Railroad, 132 Mo.App. 472; Sims v. Railroad, 116 Mo.App. 572; Bennett v. Railroad, 122 Mo.App. 703; Reyburn v. Railroad, 187 Mo. 565; Engelking v. Railroad, 187 Mo. 158; Schmidt v. Railroad, 191 Mo. 215; Eppstein v. Railroad, 197 Mo. 720; Stotler v. Railroad, 204 Mo. 619; Sissell v. Railroad, 214 Mo. 515; Holland v. Railroad, 210 Mo. 338; Davies v. Railroad, 159 Mo. 1; McGee v. Railroad, 214 Mo. 530; Kinlen v. Railroad, 216 Mo. 145; Felver v. Railroad, 216 Mo. 195. (2) The doctrine of the last clear chance means a clear opportunity, and not a mere possibility. The court submitted the case upon mere estimates or guesses of distances, speed of the train, formed under the excitement of the impending catastrophe, and of the distance within which the train could have been stopped. The fact remains that danger signals were given, the full force of the brake power applied, the track sanded, and the bell rung continually for a distance of near 600 feet before plaintiff was struck, and the train did not stop in time to save plaintiff, and every one but herself was exhausting his utmost efforts to avoid the collision. It cannot be said there is any evidence of such gross negligence or reckless or wanton conduct as justified the court in submitting to the jury to say whether or not the plaintiff ought to recover in spite of her own negligence. It requires more than a showing of a mere possibility that the accident might have been avoided in order to bring a case within the humanitarian doctrine. Markowitz v. Railroad, 186 Mo. 350; Boring v. Railroad, 194 Mo. 541; Neal v. Railroad, 126 N.C. 634.

Sanford B. Ladd, F. M. Harrington and Campbell & Ellison for respondent.

(1) Although plaintiff was negligent and a trespasser, this fact will not bar her recovery, because it stands admitted defendant's operatives saw her in ample time to stop the train. Morgan v. Railroad, 159 Mo. 262; Eppstein v. Railroad, 197 Mo. 720. In fact in cases based on the humanitarian rule the negligence of the plaintiff is confessed. Hall v. Railroad, 219 Mo. 553; Everett v. Railroad, 214 Mo. 54. (2) Defendant presents a demurrer at the close of plaintiff's case and again at the close of all the evidence. The whole evidence is before the court. "It is elementary in this State that a demurrer admits every fact to be true which the evidence in the case tends to prove, whether by direct testimony or by reasonable deductions to be drawn therefrom." Von Trebra v. Railroad, 209 Mo. 658. (3) It is claimed by appellant that plaintiff's evidence that she did not hear alarms is of no probative force, and does not tend to prove alarms were not sounded. There might be force in this contention if alarm signals were ordinary noises and if other circumstances existing in this case were not also proven. But alarm signals from an engine are startling noises and are heard for miles. It is impossible for us to conceive of persons being so absorbed they would not hear such signals sounded within a few hundred feet of them. Plaintiff is not the only one who did not hear. The little, timid nine-year-old child that walked on the ends of the ties and who escaped so narrowly that even the fireman and brakeman on the Wabash train told the conductor that she, too, had been struck, evidently did not hear any alarms. Her conduct in remaining on the track is a mute but convincing witness that she did not hear. That little girl had not reached the age to be "mentally absorbed." The passing train on the M., K. & T. track was only sufficient to prevent her hearing the ordinary noises of the approaching Wabash train. If alarm signals had been sounded continuously for six hundred feet before it reached her, as appellant contends, she, as well as plaintiff, would undoubtedly have heard. There would have been near fifty short, sharp, startling shrieks in that six hundred feet and almost onehalf minute would have been required by the train in traveling the distance. That they did not hear such extraordinary noises is strong evidence there were no such noises. Even plaintiff's evidence that she did not hear is of itself sufficient to submit the question of alarms or no alarms to the jury. Murray v. Company, 101 Mo. 242; Hanlon v. Company, 104 Mo. 388; State v. Company, 70 Mo.App. 641. (4) The defendant's answer avers that defendant failed to stop, look or listen for the approach of defendant's said cars; that as soon as her presence on said track was discovered by defendant's employees so managing and operating said train, she was duly warned of the approach by said train by blowing the whistle and ringing the bell. Said averment is, as a matter of law, a confession on the part of defendant that plaintiff was in peril at all times while on said track. Lynch v. Railroad, 208 Mo. 24. There is no claim in the answer that any efforts whatever were made by said operatives to stop or check the train; on the contrary, it proceeds upon the theory that the only duty defendants operatives ever owed plaintiff was to sound the whistle. The question as to when the defendant did or...

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