168 S.W. 803 (Mo.App. 1914), Underwood v. St. Louis Iron Mountain & Southern Railroad Co.

• Judge: STURGIS, J. Farrington, J., concurs. Robertson, P. J., dissents and files separate opinion. ROBERTSON
• Parties: NELLIE A. UNDERWOOD, Respondent, v. ST. LOUIS IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant
• Docket Number: .
• Citation: 182 Mo.App. 252,168 S.W. 803
• Court: Missouri Court of Appeals
• Date: 29 June 1914

Page 803

168 S.W. 803 (Mo.App. 1914)

182 Mo.App. 252

NELLIE A. UNDERWOOD, Respondent,

v.

ST. LOUIS IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

June 29, 1914

Appeal from Jasper Circuit Court, Division No. One.--Hon. Joseph D. Perkins, Judge.

REVERSED AND REMANDED.

Case reversed and remanded.

R. T. Railey, A. E. Spencer and Barbour & McDavid for appellant.

(1) Plaintiff's husband was guilty of such contributory negligence as a matter of law as debars her recovery. One who approaches a railroad crossing where his view and hearing are obstructed or interfered with must look and listen for the cars as soon as the obstruction is passed and a failure to do so will bar his right of recovery in case of injury. The duty of the traveler to look and listen is a continuing one until the crossing is passed. Jackson v. Railroad, 171 Mo.App. 430; Kelsay v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 566; Gordan v. Railroad, 153 Mo.App. 555; Drake v. Railroad, 51 Mo.App. 562; Dey v. Transit Co., 140 Mo.App. 461; Dyrcz v. Railroad, 238 Mo. 33; Farris v. Railroad, 167 Mo.App. 392. (2) The surroundings may be such as to impose upon the traveler the duty of stopping, looking and listening. Elliott on Railroads (2 Ed.), Sec. 1167; Campbell v. Railroad, 175 Mo. 161; Hornstein v. Railroad, 195 Mo. 440; Wands v. Railroad, 106 Mo.App. 96; Masterson v. Railroad, 58 Mo.App. 572; Kelly v. Railroad, 88 Mo. 534; Henze v. Railroad, 71 Mo. 636; Killian v. Railroad, 86 Mo.App. 473; Kelsay v. Railroad, 129 Mo. 362; Hook v. Railroad, 162 Mo. 569; Walker v. Railroad, 193 Mo. 453; Maddinger v. Power Co., 152 Mo.App. 453; Hixson v. Railroad, 80 Mo. 335; Grocer Co. v. Railroad, 89 Mo.App. 534; Stepp v. Railroad, 85 Mo. 229; Jackson v. Railroad, 171 Mo.App. 430; Damrill v. Railroad, 27 Mo.App. 202. (3) Under the uncontroverted facts in this case plaintiff cannot recover under the humanitarian doctrine. It requires more than a showing of a mere possibility that the accident might have been averted to bring a case within the operation of the humanitarian doctrine. The verdict in this case is the result of mere guess and speculation. Markowitz v. Railroad, 186 Mo. 350; White v. Railroad, 159 Mo.App. 508; Guyer v. Railroad, 174 Mo. 344; Hawkins v. Railroad, 135 Mo.App. 524; Wilkerson v. Railroad, 140 Mo.App. 306; Rollison v. Railroad, 160 S.W. 994. (4) Where an action is predicated on a breach of the humane duty, the burden is on plaintiff to show affirmatively that he was in imminent peril, was unconscious thereof, and that, had defendant been in the exercise of reasonable care, it would have had knowledge of those facts in time to avert the injury by a reasonable employment of the means at hand. Rissler v. Transit Co., 113 Mo.App. 120; Boyd v. Railroad, 105 Mo. 371; Brude v. Railroad, 123 Mo.App. 629; Dyrcz v. Railroad, 238 Mo. 33; Haffey v. Railroad, 154 Mo.App. 493; Pennell v. Railroad, 153 Mo.App. 566; Wilkerson v. Railroad, 140 Mo.App. 306; Moore v. Railroad, 176 Mo. 528; Veatch v. Railroad, 145 Mo.App. 232; Davis v. Railroad, 155 Mo.App. 312; Maloy v. Railroad, 84 Mo. 270. (5) The two instructions, A and B, given for the plaintiff are inconsistent and cannot stand together and the giving thereof constitutes reversible error. Krehmeyer v. Transit Co., 220 Mo. 639. (6) The giving of plaintiff's instruction A was error. When an instruction for plaintiff authorizes a verdict for plaintiff it must cover the whole case as embodied in his petition and submit to the jury the varying phases of the case and grounds of recovery, and if it fails to do so it constitutes reversible error. Wilkes v. Railroad, 159 Mo.App. 711; Phelan v. Paving Co., 227 Mo. 713; Packing Co. v. Mertens, 150 Mo.App. 583; Kelley v. St. Joseph, 170 Mo.App. 358; Scanlan v. Gulick, 199 Mo. 449; Miller v. Telephone Co., 141 Mo.App. 462; Burton v. Railway Co., 111 Mo.App. 617; Crews v. Lackland, 67 Mo. 619; Birtwhistle v. Woodward, 95 Mo. 113; Brownlow v. Wollard, 66 Mo.App. 636; Flynn v. Bridge Co., 42 Mo.App. 529. (7) The giving of plaintiff's instruction B on the humanitarian doctrine was error. There is not a particle of evidence to authorize or justify the giving of this instruction. It is error to submit to the jury an issue upon which there is no evidence. Black v. Railroad, 217 Mo. 681; Henry v. Mining Co., 144 Mo.App. 362. (8) This instruction is erroneous in that it does not require the jury to find that plaintiff's husband was unconscious of his dangerous situation, and that the engineer realized or should have realized that he was unconscious thereof; and leaves out of consideration the danger signals which all concede were given before the engine reached the crossing. Keele v. Railroad, 151 Mo.App. 364; Wasner v. Railroad, 166 Mo.App. 215; McGee v. Railroad, 153 Mo.App. 492; Bennett v. Railroad, 242 Mo. 137; Pennel v. Railroad, 153 Mo.App. 566; Bennett v. Railroad, 122 Mo.App. 703; Boyd v. Railroad, 105 Mo. 371.

I. V. McPherson and James A. Potter for respondent.

(1) No error was committed in refusing defendant's peremptory instruction. Plaintiff's evidence showed a failure on the part of the defendant to give the statutory signals and the death of her husband on a public crossing, and her evidence also failed to show any contributory negligence on the part of her husband. This evidence entitled her to go to the jury. R. S. Mo. 1909, Sec. 3140; Buesching v. Gas Light Co., 73 Mo. 219; Weller v. Railroad, 164 Mo. 180; Green v. Railroad, 192 Mo. 143; Tetweiler v. Railroad, 242 Mo. 189; Riska v. Union Depot Co., 180 Mo. 188. (2) Unless a conclusion of contributory negligence is the only conclusion that can be reasonably drawn from the facts and circumstances in evidence, a demurrer should be overruled. Campbell v. Railroad, 175 Mo. 172; Jackson v. Railroad, 156 S.W. 1011; Gratiot v. Railroad, 116 Mo. 450; Weller v. Railroad, 120 Mo. 635; Moberly v. Railroad, 17 Mo.App. 518. (3) There being no evidence that deceased either failed to stop, look or listen, it will be presumed that he did all these things. Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Powers v. Transit Co., 202 Mo. 267; Riska v. Union Depot Co., 180 Mo. 169; Weller v. Railroad, 164 Mo. 180; Tetwiler v. Railroad, 242 Mo. 189. (4) Under the evidence in this case plaintiff was clearly entitled to recover under the humanitarian rule. The engineer saw Underwood in a position of peril unconscious of the approach of the train in time, by the exercise of ordinary care, to have saved his life either by sounding an alarm or by setting the brakes and either stopping the train or slackening its speed. Chamberlain v. Railroad, 133 Mo. 604; Morgan v. Railroad, 159 Mo. 262; Kellny v. Railroad, 101 Mo. 67; Klockenbrink v. Railroad, 172 Mo. 678; Fearsons v. Railroad, 180 Mo. 208; Scullin v. Railroad, 184 Mo. 705; Reyburn v. Railroad, 187 Mo. 565; Hinzeman v. Railroad, 182 Mo. 621, and 199 Mo. 56; Rapp v. Transit Co., 190 Mo. 162; Woods v. Railroad, 188 Mo. 229; Eppstein v. Railroad, 197 Mo. 720; Lynch v. Railroad, 208 Mo. 34; Ewert v. Railroad, 160 S.W. 36; Ellis v. Railroad, 234 Mo. 680; Lyons v. Railroad, 161 S.W. 726; Dutcher v. Railroad, 241 Mo. 160; Feldman v. Railroad, 158 S.W. 88. (5) Failure to give warning upon discovery of peril alone entitles one injured to recover, even though the train could not be stopped. Railroad v. Allen, 80 S.W. 240; Kroger v. Railroad, 69 S.W. 809. (6) Where the evidence is conflicting as to whether or not the engineer used ordinary care to prevent the injury presents a question for the jury. Railroad v. Baker, 130 P. 577. (7) The court committed no error in giving plaintiff's instructions A and B, which submitted the case to the jury on the two issues pleaded in the petition, namely, on the statutory negligence of the defendant, and on the common law negligence of the defendant, or what is generally known as the last chance doctrine. These two theories are perfectly consistent and were fully established by the evidence. Nivert v. Railroad, 232 Mo. 626; Clarke v. Railroad, 242 Mo. 570; Kreymeyer v. Transit Co., 220 Mo. 639.

STURGIS, J. Farrington, J., concurs. Robertson, P. J., dissents and files separate opinion.

OPINION

Page 804

[182 Mo.App. 257] STURGIS, J.

This suit originated in Lawrence county, Missouri, but was tried on change of venue in Jasper county. It was brought by the wife to recover for the death of her husband under section 5425, Revised Statutes 1909. The husband was killed at a public road crossing some four miles southeast of Aurora by colliding with defendant's passenger train while he was attempting to cross the defendant's track at that point about noon, July 1, 1913. He was at the time a rural route mail carrier traveling out of Aurora in an open, ordinary, steel tired, one horse buggy, with a large umbrella fixed to the seat and buggy bed for [182 Mo.App. 258] a shade. The defendant's track as it approaches this crossing going from Aurora, the direction the train in question was going, runs somewhat south of east, curving to the south. The wagon road on which the deceased, Martin L. Underwood, was traveling runs directly east as it approaches this crossing going in the direction deceased was traveling. The train and the deceased were therefore both traveling in a generally eastward direction, the railroad and wagon road being somewhat parallel but gradually converging towards and meeting at this crossing. The wagon road is south of the railroad until it reaches this crossing and then passes on east and north. As the deceased was traveling much the slower, the train came from behind him and caught him as the hind wheels of his buggy were leaving the track. It should be said, however, that the wagon road curves northward on entering the right of way and the railroad curving southeastward causes the two to cross nearly at right angles. For convenience we...