Anderson v. Davis
| Decision Date | 10 May 1923 |
| Citation | 251 S.W. 86,215 Mo.App. 318 |
| Parties | WM. H. ANDERSON v. JAMES C. DAVIS |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jasper County.--Hon. Grant Emerson Judge.
REVERSED.
Judgment reversed.
W. F Evans, Geo. J. Grayston and Mann & Mann for appellant.
(1) Plaintiff was guilty of negligence as a matter of law. Tannehill v. Railroad, 279 Mo. 158; Lyter v Hines, 205 Mo.App. 429; Langley v. Hines, 227 S.W. 877; Underwood v. West, 187 S.W. 84; England v. Railroad, 180 S.W. 32; Burge v. Railroad, 244 Mo. 76. (2) Petition does not state a cause of action under the humanitarian doctrine for the reason that it is not alleged that plaintiff or his wife was oblivious to the danger and that his or her obliviousness was, or by the exercise of ordinary care could have been, apparent to the servants of defendant. A petition fails to state a cause of action under the humanitarian doctrine unless obliviousness is pleaded. Rubick v. Sandler, 219 S.W. 401, 406; Haines v. Railway, 203 S.W. 631-632; Kamoss v. Railway, 202 S.W. 434-436; Pope v. Railway, 242 Mo. 236-239. (3) No recovery can be had under the humanitarian doctrine on plaintiff's own testimony, as he testified he was approaching the crossing slowly and speeded up when near the track. Under this state of facts, the engineer and fireman would be warranted in thinking he intended to stop for the crossing. Alexander v. Railway, 233 S.W. 44-49; King v. Railroad, 211 Mo. 1; McGee v. Railroad, 214 Mo. 530; Burge v. Railway, 244 Mo. 76.
Owen & Davis, Norman A. Cox and Hugh Dabbs for respondent.
The court properly submitted the case to the jury on the last chance doctrine. Milward v. Railway Co., 232 S.W. 228; Ellis v. Railway Co., 234 Mo. 657; McGinnis v. Railroad Co., 268 Mo. 677; Tavis v. Busch, 280 Mo. 283; Holmes v. Railway Co., 207 Mo. 149; Sandry v. Hines, 226 S.W. 646.
This case was first assigned to Cox, P. J., and he has prepared a statement of the case and an opinion disposing of the question of whether the plaintiff was guilty of contributory negligence as a matter of law. There is division, however, on the question of whether plaintiff made a case to go to the jury on the humanitarian doctrine. We have adopted that portion of the opinion prepared by Cox, P. J., which disposes of the contributory negligence feature; it is as follows:
I.
On February 23, 1920, plaintiff with his wife and baby were traveling in an automobile which plaintiff was driving from Joplin to Carl Junction. At a crossing of a public highway the automobile was struck by the engine of a train consisting of an engine and caboose. The automobile was demolished, the occupants thrown out and plaintiff's wife was so badly injured that she died in a few days afterward.
Plaintiff's evidence was to the effect that he was driving his automobile west on the public road. That the train which struck him was going south at the crossing and the track of the railroad and the train could not be seen by plaintiff as he approached the crossing until he was in about 200 feet of the crossing and the train came around a curve and a hill and was 250 feet to 300 feet from the crossing. That as plaintiff approached the crossing he and his wife were watching and listening for the train and talked about a former accident at this same crossing. That when he reached a point about fifty feet from the crossing, he had slowed down to about three or four miles per hour and he looked both ways and listened and saw or heard no train and heard no whistle or bell at any time. Plaintiff first looked north just after he passed inside of the right of way fence which was about fifty feet from the track and saw and heard no train, then looked south as he passed along and saw no train in that direction and about this time he reached a point within twenty-five feet of the track and attempted to shift his gear but it did not work just right but he finally got it adjusted and then increased his speed and went on and about that time, he then being in twelve to fifteen feet of the track, his wife saw the train and said, "there is the train." Plaintiff then looked and saw the train almost on him and heard a whistle and the automobile was struck immediately thereafter and he remembered nothing further. The automobile had almost cleared the track and was struck near the rear end. There were other witnesses who testified that the whistle was not sounded nor the bell rung as the train approached the crossing and that the train was running at a fast rate. The evidence on the part of the defendant tended to prove that the whistle was sounded at the proper places and the bell rung as the law requires. The engineer testified that his outlook was on the right or west side of the engine, and on account of the curve he could not see the rails at the crossing until close to it. The position of the fireman was on the left or east side and he had a clear view of the crossing after they came out of the cut which the evidence for the defense places at 400 feet from the crossing. He testified that he first saw plaintiff when he was 100 to 150 feet east of and approaching the crossing. That plaintiff was driving about twenty miles per hour and did not slacken his speed. That he formed the impression that plaintiff was not intending to stop when he was seventy-five to 100 feet east of the crossing and that he was then running about twenty miles per hour and the train was about one hundred feet from the crossing and running twenty-five miles per hour. That he told the engineer to stop and that the engineer applied the brakes immediately.
A demurrer to the evidence was filed by defendant at the close of plaintiff's case and at the close of all the testimony. These were overruled.
Appellant contends that the evidence shows that plaintiff was guilty of contributory negligence as a matter of law, and hence the case should not have gone to the jury on the theory of negligence on the part of defendant and due care on the part of plaintiff. There can be no question as to the law which requires a person approaching a railroad crossing to both look and listen and use ordinary care to discover and avoid collision with a train. It is not always easy, however, for a court to say just what conduct on the part of a plaintiff in a suit will amount to proper care on his part. The standard by which to judge his conduct is that of an ordinarily prudent person under the same or similar circumstances. A plaintiff should be bound by his own testimony as to the facts upon which the question of his contributory negligence, as a matter of law, is to be determined. The plaintiff in this case testified that he could see the train when he was 200 feet from the track and the train was 250 to 300 feet from the crossing. That he did not see the train on the day of this accident until he was almost on the track and the train was then right on him. That he was running about four miles per hour when he reached the right of way of the railroad about fifty feet from the track. That he then looked north and saw or heard no train. He then looked south where he had a clear view of the track for a long distance and saw no train. He did not look north any more. After looking south he was then in about twenty-five feet of the track and began to shift his gear and when he got it shifted he was then in twelve to fifteen feet of the track and his wife then saw and notified him that the train was there. He then looked and saw the train and, as he expressed it, the train was right on him and he remembered no more.
The presence of a railroad track is in and of itself a warning of danger and a person approaching such crossing must look and listen for trains until he is past the danger point regardless of whether the bell is rung or the whistle sounded. If plaintiff had looked to the north at the time he found it necessary to shift his gear, when he was twenty-five feet from the track, he would undoubtedly have seen the train at that time and could have stopped his car and have avoided the collision. Our conclusion is that on plaintiff's own testimony, by which he is bound, he was guilty of contributory negligence as a matter of law and the trial court should have so held. The error in that particular will necessitate the reversal of this judgment."
II. Appellant contends that the plaintiff failed to make a case under the humanitarian doctrine, and we will now turn our attention to that.
Bearing on this question the admitted or uncontroverted facts in this case are that plaintiff was driving west approaching this railroad crossing with his wife in a Maxwell car, in February, with the curtains up on the right hand or north side. The plaintiff was driving and seated on the left or south side of the front seat of the automobile. The road was a chat road and the crossing over the railroad was in good condition. There could be but one way that the operators of defendant's train, consisting of an engine, tender and caboose, coming from the north, could determine what the operator of plaintiff's automobile was going to do as he came to the crossing, and that was by watching the action of the automobile; the operators of the train being unable to see the occupants of the automobile. The right-hand side of the engine struck the right-hand rear wheel of the automobile as it was passing over the track. The testimony is that had plaintiff's car...
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