Bury v. St. Louis-San Francisco Ry. Co.

• Decision Date: 04 March 1929
• Parties: BEULAH BURY, BY, ETC., RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY CO., APPELLANT. [*]
• Court: Kansas Court of Appeals

17 S.W.2d 549

223 Mo.App. 483

BEULAH BURY, BY, ETC., RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY CO., APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

March 4, 1929

Appeal from the Circuit Court of Jackson County.--Hon. Brown Harris Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

E. T Miller, Henry S. Conrad, L. E. Durham, Hale Houts and Ilus M Lee for appellant.

C. A. Randolph and W. K. Atwood for respondent.

BARNETT, C. Lee, C., concurs. Trimble, P. J., absent.

OPINION

BARNETT, C.

This is an action for damages for personal injuries sustained by plaintiff at a grade crossing in the town of Miller, Missouri. Plaintiff was driving a Ford automobile in an easterly direction upon a public street about sixty feet wide, approaching an intersection of the street with defendant's railroad right of way. There was a passing track on the west side of the main right of way, and defendant's railway station was just east of the main track and north of the public street. The railroad track ran due north and south for about a quarter of a mile south of the crossing. There was a building or warehouse which was located just west of the passing track and forty-two feet south of the street which partly obstructed the view, and there was a string of railroad cars upon the passing track, the north end of which was about as far north as the north line of the warehouse. If we should attempt to set out the estimates and statements of the various witnesses as to the speed of the automobile, the speed of the railroad car, the distance of the automobile from the crossing at different times, and the distance of the railroad car at different times, this statement would be as complicated and as hard to read as the abstract of record itself. However, there was testimony in the record that the plaintiff was driving a Ford automobile with two other passengers sitting with her in the front seat. She drove upon the main street in the town at the rate of about twenty miles per hour and slowed down as she approached the crossing to a rate of about ten miles per hour. The occupants of the car, after they reached the place where the warehouse obstructed the south view of the railroad right of way, looked north until the front wheels of the Ford car had reached the passing track. They then looked south and saw a railroad car about fifty or sixty feet away. Some of the witnesses for the defendant estimated the rate of speed of the railroad car at between five and ten miles per hour. One witness testified that the railroad car was moving five miles per hour. There is no question but what the occupants of the car, including plaintiff, continued to look north long after they had an unobstructed view of the railroad track looking south. When the occupants of the Ford car saw the oncoming railroad car, the plaintiff put on the brakes and Mr. Fortner seized the steering wheel of the Ford automobile, struggled with the plaintiff, and the result of the combined efforts of Mr. Fortner and the plaintiff caused the automobile to turn south. The automobile went far enough toward the main track so that a collision ensued which resulted in injury to plaintiff. The automobile had almost come to a stop when the collision occurred. There was evidence that the railroad car did not decrease its speed until after the collision; that the occupants of the car did not hear a whistle or bell, although one of plaintiff's witnesses testified that a whistle was sounded after the struggle over the steering wheel had started, and another testified that a whistle had been heard sometime previous to that. The railroad car was an electric motor car, similar in design to an interurban electric car. It was operated by a motorman or engineer who testified that he saw the automobile when it was fifty feet west of the crossing. He also testified that he stopped the railroad car as soon as he could, to-wit: in a distance of forty-five feet, but that if the railroad car had been going five miles per hour as one of the witnesses testified, he could have stopped the car in twenty-two and one-half feet. There was testimony that the occupants of the car all had their heads turned to the north and that a man stood in view of the approaching railroad car and waived and signaled to them before the struggle over the steering wheel took place. The case was submitted to the jury under the humanitarian doctrine. Plaintiff's theory of the case is under attack, and we therefore set out plaintiff's main instruction in full. It is as follows:

Instruction No. 1.

"The court instructs the jury that if you believe and find from the evidence that on or about the 23rd day of May, 1926, the plaintiff was driving an automobile east upon a public street, if so, through the town of Miller, Lawrence county, Missouri, and that said street was crossed in said town by the railroad line of the defendant running in a northerly and southerly direction, if so, and that while plaintiff was attempting to cross said railroad line at said street, if so, a collision occurred, if so, between a northbound train of the defendant and said automobile and that plaintiff was injured thereby, if so, and if you further find that plaintiff and said automobile immediately before such collision, if any, were in a position of imminent peril or danger of being struck by said train, and that she was oblivious thereto, if so, or unable to extricate herself and said automobile therefrom, if so, and if you further find that the defendant's employees in charge of the operation of said train, if so, thereafter, saw or knew, or in the exercise of ordinary care could or should have seen or known, that plaintiff and the automobile in which she was riding were in a position, if so, or coming into a position, if so, of imminent danger of being struck by said train, if you so find, and that said plaintiff was oblivious to such danger, if so, or unable to extricate herself therefrom, if so, in time in the exercise of ordinary care, if so, with the appliances at hand, if so, and with reasonable safety to the persons on board said train, if so, to have stopped said train, or slackened the speed thereof, or sounded warning of the approach thereof, and thereby have avoided a collision, if you find a collision occurred and that the same could have been avoided thereby, but that defendant's said employees failed and neglected so to do, if you so find, and that such collision, if any, was directly caused by such failure, if you so find, and that such failure, if any, constituted negligence on defendant's part if so, then your verdict will be for the plaintiff and against the defendant, even though you should further believe and find from the evidence that plaintiff failed to exercise the highest degree of care for her own safety in getting into such position, and that such failure contributed to cause said collision, if any, and said injuries if any."

The evidence showed that the plaintiff was sixteen years of age at the time of injury. The court instructed the jury that if they found for the plaintiff, in assessing her damages, they should allow her such sum as would fairly and reasonably compensate her for her injuries, and that they might, among other things, take into consideration her age and expectancy of life and the impairment of earning capacity, if any, resulting from her injury. The jury returned a verdict for plaintiff in the sum of $ 2500. The court required a remittitur as a condition to overruling the motion for new trial. The remittitur was filed, judgment was then entered for plaintiff in the sum of $ 1500, and defendant appealed.

It is contended that plaintiff failed to make out a case under the humanitarian doctrine, because the evidence, when viewed in the light most favorable to plaintiff, showed that when the engineer was called upon to stop the train he had such a short time within which to act that he could not be held to be negligent for failing to do so. We will not attempt to point out all of the various findings of a jury which would be sustained by this record. It is sufficient to point out that there is evidence in the record from which a jury could find that it was obvious, after plaintiff threw on the brakes of the automobile, and the plaintiff and her guest began struggling with the wheel, that the occupants of the car were in a position of peril and would not be able to extricate themselves; that at this time defendant's electrical car was fifty or sixty feet away and was traveling at a rate of speed which would have enabled the engineer to stop the car within twenty-two and one-half feet. We think that this made a case for the jury under the humanitarian doctrine.

Appellant has called our attention to cases decided by the Supreme Court in which it was held that the railroad company could not be held guilty of negligence, even though it was shown that it was humanly possible for the railroad train to be stopped after the peril of the plaintiff had become obvious. [Sullivan v. Railroad, 308 Mo. 48; Rollison v Railroad, 252 Mo. 525; Degonia v. Railroad, 224 Mo. 564; McGee v. Railroad, 214 Mo. 530.] In the Sullivan case the Supreme Court, in discussing the short time in which the engineer must act, referred to four and nine-tenths seconds as less than five ticks of a watch. In the Degonia case the Supreme Court referred to ten seconds as ten ticks of a watch, and in the Rollison case the Supreme Court said that "to predicate negligence on two seconds of time is in and of itself a monumental refinement. We cannot adjudicate negligence on such pulse beats and hairsplitting, such airy nothings of surmise." On the other hand the Supreme Court en Banc in the case of Chawkley v. Railroad Co., 297 S.W....