Clark v. St. Joseph Terminal Railroad Company

• Decision Date: 20 May 1912
• Citation: 148 S.W. 472,242 Mo. 570
• Parties: HARRY B. CLARK v. ST. JOSEPH TERMINAL RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

148 S.W. 472

242 Mo. 570

HARRY B. CLARK v. ST. JOSEPH TERMINAL RAILROAD COMPANY, Appellant

Supreme Court of Missouri

May 20, 1912

Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.

Reversed and remanded.

R. A Brown for appellant.

The demurrer offered by the defendant at the close of plaintiff's case and again at the close of defendant's case should have been sustained: (a) By statute and by ordinance, plaintiff was required to stop the street car being operated by him, not less than ten feet south of the south rail of the Union Depot track at the point where the collision occurred. R. S. 1909, sec. 3303; Rev Ordinances of St. Joseph, sec. 1079. The provisions of the statute and of the ordinance are mandatory and imposed a positive duty upon the plaintiff to stop his car at least ten feet south of the south rail of the Union Depot track, and his failure to stop his car and to comply with the provisions of the Statute and the ordinance was negligence per se. Sluder v. Transit Co., 189 Mo. 107; Moore v Transit Co., 194 Mo. 1; Deitring v. Transit Co., 109 Mo.App. 524; Jackson v. Railroad, 157 Mo. 621; Mulderig v. Railroad, 116 Mo.App. 655; Heintz v. Transit Co., 115 Mo.App. 667; Wills v. Railroad, 133 Mo.App. 625; Railroad v. Owen, 132 Ala. 420; Railroad v. Murray, 53 Ohio St. 570. (b) Independent of any obligation imposed upon him by statute or ordinance, it was plaintiff's duty at common law to stop his car before crossing the track of the Depot Company, and to exercise the highest degree of care to ascertain whether a train was approaching upon the railroad track before attempting to cross same. It was his duty to exercise the highest degree of care to protect and save from harm the passengers upon his cars. The exercise of the most ordinary care upon his part required that his cars should be brought to a stand still before crossing the depot track, which was in constant use, and when he knew that trains were liable to be crossing at any moment. Plaintiff was guilty of the grossest contributory negligence in failing to stop his car, and in failing to discover the train of cars approaching upon the depot track and in failing to have his car under such control that he could stop and prevent the collision. Wills v. Railroad, 133 Mo.App. 625; Asphalt Co. v. Transit Co., 102 Mo.App. 469; Giardina v. Railroad, 185 Mo. 330; Hornstein v. Railroad, 195 Mo. 440; Deane v. Transit Co., 192 Mo. 575; Brockschmidt v. Railroad, 205 Mo. 446; Moore v. Railroad, 176 Mo. 528; Cole v. Railroad, 121 Mo.App. 605; Hebler v. Railroad, 132 Mo.App. 551; Gabriel v. Railroad, 130 Mo.App. 651; Waddell v. Railroad, 113 Mo.App. 680; Murphy v. Railroad, 153 Mo. 252; Bensiek v. Transit Co., 125 Mo.App. 121; Boring v. Railroad, 194 Mo. 154; Holland v. Railroad, 210 Mo. 338; Gettys v. Transit Co., 103 Mo.App. 564; Mockowik v. Railroad, 196 Mo. 550; Kelsay v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 566; Stotler v. Railroad, 204 Mo. 619; Laun v. Railroad, 216 Mo. 563; Schmidt v. Railroad, 191 Mo. 215; Booth on Street Railways, sec. 301; Elliott on Railroads (2 Ed.), secs. 1096 and 1178; Railroad v. Boyer, 97 Pa. St. 91; Railroad v. Railroad, 149 Pa. St. 1; Railroad v. Railroad, 60 N. J. L. 52; Railroad v. Owen, 132 Ala. 420; Richmond v. Railroad, 87 Mich. 374; Railroad v. Hickey, 166 U.S. 521; Railroad v. Browning, 34 Ind.App. 90. (c) Plaintiff's petition did not state a case under the humanitarian rule. This doctrine is bottomed upon, and presupposes contributory negligence upon the part of plaintiff. In order to take advantage of that rule, a plaintiff must state a case consistent with the existence of contributory negligence upon his part. Nivert v. Railroad, 232 Mo. 626; Krehmyer v. Transit Co., 220 Mo. 639; Matz v. Railroad, 217 Mo. 275; Bensiek v. Transit Co., 125 Mo.App. 127; Ross v. Railroad, 132 Mo.App. 472; Parrish v. Railroad, 140 Mo.App. 700. (d) Even had plaintiff's petition stated a cause of action under the humanitarian rule, the facts in the case did not justify a recovery by plaintiff upon that theory. The evidence does not show conclusively that any employee of the defendant company was upon the Santa Fe train as it backed out over the Union Depot tracks. All of plaintiff's witnesses, with the exception of one (Waller), testified that there was no one upon the rear end of the Santa Fe train. The witness Waller testified that there was a Terminal employee upon the rear end of the train, but that he jumped from the platform of the rear car at least thirty feet east of the fence on the east side of Sixth street. One or two witnesses for the defense stated that a Terminal employee was upon the rear end of the Santa Fe train, but that he jumped from the platform on the east side of the sidewalk on Sixth street. It was not contended that the engineer and fireman in charge of the train were employees or agents of the defendant company. If there was any agent or employee of the defendant company upon the Santa Fe train it was the person who was upon the rear end of the train, if such person was in fact there, and under all the evidence such person jumped from the train and was not in a position where he could have used any appliance upon the train to stop the same after he knew, or by the exercise of ordinary care, could have known that plaintiff was in a position of peril. Such employee had the right to assume that plaintiff would obey the law and would stop his cars before passing over the Union Depot tracks. He had the right to assume that plaintiff would so operate his cars that he could stop them and prevent a collision, and after it became apparent that plaintiff did not intend to stop or could not stop, no employee of the Terminal Company was upon the Santa Fe train where he could use any appliance to stop the same and prevent a collision. Under such circumstances there was no obligation upon the part of the employees in charge of the Santa Fe train to take any precautions to avoid injuring plaintiff until they knew he would not or could not stop his cars, and when this fact became apparent, it was too late to stop and avoid the accident. Sissel v. Railroad, 214 Mo. 515; Evans v. Railroad, 176 Mo. 508; Van Dyke v. Railroad, 230 Mo. 259; Brockschmidt v. Railroad, 205 Mo. 435; Davies v. Railroad, 159 Mo. 1. (e) Aside from all this, plaintiff's acts which resulted in his injuries, were reckless and wanton. The statute law of the State and the ordinance of the city required him to stop his cars at least ten feet south of the Union Depot tracks. His cars were filled with passengers, and at common law he was required to stop his cars before passing over the railroad tracks. He was required to exercise the highest degree of care to obey the law and to prevent injury to his passengers. He knew the law and recklessly and wantonly disregarded it. He testified that he knew he should exercise and was required to exercise the highest degree of care for the protection of his passengers. He testified that he could have stopped his cars before passing over the railway tracks if he had intended so to do, but that he did not intend to stop them; that he could have had his cars under such control that he could have stopped when and where he pleased, but that he did not have them under such control. The evidence all shows that his view was absolutely unobstructed, and that had he looked he could have seen the approaching Santa Fe train. He testified that he did not look at the time and place when and where he should have looked, but that he was looking to the west; he did not see the Santa Fe train until he was so close to it that he could not stop his cars and prevent the accident. Under all the evidence his own reckless and wanton conduct contributed directly to the injuries sustained by him, if indeed such conduct was not the sole cause of such injuries. Where one is guilty of reckless and wanton conduct which contributes directly to the injuries sustained by him, he cannot avail himself of the humanitarian doctrine. Holwerson v. Railroad, 157 Mo. 216; Moore v. Railroad, 176 Mo. 528; Williamson v. Railroad, 139 Mo.App. 481.

James W. Boyd and James Moran for respondent.

It was not error on the part of the circuit court to refuse to give the appellant's instruction 1, asking the court to instruct the jury that under the pleadings and evidence the verdict must be for the defendant. This demurrer to the evidence was properly overruled. (a) It is the contention of the respondent that the evidence not only does not show that the plaintiff at the time he was injured was guilty of negligence, but it shows that he was not guilty of any negligence at all. He could not stop before reaching the Rock Island track without leaving his cars, which contained passengers, standing across the Grand Island or Terminal track, and when he passed over the Rock Island track, he could not stop before reaching the Burlington track, without leaving his cars standing on both the Grand Island and Rock Island tracks. When he passed the Burlington track, having a train of street cars (measuring the cars from tip to tip, and including the distance between the motor car and the trailer a street car train of the length of about 81 1/2 feet), he could not stop that train of street cars ten or twenty feet south of the Union Depot track, without leaving the rear end of his train on the Burlington track, or so close thereto as to be in danger should a locomotive train pass over that track. However, by the time that the rear end of the street car train was passing over the Burlington track, the plaintiff as motorneer, began to make arrangements to stop the street car train before arriving at the Union Depot track. During that time, he had to make many observations. The Burlington train...