Cochran v. Thompson

• Citation: 148 S.W.2d 532,347 Mo. 649
• Decision Date: 13 March 1941
• Docket Number: 37278
• Parties: Mary Cochran v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant
• Court: United States State Supreme Court of Missouri

148 S.W.2d 532

347 Mo. 649

Mary Cochran v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant

No. 37278

Supreme Court of Missouri

March 13, 1941

Appeal from New Madrid Circuit Court; Hon. Louis Schult Judge.

Reversed.

Thomas J. Cole and Spradling & Strom for appellant.

(1) The demurrers requested by appellant at the close of respondent's case and, again at the close of all the evidence in the case, should have been given. The deceased was found on the railroad track in a recumbent position and intoxicated. On account of his position on the track, the trainmen were unable to determine whether it was a human being or a piece of paper. A railroad company is not liable for the killing by a train of a person, while on the track in this position, unless the trainmen had actual notice that the object was a human being, and that, after they discovered it was a human being, they had time to stop the train and avoid the killing. Voorhees v. Railroad, 30 S.W.2d 24; Ayers v. Railroad, 190 Mo. 236; Trigg v Railroad, 215 Mo. 541; Murphy v. Railroad, 228 Mo. 83; Kurn v. McCoy, 102 P.2d 177; Mo. Pac Ry. v. Gordon, 98 P.2d 39; Carpenter v. Kurn, 136 S.W.2d 1004; Joy v. Railroad, 105 N.E. 330; Southern Ry. Co. v. Wahl, 149 N.E. 72; Burg v. Railroad, 57 N.W. 680; Little Rock, M., R. & T. Railroad Co. v. Haynes, 1 S.W. 774; Mo. Pac. Ry. Co. v. Prewitt, 54 P. 1067; Spiegle v. Railroad, 185 S.W. 1138; Goodman v. Railroad, 77 S.W. 174; Louisville No. & T. Railroad Co. v. Williams, 12 So. 957; Murch v. Railroad, 29 N.Y.S. 490; Houston Railroad v. Sallee, 120 S.W. 216; Norfolk & W. Railroad Co. v. Dunnaway, 24 S.E. 698; Smith v. Railroad, 51 So. 792. (2) The duty of the trainmen to stop the train, under the humanitarian doctrine, did not arise until a situation of peril arose. If the object on the track was animate, the trainmen had a right to assume that he would leave the track for his own safety. Deceased was not in a position of imminent peril until the trainmen discovered him to be a human being. On such discovery they used every effort to stop their train and avoid the collision, but were unable to do so. Under these facts plaintiff was not entitled to go to the jury and the the court should have directed a verdict for appellant. Poague v. Kurn, 140 S.W.2d 19; Buehler v. Festus Merc. Co., 119 S.W.2d 970; Clark v. Railroad, 6 S.W.2d 960; Smithers v. Barker, 111 S.W.2d 52; Murch v. Railroad, 21 N.Y.S. 490; Railroad v. Sallee, 120 S.W. 216; Tucker v. Railroad, 24 S.E. 229. (3) The witnesses offered by respondent to prove the result of the test made were on the ground. They were stationery. They saw exactly what they knew was there and went to see. They knew, while the test was being made, that they were expected to see a human being on the track, and that they were supposed to recognize it as such. The admission of this evidence was unauthorized under the law, wholly incompetent and highly prejudicial. Voorhees v. Railroad, 30 S.W.2d 24; Wells v. Lusk, 188 Mo.App. 68; Riggs v. Railroad, 216 Mo. 335; Ballmann v. Leuking Teaming Co., 219 S.W. 609; Bretall v. Railroad, 239 S.W. 600.

Lawrence E. Tedrick, Byron Kearbey and James V. Conran for respondent.

(1) Plaintiff's evidence showed extensive user of defendant's track, both north and south of the point where Cochran was killed, therefore this issue was properly submitted to the jury and the court committed no error in overruling defendant's demurrer. Frick v. Ry. Co., 75 Mo. 595; Eppstein v. Mo. Pac. Ry. Co., 94 S.W. 967; Ahnefeld v. Wabash Ry. Co., 111 S.W. 95; Hufft v. Ry. Co., 121 S.W. 120; Murphy v. Wabash 128 S.W. 481; Stergon v. St. L. & S. F. Ry. Co., 286 S.W. 720; Whiteaker v. Mo. Pac. Ry. Co., 28 S.W.2d 680; Allen v. C., R. I. & P. Ry. Co., 54 S.W.2d 787; Wilkerson v. Mo. Pac. Ry. Co., 69 S.W.2d 299; Wise v. Chicago, etc., Ry. Co., 76 S.W.2d 118; Burnam v. Railroad, 100 S.W.2d 858; English v. Wabash Ry. Co., 108 S.W.2d 51; Yakubinis v. M.-K.-T. Ry. Co., 100 S.W.2d 461, 137 S.W.2d 504. On review of trial court's refusal to direct verdict for defendant, reviewing court would consider evidence in most favorable light for plaintiff. Robinson v. C., B. & Q. Ry. Co., 38 S.W.2d 514; Sisk v. C., B. & Q. Ry. Co., 67 S.W.2d 830; Anderson v. C. G. W. Ry. Co., 71 S.W.2d 508; Frye v. St. J. Ry., L., H. & P. Co., 99 S.W.2d 540. (2) The witness, Lynch, testified that he could distinguish a man slumped down on the track for a distance of one-half of a quarter of a mile. The witness Norden testified that he could distinguish a man between 800 and 900 feet, and the witness Jonas testified, that he could distinguish a man at the same distance. The courts have unanimously held that such evidence is admissible. Owens v. Delano, 194 S.W. 756; Griggs v. Dunham, 204 S.W. 573; Griggs v. Kansas City Rys. Co., 228 S.W. 508; Cook v. St. Joseph Ry., L. H. & P. Co., 106 S.W.2d 38. (3) Competency of alleged expert witness is a preliminary question within the discretion of trial court, whose ruling is not reversible in absence of error of law, serious mistake or abuse of discretion. Robinson v. C. G. W. Railroad Co., 66 S.W.2d 180; Slezak v. St. Louis Transit Co., 121 S.W. 1095; Owens v. Kansas City, C. C. & S. J. Ry. Co., 225 S.W. 234; Fields v. Luck, 74 S.W.2d 35.

Hyde, C. Bradley, C., concurs; Dalton, C., not sitting.

OPINION

HYDE

This is an action for damages for wrongful death, under the penalty section. [Sec. 3652, R. S. 1939, sec. 3262, Mo. Stat. Ann. 3353.] Plaintiff had a verdict for $ 10,000. Defendant has appealed from the judgment entered.

Defendant contends that the court erred in refusing to direct a verdict for defendant at the close of the evidence. Considering the evidence most favorably to plaintiff, the following facts appear. Plaintiff's husband, Joseph Cochran, was struck and killed by defendant's train, about a half mile south of the south city limits of Poplar Bluff and about a quarter of a mile north of defendant's south yard limit sign. Defendant's track (defendant had double main line tracks but no switch tracks here) ran in a general north and south direction and were almost level, but there was a slight grade to the north. The track was straight for several miles. Near the city there was a trestle over a drainage ditch. One mile south of the city limits an east and west road crossed the railroad. This was called the "Williamson Crossing." Defendant's yard limit sign was about a quarter of a mile north of this crossing. About three quarters of a mile east of the Williamson Crossing, there was a road known as the Pike Slough Road which ran due north, getting closer to the railroad as it approached the city limits. About one quarter of a mile west of the Williamson Crossing there was another public road running north which ran into Highway No. 67, southwest of the city, about three-fourths of a mile from the city limits. The Frisco Railroad had one track which paralleled defendant's tracks about 100 feet west. There was a good fence on the east side of defendant's track and another good fence on the west side of the Frisco track. From the Williamson Crossing "to Poplar Bluff the land is pretty well cleared." There were cattle guards at the Williamson Crossing. There was a private farm crossing, from 200 to 300 feet south of the point where Cochran was struck by defendant's train, which had gates on each side of the tracks, but those were kept closed and wired. It was only possible to get on either track by going over cattle guards, climbing a fence, or opening gates.

Cochran started to walk south on defendant's tracks with another man, Turner, who was one of plaintiff's witnesses, on the afternoon of June 11, 1938. It was a clear day and the track was dry. They had been drinking in Poplar Bluff and consumed more liquor as they walked down the track. Cochran said he was going to sit down and rest. Turner tried to get him to go on, told him a train was coming through and might hit him, and did all he could to get him off the track. Turner finally went on and left him sitting on the track. Defendant's freight train of fifty-five cars came north about 5 P. M., on the east track, and ran over Cochran. The fireman, called as a witness by plaintiff and the only plaintiff's witness who saw the occurrence, said that the train approached the yard limits at about 50 miles an hour that the train was supposed to stop "up at the north end of the yards . . . something like 1 1/2 miles" north of where Cochran was struck; that the engineer made a service application of the brakes approaching the south yard limits; and that between one-quarter and one-half mile away he saw an object on the track. The fireman was on the west side of the engine. He said to the engineer, who was on the east side of the engine, "it looks like something on the track." The engineer "just nodded his head." The fireman also said: "When we saw this object on the track we had slowed down to about 40 miles an hour and were between a one quarter and one-half miles away. . . . We were traveling at about 35 miles an hour and continued to reduce our speed. . . . He said the bell rang at Williamson Crossing and the whistle was also blown, and the whistle was also blown between the crossing and the point where Cochran was killed." He also said that, after the train struck Cochran, "we traveled about 400 feet before the train came to a stop." He further testified that he first discovered the object was a man when the engine was 250 to 300 feet away. He said: "As I watched it I just decided as it was absolutely motionless it was a roll of brown paper. . . . He was hunkered down right against the west rail with his head lying on the ties or ground. . . . He wore khaki clothes, or they were light brown. (Evidence...