Edwards v. Terminal Railroad Assn.

• Decision Date: 26 August 1937
• Docket Number: No. 34581.,34581.
• Citation: 108 S.W.2d 140
• Parties: JOHNNIE EDWARDS v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.
• Court: Missouri Supreme Court

108 S.W.2d 140

JOHNNIE EDWARDS v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.

No. 34581.

Supreme Court of Missouri.

Division Two, August 26, 1937.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

REVERSED.

T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.

Plaintiff's evidence shows that he was not injured in defendant's yards while crossing Twenty-second Street or a continuation of Twenty-second Street. It shows he was injured east of Twenty-second Street. Plaintiff's evidence shows public used only Twenty-second Street or a continuance of Twenty-second Street across defendant's tracks. Consequently a submissible case was not made. Hall v. Railroad, 219 Mo. 553, 118 S.W. 56; Hufft v. Railroad, 222 Mo. 286, 121 S.W. 120; Foye v. Railroad, 200 Mo. 377, 98 S.W. 556; Sorenson v. Railroad, 212 N.W. 273; Pyrotely v. Railroad, 28 Fed. (2d) 868; Helring v. Railroad, 54 Fed. (2d) 493; Murphy v. Murphy, 162 S.E. 901; Ill. Cent. Railroad Co. v. Godfrey, 71 Ill. 500; Cunningham v. Railroad, 260 Ill. 589; Ill. Cent. Railroad Co. v. O'Connor, 189 Ill. 559; Sary v. Railroad, 248 Ill. App. 417; Crossno v. Railroad, 62 S.W. (2d) 1092. Plaintiff said that he did not think that he was in any danger and thought he was safe when he saw the Missouri Pacific train coming and thought he was out of danger of it. He felt that there was plenty of room for those trains to pass him. Butler v. United Rys. Co., 238 S.W. 1077; Ridge v. Jones, 71 S.W. (2d) 713. Plaintiff's evidence shows that neither the plaintiff, nor the yardmen nor the engineer or fireman of the Missouri Pacific train knew over what tracks a train will proceed on the tracks in defendant's yard.

C.I. Hoy, Wm. T. Powers and John W. Smith for respondent.

The evidence, viewed in the light most favorable to plaintiff, conclusively shows that plaintiff was struck and injured on defendant's tracks on Twenty-second Street. The jury so found, and the trial court in passing on motion for new trial so held, and the verdict should not be disturbed on appeal. Measured by the demurrer, plaintiff's evidence is accepted as true, as well as every reasonable inference deducible therefrom. Lindsey v. Vance, 88 S.W. (2d) 150; Hunt v. Gilman Iron & Metal Co., 39 S.W. (2d) 370; Homan v. Mo. Pac. Ry. Co., 64 S.W. (2d) 623; Mayfield v. K.C. Southern Ry. Co., 85 S.W. (2d) 120, 337 Mo. 87; Wise v. C., R.I. & P. Ry. Co., 76 S.W. (2d) 122; McGinnis v. Mo. Pac. Ry. Co., 187 S.W. 1167. The evidence shows that a record is not kept of all trains that run across Twenty-second Street on defendent's tracks. The train which blocked the way of plaintiff was not a train destined for some particular point west, but was a switch engine of defendant pushing cars in switching. No record is kept of such trains. It is not clear that any definite record was kept of Missouri Pacific Train No. 121. The testimony of plaintiff shows he was struck by a train bearing Missouri Pacific label and thrown under a train being switched by the Terminal. The jury passed on all the facts and so found. The case was properly submitted on the facts.

WESTHUES, C.

Respondent, plaintiff below, obtained a judgment against appellant in the sum of $15,000, for personal injuries which plaintiff alleged he suffered in the railroad yards of the defendant, in the city of St. Louis, Missouri. From the judgment defendant appealed.

At the trial the case was submitted to a jury under the humanitarian doctrine. Appellant preserved for our review the question of the sufficiency of the evidence to sustain the verdict of the jury. Since we have concluded that this contention of appellant must be sustained we need not refer to, or consider other assignments of error.

There was a sharp issue at the trial as to the exact location where, and the manner in which plaintiff was injured. Defendant introduced evidence that plaintiff and a number of his companions were in the railroad yards near Twenty-first Street, on the early morning of October 31, 1930; that one of the party shoved plaintiff against a moving train and that plaintiff fell under the train and lost his arm. The arm was found at that point. Plaintiff's evidence tended to prove that he was crossing Twenty-second Street over the railroad tracks when he was injured. We shall disregard entirely the evidence introduced by the defendant railroad as to the time and place of the accident and state the case as favorable to respondent as the facts permit. Plaintiff testified that on the morning of October 31, 1930, between the hours of six and seven, he attempted to cross the railroad tracks where they intersect Twenty-second Street, west of the Union Station. This street, a north and south street, had been closed, so far as vehicular traffic was concerned, by the construction of barriers at both sides of the tracks. Pedestrians, however, frequently crossed over the tracks. There was no walk constructed for pedestrians, they merely walked over the tracks. There were eight main line tracks running east and west, and of course, as is usual in railroad yards, there were switches at various points permitting trains to cross over from one track to another. These switches were operated by a man in a tower. The operators of trains were required to watch signal lights and proceed accordingly. The man located at the tower regulated the course of the trains. The tracks at Twenty-second Street were numbered from fifty-one to fifty-eight, inclusive. Plaintiff testified that as he was crossing these main line tracks from north to south, and when he reached a point about where tracks fifty-six or fifty-seven are located, a train of freight cars was moving slowly westward blocking his path. He stated that he waited for this train to pass and while thus waiting he noticed a passenger train, also moving westerly, approach upon a track immediately north of the track which was occupied by the freight train; that the passenger train was running at a speed of about five or six miles per hour. Plaintiff further testified that the engine of the passenger train passed him, but that the coal supply car or tender struck him on the right shoulder knocking him beneath the freight train cutting off his arm; that he was facing the freight train south of him.

Plaintiff's instruction, as given by the trial court, authorized a verdict for plaintiff upon the theory that if the operators of the train saw, or by the exercise of ordinary care could have seen, plaintiff in a position of imminent peril in time thereafter to have stopped the train, or to have sounded an audible warning signal, and by so doing could have avoided striking plaintiff, then a verdict for plaintiff was authorized. The humanitarian doctrine is not applicable unless the plaintiff was in a position of imminent peril. In the case before us plaintiff was not oblivious. He testified that he saw the passenger train coming; saw it switch over on the track next to the freight train when it was about sixty feet from him. He testified that he had lived in the neighborhood for a number of years and had crossed the tracks on numerous occasions. He had also worked for railroad companies, doing track work and knew that the switches in the yards were operated by a man in the tower. Mr. James M. Perry, a passenger train master, testified for plaintiff that the operators of the trains never knew which track their train would enter until they entered the switch; that as a rule these switches were so constructed that the train could be switched either north or south, and therefore it was possible, by throwing the switch, to lead the train onto any one of three tracks. A locomotive engineer testified as a witness for plaintiff that a train, such as plaintiff testified struck him, could be stopped within ninety to one hundred feet when running at a speed of six miles per hour. This witness also testified that the engine and tender would not rock; that a tender that rocked could not be used on the road. Plaintiff testified that the space between the track upon which the freight train was moving and the one upon which the passenger train was moving was sufficient to permit two persons to walk side by side without interference if the trains were standing still. Plaintiff's evidence with reference to the space between the tracks was substantially the same as that offered by the defendant railroad. Actual measurements showed that the space between a freight train and a passenger train standing upon adjoining tracks at the point in question was three feet and ten inches. The freight train, as plaintiff testified, was moving very slowly. The passenger train was traveling about five or six miles per hour. Plaintiff was, therefore, under the physical facts as shown by his own testimony, not in a position of imminent peril as that term is understood in connection with the humanitarian doctrine. The peril must be certain and not contingent. In State ex rel. v. Trimble, 300 Mo. 92, 253 S.W. 1014, l.c. 1019, this court said:

"The word `peril' as used in the rule of `discovered peril,' `humanitarian rule,' or `last chance doctrine,' means something more than a bare possibility of an injury occurring."

This rule was reaffirmed in a number of cases including Ridge v. Jones, 335 Mo. 219, 71 S.W. (2d) 713, l.c. 714 etc. (1, 2); Ziegelmeier v. East St. Louis & Suburban Ry. Co., 330 Mo. 1013, 51 S.W. (2d) 1027, l.c. 1029 (1, 3); Huckleberry v. Mo. Pac. Railroad Co., 324 Mo. 1025, 26 S.W. (2d) 980, l.c. 983(1). In this case the evidence disclosed that the pilot beam on the engine was as wide as any part of the coal supply car or tender. Plaintiff testified that the engine passed him without injury. The query then presents itself that if plaintiff was injured as he testified he was, how did the accident happen? We think the following evidence by plaintiff fully answers this question:

"Q. And while you were facing the cars,...