Gabal v. St. Louis & San Francisco Railroad Company

• Decision Date: 17 June 1913
• Parties: FRANK GABAL v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

158 S.W. 12

251 Mo. 257

FRANK GABAL v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

June 17, 1913

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Reversed.

W. F Evans and Cowherd, Ingraham, Durham & Morse for appellant.

(1) Under the pleadings and evidence in this case the judgment should be for defendant. The court should have so instructed the jury. Degonia v. Railroad, 224 Mo. 564; Vandyke v. Railroad, 230 Mo. 259; Sissel v Railroad, 214 Mo. 515; Evans v. Railroad, 178 Mo. 517; Cahill v. Railroad, 205 Mo. 393; Brock-schmidt v. Railroad, 205 Mo. 435; Sharp v Railroad, 161 Mo. 214; Moore v. Railroad, 166 Mo. 513; Davies v. Railroad, 159 Mo. 1; Hitz v. Railroad, 152 Mo.App. 687; Clancy v. Railroad, 192 Mo. 615; King v. Railroad, 211 Mo. 1; Mockowick v. Railroad, 196 Mo. 550; Walker v. Railroad, 193 Mo. 453; Holwerson v. Railroad, 157 Mo. 216; Nivert v. Railroad, 232 Mo. 626. (2) Plaintiff's instruction 1 is erroneous for the following reasons: (a) There is no evidence that plaintiff was going along unaware of the approach of the train and would enter upon or too near the track in front of the train. Guger v. Railroad, 174 Mo. 350; Boyd v. Railroad, 105 Mo. 371; Schmidt v. Railroad, 191 Mo. 215. (b) There is no evidence and could be none that plaintiff would not turn around or stop before going into a place of danger, where he was struck. Boyd v. Railroad, 105 Mo. 371; VanBach v. Railroad, 171 Mo. 346; Koegel v. Railroad, 181 Mo. 379. (c) In the absence of such evidence defendant had the right to rely upon the presumption that plaintiff would remain in a safe position and would not get upon or too near the track. This instruction does not accord defendant this right. Tanner v. Railroad, 161 Mo. 497; Helm v. Railroad, 193 Mo. 223; Guger v. Railroad, 174 Mo. 344; Evans v. Railroad, 178 Mo. 508. (3) Plaintiff's instruction number 2 is erroneous because it is not based upon any evidence. (a) All testimony upon the point showed that the defendant's trainmen did everything they could to stop the train after they saw plaintiff in danger, and the train was stopped in the shortest possible time. (b) Defendant had the right to presume plaintiff would step out of the way of the approaching train in the absence of some showing that he was unconscious of his peril. In plaintiff's evidence there is no such showing. In defendant's evidence it was shown that plaintiff stooped over and immediately thereafter the trainmen did everything possible to stop the train, and stopped it as quickly as could be done.

Strother & Campbell and Reed & Harvey for respondent.

(1) It is conceded that if the uncontradicted evidence shows that Gabal was injured because he suddenly stepped upon or so close to the track from a position of safety at a time too late for the foreman in charge of the train in question to stop it or slow it down and thereby avoid striking him, we have no case. While as our decisions declare, the last-chance doctrine is not enforced with the same rigor that obtains in the case of a stranger, where the life of an employee is at stake, nevertheless, unless much good law made by the Supreme Court is set aside, it is not yet allowable to kill or maim an unobserving yard or track employee without warning when the warning might save him, or without reasonable effort to stop the train when this course might be effective. (2) No case cited by appellant under point one is upon its facts, like this one; it being conceded from all of the evidence that no warning whatever was given by the foreman in charge of this train, either by whistle or bell, before the cars were practically upon Gabal and his companion. Under all of the Missouri cases like this one, the question of defendant's negligence was for the jury, because: (a) The fireman-engineer and the switch foreman saw that plaintiff was moving with his back toward the train, engaged in the arduous labor of pushing a heavy load upon a truck; that he was absorbed in his work; that he was coming along a path dangerously near the track and must, of necessity, follow this same path because of impediments in and near the path; that at No. 5 switch, he had such a clear space of approximately only four feet for his truck and could not go around the ball and switch stand. (b) Despite the situation in which plaintiff had placed himself upon reaching No. 5 switch, which situation the trainmen saw, nevertheless, the train was permitted to run seventy-four feet (two car-lengths) before a stop signal was given; if the train was going at the minimum rate testified to by any witness, this permitted the fireman-engineer to pursue a policy of masterly inactivity for a period of about eighteen seconds during which time the ringing of the bell or the screaming of the whistle might have saved Gabal. If, with watch in hand, one by actual test determines what can be done in this length of time, this statement will receive its full need of potency. (c) Although some of the defendant's witnesses testified that Gabal suddenly changed his relative position to the oncoming train by stepping over the rail, nevertheless, plaintiff himself and his co-worker, Cook, testified to the contrary, as did two of appellant's witnesses; namely, the switch foreman, Reidy, and the engineer, Moore. The four witnesses last referred to testified that plaintiff was going, when struck, just as he had been going all of the time. This, with the other facts, raised a question for the jury. The following cases declare the law applicable to the case at bar: Degonia v. Railroad, 224 Mo. 564; Rashall v. Railroad, 249 Mo. 509; Dutcher v. Railroad, 241 Mo. 137; Heinzeman v. Railroad, 199 Mo. 56; Lynch v. Railroad, 208 Mo. 34; Sullivan v. Railroad, 97 Mo. 119; Kelly v. Railroad, 95 Mo. 279; Schlereth v. Railroad, 115 Mo. 101. (3) This is not a case where defendant's servants in charge of the train had the right to assume that these men would quickly step aside from the danger zone: 1st, Because those in charge of the train knew that respondent was oblivious to his surroundings and was not aware of the approach of danger; and, 2nd, the employees of defendant, operating the train, saw the respondent in his position of peril in time to have prevented striking plaintiff. (4) The engineer testified that he saw these men at No. 5 switch. The nearest car to them in his train was approximately two hundred feet away. If Gabal and Cook are to be believed, and this was for the jury, they were not on the track, but walking forward with their load so near to the track as necessarily to be struck unless the train was checked or stopped. It was for the jury to say under the last chance doctrine, whether or not a warning given at this time would have averted the injury. No such warning was given. The train was permitted to run two car-lengths before any effort was made to stop; since the car that caused the injury ran only six or seven feet, according to witness Avis, after running over Gabal, or eight or nine feet, as stated by fireman Moore, it is indisputable that had an effort been made to stop the train when Gabal was first seen in the danger zone, the injury would have been averted.

OPINION

GRAVES, J.

Action for personal injuries. Verdict and judgment for plaintiff in the sum of $ 8500, from which judgment the defendant has appealed.

Plaintiff's petition is in two counts. The first pleads divers specific acts of negligence upon the part of the defendant, but inasmuch as the plaintiff by his instructions nisi abandoned this count of his petition further note thereof becomes unnecessary. The second count of the petition proceeds upon the humanitarian doctrine. This count alleges that the place of accident was at a place continuously used by pedestrians, and pleads facts attempting to place the duty upon defendant to be on the lookout for persons at such place. In other words the theory of the pleader evidently was that the circumstances of the case were such as involved that branch of the humanitarian rule, which permits a recovery where the defendant saw, or by the exercise of ordinary care might have seen, the perilous position of plaintiff in time to have prevented the accident. But whilst the petition proceeds upon the theory that the defendant would be liable for failure to see the peril of plaintiff, when by the exercise of ordinary care it might have seen and known such peril, yet by his instructions the plaintiff abandons that theory, and presents his case below upon the single idea that the defendant saw his peril in time to have averted the injury, but negligently failed to use any effort to avert it after so seeing such perilous position. Excluding the instruction upon the measure of damages and other minor formal instructions, the instructions asked by plaintiff and given by the court read:

"1. The jury are instructed that if you find that plaintiff was walking along the track of the defendant, directly toward the place where he was hurt, and with his back toward the train of cars, and that he was manifestly approaching a point near No. 5 switch, where he would be struck by said train, and was manifestly unaware of the approach of said train, and that the servants of defendant in charge of said train saw and knew the position of said plaintiff and the direction in which he was moving and had good reasons to believe, as reasonable men, that the plaintiff was unaware of the approach of said train, that he would not turn around or stop but would continue to proceed to a point where he would be struck by said train, and after such knowledge and notice had time, by the exercise of reasonable care and diligence, to have stopped said train and averted the injury to the plaintiff, and...