Garrett v. Wabash R. Co.
| Decision Date | 15 July 1911 |
| Citation | 139 S.W. 252,159 Mo.App. 63 |
| Parties | SARAH M. GARRETT, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Montgomery Circuit Court.--Hon. J. D. Barnett, Judge.
Judgment reversed and cause remanded.
J. L Minnis, G. Pitman Smith, H. W. Johnson and Bates, Blodgett Williams & Davis for appellant.
(1) The petition does not state facts sufficient to constitute a cause of action, and the court erred in overruling defendant's objection to the admission of any evidence the petition showing contributory negligence of deceased and no allegation bringing the case within the humanitarian doctrine. Nivert v. Railroad, 135 S.W. 33; authorities cited under point 3. (2) The deceased was guilty of contributory negligence as a matter of law, in attempting to cross the main track without looking and listening for approaching trains, especially as the view was partially obstructed, or in knowingly crossing so close ahead of the train that he could not get over the track. Hook v. Railroad, 162 Mo. 569; Nivert v. Railroad, 135 S.W. 33. (3) Defendant's demurrer to the evidence at the close of plaintiff's case should have been sustained, and defendant's peremptory instruction to find for the defendant at the close of the whole case should have been given. It was reversible error to refuse either. (a) Deceased was guilty of contributory negligence as a matter of law. Peterson v. Railroad, 156 Mo. 552; Watson v. Railroad, 133 Mo. 246; Paul v. Railroad, 134 S.W. 3; cases cited under point 2. (b) Under the petition, plaintiff cannot recover on the humanitarian doctrine. Nivert v. Railroad, 135 S.W. 33; Grant v. Railroad, 125 Mo.App. 552. (c) Nor does the evidence bring this case within the humanitarian doctrine. Dey v. Railroad, 140 Mo.App. 461; Roenfeldt v. Railroad, 180 Mo. 554; Reis v. Transit Co., 179 Mo. 1; McGee v. Railroad, 214 Mo. 530; Paul v. Railroad, 134 S.W. 3. (4) It was reversible error for the court to give plaintiff's instructions, numbered one and two, because they authorized a verdict for the plaintiff, if defendant's negligence merely "contributed" to cause the death of plaintiff's husband and thus cut out entirely the defense of contributory negligence. Schmidt v. Transit Co., 140 Mo.App. 182; Hof v. Transit Co., 213 Mo. 445; Krehmeyer v. Transit Co., 220 Mo. 639.
R. H. Norton, S. S. Nowlin, Ball & Ball and Avery, Young & Woolfolk for respondent.
(1) Where a person is injured by the negligence of another, an act done in the face of impending danger for the purpose of avoiding the injury will not amount to contributory negligence, although, in fact, it may have helped to produce the injury complained of. White on Personal Injuries on Railroads, sec. 806; Ladd v. Foster, 12 Sawy. (U.S.) 547, 31 F. 827; Railroad v. Cotton, 140 Ill. 486; Eckar v. Railroad, 57 Barb. 555. (2) Where one by negligence puts another under a reasonable apprehension of personal physical injury, and in a reasonable effort to escape from the the impending peril, the latter sustains a physical injury, a right of action arises to recover for the physical injury naturally incident to its occurrence. 1 White on Personal Injuries on Railroads, sec. 30; Tuttle v. Railroad, 49 A. 450; Caswell v. Railroad, 98 Mass. 194; Buell v. Railroad, 31 N.Y. 314. (3) The court did not err in giving plaintiff's instructions Nos. 1 and 2. Leucke v. Railroad, 146 Mo.App. 500.
This is a suit for damages accrued to plaintiff on account of the death of her husband through the wrongful, negligent act of defendant. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff's husband came to his death while walking upon defendant's railroad tracks in the village of Jonesburg, Missouri, through being run upon by defendant's east-bound passenger train. Finding the public crossing obstructed by a freight train, decedent was walking eastward from the depot along the tracks, to the end of crossing at another place, when defendant's eastbound passenger suddenly came upon him at a speed of from sixty to sixty-five miles per hour. It appears defendant's railroad tracks run through Jonesburg around a considerable curve and that its depot is at the apex of the curve and on the north side of the main line. There are two sidetracks at Jonesburg. One of them runs around the north side of defendant's depot and connects with its main line; the other, and principal, sidetrack lies immediately south of the main line and connects at either end with it. Plaintiff and her husband lived south of the depot in the village of Jonesburg and he was presumably en route home, at the time he was killed. A freight train from the eastward had pulled into the town of Jonesburg and entered upon the sidetrack south of the main line. This train stood there for about thirty minutes and obstructed the public street crossing immediately east of the depot. Plaintiff's husband, presumably en route home or at least to some place on the south side of the railroad, was prevented from crossing the railroad tracks on the street immediately east of the depot, because of defendant's freight train standing there. He thereupon walked to the eastward, as though he intended to cross to the south side of the tracks on the street crossing next east from that one near the depot. He walked eastward on the parcel of ground situate between defendant's main line and the south switch track on which the freight train was standing. Upon reaching the crossing next east from that at the depot, it too was obstructed by the same freight train, and decedent walked thence farther east as though he intended to cross the tracks at the next crossing, known as the mill crossing. The strip of land between the two tracks, on which plaintiff's husband thus walked eastward, is shown by the evidence to have been used by the public as a walk, with the knowledge and consent of defendant, for many years. Indeed, the proof is overwhelming to the effect that the public travel passed up and down the railroad from one street to another on the strip of ground between these two tracks as though it were a commonly used sidewalk. That plaintiff's husband and others were licensed to so use that portion of defendant's right of way is established beyond question. After plaintiff's husband had passed the first road crossing east from that adjacent to the depot and while he was walking toward the next one farther east as if to cross the track to the southward there, the freight train on the sidetrack commenced moving slowly to the westward and about the same time defendant's fast passenger train came suddenly around the curve from the depot at the westward, running at a rate of speed from sixty to sixty-five miles per hour. Because of this curve in the track and the long freight train on the sidetrack, the view to the westward was obscured, so that one occupying the position of plaintiff's husband could not see to the westward beyond the depot and observe the approach of a train from that direction. It is shown that defendant's fast passenger train was behind time and came into the town of Jonesburg and around the curve at the depot without sounding either the whistle or bell on the locomotive and first signaled plaintiff's husband of its presence when it was from one hundred to one hundred and fifty feet away. At the time the passenger train came into view from the westward, plaintiff's husband was walking east in the space between the sidetrack, on which the freight train was slowly moving to the westward, and the main track, on which the passenger train was approaching eastward at high speed. The space on which deceased was walking, and on which the license to do so obtained, is shown to be about nine feet in width from rail to rail, but is reduced to four feet in width between passing trains. As the passenger train approached around the curve at the depot, two men on the slowly moving freight train hallooed at plaintiff's husband, as did a boy on the mill crossing just east of him, and all pointed toward the approaching passenger train. About the same time, the engineer on the passenger train discovered the peril of decedent and sounded the alarm, whereupon decedent moved "as fast as he could," "angling" across the main track in an effort to reach a place of safety. Before he had gotten out of the way, the locomotive of the passenger train struck and killed him.
It is argued that the court should have directed a verdict for defendant on the ground of the contributory negligence of decedent, but we do not accede to this view, for in view of all the facts, the question was for the jury. To a proper consideration of the question of contributory negligence, the defendant's conduct must be scrutinized with care, as it relieves the situation for plaintiff. Even the witnesses for defendant concede that defendant's passenger train was traveling nearly sixty miles an hour. An ordinance of the village of Jonesburg forbade trains to be operated through the same at a rate of speed to exceed twenty miles per hour and this ordinance is both counted upon in the petition and proved in the case. Defendant's locomotive engineer said on the witness stand that he was running at the time plaintiff's husband was killed, probably fifty-five miles per hour, or as fast as he could propel the locomotive with safety to the train. The witnesses for plaintiff estimate the speed of the train to have been at from sixty to sixty-five miles per hour, and it is said neither the whistle nor the bell was sounded as it approached the town from the westward. The counsel for defendant concede, both in oral argument and in the brief, that defendant's...
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