Gilbert v. Mississippi River & B. T. R. Co.

• Decision Date: 07 December 1920
• Docket Number: No. 13207.,13207.
• Court: Missouri Court of Appeals
• Parties: GILBERT v. MISSISSIPPI RIVER & B. T. R. CO.

226 S.W. 263

GILBERT v. MISSISSIPPI RIVER & B. T. R. CO.

No. 13207.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs Nov. 9, 1920.

Opinion Filed December 7, 1920.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by Mary Gilbert against the Mississippi & Bonne Terre Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Politte Elvins, of Bonne Terre, for appellant.

Safford & Marsalek, of St. Louis, for respondent.

REYNOLDS, P. J.

This is a case where recovery is sought upon the application of what is known as the humanitarian doctrine. There was evidence upon the part of plaintiff to the effect that the decedent, going along a dirt road, crossed the railroad tracks of the defendant and was walking southwardly between the main track and the switch track next to the main track, which ran in front of the depot. There was evidence on the part of plaintiff, that the people in the neighborhood were in the habit of using this space in and between the tracks for this purpose. The station is called River Mines and is in St. Francois County. The depot is to the west of the main track; to the east of the latter is a switching track. While Gilbert, the decedent, was walking along this switching track, he was knocked down by one of defendant's cars, which was being pushed by an engine. A witness testified that he saw Gilbert step from the space between the two tracks over on to this switching track, and walk southwardly along it, between the rails, for a distance of 20 or 25 feet, with his back to the on-coming locomotive and car, when he was knocked down by the car.

There was evidence in the case on the part of the engineer, called as a witness by plaintiff, that his train was going at the time, possibly 5 or 6 miles an hour, and that with the appliances at hand, and consistently with the safety of the people on the train, he could have stopped the train in a distance of 3, 7 or 8 feet. Neither the engineer nor fireman saw deceased on the track. A switchman and a brakeman were on a ladder near the southwest corner of the car, which was being pushed to the south and which was the car that knocked the decedent down. They had been in that position a very few minutes before the accident occurred. The ladder upon which they were standing was attached to the car, one or two feet from the rear end of the car and, as said, on its west side. Neither man saw the decedent on the track, or near it, or knew of his presence until after the accident, when he was found lying on the east side of the switching track, badly wounded and from which wounds he died.

Plaintiff is the widow of the decedent and instituted this action within the time required by law entitling her to do so; beside the widow, the decedent left surviving him several children.

It is true that there is only this one witness on the part of plaintiff, who testified to the fact of the decedent having walked for 20 or 25 feet in front of the moving car before he was struck. That witness also testified that the decedent, while walking down the track, apparently was oblivious of danger and did not look behind him. Defendant's witnesses, and there, were a number of them, testified to facts which tended to contradict this witness and which if true, or believed by the jury, would prove that decedent was struck the moment he went on to the track by the front of the moving car, and that the train crew neither saw nor could have seen him in time to have prevented the accident.

There was a verdict for plaintiff in the sum of $3,000.00, and defendant appealed.

Assuming that the jury took the testimony of the sole witness for plaintiff who testified to having seen the accident, and plaintiff is undoubtedly...