Gould v. Chicago, B. & Q. R. Co.
| Citation | 290 S.W. 135 |
| Decision Date | 16 August 1926 |
| Docket Number | No. 25104.,25104. |
| Court | United States State Supreme Court of Missouri |
| Parties | GOULD v. CHICAGO, B. & Q. R. CO. |
Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.
Action by Sam Gould against the Chicago, Burlington & Quincy Railroad Company, Judgment for plaintiff, and defendant appeals. Affirmed.
H. J. Nelson, of St. Joseph, and Langworthy, Spencer & Terrell, of Kansas City, for appellant.
Hogsett & Boyle, of Kansas City, for respondent.
Action for personal injuries. The jury found for plaintiff and assessed his damages at the sum of $15,000. Defendant has appealed from the judgment rendered on such verdict.
The petition alleged several negligent acts on the part of defendant. At the request of plaintiff, the trial court gave an instruction withdrawing from the consideration of the jury all grounds of negligence alleged in the petition, except the single ground submitted in instruction 1, which was based on the humanitarian rule. The amended answer contained a general denial, a plea of contributory negligence, and a plea that plaintiff was not entitled to prosecute the action because such action was being prosecuted for the benefit of the United States government and the United States government is the real party in interest.
There is no material conflict between counsel concerning the facts which the evidence of each party tended to establish, but there is great difference of opinion concerning the effect of such testimony. We will first consider whether a case was made for the jury.
I. Plaintiff was a soldier in the service of the federal government during our participation in the World War. On August 1, 1917, he was detailed, with other soldiers, to guard the railroad bridge of defendant over the Mississippi river, between Alton, Illinois, and Missouri. Shortly before 6 o'clock a. m. on that day plaintiff was struck and injured by a freight train moving toward Alton and entering said bridge from the Missouri side.
Plaintiff was assigned a post at the south end of the bridge. It was his duty to guard the bridge against the approach of persons who might attempt to destroy or damage it, and also to observe persons upon trains using said bridge. Other soldiers were detailed for similar guard duty at the Illinois end and at regular intervals over the entire length of the bridge. Guards were also stationed under the bridge on both banks of the river.
The bridge carried double railroad tracks and contained a draw span to permit the passage of boats. Approaching the bridge from the Missouri side the double tracks were in a curve to the left and on a slightly ascending grade. This and other obstructions present at the time gave only a limited view from the end of the bridge of trains approaching it from the Missouri side. Plaintiff's post was about 20 feet square, was immediately off the Missouri end of the bridge, and covered both tracks. It was his duty to walk along a side of this square and stop and look for persons approaching the bridge, and then turn and walk along another side of the square and repeat his observations.
The testimony of plaintiff was that he was at his post and had stopped with his feet astride the rail facing the bridge when he was struck from behind by the approaching train; that he had looked down the tracks immediately before, when he was facing in that direction, and saw no train; that he heard no bell or whistle and heard no other noise of an approaching train. It was just after sunrise. It was a clear morning without fog. There was testimony that soon after his injury plaintiff made a statement that he was sitting beside the track when struck.
Other testimony offered by plaintiff tended to show that no whistle was blown or bell rung by the locomotive; that the train was approaching at a speed of from 15 to 20 miles an hour or more; that the train was coasting and the engine making no noise. An officer of the guard had just inspected plaintiff, had gone to the next guard and had inspected him, and was about to inspect a third guard, when the accident happened.
The engineer of defendant testified that, because of the curve, he could not see the end of the bridge until the locomotive was within about two car lengths thereof; that he then saw plaintiff sitting on a timber or guard rail beside and about two feet from the right-hand rail and leaning over toward the track; that he immediately shut off the air and applied the brakes and blew seven to a dozen sharp blasts of the whistle; that plaintiff did not move from his sitting position with his head down and forward; that the steam cylinder of the engine struck plaintiff on the left side of the head (the left side of the head was injured); that the train stopped in about 10 or 12 car lengths after plaintiff was struck.
The engineer also testified that he blew the whistle for the curve and also one long blast for the drawbridge when the train was a half mile from the bridge; that there was a string of cars on the upstream (left) track. The testimony of other witnesses, including the trainmen, was that the whistle was blown, both just at the bridge and before that for the curve (or a crossing) and the drawbridge
The submission of the case under instructions requested by plaintiff solely under the humanitarian rule makes it unnecessary to consider whether plaintiff was guilty of contributory negligence or the train operatives were negligent in approaching the bridge without giving customary warnings. We will assume, and the record fully warrants such assumption, that plaintiff was guilty of negligence contributing to his injury.
The case was submitted to the jury on the sole question of whether or not the engineer saw, or by the exercise of ordinary care should have seen, plaintiff in a position of peril in the path of the train and oblivious of his peril, in time, by the exercise of ordinary care on the part of said engineer, to have given plaintiff timely warning of the approach of said train and could have thereby avoided striking plaintiff.
Defendant's contention that the trial court should have instructed the jury to render a verdict in its favor rests upon two main propositions : First, that the engineer was not required to be on the lookout for plaintiff, because the section hand rule applied to plaintiff and he was required to look out for his own safety, so far as the danger from moving trains is concerned. Second, that there is no evidence that the engineer saw plaintiff in a position of peril and oblivious to such peril in time to have warned him and failed to give such warning.
It will not be necessary to consider the first contention in determining whether a case was made for the jury. The same contention is urged in connection with alleged error in the giving of instruction 1, and we will refer to such contention later in that connection.
We think a case was made under all the evidence which authorized submission of the case to the jury under the humanitarian rule. If made by no other testimony in the record, it was made by the testimony of the engineer that he saw defendant sitting on a timber or guard rail about two feet from they track with `his head down and toward the track. This testimony, taken in connection with the testimony of plaintiff's witnesses that the whistle was not blown nor rung, tends to prove that the engineer saw plaintiff in a position of peril and oblivious to such peril and thereafter failed to sound any warning to notify him of his peril in time to enable him to move out of the danger zone.
Defendant contends that plaintiff cannot take the benefit of the engineer's testimony that he saw plaintiff in a position of peril, when the locomotive was two car lengths away from him, without also accepting as true the engineer's testimony that he thereafter caused seven to a dozen sharp blasts of the whistle to be given, and that, therefore, all the testimony that the engineer actually saw plaintiff in time to warn him of his danger also shows that timely and sufficient warning was actually given.
The jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds same to be true or false when considered in relation to the other testimony and the facts and circumstances in the case. State v. Williams (Mo. Sup.) 274 S. W. 50, loc. cit. 52; State v. Harp, 306 Mo. 428, 267 S. W. 845, loc. cit. 846, and cases; State v. Stewart, 278 Mo. 177, loc. cit. 185, 212 S. W. 853; State v. Conley, 255 Mo. 185, loc. cit. 197, 164 S. W. 193; Montague v. Railway (Mo. App.) 193 S. W. 935, loc. cit. 936; Preston v. Union Pac. Railroad Co., 292 Mo. 442, 239 S. W. 1080, loc. cit. 1082.
There was accordingly substantial testimony tending to prove that the engineer saw plaintiff in a position of peril and oblivious of his peril in time to have warned him of his danger, and thereafter failed to exercise reasonable care to warn him of his danger. Whether plaintiff was standing astride the rail with his back to the approaching train, as he testified at the trial, or was sitting on a timber facing the track with his head down and toward the track, as he is said to have stated soon after the injury and as the evidence of defendant tended to show, is not controlling. If he was standing astride the rail a step or two at most would have taken him out of the danger zone. If he was sitting beside the track, the mere turning away of his head, or, as the engineer said, merely raising his body to an upright sitting position, would have avoided his being struck by the locomotive.
There was evidence, which it was the exclusive province of the jury to believe, that the engineer failed to blow the whistle or ring the bell. The engineer did not say that he did not have time to give sufficient warning after he saw plaintiff. There was evidence from which the jury was authorized to find that he did have time to sound a warning...
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