Harrington v. Thompson

Decision Date12 November 1951
Docket NumberNo. 42294,No. 1,42294,1
Citation243 S.W.2d 519
PartiesHARRINGTON v. THOMPSON
CourtMissouri Supreme Court

T. J. Cole, St. Louis, E. A. Barbour, Jr., Springfield, for appellant.

Lincoln, Lincoln, Haseltine & Forehand, Springfield, H. T. Lincoln, Turner White, Springfield, for respondent.

COIL, Commissioner.

Appeal from $9,000 judgment for plaintiff-respondent for personal injuries and property damage. The case was submitted solely on failure to warn under the humanitarian doctrine. Appellant contends that no submissible case on failure to warn was made; that the court erred in giving two instructions and in admitting certain evidence; and that the verdict is excessive. We shall refer to the parties as plaintiff and defendant.

In determining whether there was a submissible case, we shall state the evidence and reasonable inferences therefrom most favorably to plaintiff. Defendant's railroad track, running in a northeast-southwest direction (we shall refer to the track as running north and south), intersects Catalpa Street, an east and west street (a level public crossing), at a place west of the city limits of Springfield, Missouri. On July 15, 1948, a clear, dry day, at about 10:30 a. m., plaintiff, 64 years of age, drove his 1928 Model A Ford west on Catalpa and, at its intersection with defendant's tracks, was struck by defendant's southbound train. East of the east rail of the track, a distance of 71 feet, is a depression in the street or road, and 89 feet east of this depression, or 160 feet east of the east rail of the track, is the west end of a bridge. Plaintiff was traveling on Catalpa Street at about 30 m. p. h. when he came to the bridge where he slowed to 10 or 15 m. p. h. At the west end of the bridge he looked to his right and left and saw no train approaching from either direction. He proceeded to the depression which he traversed at about 10 or 12 m. p. h. and then immediately accelerated his speed to 15 m. p. h. at which speed he proceeded until his automobile was struck. The front of the train struck his automobile at the right front door. Plaintiff did not see the train except at the time of impact, heard no whistle or bell although the windows of his automobile were open and his hearing was good. He did not again look to his right or left after leaving the bridge and was not aware of the approach of the train. Plaintiff could stop his car in a distance of from 12 to 15 feet during the time he traversed the road from the depression to the crossing. Plaintiff's evidence was to the effect that no whistle or bell was sounded by the train at any time. Following the collision, plaintiff's car was 130 feet south of Catalpa on the east side of the track and plaintiff was lying about 20 feet north of his automobile.

Defendant's evidence showed that when the engine was 1400 or 1500 feet north of the Catalpa crossing, the fireman noticed a trail of dust made by an automobile proceeding west on Catalpa and continued to watch in that direction until he saw plaintiff's automobile at some point east of the bridge. After plaintiff crossed the bridge and when about 70 feet from the track, plaintiff slowed his automobile. When about 60 feet away he speeded up and continued on at a constant or increasingly accelerated speed until the time of the collision. The fireman saw plaintiff as distinguished from plaintiff's automobile when plaintiff was about 50 feet from the track and plaintiff did not look to the north. The jury could reasonably find from the fireman's testimony that he realized plaintiff intended to proceed across the tracks when plaintiff was 60 feet away. The engineer, occupying his regular position on the right or west side of the engine, did not see plaintiff or his automobile at any time and was not aware of his approach until after the impact. At approximately the time of impact, the fireman shouted to the engineer to look out, whereupon the engineer applied the brakes. Defendant's conductor testified that the train was traveling 15 m. p. h. at the time of impact and did not exceed that speed for several blocks north of Catalpa.

We have stated only that portion of defendant's evidence which was favorable to plaintiff and have ignored defendant's contradictory evidence. Other necessary evidence will be referred to in the course of the opinion.

Defendant contends that there was no evidence from which a jury could reasonably find that the whistle of the locomotive could have been sounded in time to have averted the collision after a duty to act under the humanitarian doctrine arose. Defendant cites eleven cases in support of this contention. An examination of those cases, however, demonstrates that none of them aid defendant on the facts here in evidence. In so far as those cases state general applicable principles they, of course, are controlling. The difficulty with defendant's position is that when the principles of those cases are applied to the facts in evidence, it is apparent that plaintiff made a submissible case on failure to warn.

It is true, as contended by defendant, and as established by the cases it cites, that no duty existed as to plaintiff until he was in a position of imminent peril; that when he was in a position of peril is a question for the jury under all the evidence; that no duty arises as to an oblivious plaintiff until it reasonably appears or should reasonably appear that plaintiff is oblivious and intends to proceed into the path of a moving vehicle, and that the evidence must be such that the jury could reasonably find that there was time after plaintiff was in a position of imminent peril and after defendant knew or should have known of it for an effective warning to have been given.

In this case defendant's fireman admitted that when plaintiff's automobile was 60 feet east of the track he realized that plaintiff intended to go on the crossing in front of the moving train. Plaintiff, proceeding at 15 m. p. h., would require about 2.72 seconds to reach the track and he could stop his automobile in 12 feet. While there is no evidence as to the overhang of the train, even assuming that this overhang is as much as 3 feet, plaintiff in traveling 45 feet (60 feet less 15 feet) would have required about two seconds. It therefore is apparent that from the time defendant knew plaintiff was oblivious, there was a minimum interval of two seconds during which, if a warning had been sounded, plaintiff could have stopped his automobile short of the overhang of the train. This is based upon defendant's admission. The jury could reasonably find that plaintiff was in imminent peril even before he was 60 feet from the track. Without attempting to determine just where the jury could find plaintiff came into a position of imminent peril, certainly the jury could find that peril began and that defendant should have known of plaintiff's obliviousness, when plaintiff accelerated his speed after slowing for the depression in the road which, as noted, was 71 feet from the track. Under this hypothesis, plaintiff would have required about three seconds to proceed to the track, about 70 feet, or about 2 1/2 seconds to proceed 55 feet, or to a place within 15 feet of the track, and in the remaining distance could have stopped his automobile short of the overhang. Furthermore, these calculations are based upon the assumption that the automobile would be brought to a complete stop. It does not necessarily follow that the only way a collision could have been averted was by a complete stop of the automobile short of the overhang of the train. The jury could reasonably find that, by swerving to the right or left, plaintiff could have avoided a collision even after he had traveled a portion of the 15 feet (the distance in which he could stop plus the overhang). It is clear that defendant's fireman and engineer had at least two seconds, and probably more time, in which the fireman could convey to the engineer the word 'whistle' or some other appropriate instruction and the engineer could sound a warning. This court stated in Chawkley v. Wabash R. Co., 317 Mo. 782, 798, 297 S.W. 20, 24, 'It is not a violent inference that the fireman could say 'Whistle!' and the engineer could pull the cord within the space of a single second or less. We do not have to indulge in refinements to reach such a conclusion because trainmen are trained to act instantaneously.' The evidence clearly demonstrates that plaintiff made a submissible case under the humanitarian doctrine on failure to warn. Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Hencke v. St. Louis & H. R. Co. 335 Mo. 393, 72 S.W.2d 798.

On direct examination defendant's fireman testified that he did not signal the engineer in any way until the automobile was practically on the track; that he saw a trail of dust made by an automobile when the train was 1400 or 1500 feet from the crossing and that at the bottom of a hill some distance east of the bridge he saw plaintiff's car; that he saw plaintiff's car at the bridge and watched the car constantly until the time of the collision. On cross-examination counsel for plaintiff asked the fireman if, when he saw the trail of dust, he told the engineer that a car was approaching the Catalpa crossing. Defendant's counsel interposed the following objection: 'We object to that; there is no duty on him to tell the engineer, away back there', which objection was overruled. Plaintiff's counsel then proceeded to ask the fireman whether he told the engineer of the approaching car when he saw it at the bottom of the hill, or whether he told the engineer when he saw the car at the bridge, all of which questions were answered in the negative; and the fireman further answered, in response to a question, that it was true that he watched the car constantly going down the hill, across the bridge and a level stretch of road, and said nothing...

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35 cases
  • Welch v. McNeely
    • United States
    • Missouri Supreme Court
    • July 12, 1954
    ...words, so long as the instruction does not contain a misstatement as to where a position of imminent peril begins', Harrington v. Thompson, Mo., 243 S.W.2d 519, 525(9). In fact, it is 'manifest error' for an instruction to advise the jury when plaintiff comes into peril. Wofford v. St. Loui......
  • Farmer v. Taylor
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    • Missouri Court of Appeals
    • March 22, 1957
    ...Louis Public Service Co., supra, 251 S.W.2d loc. cit. 698(7); Silver v. Westlake, supra, 248 S.W.2d loc. cit. 632(1); Harrington v. Thompson, Mo., 243 S.W.2d 519, 525(8).6 Vietmeier v. Voss, Mo., 246 S.W.2d 785, 789(10); Yeaman v. Storms, 358 Mo. 774, 779, 217 S.W.2d 495, 499; Bauer v. Wood......
  • Connolly v. Steakley, 33710
    • United States
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    • January 25, 1967
    ...of defendant's approaching vehicle.' Later Missouri cases explained more fully the effect of obliviousness. Thus, in Harrington v. Thompson, Mo.1951, 243 S.W.2d 519, 525: 'Just when one * * * comes into and is in a position of imminent peril is a question for the jury to determine. * * * Th......
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    ...and place plaintiff came into imminent peril was for the jury. Silver v. Westlake, Mo.Sup., 248 S.W.2d 628, 632(1); Harrington v. Thompson, Mo.Sup., 243 S.W.2d 519, 525(8). Whatever speed the plaintiff's sled may have attained in actual miles per hour, after that sled was started down this ......
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