Hendrick v. Kurn
| Decision Date | 06 March 1944 |
| Docket Number | 38442 |
| Citation | 179 S.W.2d 717,352 Mo. 848 |
| Parties | Pearl J. Hendrick, Administratrix of the Estate of William C. Hendrick, Deceased, v. James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, a Corporation, Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied May 2, 1944.
Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.
Reversed and remanded (with directions).
M G. Roberts, A. P. Stewart and C. H. Skinker, Jr., for appellants.
That Hendrick was run over by defendants' train was established only by inference. No witness saw the accident, and there was no evidence, except by indulging in inferences as to where Hendrick was or where the train was at any particular time. A case under the last chance doctrine cannot be made out by bottoming inference upon inference and indulging in speculation and conjecture as to the location and position of deceased and the location of the train at any particular time. Hamilton v. Railroad, 250 Mo. 714, 157 S.W. 622; Ayers v. Railroad, 190 Mo. 228, 88 S.W. 608; Baecker v. Mo. Pac. R. Co., 240 Mo. 507, 144 S.W. 803; Whitesides v. Chicago, B. & Q.R. Co., 186 Mo.App. 608, 172 S.W. 467; Justus v. St. L.-S. F. Ry. Co., 224 S.W. 79.
B. Sherman Landau for respondent.
There is ample evidence in the record to support a finding by the jury under the humanitarian rule without resort to speculation or conjecture. Starks v. Lusk, 194 Mo.App. 250, 187 S.W. 586, affirmed 280 Mo. 268, 216 S.W. 1110; Allen v. Chicago, R.I. & P. Ry. Co., 327 Mo. 526, 37 S.W.2d 607, trans. 227 Mo.App. 468, 54 S.W.2d 787; Speakman v. Kurn, 115 S.W.2d 185; Whiteaker v. Mo. Pac. R. Co., 28 S.W.2d 680.
In this action to recover $ 10,000.00 for the death of William C. Hendrick the jury returned a verdict in favor of the railroad. The trial court was of the view that two instructions given at the request of the railroad were erroneous and granted the plaintiff a new trial. On this appeal the railroad contends that in any event its demurrer should have been sustained because the plaintiff failed to prove an instance of discoverable peril within the meaning of our humanitarian doctrine.
Hendrick was twenty-nine years old, single and employed by a steel company. He lived with the Harris family, in Webster Groves, at the corner of Swan and Hazel Avenues. The Harris home and Swan Avenue were south of and next to the railroad right of way. Through Webster Groves, east and west, there are two main line railroad tracks. On Saturday evening, August 17, 1940, about 9:30 Hendrick left the Harris home to attend a carnival at "Old Orchard," north of the tracks and about a twenty minute walk from the Harris home. He was in Midgeley's restaurant, a short distance from the carnival ground, and drank a bottle of beer with a friend. His brother saw him on the carnival grounds about 12:15. He returned to Midgeley's, drank another bottle of beer, and stayed there until closing time, about 1:15. At that time he appeared to be sleepy but he was not intoxicated and seemed to be in good humor and good health. He left Midgeley's saying that he was going home and that he would see them the next day. He was not seen again until he was found unconscious, about 6:10 that morning, between the rails of the eastbound track. His right leg had been amputated above the knee and was lying outside the north rail. He died two days later. The only train over that track between the time Hendrick left Midgeley's and the time he was found was at 3:50 a.m. It cannot be questioned but that he was run over by that train and the plaintiff contends under such circumstances that the train crew, had they been keeping a lookout, should have discovered him, helpless, and in a position of imminent peril in time to have stopped the train and avoided running over him.
No one saw the train run over Hendrick and he was not seen on the track by anyone until he was found there at 6:10, two hours and twenty minutes after the train had passed. The engineer and fireman were at their posts, looking ahead, as the train passed Hazel Avenue but they did not see anyone and did not know that the train had run over a man until late Sunday afternoon. But despite the absence of eyewitnesses the plaintiff contends that by circumstantial evidence she has proved an instance of discoverable imminent peril. We take the circumstances relied upon from the plaintiff's brief and argument.
When the train struck Hendrick it was traveling at a speed of about thirty-five miles an hour and could have been stopped, according to the plaintiff's evidence, within the distance of 450 to 500 feet. The track was almost level and straight for a long distance. The engine was equipped with a 1500 candle power headlight and its rays projected 1700 to 1800 feet. Hendrick was wearing a white shirt and light gray trousers. In answer to a hypothetical question, which assumed that a man was lying between the rails and dressed as Hendrick was dressed, the plaintiff's witness Kaveney testified that the man could have been seen from the engine for a distance of one thousand feet, even with the piles of chat along the tracks as they were. Without detailing other testimony of the fact the jury could have found from the plaintiff's evidence, had there been a man standing, sitting or lying on the track, that he would have been discoverable. We assume also, solely for the purposes of this opinion, that there was such general use of the track by the public that the railroad was not entitled to expect a clear track and was, therefore, under a duty to look and see that which was discoverable.
But even with these assumptions we are of the view that the plaintiff has failed to make a prima facie case because she has failed to prove by sufficiently substantive, probative evidence one of the essential facts necessary and prerequisite to liability under the humanitarian doctrine. She has failed to prove that Hendrick was in imminent peril, "one of the basic facts of liability; it might be denominated the chief one." Banks v. Morris & Company, 302 Mo. 254, 267, 257 S.W. 482; State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798. In our humanitarian doctrine imminent peril means certain, immediate and impending peril. Huckleberry v. Missouri Pacific R. Co., 324 Mo. 1025, 26 S.W.2d 980. "A person is in imminent peril when he is in or about to enter the danger zone." Elkin v. St. Louis Public Serv. Co., 335 Mo. 951, 956, 74 S.W.2d 600. But the "defendant's liability under the humanitarian rule depends upon whether plaintiff's injuries were caused by negligent acts of defendant after he saw or should have seen plaintiff in a position of peril." Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065. Unquestionably the plaintiff may prove a case, including imminent peril, under the humanitarian doctrine by circumstantial evidence (Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31) and she is entitled to have all the possible inferences from the evidence drawn in her favor. But a humanitarian case cannot be submitted on evidence which leaves one of the essentials, such as imminent peril, to guesswork, conjecture, speculation or mere surmise. Swain v. Anders & Newingham, 235 Mo.App. 125, 140 S.W.2d 730; Bauer v. Wood (Mo. App.), 154 S.W.2d 356. The burden of proof is upon the plaintiff (Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158) to offer evidence tending to show or from which the jury could reasonably infer that the railroad was negligent after Hendrick was in a position of imminent peril as "the defendant owes no duty of any kind to the plaintiff until the latter's peril arises." Krause v. Pitcairn, 350 Mo. 339, 359, 167 S.W.2d 74; Bates v. Brown Shoe Co., supra.
The plaintiff is well aware of these undisputed fundamentals but says that her evidence is such that the jury could justly and reasonably draw the inference and find the conclusion that Hendrick was in imminent peril long before the train passed Hazel Avenue at 3:50 and, therefore, the railroad breached its duty to see him and avoid running over him. The plaintiff contends that her evidence proves that "the deceased stumbled and fell across the north rail of the track long before the passage of the freight train" or as she puts it at another place in her argument that he stumbled "over the outer edge of the recently elevated railroad tie" and fell across the track. The plaintiff's theory is that Hendrick stumbled and as he fell his chin struck some sharp object, the edge of a tie, and that as a result of the blow on the chin he became unconscious and laid upon the track for a long period of time. During the trial of the case the plaintiff appears to have taken the position that Hendrick left Midgeley's and walked directly towards the track and that he fell and became unconscious about 1:30 and remained so until the train passed at 3:50. The established facts from which the plaintiff would have the inference drawn are that his right shoe, from the amputated leg, ...
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