Henson v. St. Louis-San Francisco Railway Company

• Decision Date: 03 December 1923
• Parties: ROBERT HENSON v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

256 S.W. 771

301 Mo. 415

ROBERT HENSON v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

Supreme Court of Missouri

December 3, 1923

Appeal from Butler Circuit Court; Hon. Almon Ing, Judge.

Reversed.

W F. Evans and Ward & Reeves for appellant.

(1) Defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case should have been given. (a) To make a case under the humanitarian rule, the plaintiff must not only be in a discoverable position of peril, but this position must have been discoverable in sufficient space and time to have enabled the operator of the motor car, by the exercise of ordinary care, to have stopped the car and thereby prevented a collision with plaintiff. There was absolutely no evidence in this case that the plaintiff could have been seen by defendant's operator of the motor car in a perilous position in time to have, by the exercise of ordinary care prevented the collision. Burge v. Railroad, 244 Mo 96, 102; Whitesides v. Railroad, 186 Mo.App. 608; Hawkins v. Railroad, 135 Mo.App. 524; Baecker v. Railroad, 240 Mo. 507; George v. Railroad, 251 S.W. 729; Roseman v. Railroad, 251 S.W. 104; Anderson v. Davis, 251 S.W. 86; Wilson v. Flour Mill Co., 245 S.W. 206; Bibb v. Grady, 231 S.W. 1022; Murray v. Iron Co., 238 S.W. 836. (b) Plaintiff was not in a perilous position, because he could have safely stepped off the track. The operator of the car had a right to presume that plaintiff would step to one side and avoid colliding with the car. And especially is this true, since plaintiff's evidence shows that the rumbling of the motor car could have been heard a mile away and there was nothing in the appearance of plaintiff to indicate that he was oblivious to the approach of the car. He testifies he was looking to the front, that is, towards the approaching car. There was no case made under the last chance or humanitarian doctrine. State ex rel. v. Reynolds, 289 Mo. 479; Guyer v. Railroad, 174 Mo. 344; Carrier v. Railroad, 175 Mo. 470; Van Bach v. Railroad, 171 Mo. 338; Markowitz v. Railroad, 186 Mo. 358; Tannehill v. Railroad, 279 Mo. 158; Hawkins v. Railroad, 135 Mo.App. 524. (c) This case is not one which can be based upon inferences or presumptions, as to the possibility of the operator's ability to stop the car and prevent the collision. According to the undisputed testimony, if an attempt had been made as soon as plaintiff could have been discovered on the track, the motor car would have collided with plaintiff and passed beyond him before it could have been brought to a stop. George v. Railroad, 251 S.W. 729; Brown v. Brown, 237 Mo. 662; Rashall v. Railroad, 249 Mo. 522; Hamilton v. Railroad, 250 Mo. 722; Burge v. Railroad, 244 Mo. 76; Glick v. Railroad, 57 Mo.App. 97; Whitesides v. Railroad, 186 Mo.App. 608; Justus v. Railroad, 224 S.W. 79. (d) If we assume that the plaintiff was in a position of peril at the greatest distance he could have been seen from the car, to-wit, 120 feet, it required only a little more than four seconds for the car to cover this distance to plaintiff. The space of time was entirely too short upon which to predicate a recovery under the humanitarian rule. Hawkins v. Railroad, 135 Mo.App. 534; Burge v. Railroad, 244 Mo. 101; Degonia v. Railroad, 224 Mo. 596; Anderson v. Davis, 251 S.W. 86; Markowitz v. Railroad, 186 Mo. 350; Tannehill v. Railroad, 279 Mo. 158; State ex rel. v. Reynolds, 289 Mo. 479. The cases cited under the foregoing paragraph demonstrate that the plaintiff has no case for the reason the operator of the car had not sufficient time in which to prevent the collision. (e) The evidence was not sufficient to show a general public user of the railroad track so as to require the operator of the motor car to anticipate the presence of persons on the track. The user was not such a general public user as the law requires in order to demand of the operator of trains or cars the duty to keep on the lookout for pedestrians on the track. Hamilton v. Railroad, 250 Mo. 721; Frye v. Railroad, 200 Mo. 377. (2) The verdict of the jury is contrary to the instructions of the court and under the instructions given the jury could not properly or legally find a verdict for the plaintiff. The jury ignored and refused to pass upon the sole and only question submitted to it, and necessarily went outside of and beyond the instructions of the court, and found its own verdict upon some basis other than that submitted to them by the instructions. The verdict cannot therefore stand. Barber v. McDonald, 245 S.W. 357; Brokerage Co. v. Hines, 206 Mo.App. 669; Hoagland v. Railroad, 209 S.W. 569; Payne v. Railroad, 129 Mo. 405; Shohoney v. Railroad, 223 Mo. 649.

Atkinson, Rombauer & Hill for respondent.

(1) "The conclusion reached was that, construed in the light of reason and our former adjudications, there was left remaining a duty to look out for persons on the track at places where by common custom, well established and known to the railway company, there was such pronounced use of the track by pedestrians as caused their presence to be naturally expected. In other words, the statute made no innovation on the general rule in that regard, and that general rule of duty, and liability for breach of it, whether relating to trespassers or licensees or quasi-licensees had long been recognized by this court before the Morgan Case. Since its decision it has been consistently and persistently followed." Murphy v. Railroad, 228 Mo. 84. (2) Logically, this same rule applies to a motorman as well as an engineer. Ahnefeld v. Railroad, 212 Mo. 302. (3) The following cases, some of the earliest and some of the latest of this court, disclose the uniform application made by this court of the humanitarian doctrine to facts similar to those of the case at bar: Morgan v. Wabash Ry. Co., 159 Mo. 262; Le May v. Railroad, 105 Mo. 361; Guenther v. Railroad, 95 Mo. 286; Newell v. Dickinson, 207 Mo. 378; Fiedler v. Railroad, 107 Mo. 645; Chamberlain v. Railroad, 133 Mo. 587; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720; Fearons v. Railroad, 180 Mo. 208; Calhoun v. Schaff, 229 S.W. 277; Beard v. Railroad, 272 Mo. 172; Dalton v. Railroad, 276 Mo. 663; Ulrich v. Railroad, 252 S.W. 377; Kemp v. Railroad, 251 S.W. 402; Ruenzi v. Payne, 231 S.W. 294; Goben v. Railroad, 229 S.W. 631; Walker v. Wabash Railroad Co., 193 Mo.App. 249; Hornbuckle v. McCarty, 243 S.W. 327; Emma Fields v. Mo. Pac. Railroad Co., 240 S.W. 813. (4) "On an appeal from a judgment based on a verdict in favor of plaintiff, the evidence will be considered in the light most favorable to plaintiff." Calhoun v. Schaff, 229 S.W. 277.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

This action was commenced by plaintiff, in the Circuit Court of Butler County, Missouri, on March 9, 1921, to recover damages alleged to have been sustained by him, in a collision with defendant's motor car in Scott County, Missouri, on September 21, 1920. The petition alleges that defendant, a Missouri corporation, at the dates mentioned therein, operated a line of railroad through the town of Crowder, in Scott County, Missouri, and through Butler County, in said State; that for the last ten years the space between the rails of defendant's track running from its depot in said town of Crowder, to a point more than one-half mile in a southerly direction, "was habitually and hourly used, both day and night, by the public as a foot-path, and that said foot-path at all times ran through a populous community, all which facts, the defendant, its officers, agents, servants and employees, at all times knew, or by the exercise of ordinary care could have known"; that along said portion of said track, used as a foot-path, it was the duty of defendant and its servants in operating motor cars along said railroad, at that point, to keep a constant lookout for pedestrians on the railroad track. It is averred that on September 21, 1920, while plaintiff was walking along said foot-path, between said railroad tracks, going south from Crowder, and when about one-fourth of a mile south of same, the defendant and its servants, operating a motor car going north along said railroad track, "negligently failed to keep a constant lookout for pedestrians upon said foot-path along said railroad track, negligently ran said motor car, at that point, at a high rate of speed, to-wit, twenty-five miles per hour, negligently ran said motor car at that time, which was night, without adequate brakes and without light or other signals or devices to warn pedestrians of its approach, negligently failed to warn plaintiff of the approach of said motor car, and negligently ran said motor car and caused the same to collide with the plaintiff, who was in a position of peril and oblivious of his danger, and that the operators of said motor car knew or by the exercise of ordinary care could have known of the presence of the plaintiff upon said railroad track and of his peril and his obliviousness of his danger in time to have stopped the car and prevented his injury by the exercise of ordinary care, but continued to operate said car in a negligent manner as above set out, causing it to collide with plaintiff as aforesaid, thereby and thus breaking plaintiff's left leg," etc. After setting out plaintiff's alleged injuries, the petition concludes with a prayer for $ 20,000 damages.

The answer contains a general denial and plea of contributory negligence. The reply is a general denial of the new matter pleaded in the answer.

John Scholtz, a witness for plaintiff, testified, in substance that he had lived at Chaffee for fifteen years, and had been in the service of defendant during that time, and was in its service on September 29, 1920, working in its yards at Chaffee; that he was on...