Hilton v. Terminal R. Ass'n of St. Louis

• Decision Date: 06 March 1940
• Docket Number: 36031
• Citation: 137 S.W.2d 520,345 Mo. 987
• Parties: Alfred Hilton v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

137 S.W.2d 520

345 Mo. 987

Alfred Hilton v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 36031

Supreme Court of Missouri

March 6, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Thomas L Anderson, Judge.

Reversed and remanded.

T M. Pierce, Walter N. Davis, Wm. A. Thie and Arnot L Sheppard for appellant.

(1) Appellant's peremptory instruction in the nature of a demurrer to the evidence should have been given at the close of all of the evidence, for the following reasons: (a) Respondent's evidence wholly failed to show such user of appellant's tracks at the time and place of his injury as to change his status from that of a trespasser to that of an invitee or license. Consequently his evidence is insufficient to make a jury question as it is not claimed that it shows wantonness or willfulness on appellant's part. English v. Wabash Ry. Co., 108 S.W.2d 57; Frye v. St. L., I. M. & S. Ry. Co., 200 Mo. 377. (b) Respondent submitted his case solely on humanitarian negligence, which is not supported by any substantial evidence. His own testimony was that he was walking at about two and one-half miles an hour; he could see a distance of 140 feet in the direction from which the motorcar was coming; between his last look in that direction and his injury he traveled only three or four feet, and the elapsed time therefore was .82 of a second, or 1.09 seconds, clearly too brief an interval upon which to predicate humanitarian negligence. Clay v. Wheelock, 20 S.W.2d 556; Sullivan v. Railroad Co., 271 S.W. 991, 308 Mo. 48; Burge v. Railroad Co., 244 Mo. 102, 148 S.W. 932; Rollison v. Railroad Co., 252 Mo. 541, 161 S.W. 999; State ex rel. Wab. Ry. Co. v. Bland, 281 S.W. 692; Williams v. Fleming, 284 S.W. 797. (c) If respondent could not see the motorcar when he last looked for it, then obviously the driver of the motorcar could not see him at that moment. Necessarily, if respondent's testimony is of any value, the motorcar moved at least 140 feet while respondent moved three or four feet. As he was walking at the rate of two and one-half miles an hour, the motorcar was traveling at about 116 miles an hour if respondent moved only three feet or 87.5 miles an hour if he moved four feet. That kind of testimony is so contrary to human experience and natural laws as to be insubstantial and valueless. Dunn v. Alton Ry. Co., 104 S.W.2d 311; Steele v. Railroad Co., 265 Mo. 115; Flack v. Railroad Co., 224 S.W. 421; Lindsey v. Shaner, 236 S.W. 322; Miller v. Schaff, 228 S.W. 491. Respondent cannot now say that the driver of the motorcar could see him in a place of peril without impeaching his own evidence; because he says he looked and the motorcar was not in sight. Necessarily, if he could not see the motorcar, the driver thereof could not see him. Each must have been able to see the other at the same moment. Therefore when respondent was only three or four feet from the track, the motorcar driver could not see him. This is the inevitable consequence of respondent's testimony. He cannot now say he made a jury question because appellant's evidence shows the motorcar driver saw him in time to stop, because he would then be going to the jury on evidence which impeaches his own evidence. This cannot be permitted. Meese v. Thompson, 129 S.W.2d 847; De Lorme v. St. L. Pub. Serv. Co., 61 S.W.2d 250; Murray v. Transit Co., 176 Mo. 183; Elkin v. Pub. Serv. Co., 74 S.W.2d 600; Pentecost v. St. L., M. B. T. Ry. Co., 66 S.W.2d 533; State ex rel. v. Trimble, 52 S.W.2d 864; McCullough v. C., R. I. & P. Ry. Co., 88 S.W.2d 402. Nor can respondent successfully urge that appellant is conclusively bound by the testimony of its witnesses as to time, distance and speed. Smith v. Producers Cold Storage Co., 128 S.W.2d 303; Scott v. K. C. Pub. Serv. Co., 115 S.W.2d 518; Haddow v. St. L. Pub. Serv. Co., 38 S.W.2d 284. (d) Respondent was guilty of such contributory negligence as bars a recovery herein, and, of course, made no case for the application of the humanitarian doctrine. He saw the motorcar approaching, even though he denied it while testifying. It was in plain view, and where to look is to see, one will not be heard to deny that he saw. State ex rel. v. Shain, 105 S.W.2d 918; State ex rel. Hines v. Bland, 237 S.W. 1019; Evans v. I. C. Railroad Co., 289 Mo. 501; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 374; Smithers v. Barker, 111 S.W.2d 53; Carner v. St. L.-S. F. Ry. Co., 89 S.W.2d 953; Hook v. Mo. Pac. Ry. Co., 162 Mo. 581; Pope v. Wab. Ry. Co., 242 Mo. 240; Dyrcz v. Mo. Pac. Ry. Co., 238 Mo. 46; Carton v. St. L.-S. F. Ry. Co., 102 S.W.2d 612; Knight v. Wab. Ry. Co., 85 S.W.2d 399. (2) Instruction 1 given at respondent's request is erroneous because: (a) It permits him to recover upon a finding based upon failure to warn, that he "was approaching and in a position of imminent peril and oblivious thereto," when he could not have been oblivious to the approach of the motorcar if his evidence that he looked for it is true; and if untrue, his own negligence bars a recovery. Buehler v. Festus Merc. Co., 119 S.W.2d 970; Perkins v. Term. Railway Assn., 102 S.W.2d 924; Smithers v. Barker, 111 S.W.2d 53; Schneider v. Term. Railway Assn., 107 S.W.2d 790; Pentecost v. St. L., M. B. Ry. Co., 334 Mo. 572, 66 S.W.2d 533; Phillips v. St. L.-S. F. Ry. Co., 73 S.W.2d 331, 87 S.W.2d 642. (b) Respondent must have seen the motorcar coming if his testimony is true that he looked when only three feet from the point where he was struck. Therefore, because of his contributory negligence as a matter of law there is no place for the submission of humanitarian negligence, as this instruction does. State ex rel. v. Shain, 105 S.W.2d 919; Smithers v. Barker, 111 S.W.2d 53; Dyrcz v. Mo. Pac. Ry. Co., 238 Mo. 46; Carton v. St. L.-S. F. Ry. Co., 102 S.W.2d 612.

Hay & Flanagan for respondent.

(1) The evidence was uncontradicted that respondent was crossing appellant's tracks at a path which had been worn by members of the public, men, women and children, who had been crossing the tracks over this path for as long as twenty-two years without objection, and with the tacit consent and acquiescence of appellant. This was sufficient user to afford reasonable ground to appellant's employees to expect or anticipate the presence of persons on the track, and to impose a duty on them to keep a lookout for respondent as he approached appellant's tracks on this path. Frye v. St. L., I. M. & S. Ry. Co., 200 Mo. 377, 98 S.W. 566; English v. Wab. Ry. Co., 341 Mo. 550, 108 S.W.2d 57; Ahnefeld v. Wab. Ry. Co., 212 Mo. 305, 111 S.W. 95; Weiss v. C., R. I. & P. Ry. Co., 335 Mo. 1168, 76 S.W.2d 118; Rice v. Jefferson City B. & T. Co., 216 S.W. 752; Epstein v. Mo. Pac. Ry. Co., 197 Mo. 734, 94 S.W. 967. (b) The evidence was clearly sufficient to make a case for the jury under the humanitarian doctrine. In endeavoring to sustain its contention to the contrary, appellant ignores the evidence favorable to respondent contrary to the rule that in determining the propriety of the court's ruling on a demurrer to the evidence, the evidence must be regarded in the light most favorable to the plaintiff. Graves v. Mo. Pac. Ry. Co., 343 Mo. 542, 118 S.W.2d 787; Smith v. Wallace, 119 S.W.2d 813; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66. Taking the most favorable view of the testimony from respondent's standpoint there was evidence that respondent could have been seen approaching and in a position of imminent peril of being struck by appellant's motorcar, oblivious to his peril at a time when said motorcar was as far as 125 feet from respondent and could have been stopped in as little as twenty feet. The court, therefore, did not err in submitting the case to the jury on the theory that appellant's employees could have stopped or slackened the speed of the motorcar, or have sounded a warning of the approach thereof in time to avoid injuring respondent. Wise v. Chicago, R. I. & P. Ry. Co., 335 Mo. 1168, 76 S.W.2d 118; Zumwalt v. C. & A. Ry. Co., 266 S.W. 719; Wagner v. Pryor, 204 Mo.App. 478, 222 S.W. 857; Milward v. Wab. Ry. Co., 207 Mo.App. 345, 232 S.W. 226. Appellant's argument that the time remaining for appellant to act after respondent came into a position of peril was too short for appellant to do anything to avoid injuring respondent is based on the idea that there was no duty on appellant to attempt to avoid the accident until respondent was about to step on track 71, with but three or four feet to go before being struck, and that in the second or so it would take respondent to walk that distance, appellant could not have done anything to save respondent from injury. Appellant thus arbitarily undertakes to fix where the danger zone commenced, ignoring the rule that the extent of the danger zone is ordinarily a question to be determined by the jury. Womack v. Mo. Pac. Ry. Co., 337 Mo. 1160, 88 S.W.2d 372; Hinds v. C., B. & Q. Ry. Co., 85 S.W.2d 168; Hodgins v. Jones, 64 S.W.2d 309.

OPINION

Douglas, J.

This is an action for damages resulting from personal injuries sustained by respondent when he was struck by the railroad's gasoline motorcar, similar to a handcar, while crossing a track in the switchyards at the Cupples Station properties in St. Louis. Judgment for $ 9000 was rendered against the railroad. The respondent worked at the Cupples building at Eighth and Poplar Streets and about the other buildings which surround the switchyards. Along Spruce Street are a number of commercial buildings and warehouses which abut the yards. The respondent was employed by the Union Electric Light & Power Company which supplied heat and power to the buildings. The electric company also maintained three tunnels across the yards through which ran water, steam and power lines. The respondent was an...