Hinds v. Chicago, B. & Q. R. Co.

• Decision Date: 19 July 1935
• Docket Number: No. 23586.,23586.
• Citation: 85 S.W.2d 165
• Court: Missouri Court of Appeals
• Parties: HINDS v. CHICAGO, B. & Q. R. CO. et al.

85 S.W.2d 165

HINDS v. CHICAGO, B. & Q. R. CO. et al.

No. 23586.

St. Louis Court of Appeals. Missouri.

July 19, 1935.

Rehearing Denied September 10, 1935.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be published in State Reports."

Action by Otis Edna Hinds against the Chicago, Burlington & Quincy Railroad Company and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

H. J. Nelson, of St. Joseph, B. H. Dyer, of St. Charles, and Douglas W. Robert, of St. Louis, for appellants.

William Waye, Jr., of St. Charles, and Williams & Huston, of Troy, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, the widow, to recover the statutory penalty for the alleged wrongful death of her husband, Alva Hinds, who came to his death on August 28, 1933, when an automobile truck in which he was riding was struck by a train of defendant Chicago, Burlington & Quincy Railroad Company at the point where highway No. 79 crosses the tracks of the company in the village of Foley, in Lincoln county, Mo. The engineer in charge of and operating the engine in question, one Thomas J. Dugmore, was also named as a party defendant to the action. Tried in the circuit court of St. Charles county upon a change of venue taken by defendants from the circuit court of Lincoln county, a verdict was returned in favor of plaintiff, and against both defendants, assessing the amount of plaintiff's "allowance" at the sum of $5,000. From the judgment rendered in conformity with the verdict, the joint appeal of both defendants to this court has followed in the usual course.

So far as the pleadings are of importance upon the issue of negligence, it is enough to say that plaintiff relied merely upon negligence under the humanitarian doctrine, based upon the theory that the enginemen saw, or by the exercise of ordinary care could have seen, the truck approaching and going onto the crossing in time thereafter for the collision to have been avoided by the sounding of a warning of the approach of the train, or by the slackening of its speed in the shortest time and space possible with the appliances at hand and with safety to the persons in and upon the same.

It appears that through and north of the village of Foley for the distance of a mile or so defendant's track runs in a straight course from north to south, and that paralleling the track, and adjoining the right of way on the east, is highway No. 79, which, shortly after entering the limits of the village of Foley, turns at a right angle to the west across the tracks at a point a few hundred feet north of the station. Between the point where the road thus turns and the main track is a distance of approximately 71½ feet, with the level of the track about 4 feet higher than the level of the highway.

On the morning in question, the deceased was riding in a truck owned and operated by one Waters, their destination being the city of St. Louis, where they were taking a load of hogs and sheep to market, some of which belonged to the deceased, and the others to Waters. The truck from end to end was about 22 feet in length, with the conventional driver's cab located back of the motor, and to the rear of the cab a double-decked stock rack bed some 12 feet in length.

The accident happened about 5:30 o'clock in the morning, at a time when it was clear daylight, so the greater part of the evidence tended to disclose. The deceased and Waters had come south on the highway, and at the turn prepared to cross the tracks and continue their course over that portion of the highway which ran on the west side of the tracks. When they reached the turn, Waters slowed his truck down, changed gears, and then started up the incline at a speed of about 5 miles an hour, at which he might have stopped his truck within a space of 2 feet. He testified that as he shifted his gears at the turn, he looked for a train but saw none approaching; and that when he arrived at a point about 20 feet from the track, he and the deceased again looked to the north, but neither saw a train approaching although the physical facts would demonstrate that the train must then have been easily within the range of their vision. The truck continued on its course until it reached and was partly over the main track, when it was struck just to the rear of the cab by one of defendant railroad company's passenger trains running at a speed of 60 miles an hour, the force of the impact being such as to demolish the track and inflict serious injuries upon both of its occupants. The death of the deceased occurred shortly after he was removed from the scene of the tragedy, but Waters fortunately recovered, and was one of the principal witnesses for plaintiff at the trial.

At the outset of their brief, though in what present connection they do not say, defendants advance the suggestion that Waters and the deceased, in taking the stock to market, were engaged in a joint enterprise, and that Waters' negligence in driving his truck onto the track immediately in front of the train was therefore to be imputed to the deceased. The point may well rest upon the mere statement of it, since even if it were to be held that the two were engaged in a joint enterprise so that the deceased would have had the negligence of Waters imputed to him, still the right of plaintiff to recover in this action would not be affected thereby, since it is to be borne in mind that she went to the jury solely under the humanitarian doctrine, against which any contributory negligence of the deceased would constitute no defense. Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.(2d) 809.

As a matter of chief insistence, defendants argue that their separate requested peremptory instructions in the nature of demurrers to all the evidence should have been given in that no case was made for the jury under the humanitarian doctrine. This contention, we think, is clearly to be disallowed.

Bearing in mind that as predicates of liability under such doctrine, plaintiff relied upon failure to warn and failure to slacken speed, it is enough to say that her evidence disclosed abundantly that no warning was given save for two short blasts of the whistle which came immediately before the crash and thus too late to be availing; and there is no claim of any slackening of the speed before the accident. So there was substantial evidence to warrant plaintiff's reliance upon the particular theory of liability, unless it be, as defendants now insist, that under all the facts and circumstances of the case, including the facts relating to the manner in which the truck approached the track, with the train seemingly in clear view of the occupants of the truck, its enginemen had the right to assume that the truck would be brought to a stop before coming into the path of the train, and before it was too late for either a warning or a slackening of the speed to have been availing.

In other words, the whole controversy resolves itself into one of when the truck may first be said to have been brought within the danger zone so as to have cast the burden upon those in charge of the engine to have taken appropriate steps to avert the impending casualty, since it is indeed true, just as counsel so strenuously argue, that the enginemen, even if they saw the truck approaching the track, had the right to assume that its driver would stop it before going upon the track, absent something about his actions or the movement of the truck indicative to the contrary.

Now the danger zone, within the contemplation of the humanitarian doctrine, must obviously be one of variable limits, depending upon the facts of the particular case [Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.(2d) 600]; and so it is that the question of when the position of peril arises for the purpose of determining the application of such doctrine is generally said to be one for the jury's determination [Hodgins v. Jones (Mo. App.) 64 S.W.(2d) 309]. It is at once apparent, therefore, that no hard and fast rule definitive of the danger zone can be laid down to fit each and every case submitted under the humanitarian doctrine, so that in the matter of the fixing of the limits of the danger zone where such theory of negligence is invoked, the courts simply say, as applicable to each and every case, that the danger zone is reached at the moment that the plaintiff or the plaintiff's decedent approaches so near the point of collision, and under such conditions, that it is or reasonably should be apparent to the defendant or its servants that he cannot or will not stop before coming into the defendant's path. Hencke v. St. Louis & H. R. Co., 335 Mo. 393, 72 S.W.(2d) 798; Kloeckener v. St. Louis Public Service Co., 331 Mo. 396, 53 S.W.(2d) 1043; Elkin v. St. Louis Public Service Co., supra; Larkin v. Wells (Mo. App.) 278 S. W. 1087.

In this case there was evidence, viewed in its most favorable aspect to plaintiff, that at the moment the truck turned to the right to go up the slope towards the track, the train was still from 1,000 to 1,200 feet north of the point of the collision. The fireman testified that from his position in the left side of the cab he first saw the truck on the turn; that he observed it as it went up over the track; and that he noticed that there was neither an increase nor a decrease in its speed after it made the turn, but that it continually moved forward at the same speed until the moment of the accident. In fact he admits that he was so impressed by the peril of the situation that he called a warning to the engineer so that steps to avoid the casualty might be taken. Under such circumstances, with from 10 to 12 seconds left in which to act, we think it was clearly for the jury to say whether or not a timely and adequate warning would not have apprised Waters of his peril in time to have enabled him to stop the truck before getting upon the track, and so far as...