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

• Citation: 207 S.W.2d 294
• Decision Date: 12 January 1948
• Docket Number: No. 40382.,40382.
• Parties: KENEFICK v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: United States State Supreme Court of Missouri

207 S.W.2d 294

KENEFICK v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 40382.

Supreme Court of Missouri, Division No. 2.

January 12, 1948.

Appeal from St. Louis Circuit Court, Division No. 7; William H. Killoren, Judge.

Action by Daisy Andrea Kenefick, administratrix of the estate of Thomas Kenefick, deceased, against the Terminal Railroad Association of St. Louis, a corporation, for damages under the Federal Employers' Liability Act, section 1 et seq., 45 U.S.C.A. section 51 et seq., for the alleged wrongful death of deceased when struck by a railroad train while in defendant's employ. From an adverse judgment, plaintiff appeals.

Judgment affirmed.

Harvey B. Cox, J. O'Connell Hough, and William R. Kirby, all of St. Louis, for (plaintiff) appellant.

Warner Fuller and Arnot L. Sheppard, both of St. Louis, for respondent.

BOHLING, Commissioner.

Daisy Andrea Kenefick, as administratrix of the estate of Thomas Kenefick, deceased instituted this action against the Terminal Railroad Association of St. Louis, a corporation, for $75,000 damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, for the alleged wrongful death of said Kenefick, her husband, when struck by a New York Central Railroad Company's passenger train while in defendant's employ. Plaintiff's petition charged that the New York Central was using defendant's tracks under an agreement with the defendant and, under the laws of Illinois, was the agent of the defendant in the operation of said passenger train The jury returned a verdict for the defendant and plaintiff appealed, alleging error in the giving of two instructions on behalf of the defendant.

Thomas Kenefick was 65 years of age at the time of his death. An employee of the Laclede Gas Company for 31 years, he was pensioned upon the reorganization of that company. He started working for the defendant about mid-August, 1944, in Missouri as a crossing watchman and about six days prior to his death was stationed at defendant's Market street crossing in Venice, Illinois. He limped when walking, did not get about very fast or very easily, one of his knees being stiff from an injury received several years previously.

Proceeding west, defendant's double track railroad crosses Market street in a general north-south direction and curves rather sharply toward the west to within a short distance, estimated the length of an engine or about 100 feet, east of a control tower, known as the "S H tower," where the tracks run straight west and east. The S H tower is on the east approach to defendant's Merchants bridge and the Market street crossing is 1,342 feet east of the tower. The northernmost track is the west-bound track and is on an upgrade, causing west-bound engines to work steam and make considerable noise.

On the morning of October 20, 1944, a clear dry day, Kenefick went to the S H tower to wait for "the cab" — a diesel locomotive and one coach maintained by defendant to transport employees to and from St. Louis. The cab stopped about 7:30 a. m. on the fourth track south of and opposite the S H tower for employees desiring to return to St. Louis. Charles A. Parkhurst, signal maintainer at the tower, testified he had suggested to Kenefick that he take a street car instead of coming to the tower to catch the cab because in his opinon Kenefick lacked sufficient experience to be around the tracks there; and that, on this particular morning, he cautioned Kenefick "to be careful." When the cab stopped opposite the tower, Kenefick came out, facing in the direction of an on-coming St. Louisbound New York Central passenger train of ten cars. The train was at or west of the Market street crossing when he started down the east steps of the tower. Kenefick walked down the steps (four or five) sideways, facing south, and immediately started across the tracks towards the cab and did not look towards the approaching train.

George Cummings was on the engine of the cab. He watched Kenefick's progress. Parkhurst, in the tower, heard the approaching train. Parkhurst went to the door of the tower. Cummings and Parkhurst, plaintiff's witnesses, both shouted to Kenefick, urging him to hurry. Kenefick gave no outward indication of having heard either Cummings or Parkhurst, or the approaching train. Parkhurst testified that when he reached the door Kenefick was at about the center of the west-bound track and the train 40 to 50 feet east and Kenefick was in the act of finishing his step across the south rail of said track when he was struck by the pilot, having progressed 12 feet southwardly, was knocked 20 to 25 feet, and killed. The train was traveling about 25 miles an hour up to the time Kenefick was struck. It did not run over him. Under the evidence favorable to plaintiff a step or two more and Kenefick would have cleared the overhang of the engine. Other facts will be developed in ruling the issues.

Plaintiff questions instruction No. 5. Defendant does not claim the instruction to be a model but justifies it on several grounds, including the ground that defendant accepted plaintiff's theory of the case and plaintiff may not successfully assert prejudicial error. Plaintiff charged defendant with primary negligence only but submitted her case on the merits solely on the humanitarian theory that the engineer could have "slowed and slackened the speed" of the train so as to have permitted Kenefick to have cleared "said main line."

Plaintiff's sole verdict directing instruction predicated a recovery upon findings that Kenefick "was walking southwardly over and across the main line of defendant's tracks mentioned in the evidence" when the New York Central train "was approaching the point" where Kenefick "was crossing"; and that the engineer of the train "saw, or in the exercise of ordinary care could have seen" Kenefick "crossing said main line there"; and that Kenefick "was at said time in danger of being struck and injured" if the speed of the train continued as before; and that the engineer "after seeing or in the exercise of ordinary care should have seen" Kenefick "so crossing there and in a position of danger of being" injured by said train "could have slowed and slackened the speed of said train" and avoided injuring Kenefick et cetera, the verdict should be for the plaintiff. (Italics ours.)

Briefly of the testimony favorable to the defendant on the issue of the propriety of instruction No. 5. The curve was to the right and the fireman could not see the developments. About 611 feet east of the S H tower is a signal for the bridge approach and at the S H tower is an order-board signal. Plaintiff's testimony established the duty of the engineer to watch both of these signals as either might take away his right to proceed at any second, making it his immediate duty to stop the train. The operating rules required signals by whistle "for curves, street crossings and anybody" on the tracks. There was a building on the left or outside of the curve about 480 feet east of the S H tower. Plaintiff's testimony established that the engine was working steam, making considerable noise, and that the whistle of the engine was sounded for the Market street crossing and also shortly before the casualty when the engine was in the vicinity of this building or half way between it and the S H tower. It was not shown, however, whether this whistle was for the curve or specifically to warn Kenefick. Plaintiff's witness Cummings was of the opinion Kenefick was going to stop and not attempt to cross the tracks with the train coming. The speed of the train was placed at 25 miles an hour and plaintiff's evidence established that an application of the emergency brakes at that speed would be dangerous to passengers on the train. Kenefick, according to the engineer, was just stepping over the north rail when first seen by him and about 20 feet west of the engine.

In view of the foregoing, instruction No. 5 informed the jury "that even though you may believe from the evidence that the engineer * * * saw decedent approaching or near the track in question, he had a right to assume that decedent would hear and heed the warning whistles unless and until decedent reached a point so close to the track that it was impossible for him to avoid being struck by the train. Until decedent had reached this point of immediate and certain peril, no duty rested upon the engineer to commence to check the speed of the train. Unless the speed of the train could thereafter be checked enough to avoid striking decedent, plaintiff cannot recover, and your verdict should be for defendant railroad company."

A number of observations by plaintiff are not questioned by defendant; for instance: One may not assume one thing when he sees another. McCall v. Thompson, 348 Mo. 795, 805, 155 S.W.2d 161, 167; Poague v. Kurn, 346 Mo. 153, 164, 140 S.W.2d 13, 18. The humanitarian doctrine seizes upon a situation when one comes into a position of imminent peril and requires due care on the part of one operating a dangerous instrumentality to avoid injuring the person in peril. Zickefoose v. Thompson, 347 Mo. 579, 592, 148 S.W.2d 784, 791. Obliviousness may tend to create a position of imminent peril under given facts when such peril would not exist except for the obliviousness. Hilton v. Terminal Rd. Ass'n of St. Louis, 345 Mo. 987, 994, 137 S.W.2d 520, 523; Stokes v. Wabash Rd. Co. 355 Mo. 602, 197 S.W.2d 304, 307; Buehler v. Festus Mercantile Co., 343 Mo. 139, 159, 119 S.W.2d 961, 970, states: "But the law is that that duty [defendant's under the humanitarian doctrine] does not arise until a situation of peril arises." Quoted in Hilton v. Terminal Rd. Ass'n, of St. Louis, [345 Mo. 987, 137 S.W 2d 523] supra, which also states: "A defendant owes no duty to an oblivious plaintiff who is not in a position of imminent peril."

Plaintiff stresses the cases of Yakubinis v. Missouri-K.-T. Rd. Co., 345 Mo. 943, 948[3], 137 S.W.2d 504, 505[6], and Lynch v....