Knorp v. Thompson

• Decision Date: 06 December 1943
• Docket Number: 38491
• Citation: 175 S.W.2d 889,352 Mo. 44
• Parties: Molly Knorp v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

175 S.W.2d 889

352 Mo. 44

Molly Knorp v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant

No. 38491

Supreme Court of Missouri

December 6, 1943

[Copyrighted Material Omitted]

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Reversed and remanded.

Thomas J. Cole, James A. Potter, W. W. Blain and Leon P. Embry for appellant.

(1) The same burden of proof rests upon a plaintiff in a humanitarian case as in any other case. Shepherd v. Chicago, R.I. & P. Ry. Co., 72 S.W.2d 985; Hangge v. Umbright, 119 S.W.2d 382; Dody v. Lonsdale, 158 S.W.2d 203. (2) Neither the movements of the truck, nor the actions of the occupants thereof, being shown, there was no evidence as to when or where any zone of humanitarian peril began, or that the same was, or, in the exercise of the applicable degree of care, should have been, discovered by the trainmen, so that there was no evidence from which the defendant's ability to act thereafter in prevention of the accident could be judged. To make a submissible humanitarian case, these things would have had to be shown. Dody v. Lonsdale, 158 S.W.2d 203; Burns v. Joyce, 161 S.W.2d 655; Banks v. Morris, 302 Mo. 254; Perkins v. Terminal Ry. Assn., 102 S.W.2d 915; Swain v. Anders, 140 S.W.2d 730; State ex rel. v. Shain, 159 S.W.2d 582; White v. Missouri Motors Dist. Co., 47 S.W.2d 245; Power v. Frischer, 87 S.W.2d 692. (3) Neither the movements of the truck, nor the actions of its occupants, being shown, there was no evidence bringing knowledge or constructive notice of the decedent's position of peril home to the defendant, if the decedent was ever in a position of humanitarian peril. To make a submissible humanitarian case, such knowledge or constructive notice must be brought home to the defendant. State ex rel. v. Shain, 159 S.W.2d 582; Clark v. A., T. & S.F. Ry. Co., 6 S.W.2d 954; Poague v. Kurn, 140 S.W.2d 13; Perkins v. Terminal Ry. Assn., 102 S.W.2d 915. (4) The fact of obliviousness does not make a submissible humanitarian case. The obliviousness must be brought home to the defendant. Neither the movements of the truck, nor the actions of its occupants, being shown, there was nothing to bring knowledge or constructive notice of the obliviousness home to the defendant even if the occupants were in fact oblivious. State ex rel. v. Shain, 159 S.W.2d 582; Burns v. Joyce, 161 S.W.2d 655; Womack v. Mo. Pac. Ry. Co., 88 S.W.2d 368; Perkins v. Terminal Railway Assn., 102 S.W.2d 915; Swain v. Anders, 140 S.W.2d 730; Poague v. Kurn, 140 S.W.2d 13. (5) The trainmen were under no humanitarian duty to do anything until it became apparent to them or should have become apparent to them in the exercise of ordinary care, that the deceased was in a position of imminent peril. Poague v. Kurn, 140 S.W.2d 13; Camp v. Kurn, 142 S.W.2d 772; Roach v. Kansas City P.S. Co., 141 S.W.2d 800; Hilton v. Terminal Ry. Assn., 137 S.W.2d 520; State ex rel. v. Shain, 137 S.W.2d 527; Thomasson v. Henwood, 146 S.W.2d 88. (6) There being no evidence showing when or where any zone of humanitarian peril began, or where the trainmen could be charged with knowledge thereof, there was no evidence of ability on the part of the trainmen to avert the accident thereafter. Absent such a showing, there is no submissible humanitarian case. Zickefoose v. Thompson, 148 S.W.2d 784. (7) The train was travelling 95.3 feet per second. The courts take judicial notice of the fact that some time elapses between the appearance of a perilous situation and the time when the trainmen can act. Stark v. Berger, 125 S.W.2d 870; Thomasson v. Henwood, 146 S.W.2d 88. (8) The showing of a mere possibility of averting an accident does not make a submissible humanitarian case. Markowitz v. Ry. Co., 186 Mo. 350; Power v. Frischer, 87 S.W.2d 692. (9) The fact that the train cut off witness Ehlert's view of the truck, indicates that the front part of the truck was struck. The cases in which vehicles just barely failed to clear the tracks are not applicable. Wolverton v. Kurn, 156 S.W.2d 638. (10) Neither the movements of the truck, nor the actions of its occupants, being shown, every necessary element of a humanitarian case was left to speculation. A submissible case can not be made on speculation and conjecture. Wolverton v. Kurn, 156 S.W.2d 638; Dody v. Lonsdale, 158 S.W.2d 203; Burns v. Joyce, 161 S.W.2d 655; Lappin v. Prebe, 131 S.W.2d 511; Meese v. Thompson, 129 S.W.2d 847. (11) Where the evidence is equally consistent with either of two theories, one of which results in a failure of proof, the plaintiff's case is not established. Lappin v. Prebe, 131 S.W.2d 511. (12) There was no evidence that the plaintiff filed her action within the time required after the date of her husband's death or that the case at bar was filed within one year after nonsuit. The plaintiff is the widow of the deceased. She was required to file her action within six months after her husband's death if there were minor children or, in any event, within one year. Secs. 3652, 3656, R.S. 1939. (13) If the plaintiff instituted her action within the time prescribed and suffered a nonsuit, she had one year after such nonsuit to file her new action. Sec. 3656, R.S. 1939. (14) There is no action for wrongful death independent of the above statutes. Rositzky v. Rositzky, 46 S.W.2d 591. (15) There is no evidence as to when the original suit was filed nor as to the taking of a nonsuit. Since there is no action independent of the statute and since the statute giving a right of action for wrongful death fixes the time limits therefor, absent both pleading and proof of timely action, there is no submissible case. This action was filed more than one year after March 17, 1939. Sheets v. Miss. River & Bonne Terre Ry., 152 Mo.App. 376; O'Donnell v. Wells, 21 S.W.2d 762; Superior Minerals Co. v. Mo. Pac. Ry. Co., 45 S.W.2d 912; Schrabauer v. Schneider Engraving Product, 25 S.W.2d 529.

Trusty & Pugh, Price Wickersham and Fred F. Wesner for respondent.

(1) The allegations in the answers charging Knorp with specific acts and specific failures create a charge that such things were taking place during the 75 feet and mean not only a general admission of obliviousness but also an admission of knowledge or means of knowledge of such specific things through the enginemen, or such charges form a basis for an inference that there existed in the view of the enginemen reasonable indications and circumstances of such specific things, or reasonable indications that the occupants of the truck were oblivious, or that the truck was going on and the facts show that the train could have been stopped or sufficiently slowed, and also that timely emergency warning could have been given during the time alleged. Payne v. C. & A.R Co., 129 Mo. 405, 31 S.W. 885; State ex rel. Bank v. Globe Indemnity Co., 29 S.W.2d 743; White v. Bunn, 145 S.W.2d 138; Christman v. Reinholdt, 150 S.W.2d 527; 45 C.J., p. 943, sec. 502; Hopkins v. Highland, etc., Co., 159 S.W.2d 254; Walser v. Wear, 42 S.W. 928; Hodges v. Torrey, 28 Mo. 99; Burton v. Phillips, 7 S.W.2d 712; Meriwether v. Publishers, etc., Co., 123 S.W. 1100; Andrus v. B.M.A., 223 S.W. 70; U.S. Feed Mill Co. v. Mo. Pac. R. Co., 36 S.W.2d 136; Hildreth v. Hudloe, 282 S.W. 747; Cantrell v. Knight, 72 S.W.2d 196; Conduitt v. Trenton Gas & Electric Co., 31 S.W.2d 21; Bird v. St. L.-S.F. Ry. Co., 78 S.W.2d 389; St. Louis v. Sheahan, 36 S.W.2d 951; Ettenson v. Wabash R. Co., 154 S.W. 785; Stout v. K.C.P.S. Co., 17 S.W.2d 363; Lynch v. C. & A. Ry. Co., 106 S.W. 68; Buttron v. Bridell, 129 S.W. 12; Stewart v. Laclede Gas Light Co., 241 S.W. 909; Richeson v. Roebber, 159 S.W.2d 658. (2) The admission of obliviousness for 75 to 115 feet and testimony of the fireman that he first saw the truck when it was 80 feet from the main track and that he watched it travel 70 of the 80 feet at unabated speed of 10 miles per hour, until the train and truck had left only 1.57 feet to go before the collision, with or without the condition and nature of the road the truck traveled over and the evidence of Ehlert, created an issue of fact for the jury on the humanitarian duty to slacken or to stop or to give timely emergency warning. Authorities on this issue given under Point (4). (3) Also the other statements by the fireman contrary to the above that he watched the truck travel at unabated speed of 10 miles for a distance of 70 feet to get to the spur track and was so watching it to see if it would stop there and that it did not but made a slight change of speed from 10 to 8 miles per hour and "continued on" or "then started on," combined with the admission that the occupants were at all times oblivious and the condition and nature of the road, with or without the evidence of Ehlert and about no statutory warning, creates an issue of fact for the jury on the humanitarian doctrine. Authorities on this issue are given under Point (4). (4) The admission of obliviousness and the nature and condition of the road and the evidence of Mr. Ehlert that while on highway 50 and moving at 15 miles per hour he looked back and saw the truck moving and then he moved on for 50 more feet, off the slab, and onto the shoulder and came to a stop and moved out from under the steering wheel and opened the right door and got out onto the running board and looked back and saw the truck again, then coming onto the main track at an estimated speed of 5 miles per hour and this was about a second before the train cut off his view, constitute sufficient facts to create an issue for the jury on failure to slow down, or to stop, or to give timely warning, and this is made very strong by proof that no statutory warning was given. Authorities governing rule on demurrer. Lindquist v. K.C.P.S. Co., 169 S.W.2d 366; Buesching v....