Krause v. Pitcairn

• Citation: 167 S.W.2d 74,350 Mo. 339
• Decision Date: 12 November 1942
• Docket Number: 36578
• Parties: Lena Krause v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of Wabash Railroad Company, Appellants
• Court: United States State Supreme Court of Missouri

167 S.W.2d 74

350 Mo. 339

Lena Krause v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of Wabash Railroad Company, Appellants

No. 36578

Supreme Court of Missouri

November 12, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Eugene L Padberg, Judge.

Reversed and remanded.

N S. Brown and Homer Hall for appellants.

(1) The court erred in refusing to sustain the demurrer of defendants at the close of all the testimony. (a) The plaintiff failed to make a submissible case of negligence under the humanitarian doctrine in that: The record shows that the train could not have been slackened in time to have avoided the collision. Knight v. Wabash Ry. Co., 85 S.W.2d 392; Elkins v. St. Louis Pub. Serv. Co., 335 Mo 951, 74 S.W.2d 600; Sevedge v. Railroad Co., 331 Mo. 312, 53 S.W.2d 284; Christner v. Ry. Co., 228 Mo.App. 220, 64 S.W.2d 752. The plaintiff failed to prove that the deceased could have escaped if the train had been slackened. Gann v. Ry. Co., 319 Mo. 214, 6 S.W.2d 39. Humanitarian negligence in the operation of the train cannot be predicated upon failure of the engineer to act more quickly than he did. Knight v. Wabash Ry. Co., 85 S.W.2d 392; Henson v. Ry. Co., 301 Mo. 415, 256 S.W. 771; Rollison v. Railroad Co., 252 Mo. 525, 160 S.W. 994; Burge v. Railroad Co., 244 Mo. 76, 148 S.W. 925; Degonia v. Railroad Co., 224 Mo. 564, 123 S.W. 807; McGee v. Railroad Co., 214 Mo. 530, 114 S.W. 33; Underwood v. Railroad Co., 182 Mo.App. 252, 168 S.W. 803; Logan v. Railroad Co., 300 Mo. 611, 254 S.W. 705; Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Leapard v. K. C. Ry. Co., 214 S.W. 268. (b) There is no credible evidence sufficient to support the submission and verdict. Tate v. Railroad Co., 93 S.W.2d 873. (c) There was no evidence in this case that the engineer saw or could have discovered the deceased in a position of peril or the automobile approaching the track immediately in front of the locomotive before it was struck and there is no evidence that he could then have slackened the speed after the deceased was in imminent peril and thereby have prevented the collision and therefore the judgment ought to be reversed. Mahl v. Terrell, 342 Mo. 15; Lotta v. Kansas City Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284. (2) The plaintiff is not entitled to recover because the case was submitted solely on the humanitarian doctrine and the evidence fails to show that the deceased was oblivious, and that the engineer saw deceased in a position of peril and unable to extricate himself and knew or could have known that he was oblivious of peril in time thereafter to have avoided the collision. The court erred in overruling the demurrers to the evidence. Pentecost v. St. Louis Merchants Bridge R. Co., 334 Mo. 572, 66 S.W.2d 533; Schneider v. Terminal Railroad Assn., 107 S.W.2d 786; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Clarke v. A., T. & S. F. Ry. Co., 319 Mo. 865, 6 S.W.2d 954; White v. Mo. Motors Distributing Co., 226 Mo.App. 453, 47 S.W.2d 245; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Phillips v. St. L.-S. F. Ry. Co., 337 Mo. 1068, 87 S.W.2d 1035; Womack v. Mo. Pac. Ry., 337 Mo. 1160, 88 S.W.2d 368; Shepard v. C., R. I. & P. Ry., 72 S.W.2d 985; Guyer v. Mo. Pac. Ry., 174 Mo. 334, 73 S.W. 584; State ex rel. v. Reynolds, 289 Mo. 479, 233 S.W. 219; Tannehill v. Railroad, 279 Mo. 158, 213 S.W. 818. The deceased was not in a position of imminent peril until the automobile got within three feet of the path of the train, when it could have been easily stopped. The evidence wholly fails to show that after the deceased went into a position of imminent peril the injury could have been prevented and the court erred in overruling the demurrers to the evidence. Knight v. Wabash Ry. Co., 85 S.W.2d 392; Sullivan v. Gideon & N. I. R. Co., 308 Mo. 48, 271 S.W. 983; Keele v. Ry. Co., 258 Mo. 76, 167 S.W. 438; Elkins v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; State ex rel. v. Bland, 322 Mo. 565, 15 S.W.2d 798; State ex rel. v. Bland, 313 Mo. 246, 281 S.W. 690; Rollison v. Wabash R. Co., 252 Mo. 525, 160 S.W. 994; Sullivan v. Atchison, T. & S. F. R. Co., 317 Mo. 996, 297 S.W. 945; Barraclough v. Union Pacific R. Co., 331 Mo. 157, 52 S.W.2d 998; Wallace v. St. Joseph Ry., L. H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011; Ziegelmeier v. East St. Louis & Sub. R. Co., 330 Mo. 1013, 51 S.W.2d 1027; Ridge v. Jones, 335 Mo. 219, 71 S.W.2d 713. (3) The court erred in giving Instruction 1 at the request of the plaintiff. (a) Negligence in failing to give a warning after the automobile got in the path of the train was not submissible under the evidence, which definitely proved that the whistle was being sounded at the time the automobile went on the track. State ex rel. Hopkins v. Daues, 319 Mo. 1137, 6 S.W.2d 893; Kincaid v. Birt, 29 S.W.2d 97; State ex rel. Schroeder & Tremayne, Inc., v. Haid, 328 Mo. 807, 41 S.W.2d 789; Murphy v. Fidelity Natl. Bank & Trust Co., 226 Mo.App. 1181, 49 S.W.2d 668; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654; Taylor v. Cleveland, C., C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W.2d 69; Roden v. Helm, 192 Mo. 71, 90 S.W. 798; Lynch v. Railroad, 333 Mo. 89, 61 S.W.2d 918; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Stoutimore v. Railroad, 92 S.W.2d 658; Stephens v. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899, 229 Mo.App. 627, 79 S.W.2d 516; Wright v. Hannan & Everitt, Inc., 336 Mo. 732, 81 S.W.2d 303; McGinnis v. Railroad, 200 Mo. 347, 98 S.W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. Rep. 661, 9 Ann. Cas. 656. There was no evidence to show any negligence in failing to stop the train and defendants' withdrawal instruction should have been given. The jury should not have been allowed to speculate as to whether stopping the train would have prevented the collision. Sevedge v. Kansas City, St. Louis & Chicago R. Co., 331 Mo. 312, 53 S.W.2d 284. (b) The court erred in giving plaintiff's Instruction 1 for the reason that it unlawfully enlarged the zone of peril under the humanitarian doctrine. Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 970; Hilton v. Terminal R. Assn., 137 S.W.2d 520; State ex rel. Snider v. Shain, 137 S.W.2d 527; Kick v. Franklin, 137 S.W.2d 512. (c) Plaintiff's Instruction 1 was erroneous in that it authorized the jury to return a verdict if they found that the fireman failed to slacken the speed or to give a warning signal, when the evidence showed that the fireman had no opportunity to control the movement of the train or give warning by sounding the whistle. Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20. (4) The statute, which created the right to recover for wrongful death caused by the negligence of a servant, employee or engineer while running any locomotive or train of cars, which is the statute under which this suit was commenced and the only statute under which a recovery could be had, expressly provides that the defendant "may show as a defense that such death was caused by the negligence of the deceased." The defendants in this case had the right to show that the death of plaintiff's husband was caused by his negligence and the court erred in giving plaintiff's Instruction 1 which told the jury that plaintiff was entitled to recover even though the jury might "find and believe from the evidence that Paul Krause was guilty of negligence which directly contributed to cause the collision and his injuries and death." The court likewise erred in refusing to give defendants' requested instructions C, F, and L. Sec. 3262, R. S. 1929; Harlan v. Railroad, 64 Mo. 480; Karle v. Railroad, 55 Mo. 476. (5) There was no evidence to justify submission of failure to slacken the speed of the train and the defendants' withdrawal Instruction H should have been given. The jury could only speculate as to whether slackening of the speed of the train would have prevented the collision. The submission of this question to the jury was reversible error. Sevedge v. Kansas City, St. Louis & Chicago R. Co., 331 Mo. 312, 53 S.W.2d 284; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284.

N. Murry Edwards and Douglas H. Jones for respondent.

(1) Demurrer was properly overruled, as plaintiff presented a perfect case under the humanitarian doctrine. A cause is properly submitted to the jury under the humanitarian doctrine when it is shown that the injury could have been averted by slackening the speed or sounding an adequate warning after plaintiff was in a position of imminent peril. Perkins v. Terminal R. Assn., 340 Mo. 868, 102 S.W.2d 915; Hencke v. St. Louis & H. R. Co., 335 Mo 393, 72 S.W.2d 798; Phillips v. St. L. & S. F. R. Co., 337 Mo. 1068, 87 S.W.2d 1035; Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617; Crews v. K. C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368; Vowels v. Mo. Pac., 320 Mo. 34, 8 S.W.2d 7; Carney v. C., R. I. & P. R. Co., 323 Mo. 470, 23 S.W.2d 993; Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9; Moran v. A., T. & S. F. R. Co., 330 Mo. 278, 48 S.W.2d 881; Todd v. Frisco, 37 S.W.2d 557; Beck v. C., R. I. & P. Ry. Co., 327 Mo. 658, 37 S.W.2d 917; Oxford v. Frisco, 331 Mo. 53, 52 S.W.2d 983; Thompson v. Quincy, O. & K. C. R. Co., 18 S.W.2d 401; Schroeder v. Wells, 310 Mo. 642, 276 S.W. 60; State ex rel. v. Trimble, 260 S.W. 1000; Eckhard v. St. Louis Transit Co., 190 Mo. 593, 89 S.W. 602; Hoelzel v. C., R. I. & P., 337 Mo. 61, 85 S.W.2d 126; Larey v. M.-K.-T., 333 Mo. 949, 64 S.W.2d 681; State ex rel. St. Louis Pub. Serv. Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141; Berryman v. Peoples' Motor Bus Co. & Pub. Serv. Co., ...