Logan v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 05 October 1923
• Citation: 254 S.W. 705,300 Mo. 611
• Parties: ALICE H. LOGAN v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and FRANK C. PARADISE, Appellants
• Court: Missouri Supreme Court

254 S.W. 705

300 Mo. 611

ALICE H. LOGAN v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and FRANK C. PARADISE, Appellants

Supreme Court of Missouri, First Division

October 5, 1923

Appeal from Hannibal Court of Common Pleas. -- Hon. C. T. Hays Judge.

Affirmed.

H. J Nelson, George A. Mahan, Dulany Mahan and Ezra T. Fuller for appellants.

(1) The evidence shows that plaintiff's husband drove his automobile on the railroad track right in front of an approaching engine without stopping, looking or listening, so close to the engine that it could not be stopped before the collision after he was discovered on the track or could have been discovered by ordinary care. The humanitarian doctrine does not apply. The plaintiff cannot recover under the law and defendant's demurrer should have been sustained. Hall v. Ry. Co., 240 S.W. 175; Rollinson v Railroad, 252 Mo. 542; Dyrez v. Railroad, 238 Mo. 47; Burge v. Railroad, 244 Mo. 96; State ex rel. Iron Mountain Ry. v. Reynolds, 286 Mo. 221; Stotler v. Railroad, 204 Mo. 619; Ellis v. St. Ry. Co., 234 Mo. 673; Keele v. Railroad, 258 Mo. 78. Although defendant's train at the time of the accident was running at a speed exceeding the ordinance, still plaintiff cannot recover because her husband's own negligence was the proximate cause of his injury. Lackey v. United Rys. Co., 288 Mo. 138; Burge v. Railroad, 244 Mo. 103; Laun v. Railroad, 216 Mo. 578; Schmidt v. Railroad, 191 Mo. 229. Defendant's engineer and fireman on the approaching locomotive at the time of the injury were not guilty of negligence. All of the evidence shows they used every effort to stop the train before the collision as soon as possible after the discovery that plaintiff's husband was in the danger zone. Plaintiff's husband caused his own injury. McGee v. Railroad, 214 Mo. 542; Degonia v. Railroad, 224 Mo. 596; Burge v. Railroad, 244 Mo. 101. Persons traveling in automobiles must use the same care in approaching and crossing a railroad track as has always been required of other travelers. State ex rel. Hines v. Bland, 237 S.W. 1018; Freie v. Ry. Co., 241 S.W. 671. (2) Plaintiff's Instruction 1 is erroneous for the following reasons: (a) Because the instruction broadens the issue in only requiring the jury to find that the said John Logan was oblivious to the approach of the locomotive and train while approaching said track and not requiring them to find that he was oblivious to his impending peril or danger, if any, while entering upon or crossing over said track. "A court does not possess the power to change by instruction the issues which the pleadings submit." Black v. Met. St. Ry. Co., 217 Mo. 685. (b) The instruction does not confine the negligence of the defendants to the servants and agents of defendant company in charge of and operating the train, but permits a finding against the defendants if any employees may have been negligent, and further than that permits a finding that defendants may be liable if defendant company did not employ or provide servants and employees for the purpose of preventing this accident. State ex rel. v. Ellison, 270 Mo. 653. (c) The instruction directs the jury that ordinary care on the part of the defendants in this case means that the defendants should keep a vigilant watch or lookout ahead of said locomotive.

Rendlen & White for respondents.

(1) Whether a given case under the humanitarian theory is one for a jury depends upon the facts thereof. When a person out of danger moves from a place of safety to one of danger from an on-coming train, so close to it and under such circumstances that his danger could not be reasonably apprehended by those in charge of the engine (who see or might see his peril) in time to have saved him by the exercise of ordinary care, there can be no recovery, as there is no room for the application of the humanitarian rule. However, the facts and circumstances and the inferences therefrom must be "so plain that average fair minded men cannot reasonably differ about it. In which event a recovery may be denied as a matter of law," but if there is a ground for fair difference of opinion about it, then the question is for the jury. Ellis v. Street Ry. Co., 234 Mo. 672. A verdict on conflicting evidence will not be disturbed. Such a verdict is conclusive on appeal. A jury may draw every inference from the evidence which it may reasonably bear, and an appellate court may not disturb their findings upon a question where the evidence will support different inferences. Titus v. Delano, 210 S.W. 44. A demurrer to the evidence admits every material fact proven and which might be inferred by the jurors from any of the testimony to be true, and should never be sustained unless the evidence when thus considered fails to make proof of some essential facts. Young v. Webb City, 150 Mo. 349; Noeninger v. Vogt, 88 Mo. 592; Fearons v. Railroad, 180 Mo. 220; Knorpp v. Wagoner, 195 Mo. 662; Stauffer v. Railroad, 243 Mo. 316; Weber v. Railroad, 100 Mo. 206; Klockenbrink v. Railroad, 81 Mo.App. 409; Eswin v. Railroad, 96 Mo. 290; Strock v. Mesker, 55 Mo.App. 26. (2) This case is controlled by the humanitarian doctrine. When the negligence of the injured party has put him in peril such distance from an on-coming car or locomotive that those operating it can, by warning, or by arresting the speed, or stopping, when possible and necessary, avoid injury to such person, after such operatives discover the peril or where a duty to look arises, might have discovered the peril, then liability for injury springs. The act of negligence of the injured party in such cases is not deemed by the law so concurrent as to defeat recovery, but the negligence of the defendant is deemed the proximate cause of the injury, hence actionable. Ellis v. Met. St. Ry. Co., 234 Mo. 671; Titus v. Delano, 210 S.W. 414; Ruenzi v. Payne, 208 Mo.App. 127; Goben v. Railroad, 208 Mo.App. 5; Milward v. Wabash Railway Co., 232 S.W. 228; White v. Railroad, 202 Mo. 563; Kinlen v. Railroad, 216 Mo. 145; Dutcher v. Railroad, 241 Mo. 137; Maginnis v. Railroad, 182 Mo.App. 713; Epstein v. Railroad, 197 Mo. 720; Murphy v. Railroad, 228 Mo. 62. (3) It is not necessary for a recovery herein, that the train could have been completely stopped, but is enough if the facts and circumstances in evidence and the inference fairly to be drawn therefrom show that the speed of the train could have been slackened and if slackened the decedent would have passed on into safety. Dutcher v. Wabash Railroad, 241 Mo. 166; Maginnis v. Ry. Co., 182 Mo.App. 713; Ellis v. Metropolitan Ry., 234 Mo. 657. (4) One is in peril or in the danger zone in approaching a railroad track in an automobile or with a team of horses when his vehicle approaches so close, or at such a gait as to show a present intention to cross, but a pedestrian is not in the danger zone, until he takes the last few fatal steps, or, oblivious to his danger does such things as fairly indicate a present intention to take them. Keele v. Railroad, 258 Mo. 79; Ellis v. Met. St. Ry., 234 Mo. 680; Albert v. United Rys., 232 S.W. 793; Maginnis v. Railroad, 182 Mo.App. 713. (5) It was the admitted duty of the engineer to keep a constant lookout ahead and be vigilantly watchful for anyone coming upon or approaching the tracks as they crossed Maple Avenue. It was a well known and recognized dangerous crossing. The duty to look in this case puts the enginemen in the same position as if they were looking and they are held to see what they might have seen. "What one knows and what he ought to know are regarded in law as equivalent." Ellis v. Railroad, 234 Mo. 673; Dutcher v. Railroad, 241 Mo. 165; Murphy v. Railroad, 228 Mo. 82. (6) The sounding of the alarm whistle was one of the means that the engineer could have used to have averted the collision. Proper warning would have prevented Mr. Logan's entry upon the track or possibly a hasty leaving. It has been held the failure to sound the whistle may make the defendant liable under the humanitarian rule. Klockenbrink v. Railroad, 172 Mo. 690; Moore v. Transit Co., 194 Mo. 11; Reyburn v. Railroad, 187 Mo. 572; Riska v. Railroad, 180 Mo. 184; Mann v. Railroad, 123 Mo.App. 486; Kinlen v. Railroad, 216 Mo. 145; Waddell v. Railroad, 213 Mo. 8; Felver v. Railroad, 216 Mo. 195; Ellis v. Met. St. Ry., 234 Mo. 664.

SMALL, C. Lindsay, C., concurs. Graves, P. J., not sitting.

OPINION

SMALL, C. --

I. Suit to recover damages for death of plaintiff's husband, John Logan, who was run over by a passenger train of defendant railroad company, in charge of defendant Paradise, on December 25, 1920, and who died from the effect of his injuries on December 28, 1920. The accident happened at the crossing of Maple Avenue and Collier Street in the city of Hannibal. The deceased was traveling north on Maple Avenue, and the train was going west over the railway tracks in Collier Street, an east-and-west street, which intersected Maple Avenue, a north-and-south street, at right angles.

The charges of negligence in the petition are; That the automatic alarm bell at said crossing was inefficient and out of repair. That it would ring when no train was approaching, and would not ring or give warning when trains were approaching said crossing. That the train was operated at dangerous and unlawful rate of speed, to-wit, at the rate of about twenty-five miles per hour. That the whistle was not sounded at least eighty rods from said crossing, and the bell on said locomotive was not kept ringing until said locomotive had crossed over said Maple Avenue, and that defendant negligently failed to give any timely warning of the approach of said train. That said train was also run at a rate of speed in excess of six miles per hour, in violation of an ordinance of the city of Hannibal....