Martin v. St. Louis-San Francisco Ry. Co.

• Decision Date: 04 January 1921
• Docket Number: No. 16279.,16279.
• Citation: 227 S.W. 129
• Parties: MARTIN v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

227 S.W. 129

MARTIN v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 16279.

St. Louis Court of Appeals. Missouri.

January 4, 1921.

Rehearing Denied Jan. 27, 1921.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

Action by Charles N. Martin against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, E. T. Miller, and A. P. Stewart, all of St. Louis, for appellant.

Taylor, Mayer & Shifrin, of St. Louis, for respondent.

BIGGS, C.

At about 10 a. m. on August 6, 1917, plaintiff's wife was struck and killed by one of defendant's east-bound through passenger trains at Shrewsbury Station, St. Louis county. Hence arose this action for damages under the Compensatory Death Act (section 5425, R. S. 1909). All allegations of primary negligence were abandoned by plaintiff, and the case was put to the jury under the humanitarian doctrine, resulting in a verdict and judgment for plaintiff for $5,000. Defendant appeals.

Defendant's double track runs east and west at the point, and for about one-half mile west of the station the track is straight and then curves to the south. West-bound trains use the north track, and east-bound' trains the south track. North of both tracks is the station house, and south of the tracks is a platform where passengers board eastbound trains.

On the morning in question, a local suburban accommodation train was due to stop at Shrewsbury Station at 9:46 a. m. This train was late. About 10 o'clock a through passenger train, not scheduled to stop at this station and running several hours late and at the rate of 45 miles per hour, rounded the curve one-half mile to the west of the station and proceeded eastwardly on the south or east-bound track on a downgrade of about 60 feet to the mile. At this time the deceased, Mrs. Martin, two other ladies, and two children, were in the station on the north side awaiting the local train. Hearing a train whistle to the west, they proceeded out of the station and across the track for the purpose of getting upon the platform on the south side so as to take what they supposed was the local accommodation train that was approaching and which would stop at the station.

The inference is plain from the evidence that this group of passengers, including the deceased, knew the train was coming down the grade, but supposed that it was the local train and it would slow up and stop at the station. In that event there was ample time to cross the track in safety. As it turned out, the train was a through train running very fast and not scheduled to stop. The result was that the two ladies and the children barely crossed the track In time, and Mrs. Martin, who was just behind the others, was struck and killed just as she stepped off the south rail of the east-bound track. One second more, or two at the most, and she would have reached a place of safety.

The testimony of the engineer, who was called by the plaintiff, shows that this train of nine coaches was running on about the time of the local train which was passed by his train at Valley Park, 12 miles to the west; that as he approached the station traveling 45 miles per hour, and when about one-quarter of a mile (1,320 feet) west of the station, he saw this group of passengers leave the depot and start across the tracks; and that he knew they were going to cross in front of his train. While the engineer says that he did not see the deceased until just before his engine struck her, he did see the group of passengers crossing the tracks, and other evidence is to the effect that Mrs. Martin was among the group. Realizing at that moment that these women and children were going to cross in front of his engine, the engineer testified he gave his brakes what is termed a "service application," which is the ordinary method of stopping the train as distinguished from an "emergency application," which slows up and stops the train quicker than the "service application," and which is used in cases of emergency. He says he took this action in order "to give the group of passengers time to get across."

While the engineer testifies he applied the brakes as stated and lessened the speed of the train from a point one-quarter of a mile from the station, there was evidence tending to show that the speed of the train was not slackened until after the deceased was struck. There was further evidence tending to show that had the engineer given the brakes an emergency application, instead of a service application, the train could have been stopped within the 1,320 feet under the conditions that existed. In any event, by such emergency application the speed of the train could have been so slackened that the deceased would have had time to have escaped from the oncoming locomotive. While the engineer says that having once given the brakes the service application he could not thereafter, for mechanical reasons, apply the emergency brakes, this is disputed by another experienced engineer who testified for plaintiff.

This is not a case where an engineer of a train sees persons on the track or approaching the track apparently aware of the approaching train, and where under such circumstances he assumes, and has a right to assume, that such persons who are sui juris will not step from a place of safety into one of peril or will step off of the track out of danger, for in this case the engineer admits he knew the group of passengers were going to cross in front of his train.

Nor is it a case where the position of peril is limited to the track itself, for the engineer knew the passengers were going to cross the track from the time they left the station house. So knowing, there was no place for assumptions on his part, and it then became his duty to make every effort to stop his train, and, if that was not possible, to so slacken its speed as to prevent the train from running over deceased, if possible. Did he do this? We think not, for there is evidence from which the jury could reasonably find that the speed of the train was not slackened at all before striking the deceased. And further that, had the engineer applied to the brakes the emergency application instead of giving them the service application at the time he saw the passengers crossing the track and knew they were intending to cross, the train would have been either stopped or its speed so lessened by the time the station was reached that the accident would not have happened.

One of defendant's main contentions is to the effect that under the facts of the case there is no room for the application of the humanitarian doctrine, and that its demurrer to the evidence should have been sustained. We rule the specification of error against the defendant, and in support thereof reference is made to the following authorities: Holden v. Mo. Railway Co., 177 Mo. 456, loc. cit. 468, 76 S. W. 973; Holmes v. Mo. Pacific Railway Co., 207 Mo. 149, loc. cit. 163, 105 S. W. 624; Ellis v. Metropolitan Street Railway Co., 234 Mo. 657, 138 S. W. 23; Maginnis v. Railroad, 268 Mo. 657, loc. cit. 678, 187 S. W. 1165; Nufer v. Metropolitan Street Railway Co. (Kansas City Court of Appeals) 182 S. W. 792: Tavis v. Bush (Sup.) 217 S. W. 274; Maginnis v. Railroad, 182 Mo. App. 694, 165 S. W. 849.

When the engineer saw this group of passengers leaving the station for the purpose of going to the south side of the track to take what they supposed was the local accommodation train which he knew was following his train, and when he knew, as he admits, that they were going to cross the tracks they were from that moment in the danger zone, the duty then devolved upon him to do everything that he could reasonably do to either stop or slow up his train so as to prevent the accident. As there was evidence tending to show that he failed in this duty, we think the case was properly admitted to the jury under the last chance rule.

The case of Boyd v. Railway, 105 Mo. 371, 16 S. W. 909, so much relied upon by the defendant, is clearly distinguishable from the case at bar, for the reason that in the Boyd Case there was nothing to show that the engineer knew that Boyd was going to cross the track in front of the engine.

Defendant challenges the sufficiency of the petition and also plaintiff's main instruction which authorized a verdict, because of the omission of the question of deceased being unaware of the peril or oblivious to the danger. The petition alleges that Mrs. Martin attempted to cross the track, believing that the approaching train was a local and would slow up and stop and that she could cross over in safety, and this allegation was supported by the evidence. As to the necessity of such an allegation and also as to the necessity of incorporating in the instruction the element of obliviousness, we think such unnecessary in this case because of the evidence of the engineer, who admits that he knew the group of passengers, of which the deceased was one, were going to cross the track in front of his engine. Defendant offered no evidence, and stood upon that produced by the plaintiff, all of which was to the effect that Mrs. Martin with the group of passengers crossed the track believing that the oncoming train was a local and would stop at the station; that, while they knew a train was approaching, she and the other members of the group were unaware of the impending danger.

The part that obliviousness plays in ...