McGrath v. St. Louis Transit Co.
| Decision Date | 19 June 1906 |
| Citation | 94 S.W. 872,197 Mo. 97 |
| Parties | McGRATH v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.
Reversed.
Boyle & Priest, George W. Easley and Edward T. Miller for appellant.
The demurrer to the evidence should have been sustained. (a) Plaintiff's husband was guilty of negligence defeating a recovery. Davies v. Railroad, 159 Mo. 1; Evans v. Railroad, 178 Mo. 504; Wheat v. St. Louis, 179 Mo. 572; Clancy v. Railroad, 192 Mo. 615. (b) Defendant was not negligent in the manner charged, and if it was neglect in any respect, such negligence was not a proximate cause of the injury. Hook v. Railroad, 162 Mo. 569; Murray v. Railroad, 176 Mo. 189; Haller v. St. Louis, 176 Mo. 606; Haley v. Railroad; 179 Mo 30; Roenfeldt v. Railroad, 180 Mo. 554; Harper v Railroad, 187 Mo. 575.
A. R. Taylor for respondent.
When men are at work on a track repairing a track, and especially in the darkness of the night, when it is absolutely necessary that they should give their attention to the work, when the operators of cars know this, as the evidence without dispute in this case shows the motorman and conductor knew, to run the car upon the men whilst so at work and whilst in plain view of the motorman, the lights over them visible for a mile, is a little less, if less, than criminal negligence. To say that a motorman, under these conditions, could continue to run his car down and over them, trusting that they would escape without any warning or care to meet the situation is, we submit, something in advance of the most extreme holding of a court on this question. The workmen are human, subject to the ordinary attributes of human nature, one of which is that the mind finds it difficult or impossible to concentrate itself upon more than one thing at a time; when the mind is absorbed in an object of its attention, for the time being it can conceive no other impression. Courts recognize this order of human nature, and consider it in determining human action. They do not declare an act negligent as a matter of law because a person did not do what he might have done, but only when he does or omits to do what a person of ordinary prudence would have done or omitted to do under like circumstances. Kane v. Raiload, 128 U.S. 91; Graney v. City, 141 Mo. 184; Loewer v. Sedalia, 77 Mo. 446; Maus v. Springfield, 101 Mo. 618; Flynn v. Neosho, 114 Mo. 572; Sullivan v. Railroad, 97 Mo. 119; Guenther v. Railroad, 95 Mo. 299, 108 Mo. 22; Bluedorn v. Railroad, 121 Mo. 267; Rapp v. Railroad, 190 Mo. 160; Morgan v. Railroad, 159 Mo. 274; Scullin v. Railroad, 184 Mo. 707; Reardon v. Railroad, 114 Mo. 398. The humane doctrine, as defined by the courts, is this, if a person sees or has reason to expect a person through his own negligence is in danger from anything he is doing -- after he becomes aware of such peril -- he must, nevertheless, exercise ordinary care to avert injury to such person, and failing in this and causing injury to such person he is liable therefor. The rule is clearly announced by the Supreme Court of the United States in Inland Seaboard Co. v. Tolson, 139 U.S. 558, and Railroad v. Ives, 144 U.S. 429. This doctrine has been savagely contested in this State, but is upheld by a consistent line of decisions since an early period. Kelly v. Railroad, 75 Mo. 140; Kelly v. Railroad, 95 Mo. 284; Guenther v. Railroad, 95 295; Kellny v. Railroad, 101 Mo. 75; Reardon v. Railroad, 114 Mo. 406; Schlereth v. Railroad, 115 Mo. 101; Chamberlain v. Railroad, 133 Mo. 599; Morgan v. Railroad, 159 Mo. 275; Scullin v. Railroad, 184 Mo. 707.
Maria McGrath brings this action to recover $ 5,000 for the death of her husband, James McGrath. Defendant is an incorporated street railway company in the city of St. Louis. McGrath was, on the day of the accident, and for some time prior thereto, employed by defendant as a track-repairer or laborer upon its tracks.
The petition states two grounds of negligence, as follows:
It might be well to state that the second ground of negligence was abandoned by plaintiff both in the proof and in the instructions by her asked in the course of the trial.
The answer is, first, a general denial; second, an allegation that the deceased was warned by one or more of his fellow-workmen, but negligently failed to heed such warning, and remained upon or near the track, and was thus killed by his own negligence or want of care, and, third, the usual plea of contributory negligence, leaving out the allegation of warning given by his fellow-workmen.
The reply put in issue all new matter in the answer. Briefly summarized, the evidence in this case shows the following facts:
Defendant was operating a street railway in the city of St. Louis. On Eighteenth street it had a double track running north and south. North-bound cars used the east track and south-bound cars the west track. At Clark avenue, which crossed Eighteenth street at right angles, was a switch, by which certain cars left Eighteenth street to go upon the track on Clark avenue. The deceased and one Thomas Barry were at work just west of Clark avenue on Eighteenth street. Other employees were at work on Clark avenue close to this switch. Barry and deceased were engaged in pulling spikes. Barry had a claw-bar and deceased a hammer. Deceased would assist in setting the claw-bar and then when the spike was prized up to a certain distance, would put his hammer under the claw-bar, thus forming a fulcrum, by which the spike was prized out of the tie into which it had been driven. These parties, with others, had been at work in and about this point since seven o'clock of the evening before the accident and until twelve o'clock that night, when they took lunch. Just after lunch these two laborers were at the place above stated and in the act of drawing a spike. Barry was using the claw-bar and the deceased the hammer. The spike was being drawn at the time of the accident and was one on the east rail of the east track, and Barry had his claw-bar across the track. As well as can be gathered from the evidence he must have been facing east or northeast. After he got his claw-bar on the spike, and before it was necessary to use the hammer, he saw the car coming and tried to detach his clawbar from the spike but finding it "too fast" on the spike he cried out to McGrath, "Let it go," and he, himself, tried to get out of the way, but was struck by the car, as was also McGrath. McGrath, according to this witness, was doing nothing, and at the time was facing south toward the coming car, the car which struck both of them. The witness was closer to the approaching car than was McGrath by two or three feet.
One Patrick McGuire, who was working there that night, says that he had charge of a pole upon which were attached ten incandescent lights. This pole, by means of a hook placed over the wire, formed a circuit and furnished light by which the men worked. The pole handled by this witness was about ten feet north from where deceased and Barry were working. This witness first saw the car which struck and killed deceased when it was coming across the bridge, which was south of where the two men were at work. He says, "I saw it a long way off," and further says that when the car was within fifteen feet of the men, "I shouted to the men, 'Look out there,' and they didn't seem to take any heed of my warning." This witness admits that in testifying before the coroner, he stated that he gave this warning when the car was forty feet away, and that it being fresh in his memory, the statement before the coroner was most likely correct. The witness also states that he was ten feet from the men when he gave this warning; that had they acted promptly they could have gotten out of the way. McGuire says that deceased was "facing in a northwesterly direction pulling spikes," but also admits that Barry had the clawbar and deceased the hammer. He says deceased was struck in the side of the head, and says he was stooping a little at the time; that the car ran about a car-length after striking deceased before it stopped.
C. R Ferguson, another witness, says that he was a laborer there on the night of October 16, 1901, when deceased was killed; that he was sixty to ninety feet away on Clark avenue; that he did not see the car strike deceased; that the first he saw of deceased, "he [deceased] was kind of...
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