McGuire v. Chicago & A. R. Co.

• Decision Date: 26 June 1920
• Docket Number: No. 13641.,13641.
• Parties: McGUIRE v. CHICAGO & A. R. CO.
• Court: Missouri Court of Appeals

228 S.W. 541

McGUIRE v. CHICAGO & A. R. CO.

No. 13641.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Rehearing Denied October 7, 1920.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

"Not to be officially published."

Action by Joseph T. McGuire against the Chicago & Alton Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles M. Miller, of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury received in a collision between his automobile and one of defendant's trains. The judgment in the trial court was in his favor.

Plaintiff's case is presented on the theory of the humanitarian rule. It appears that on the 13th of September, 1917, about 6 o'clock p. m., he and his wife were in a five-seated automobile driving along a road called Arlington avenues approaching where it crossed defendant's track. Defendant's eastbound passenger train was approaching the crossing at the same time. Since plaintiff seeks to maintain his action on the theory of the humanitarian rule, we will assume that he was negligent in driving on the track at the time of the approach of this train. But after he got on the track the engine of his auto, as expressed by a witness, "went dead," and the auto stopped squarely across the track. Then he heard the automatic bell on defendant's locomotive and saw that the train was at a place 590 feet away, approaching at a rate between 15 and 20 miles an hour.

They, of course, were alarmed. He could not get the auto to start, and his wife stood up, and he then tried to open the door; his wife was in the act of getting out, perhaps (it is not clear) was on the ground, and he yet in the auto, when the train came upon them, inflicting the injury.

The first point where he could see the train (590 feet away) was on a curve; but, when the train was 315 feet away, there was practically a straight track. Nothing intervened to obstruct vision between either point and plaintiff's auto standing across the track. There was evidence tending to show that no effort was made to stop the train or slacken its speed until it was in 60 feet of the automobile.

There was abundant evidence tending to show negligence of defendant's servants in charge of the engine after they saw, or could have seen, plaintiff's predicament on the track. There was also evidence tending to show plaintiff's injuries, and no question is made of them.

Defendant's sole objection to the judgment is that a cause of action was not stated in the petition under the humanitarian rule, and therefore the court should have given an instruction for a directed verdict; and for the same reason the court should have refused plaintiff's instruction No. 1, since it fails to submit the proper hypothesis necessary to a case under that rule.

The particular point is that it was not alleged in the petition that plaintiff was oblivious to his peril, and that such allegation was necessary to the statement of a cause of action under that rule. As sustaining this proposition we are cited to Knapp v. Dunham, 195 S. W. 1062; Kinlen v. Railroad, 216 Mo. 145, 115 S. W. 523; Pope v. Railroad, 242 Mo. 232, 146 S. W. 790; Reeves v. Railroad, 251 Mo. 169, 177, 178, 158 S. W. 2; Karmoss v. Railroad, 202 S. W. 434; Haines v. Railroad, 203 S. W. 631.

We think the facts in plaintiff's case do not justify defendant in invoking those authorities. For the facts upon which plaintiff's case is built are that he was not oblivious to his peril. He fully realised his situation and endeavored to extricate himself and, while in the midst of his effort, was struck by the on-coming locomotive. He comes fully within the exception we noted in Knapp v. Dunham, supra, where, in speaking of the...