Milward v. Wabash Railway Company
| Decision Date | 21 June 1921 |
| Citation | 232 S.W. 226,207 Mo.App. 345 |
| Parties | MARY MILWARD, Respondent, v. WABASH RAILWAY COMPANY and J. N. BUTTERFLY, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, Judge.
AFFIRMED.
Judgment affirmed.
N. S Brown, Wells H. Blodgett, Henry W. Blodgett, Walter N. Fisher and J. H. Drucker for appellants.
(1) The petition failed to state a cause of action under the humanitarian theory. There was no averment in the petition that the deceased was oblivious to the impending danger. Kinlen v. Railroad, 216 Mo. 145; Guyer v Railway, 174 Mo. 344; Van Bach v. Railway, 171 Mo. 338; Pope v. Railroad, 242 Mo. 232; Rubick v. Sandler, 219 S.W. 401; Stark v. Bingaman, 223 S.W. 946; Bryant etc. v. Kansas City Railway (Mo. Sup.) not yet reported. (2) The demurrer to the evidence should have been sustained. (a) No case was made under the humanitarian theory. Deceased was not ignorant or oblivious to the approaching train. No duty rested on the engineer to stop the train or reduce its speed until deceased was in the danger zone, and he was not in danger zone until he stepped on the track or so close to it as to be in danger of being struck by a passing train, and when he did this the train was not over twenty feet away. The engineer was not shown to have been negligent after deceased entered the danger zone. Sinclair v. Railway, 133 Mo. 233; Rollinson v. Railroad, 252 Mo. 525; Reeves v. Railroad, 251 Mo. 169; Pope v. Railroad, 242 Mo. 232; Guthrie v. Railroad, (Mo. Sup.) 204 S.W. 185; Reardon v. Railway, 114 Mo. 384; Guyer v. Railway, 174 Mo. 344; Van Bach v. Railway, 171 Mo. 338; Veatch v. Railroad, 145 Mo.App. 232; Markowitz v. Railroad, 186 Mo. 350; Hamilton v. Railroad, 250 Mo. 714; Keele v. Railway, 151 Mo.App. 364; Keele v. Railway, 258 Mo. 62; Whitesides v. Railroad, 186 Mo.App. 608; Moore v. Railway, 176 Mo. 528; Boyd v. Railway, 105 Mo. 371; Tanner v. Railway, 161 Mo. 497. (b) Deceased's own negligence, impliedly conceded in the petition and conclusively shown by the evidence, in going upon the track immediately in front of the approaching train, was the proximate cause of his injuries and death. Mockowik v. Railroad, 196 Mo. 550; Moore v. Railway, 176 Mo. 528; Hutchinson v. Railway, 195 Mo. 546; Eppstein v. Railway, 197 Mo. 720; Green v. Railway, 192 Mo. 131, 139; Burge v. Railroad, 244 Mo. 76; Moody v. Railroad, 68 Mo. 470; Farris v. Railroad, 167 Mo.App. 392; Peters v. Lusk, 200 Mo.App. 372; State ex rel. Peters v. Reynolds, (Mo.) 214 S.W. 121; Laun v. Railroad, 216 Mo. 563. (3) The court erred in giving instruction 1 at the request and on behalf of plaintiff. (a) The petition did not allege, nor did the proof show, that deceased was oblivious to danger. It was, therefore, erroneous to submit the case on the humanitarian rule. Knapp v. Dunham (Mo. App.), 195 S.W. 1062; Kamoss v. Railway (Mo. App.), 202, S.W. 434; Rubick v. Sandler, 219 S.W. 401; Bryant etc. v. Kansas City Railway (Mo. Sup.), not yet reported. (b) There was no evidence that defendant's engineer was negligent after deceased entered the danger zone; and this call in the instruction is without evidence to support it. (4) The court erred in giving instruction 2 for plaintiff. Knapp v. Dunham, supra; Kamoss v. Railway, supra. The court erred in refusing to give instructions "E" and "F," requested by defendants. Boyd v. Railway, 105 Mo. 381. The court erred in refusing to give instructions "B" and "D," requested by defendants. Sinclair v. Railway, 133 Mo. 239.
Safford & Marsalek for respondent.
(1) The instruction in the nature of a demurrer to the evidence was properly refused. (a) A demurrer admits as true all evidence in plaintiff's favor and all favorable inferences which may with any degree of propriety be drawn therefrom, and it is only when the evidence, considered in the above light, is so strongly against plaintiff as to leave no room for reasonable minds to differ that the demurrer should be sustained. Scherer v. Bryant, 273 Mo. 602; Troll v. Drayage Co., 254 Mo. 332; Gratiot v Railroad, 116 Mo. 466; Buesching v. Gas Light Co., 73 Mo. 219; Steffens v. Fisher, 161 Mo.App. 386. (b) The petition stated a cause of action under the humanitarian theory. An allegation that plaintiff was oblivious to his danger was not essential. Taylor v. Railway Co., 256 Mo. 191; Pope v. Railway, 242 Mo. 232, 240; Woddis v. Railway, 199 Mo.App. 354; Wittenberg v. Supp. Co., 219 S.W. 686; Murrell v. Railroad, 279 Mo. 92; Lilly v. K. C., 209 S.W. 969; Dunn v. K. C., 204 S.W. 592; King v. K. C., 204 S.W. 1130; Aqua Contr. Co. v. U. Rys. Co., 203 S.W. 484; Bybee v. Dunham, 198 S.W. 192; Heryford v. Spitcaufsky, 200 S.W. 123; Ingino v. Ry. Co., 179 S.W. 773. (c) The evidence showed that as deceased, pushing a wheelbarrow, approached the tracks, he could have been seen by the trainmen for at least one hundred feet. That he walked over the entire width of the west track, the space between the tracks, and the east track, and had gotten some six or eight inches east of the east end of the ties of the latter track when the cylinder on the east side of the locomotive struck him. If he had made one more step, or if the speed of the train had been decreased even slightly, his life would have been saved. No effort was made to give him a warning whistle and no effort was made to decrease the speed of the train. Under these facts the case was properly submitted on the humanitarian theory. Murrell v. Railroad, 279 Mo. 92; Dutcher v. Railroad, 241 Mo. 137; Ellis v. Railroad, 234 Mo. 657; Heinzeman v. Railroad, 199 Mo. 65; Eppstein v. Railroad, 197 Mo. 720; Eckhart v. Transit Co., 190 Mo. 616; Lloyd v. Railroad, 128 Mo. 607-8; Maginnis v. Railroad, 182 Mo.App. 694, affd. 268 Mo. 667; Wagner v. Pryor (App.), 222 S.W. 857. (d) The danger to deceased did not commence when he stepped over the west rail of the track on which the engine was approaching, but when he approached so near that the trainmen, in the exercise of reasonable prudence, would have realized that he was going into danger. In this case the fact that deceased was pushing a wheelbarrow before him broadened the danger zone, because the approach of the front end of the wheelbarrow to the track was notice to the engineer that deceased was not going to stop, but would continue across the track, unaware of his peril. Lyons v. Railroad, 253 Mo. 156; Ellis v. Railway, 234 Mo. 680-1; Holmes v. Railroad, 207 Mo. 163; Foster v. West, 194 Mo.App. 94, 100 and cases cited; Tavis v. Bush (Sup.), 217 S.W. 274. (e) The admitted facts that the brakes of the train were not applied prior to the injury, and that it was then stopped within two hundred fifty feet, were sufficient to warrant the jury in finding that the speed of the train could have been decreased as deceased approached and went across the tracks, enough to allow deceased to take the additional step which would have saved his life. Farrar v. Railroad, 249 Mo. 210; Ellis v. Railroad, 234 Mo. 685; Beier v. Transit Co., 197 Mo. 215; Latson v. Railroad, 192 Mo. 463-467; Windle v. Railroad, 168 Mo.App. 604; Wilkinson v. Railroad, 146 Mo.App. 716; Lilly v. Railways Co., 209 S.W. 969. (f) The law charges those operating a railroad over a public crossing with the duty of active vigilance, and the fact that they did not see the person who was injured will not exonerate them from liability. Ellis v. Railroad, 234 Mo. 673; Waddell v. Railroad, 213 Mo. 16; McQuade v. Railroad, 200 Mo. 158; Hilz v. Railroad, 101 Mo. 36; Eskridge v. Railway, 170 Mo.App. 548; Gilbert v. Railway (App.), 226 S.W. 263. And in this connection the jury had the right to consider the fact that the engineer was not called to testify. Murrell v. Ry., 279 Mo. 111-2. (g) The deceased, in crossing defendants' track on the public highway, was not a trespasser, but had an equal right with defendant to the use of the highway. Lloyd v. Railroad, 128 Mo. 595; Jennings v. Railroad, 112 Mo. 268. (2) Admissions in answer.--The defendants in their answer plead that deceased failed to look and listen for the approach of the train, and walked into a position of peril and danger. These statements in the answer are solemn admissions by which the defendants are bound. (a) This affirmative claim in defendants' answer, that deceased walked to his death without ever looking or listening for the train, rendered proof of these facts by plaintiff unnecessary. It is unnecessary to prove facts which are admitted by the pleadings. McKenzie v. U. Rys., Co., 216 Mo. 19-20; Lynch v. Railroad, 208 Mo. 1, 19; Jewell v. Mfg. Co., 143 Mo.App. 210. (b) If the petition was defective in failing to allege obliviousness on the part of deceased, the defect was cured by the answer. Davidson v. Land Co., 253 Mo. 229; Priess v. County, 231 Mo. 339; Casler v. Chase, 160 Mo. 424; Garth v. Caldwell, 72 Mo. 629-30. (3) Plaintiff's instructions number one and two, properly submitted the case on the humanitarian theory, the first, because of the failure to warn deceased of the approach of the train, and the second, because of the failure to decrease the train's speed. Authorities under Point 1 (d). (4) It was unnecessary for the plaintiff's instructions one and two to have the jury find that deceased was oblivious to his danger, especially in view of the allegations contained in defendants' answer. Authorities under Point 1 (b); Aqua Contracting Co. v. U. Rys. Co. 203 S.W. 484; 38 Cyc, p. 1670; Davidson v. Transit Co., 211 Mo. 357; Barton v. City of Odessa, 109 Mo App. 82; Markey v. Railroad, 185 Mo. 363. (5) The court did not err in refusing instructions offered by defendants. (a) The defendant's instructions "B" and "D" were fully covered by instruction "C" given. Rutledge v. Swinney, 261 Mo., l. c. 146. (b) Instruction...
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