Pinkley v. Missouri-Illinois Railroad Company
| Decision Date | 19 July 1927 |
| Citation | 299 S.W. 100,221 Mo.App. 167 |
| Parties | JOHN PINKLEY, ADMINISTRATOR OF THE ESTATE OF ANDREW PINKLEY, DECEASED, RESPONDENT, v. MISSOURI-ILLINOIS RAILROAD COMPANY, A CORPORATION, APPELLANT. [*] |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Washington County.--Hon. E. M Dearing, Judge.
REVERSED.
Judgment reversed.
C. J Stanton, Parkhurst Sleeth and Chas. Richeson for appellant.
(1) The court erred in overruling the demurrers offered by defendant at the close of plaintiff's case and again at the close of the whole case. The court erred in refusing to give to the jury defendant's withdrawal instructions A and B and in giving to the jury plaintiff's instructions Nos. 1 and 2. The evidence wholly failed to establish either (1) that before the instant at which deceased deliberately drove his automobile onto the track he was in any position of peril or (2) that he was oblivious to said peril. The humanitarian doctrine is not applicable to such a state of facts as are established by the evidence in this record. The plaintiff is not entitled to recover and the judgment, of the trial court should therefore be reversed. Boyd v. Railway, 105 Mo. 371; Holmes v. Railway, 207 Mo. 164; Gunn v Railroad, 141 Mo.App. 314; Dyrez v. Railway, 235 Mo. 33; Watson v. Railway, 133 Mo. 250; Guenther v. Railroad, 95 Mo. 297; Mockowik v. Railroad, 196 Mo. 557; Beal v. Frisco, 256 S.W. 733; Schmidt v. Railroad, 191 Mo. 215-33; Keele v. Railroad, 258 Mo. 62-80; Tannehill v. Railroad, 279 Mo. 158-73; State ex rel. v. Reynolds, 289 Mo. 479; Sims v. Railroad, 116 Mo.App. 572. (2) The court erred in refusing appellant's instruction D. The evidence conclusively establishes that deceased's negligence was continuous and operative down to the movement of the injury and that there was no negligence of appellant supervening subsequently to that of deceased. Sims v. Railroad, 116 Mo.App. 572; Watson v. Railway, 133 Mo. 250; Gunn v. Railroad, 141 Mo.App. 314; Dyrez v. Railroad, 235 Mo. 33; 3 Elliott on Railroads, sec. 1175, p. 1792; Mockowik v. Railroad, 196 Mo. 557; Krehmeyer v. Transit Co., 220 Mo. 639; Laughlin v. Railroad, 144 Mo.App. 185; Ellis v. Railway, 234 Mo. 678; State ex rel. v. Reynolds, 233 S.W. 219; Butler v. Railway, 238 S.W. 1077; Frisco v. Schumaker, 152 U.S. 77, 38 L.Ed. 361; Ill. Central v. Ackerman, 144 F. 956; Mo. P. v. Mosely, 57 F. 921; Gilbert v. Erie Railroad, 97 F. 747.
O. Lee Munger and Hay & Flanagan for respondent.
(1) The facts of this case clearly establish plaintiff's right to recover under the humanitarian rule, as held in the following cases: Conley v. Mo. P. R. R. Co., 253 S.W. 424; Logan v. C. B. & Q. R. R. Co., 300 Mo. 611, 254 S.W. 705; Koontz v. Wabash Ry. Co., 253 S.W. 413; Chapman v. Mo. P. R. R. Co., 217 Mo.App. 312, 269 S.W. 688; Hart v. Railroad, 265 S.W. 116; Zumwalt v. Railroad, 266 S.W. 717; Smith v. Railroad, 282 S.W. 62; Elders v. Railroad, 280 S.W. 1048; Shepard v. Railroad, 280 S.W. 1058. (2) The issues were submitted to the jury by clear and full instructions, of which there is no complaint. The record is without exception. The judgment should be affirmed.
This is an action for damages brought by the administrator of the estate of Andrew Pinkley, to recover for the death of said Pinkley, when he was struck by one of defendant's trains at a railroad crossing in the town of Flat River, Missouri.
There were several assignments of negligence in the petition, but plaintiff requested and was given an instruction only on the humanitarian doctrine, thereby, abandoning all other assignment of negligence set out in the petition. The case, therefore, went to the jury upon the question of whether or not the defendant knew, or by the exercise of ordinary care could have known, that deceased was on and approaching the railroad track, in a position of peril, and oblivious thereto, in time thereafter, by the exercise of ordinary care, and with the means and appliances at hand, with safety to persons on said train, to have stopped the same, or to have reduced the speed thereof, or to have given a warning signal to deceased, in time to have averted the injury.
The defendant requested instructions in the nature of demurrers to the evidence, at the close of plaintiff's case, and again at the close of the whole case. Plaintiff recovered judgment for $ 5500, and defendant appeals.
The principal error assigned here is upon the failure of the court to give these instructions in the nature of demurrers, and it is to this question we will first address ourselves after stating the facts as they appear most favorable to plaintiff.
The accident occurred about three o'clock in the afternoon of a "bright, sunshiny day," at a railroad crossing, as a train consisting of an engine and four cars was backing across the crossing. At the point where deceased met his death, the railroad runs practically north and south, and the dirt or public road, crosses the railroad at right angles, running east and west. Deceased was approaching the railroad crossing from the west, and from about sixty-five feet west of the crossing, up to the railroad tracks, it is uphill, the grade being about ten per cent. The road continues on past the crossing, uphill for a considerable distance east of the track as well. The train was backing toward the crossing at the rate of about six miles per hour, and could have been stopped within a space of six or eight feet, giving to the evidence the most favorable view for the plaintiff. There was a brakeman on the rear car as it backed toward the crossing, and the conductor was on or near the crossing for the purpose of warning the traveling public at the time. The conductor was upon the crossing not only to warn the traveling public, but if necessary, to signal the engineer to stop. The conductor could see the deceased approaching the railroad crossing for several hundred feet, and the deceased, as well, had a clear view of all the surroundings at the time. The brakeman upon the train, as well as persons approaching from the east, did see the deceased approaching when he was forty feet away. This brakeman was on the cars for the purpose of giving signals to the engineer. When this train was backing toward the crossing, and some twenty or thirty feet away, according to one of plaintiff's witnesses, the deceased was approaching the crossing from the west, uphill and at a speed of from ten to fifteen miles per hour. Deceased was driving a Ford touring car, and there was no one in the car with him, no side curtains, or anything to obstruct his view at any time after he came to the foot of the hill some sixty feet away. Some of the witnesses said that deceased's car was traveling at a rate of speed of about six or eight miles an hour. When he was at a point of something like thirty feet from the crossing, he was looking in the direction opposite from which the train was coming, or looking to the south, toward some stationary cars on the track. Some of the witnesses testified that they didn't see him look toward the crossing, while many witnesses testified that he was looking straight ahead all the time until he was struck. The evidence discloses that the conductor standing at the crossing, was waiving and signaling toward deceased all the time to stop his automobile, but that he continued on to the tracks and was struck by the backing train and killed. Plaintiff's evidence discloses that when deceased came up to within a few feet of the flagman, the flagman or conductor, who was standing on the track, then turned and gave signals to the train crew to stop the train, which was done within about eight feet after it struck deceased's car.
It appears, that as deceased approached this crossing from the west, there were two occupants of another car approaching this crossing from the east. They stopped their car close to the tracks and saw the accident happen. These were the only two witnesses introduced by plaintiff.
One of these witnesses testified, when asked to describe in his own language what occurred at the time, that he saw Pinkley coming up the hill at a speed of from ten to fifteen miles per hour, thirty or forty feet from the track; that he was looking toward the cars stationed on the track south of the crossing. The train was slowly backing down from the north, about thirty feet away; that he saw the man motioning Pinkley to stop, He said the engineer could not possibly have seen Pinkley from where he was. He also stated that the brakeman on the car was signaling.
The other occupant of the car on the east side of the crossing testified that he saw Pinkley sixty-five feet from the crossing, coming uphill at a rate of speed of about ten or twenty miles per hour, and that the only time he noticed him he was looking toward the south, or away from the direction where the train was backing; that when he first noticed the railroad cars they were about thirty or forty feet away from the crossing; that the cars were backing toward the crossing very slowly and carefully; that he didn't notice any checking in the...
To continue reading
Request your trial