Pritt v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 14 November 1949
• Docket Number: 41344
• Citation: 224 S.W.2d 119,359 Mo. 896
• Parties: Grace M. Pritt, Respondent, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

224 S.W.2d 119

359 Mo. 896

Grace M. Pritt, Respondent, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 41344

Supreme Court of Missouri

November 14, 1949

Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.

Reversed and remanded.

SYLLABUS

Action for wrongful death. A judgment for plaintiff is reversed and remanded. The deceased was struck by defendant's locomotive as he was picking up a board on the track. He was a business invitee to whom defendant owed the duty of exercising ordinary care. The humanitarian issue of failure to stop was erroneously submitted, as the evidence of plaintiff's only witness on this issue was destroyed on cross-examination. But there was a submissible case on the duty to warn. Plaintiff's instruction is upheld, but it was improper to refuse defendant's instruction on the engineer assuming that the deceased would heed the bell.

Warner Fuller, George P. Mueller and Arnot L. Sheppard for appellant.

(1) There is no evidence that either of defendant's enginemen actually saw decedent or saw him in a position of imminent peril, except for an instant. Therefore, if a humanitarian case was made, it was built upon a foundation of constructive notice, which itself must rest upon a duty upon one or both of defendant's enginemen to keep a lookout for decedent. But there was no such duty. Decedent's duty was to watch for trains and warn Owen of their approach. Therefore, defendant owed decedent no duty to look out for him. Karr v. C.R.I. & P.R. Co., 341 Mo. 536, 108 S.W.2d 44; Sou. R. Co. v. Drake, 166 Ala. 540, 51 So. 996. (2) The fact that defendant may have owed a duty to other persons, even to decedent's fellow workmen, is of no consequence. To recover plaintiff must prove that defendant owed decedent specifically the duty to look out for him. Hearell v. I.C.R. Co., 213 S.W. 561; Karr v. C., R.I. & P.R. Co., 341 Mo. 536, 108 S.W.2d 44; Hein v. C., R.I. & P.R. Co., 209 S.W.2d 578; Landes v. Thompson, Trustee, 148 S.W.2d 78; Chesapeake & Ohio R. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207; Chesapeake & Ohio R. Co. v. Nixom, 221 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914; Thomson v. Downey, 78 F.2d 487; 52 C.J., sec. 2142, p. 583. (3) There is no evidence showing where decedent was for any appreciable length of time before the casualty. Only by Grant and Owen did plaintiff try to make this proof. On this point the evidence of both is so self-contradictory as to have no probative value. Steele v. K.C. So. R. Co., 265 Mo. 97, 175 S.W. 177; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Draper v. L. & N.R. Co., 156 S.W.2d 626; State v. McCrackin, 162 S.W. 853; Siegel v. M.-K.-T.R. Co., 119 S.W.2d 376; Partney v. Agers, 187 S.W.2d 743; Stevens v. Thompson, 175 S.W.2d 166. (4) The failure of the evidence to show where decedent was until just as he was struck ipso facto fails to show he was in that state of imminent peril required to make the humanitarian doctrine applicable. Clifford v. Pitcairn, 345 Mo. 60, 131 S.W.2d 508. (5) Even though defendant's engineman or enginemen had seen decedent on the track or close enough to the track to be struck by the locomotive, he or they would have had a right to assume that he would step away before the engine arrived. Kenefick v. Terminal R. Assn., 207 S.W.2d 294; and cases cited; State ex rel. Thompson v. Shain, 348 Mo. 27, 159 S.W.2d 582. (6) Moreover, if the evidence had shown decedent's obliviousness, it would still have been insufficient to make a prima facie case; because the burden is on plaintiff to establish not only decedent's obliviousness, but that in some manner decedent evidenced his obliviousness to defendant's enginemen or engineman. Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368; Stark v. Berger, 125 S.W.2d 870; State ex rel. Thompson v. Shain, 348 Mo. 27, 159 S.W.2d 582; Hanks v. Anderson-Parks, Inc., 143 S.W.2d 314; Kenefick v. Terminal R. Assn., 207 S.W.2d 294. (7) The evidence relied on by plaintiff is perjurious, self-destructive and wholly without probative value. This court's authority to act is unquestionable, and its duty clear. Steele v. K.C. So. R. Co., 265 Mo. 97; Harper v. St. L.-S.F.R. Co., 186 Mo.App. 296, 172 S.W.2d 55; Clark v. Atchison & Eastern Bridge Co., 332 Mo. 721, 62 S.W.2d 1079; Elliott, A Treatise on Appellate Procedure, sec. 21. (8) This court cannot take implausible facts and change them so as to make them fit a pattern for a submissible case. Bauer v. Wood, 154 S.W.2d 356. (9) Plaintiff's Instruction 1 is erroneous. It predicates a verdict for plaintiff upon a finding that decedent was in a position of peril, that he was oblivious of that peril, that defendant saw or could have seen him in such peril and oblivious thereof, in time to stop the engine or warn of its approach. There is no evidence to support any one of these hypotheses. (10) It erroneously assumes twice that decedent was in a position of imminent peril, was oblivious thereof, and requires the jury to find only that defendant's servants saw or could have seen that decedent was in such a position. (11) It assumes that defendant failed to exercise ordinary care for decedent's safety: "and if you further find and believe that as a direct result of such failure on the part of defendant's said agents and servants the said locomotive struck the said Alvin Pritt." Schimmelpfenning v. Wells, 24 S.W.2d 154; Blech v. Berzon, 61 S.W.2d 201. (12) Defendant requested the trial court to give Instruction D; but the court erroneously refused to do so. It told the jury that even though the defendant's engineer may have seen decedent on track No. 72, yet the engineer had the right to assume that decedent would hear and heed the ringing locomotive bell, if it was ringing, unless and until decedent indicated in some manner that Pritt did not intend to step away from the track; and that until decedent did so indicate, the engineer was under no duty to commence to check the speed of the train, warn of its approach or stop the train. This is unquestionably a correct statement of the law. Kenefick v. Terminal R. Assn., 207 S.W.2d 294; and cases cited; State ex rel. Thompson v. Shain, 358 Mo. 27, 159 S.W.2d 582. (13) Although it is defendant's position that no jury question was made because the evidence wholly fails to show that decedent was in a position of peril, was oblivious of his danger, that defendant knew or should have known of such facts, and failed to avert his death; nevertheless it had a right to make the best of the situation by submitting the hypotheses contained in Instruction D, after the trial judge had twice refused to direct a verdict in its favor. Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; McGrew v. Thompson, Trustee, 184 S.W.2d 994.

Paul H. Koenig, Geo. Ray Miller and William L. Mason, Jr., for respondent.

(1) The record facts make a submissible case for plaintiff on the humanitarian theory. Willig v. C., B. & Q.R. Co., 345 Mo. 705, 137 S.W.2d 430; Yakubinis v. M.-K.-T.R. Co., 345 Mo. 943, 137 S.W.2d 504; Pennington v. Weis, 353 Mo. 750, 184 S.W.2d 416; Larey v. M.-K.-T.R. Co., 330 Mo. 949, 64 S.W.2d 681; Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368. (2) Plaintiff's case is supported by evidence of probative value. Secs. 1168, 4272 R.S. 1939; Bush v. Kansas City Pub. Serv. Co., 350 Mo. 876, 169 S.W.2d 331; Murray v. St. Louis Pub. Serv. Co., 201 S.W.2d 775; Rainwater v. Wallace, 351 Mo. 1044, 174 S.W.2d 835; Lee Wong Sing v. Cottone, 123 F.2d 169, 74 App. D.C. 374; State v. Willard, 346 Mo. 773, 142 S.W.2d 1046. (3) The trial court did not err in giving Instruction 1. (4) There was no error in the refusal of Instruction D.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Grace M. Pritt recovered a judgment against Terminal Railroad Association of St. Louis, a corporation, in the sum of $ 15,000 for the death of Alvin Pritt, her husband. Plaintiff submitted her case under the humanitarian doctrine on alleged negligence of defendant in the disjunctive in failing to stop the locomotive involved or to warn Mr. Pritt of its approach. The Terminal Railroad Association appeals, contending that plaintiff did not establish actionable humanitarian negligence; that plaintiff's evidence is perjurious, self-destructive, and without probative force; and other issues which relate to the admission and exclusion of evidence and comments by the court on portions thereof, remarks and arguments of counsel, and the giving and refusal of instructions.

Alvin Pritt died April 3, 1947, when run over by defendant's Diesel locomotive 555 on Eads bridge. It was a clear dry day. Eads bridge, connecting St. Louis, Missouri, and East St. Louis, Illinois, has two decks. The top deck is used for vehicular traffic. The lower deck is used for railroad traffic and defendant operates locomotives and trains thereover.

Two standard gauge (4 feet 8-1/2 inch) railroad tracks are on the lower deck, one on each side of the bridge. For some reason not stated, the south track, track 72, is used for westbound traffic and the north track, track 71, is used for eastbound traffic. The accident happened on track 72. Tracks 71 and 72, center to center, are 28-1/2 feet apart. The west pier is between the two tracks with a 2 foot 10 inch connecting walkway along its east side. The pier is narrower at its west than at its east end. It is 48 feet long east and west, and at its east side is 4 feet 8 inches and at its west side is 5 feet 1-1/2 inches north of the north rail. Immediately west of the pier is the "M.S." (Main street) signal office, which extends westwardly 26 feet and is 5 feet 5 inches north of the north rail. The pier and the M.S. office extend 74 feet east and west. A crossover switch to track...