Reeves v. Kansas City, St. Louis & Chicago Railroad Company

• Citation: 158 S.W. 2,251 Mo. 169
• Parties: NELSON REEVES, Administrator, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant
• Decision Date: 17 June 1913
• Court: Missouri Supreme Court

158 S.W. 2

251 Mo. 169

NELSON REEVES, Administrator, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 17, 1913

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Reversed.

Scarritt Scarritt, Jones & Miller for appellant.

(1) The deceased was guilty of contributory negligence, as a matter of law. Laun v. Railroad, 216 Mo. 563; Pope v Railroad, 242 Mo. 232; Moore v. Railroad, 176 Mo. 546; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v Railroad, 134 Mo. 673; Schmidt v. Railroad, 191 Mo. 215; Lane v. Railroad, 132 Mo. 4; Kelsey v. Railroad, 129 Mo. 362; Walker v. Railroad, 193 Mo. 453. (2) Plaintiff cannot recover in this case upon the "last chance" or "humanitarian" theory, under the evidence and circumstances disclosed in the record and under the law as established by numerous decisions of this court. Plaintiff wholly failed to adduce any proof whatever as to several things that are essential to the making of a case upon the last chance theory. There is no proof that the engineer of the train in question actually saw the deceased in a position of peril upon the track. Nor is there any substantial proof that the engineer might have seen deceased in a position of peril upon the track in time, etc. If the engineer saw, or might have seen deceased as she approached the track, he had a perfect right to presume that she would stop or step back into a place of safety before going upon the track. Schmidt v. Railroad, 191 Mo. 234; Boyd v. Railroad, 105 Mo. 381; Moore v. Railroad, 176 Mo. 546. Nor is there any evidence whatever that the deceased was in a position of unconscious peril, or, to put it differently, that she was in a position of peril, and unaware thereof and could not extricate herself therefrom. Plaintiff does not even charge in his petition that the deceased was in a position of peril and unaware thereof, and unable to extricate herself therefrom, nor does the instruction of the court on behalf of plaintiff submitting the last chance theory to the jury, require the jury to find that the deceased was in a position of unconscious peril and unable to extricate herself therefrom. Yet this is an essential feature and fact to be proven in a last chance case. Pope v. Railroad, 242 Mo. 232; Degonia v. Railroad, 224 Mo. 595; Kinlen v. Railroad, 216 Mo. 164.

Yates & Mastin and Reed & Harvey for respondent.

(1) The position of the respondent is that there was no contributory negligence. (a) At the time the testimony shows Mrs. Cozby looked towards the train and when she was within a few feet of the track the train was four to six or seven hundred feet distant from her, and she had the right to assume that the train would observe the ordinance rate of speed, and if it had done so, she could have cleared the track in perfect safety. The cases cited by appellant involve situations essentially different from the case at bar. There are a great mass of reported crossing cases in this State and the principles of law applicable thereto are well settled. The facts in this case bring it well within the class of cases in which verdicts and judgments for plaintiff have been upheld. Strauchon v. Railroad, 232 Mo. 587; Powers v. Transit Co., 202 Mo. 280; Riska v. Depot Co., 180 Mo. 168; Heintz v. Transit Co., 115 Mo.App. 671; Hutchinson v. Railroad, 161 Mo. 253; Sullivan v. Railroad, 117 Mo. 221; Hornstein v. United Railways, 195 Mo. 458. (b) The law does not impose the duty on pedestrians to accurately determine the rate of speed, and misjudgment in this respect does not convict such pedestrian of contributory negligence. Strauchon v. Railroad, 232 Mo. 600; Heintz v. Transit Co., 115 Mo.App. 671; Murray v. Transit Co., 108 Mo.App. 501; Powers v. Railroad, 202 Mo. 281; Riska v. Depot Co., 180 Mo. 191; Hutchinson v. Railroad, 161 Mo. 246. (2) But conceding, for argument only, that Mrs. Cozby was guilty of contributory negligence, nevertheless, under the humanitarian doctrine, the plaintiff is entitled to recover. Murphy v. Railroad, 228 Mo. 56; Felver v. Railroad, 216 Mo. 195; Waddell v. Railroad, 213 Mo. 16; Holmes v. Railroad, 207 Mo. 163; Zander v. Transit Co., 206 Mo. 464; McQuade v. Railroad, 200 Mo. 158; Sites v. Knott, 197 Mo. 711; Klockenbrink v. Railroad, 172 Mo. 678. (a) Appellant maintains that because there is an allegation in the petition that Mrs. Cozby was in the exercise of due care, the humanitarian doctrine cannot be relied upon. Whatever of doubt there may have been in regard to the propriety of relying in the same count on common law negligence and the humanitarian doctrine it has now been definitely settled that this can be done. Clark v. Railroad, 242 Mo. 570. (b) The defendant was guilty of negligence per se in operating its train in excess of the ordinance rate of speed and in failing to observe the provisions of the ordinance relative to signals. Strauchon v. Railroad, 232 Mo. 587; McKenzie v. Railroad, 216 Mo. 19; King v. Railroad, 211 Mo. 1; Powers v. Railroad, 202 Mo. 280; Eppstein v. Railroad, 197 Mo. 735; Sluder v. Transit Co., 189 Mo. 164; Riska v. Depot Co., 180 Mo. 168; Hutchinson v. Railroad, 161 Mo. 253; Gratiot v. Railroad, 116 Mo. 450; Eswin v. Railroad, 96 Mo. 290. (c) The engineer should have stopped the train at first appearance of danger. Holmes v. Railroad, 207 Mo. 162; Eckard v. Transit Co., 190 Mo. 619; Klockenbrink v. Railroad, 172 Mo. 687.

BROWN, P. J. Walker and Faris, JJ., concur.

OPINION

BROWN, P. J.

Plaintiff sues as the administrator of Margaret Cozby to recovery statutory damages resulting from the death. It is alleged that Mrs. Cozby was killed in the city of Oak Grove, Jackson county, Missouri, on December 23, 1905, by a lessee of defendant, while said lessee was negligently operating a railroad train over defendant's road through said city.

Plaintiff alleges in his petition that defendant's lessee negligently caused the death of Mrs. Cozby by (1) running its train in excess of twelve miles per hour, as prohibited by an ordinance of said city of Oak Grove; (2) by running its train through said city at an excessive, high and dangerous rate of speed, towit, thirty-five miles or more per hour; and (3) by neglecting to observe the perilous position of said Margaret Cozby while she was on or near defendant's track, and by neglecting to slacken the speed of said train after she was observed, so as to avoid running over, striking and killing her.

This action is based upon section 5425, Revised Statutes 1909, as amended in 1905, and appellant challenges the constitutionality of that statute. Since this appeal was lodged here the constitutionality of that law has been confirmed by this court in the case of Young v. Railroad, 227 Mo. 307, but as the appeal was properly granted to this court when taken, it is our duty to retain jurisdiction and dispose of the case upon its merits. [Dickey v. Holmes, 208 Mo. 664, 106 S.W. 511.]

The answer of defendant pleads contributory negligence on the part of deceased, and many other alleged defenses, but the conclusions we have reached render it only necessary to deal with the plea of contributory negligence.

At the time Mrs. Cozby was killed Oak Grove was a city of the fourth class, containing about 800 inhabitants. Said city has one principal street -- Broadway -- which runs north and south. The defendant owns a railroad track which passes through said city from west to east, crossing said Broadway street in such manner as to leave the residence part of the city on the north side of the railroad and the business houses therein on the south side of said railroad. There is a sidewalk and also a wagon road over defendant's railroad track where the same crosses said Broadway street.

The deceased was a widow without minor children or other dependents. She was seventy-two years of age, and her hearing and eyesight somewhat defective. However, it was her custom to go unattended about the streets of Oak Grove, in which city she had resided two years next before her death.

The lessee of defendant on December 23, 1905, ran a passenger train through said city of Oak Grove on defendant's track at a speed of from thirty-five to fifty miles an hour. Said train was known as the "Red Flyer" and had been running from west to east on defendant's track through said city of Oak Grove at about the same rate of speed during many weeks. Its regular time for passing Oak Grove was eleven o'clock in the morning, but it did not stop at that city. It was running on time December 23d, when it struck and killed Mrs. Cozby.

The plaintiff introduced G. W. Gillespie and wife who testified that they were driving south on said Broadway street in a buggy, intending to cross defendant's track. Mrs. Cozby was walking in the same direction and was a short distance behind the Gillespies. When Mr. and Mrs. Gillespie were about forty feet from defendant's railroad they heard an engine whistle and stopped and waited for the train to pass, but Mrs. Cozby passed their buggy and walked on southward. When she was within six or eight feet of defendant's track she looked westward towards the approaching train; she then pulled up her dress skirts and walked more rapidly onto defendant's track and had almost passed over same when the engine struck and killed her.

Mr. and Mrs. Gillespie, as well as other witnesses, testified that the train made quite a lot of noise, and that it was in plain view for about 1500 feet before it struck Mrs. Cozby, but that they only heard it whistle once. These witnesses did not hear the train ring its bell, nor see anything to indicate that its speed was slackened before it struck Mrs. Cozby.

One of plaintiff's witnesses (a merchant) testified that he...