Rollison v. Wabash Railroad Company

• Decision Date: 24 November 1913
• Parties: MARY ROLLISON, Appellant, v. WABASH RAILROAD COMPANY
• Court: Missouri Supreme Court

160 S.W. 994

252 Mo. 525

MARY ROLLISON, Appellant, v. WABASH RAILROAD COMPANY

Supreme Court of Missouri

November 24, 1913

Appeal from Macon Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Affirmed.

Barker & Prosser for appellant.

(1) The engineer testified that he saw deceased in a perilous position in plenty of time to warn him of his danger and that he did warn him; other witnesses testified that no warning was given; thus when defendant's engineer admitted that he saw and realized the danger of the deceased and these witnesses testified no warning was given, the case should have been submitted to the jury. The sole question in this case is as to whether or not the same should have been submitted to the jury. The engineer testified that he saw the deceased in plenty of time to give him a warning of his danger and that he did so. Other witnesses testified that no warning was given. The engineer's testimony is as follows: "Q. What was this man Rollison doing when you first saw him? A. Walking east. Q. That was toward the track? A. Toward the track. Q. What was his attitude? What did he seem to be doing? A. He did not seem to be paying any attention to anything only walking directly east. Q. When you first saw him he seemed unconscious of the approach of the train? A. Yes, sir." (2) First: Plaintiff's only chance for recovery is under the humanitarian rule as laid down by this court. The phase of the rule applicable to the facts of this case has been cautiously announced by this court, as follows: "Plaintiff's case therefore must proceed upon the theory that defendant's servants saw the perilous position of the deceased, and saw such things as would lead prudent persons to believe that deceased was oblivious to such perilous position, and after so seeing had time to obviate and avoid the accident by ordinary care and caution upon their part. It devolved upon the plaintiff to show these facts." Degonia v. Railroad, 224 Mo 595. And again: "Now grant it to be true that plaintiff was guilty of gross negligence, and by such had placed himself in a perilous position, this does not relieve the defendant, if by the exercise of ordinary care it could have seen his position of peril in time to have averted the injury." Clark v. Railroad, 242 Mo. 603. Second: The only eyewitness to the accident was the defendant's engineer, who was offered as a witness for the plaintiff. He admits in his testimony, as will appear more fully hereafter: (a) That he saw the perilous position of the deceased; (b) that he saw the deceased was oblivious to such perilous position; and (c) that he had time to give and did give, a short blast of the whistle as a warning signal, which, if heeded by the deceased, would have obviated and avoided the accident. Other testimony tended to show however, that no warning signal was given by defendant's engineer until his engine was almost immediately upon the deceased. While the plaintiff was compelled to offer defendant's engineer as a witness, yet she was not estopped by his evidence, nor bound by it, so as to preclude her from disproving it by the testimony of other witnesses touching the same matter. McGee v. Railroad, 214 Mo. 544. The important issue in this case is whether or not any warning signals were timely given, after defendant's engineer saw the perilous position of the deceased, and that he was oblivious to the approach of the train; and the vital question which now presses itself upon the consideration of this court is whether there was any evidence on the part of the plaintiff to justify the submission of this issue to the jury. Third: In the consideration of this question it is important to be noted that a demurrer admits every fact to be true which the evidence in the cause tends to prove, whether by direct testimony or by reasonable deductions to be drawn therefrom. Stauffer v. Railroad, 243 Mo. 316. (3) The engineer testifies that after seeing the deceased in a position of peril, and realizing that he was oblivious to the same, he yet had time to warn him, and did warn him with "a short blast of the whistle," at a point about 175 feet north of the crossing. But Dickerson, who was on the road immediately west of the track, and only nine hundred feet south of the crossing, did not hear this whistle. Lock, who was in the barn, only 150 feet west of the track and 300 feet north of the crossing, did not hear this whistle. Mrs. Elmer Rollison swears positively that the train did not whistle north of the crossing. And all of the last three witnesses testify positively that the "alarm signals" in evidence were not given until the engine was at or upon the crossing. Giving to plaintiff's evidence the favorable consideration which a demurrer thereto compels, can this court say, as a matter of law, that the engineer did give a warning signal in time to have averted the accident? Can it say, as a matter of law, that this "short blast of the whistle," if given, was a sufficient warning under the circumstances? Can it say, as a matter of law, that the engineer exercised due care in the situation with which he was confronted? (4) "The court is not at liberty, in passing on such demurrer, to make inferences of fact in favor of the defendant, too countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff; that would clearly be usurping the province of the jury." Buesching v. Gaslight Co., 73 Mo. 231. But let us indulge, for the moment, the hypothesis that the engineer did give such alarm in the presence of such an imperious call, and did it as quickly as he could. If we do, then we must also indulge the hypothesis, equally reasonable, that the deceased would have heard such alarm, and hearing, would have heeded the same. For all the witnesses agree that the deceased, although hard of hearing, could have heard the whistle of an engine. And this means the accident would have been averted, because the engineer himself testified: "If he had heeded the signal, there could have been no accident." The instinct of self-preservation becomes an element of evidence, for "natural instincts are allowed to have their weight and constitute evidence to men of sense." Dutcher v. Railroad, 241 Mo. 166; Stottler v. Railroad, 200 Mo. 146. Maybe, hypothesis against hypothesis setteth the matter at large. Again we call the court's attention to the "unbending rule" that plaintiff "is entitled, on a demurrer to the evidence, to every favorable inference of fact naturally to be drawn from the evidence, and that, if the facts be disputed, the jury, and not the court, is the arbiter." Knorpp v. Wagner, 195 Mo. 662. This is a case where the engineer admittedly had time to save life; where the peril of the deceased was seen in time to have averted the accident, and where there was nothing to prevent timely alarm signals from being effective if they had been given. It comes squarely within the doctrine of the humanitarian rule. Rapp v. Transit Co., 190 Mo. 161; Eppstein v. Railroad, 197 Mo. 735; White v. Railroad, 202 Mo. 564; Zander v. Transit Co., 206 Mo. 464; Lynch v. Railroad, 208 Mo. 34; Ellis v. Railroad, 234 Mo. 671; Dutcher v. Railroad, 241 Mo. 159.

J. L. Minnis and Guthrie & Franklin for respondent.

It is such negligence as precludes a recovery for a person to go upon a railroad track directly in front of an approaching train and so close as to render it impossible to stop the train in time to avoid injury. Laun v. Railroad, 216 Mo. 563; Dyrcz v. Railroad, 238 Mo. 33; Schmidt v. Railroad, 191 Mo. 215; Farris v. Railroad, 167 Mo.App. 392; Boyd v. Railroad, 105 Mo. 371; Moore v. Railroad, 176 Mo. 528; Holwerson v. Railroad, 157 Mo. 148; Newton v. Railroad, 152 Mo.App. 167; Pennell v. Railroad, 153 Mo.App. 566; Stotler v. Railroad, 204 Mo. 619; Holland v. Railroad, 210 Mo. 338; Kilsea v. Railroad, 129 Mo. 362; Keele v. Railroad, 151 Mo. 364; McGee v. Railroad, 214 Mo. 530; Coldwell v. Railroad, 58 Mo.App. 453; Wand v. Railroad, 106 Mo.App. 96; Guyer v. Railroad, 174 Mo. 344.

LAMM, C. J. Woodson, Graves, Brown, Walker and Faris, JJ., concur. Bond, J., dissents.

OPINION

In Banc.

LAMM C. J.

Plaintiff, widow of William Rollison, sues in the Macon Circuit Court for statutory damages for her husband's alleged negligent death at a railroad crossing in the country. When her testimony is in, defendant offers an instruction in the nature of a demurrer to the evidence. The court signifies an intention to give it. Thereat she takes a non-suit "with leave" and, failing to get it set aside on motion, takes an exception and on apt and timely steps comes up.

The question here is: Was there a case for the jury? That question hinging on the pleadings and facts, attend to them.

Assuming conventional allegations, the actionable negligence is alleged to be that the servants of defendant in charge of one of its engines, pulling one of its south bound passenger trains, at a crossing known as Bumpus Crossing, after seeing decedent approaching the track there and on the track (quoting) "negligently failed to give the usual and ordinary signals of the approach of said train, and after seeing, or by the exercise of ordinary care could and would have seen the dangerous position in which deceased was situated, and seeing, or by the exercise of ordinary care could and would have seen the imminent peril of deceased, and that deceased was unaware of the near and dangerous approach of said train, negligently failed to sound the usual and ordinary danger signals in time to avert the injury complained of, and negligently failed and neglected to use the air brakes and other appliances provided for stopping said train, and negligently failed to use the appliances provided and at hand for putting said train under control and did...