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

• Decision Date: 16 December 1941
• Docket Number: No. 37628.,37628.
• Citation: 159 S.W.2d 633
• Parties: ROSENBERG v. TERMINAL R. R. ASS'N OF ST. LOUIS.
• Court: Missouri Supreme Court

159 S.W.2d 633

ROSENBERG v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 37628.

Supreme Court of Missouri, Division No. 2.

December 16, 1941.

Motions for Rehearing and to Transfer to Court in Banc Denied March 13, 1942.

Appeal from St. Louis Circuit Court; Edward M. Ruddy, Judge.

Action by G. J. Rosenberg against the Terminal Railroad Association of St. Louis, a corporation, for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed, if plaintiff enters remittitur, and otherwise reversed and remanded.

Carleton S. Hadley, Walter N. Davis, and Arnot L. Sheppard, all of St. Louis, for appellant.

Frank C. Boland and Everett Hullverson, both of St. Louis (Orville Richardson, of St. Louis, of counsel), for respondent.

BOHLING, Commissioner.

The Terminal Railroad Association of St. Louis, a corporation, appeals from a judgment for $15,000 in favor of G. J. Rosenberg. Rosenberg's action was for personal injuries. It was submitted on defendant's failure to warn under the humanitarian doctrine. Defendant asserts plaintiff did not make a case and, for this reason, plaintiff's main instruction was wrong; that error was committed in the refusal of requested instruction C, and that the verdict was excessive.

The St. Louis Post Office and Union Station, defendant's property, are situate on opposite sides of Eighteenth street. Hand trucks, equipped with rubber-tired wheels and tongues, having wrought iron handles, for guiding and pulled and pushed by men, are used in transferring the mail to and from the Post Office and the Union Station via a subway underneath Eighteenth street. The Post Office, Union Station tunnel or subway entered an open space or sort of underground lobby on defendant's property from the north at the east end of the north wall of the lobby. Some witnesses, in testifying, referred to an exhibit, a photograph, using expressions of "here," "there" and the like, causing the facts to be more difficult of comprehension. Other tunnels also opened into this lobby; for instance, a railway express tunnel along its east wall and south of the entrance of the Post Office tunnel about, say, thirty feet; and there were elevators for moving articles from one level to another of defendant's station facilities. Plaintiff was employed by J. C. Ansell, who had the contract for transferring the mail, as a truck puller. Ansell's employees would deliver the loaded mail trucks to a post in the lobby described as the "time-table" post, located some distance west of the lobby's east wall and eighty to eighty-five feet southwesterly from the mouth of the Post Office tunnel. On February 18, 1938, about 8:20 or 8:30 p. m. plaintiff entered this lobby, walking slowly and pulling a truck loaded with fifteen or sixteen sacks of mail, intending to deliver it to defendant's employees at the "time-table" post; i.e., plaintiff would proceed straight ahead near the east wall, across the trafficway in the lobby of the railway express tunnel, if extended, and then turn to the right for delivery at the post.

About that time John S. Brown and another (or more) of defendant's employees started to move another truck (described as a "bull wagon," a big truck with a body) loaded with mail, weighing 1,800 pounds or more, north from the "time-table" post, intending to turn west. Plaintiff saw Brown, about fifty feet away, take hold of the tongue of the "bull wagon" but did not know where it was to be moved. Plaintiff had to watch for traffic from different places. He proceeded ahead, approaching and watching the railway express tunnel entrance for traffic. It had been raining and work on the new Post Office had permitted some rain and mud to accumulate on the floor of the lobby. Brown's version is that he, pulling on the tongue, and another employee, pushing at the rear, were moving the "bull wagon" at a moderate rate of speed; that, moving north, he started to turn west and the mud caused his feet to slip out from under him; that he let go of the tongue and pushed away to keep the "bull wagon" from running over him; that he hit on his hands, got right up, tried to get hold of the "bull wagon" and hollered to plaintiff, who seemed not to hear him. On direct examination he testified the "bull wagon" was eight to ten feet from plaintiff when he slipped. On cross-examination he gave testimony from which a jury could find that the truck was eight or ten feet from plaintiff when he shouted.

Eugene Waldrop, another "mail puller," testified that he witnessed the occurrence, that he saw Brown turn loose of the tongue, and did not know why. On cross-examination he testified that Brown's foot slipped but he did not fall. Witness put the "bull wagon" fifteen feet from plaintiff at the time Brown released its tongue. This witness and plaintiff testified no shout of warning was given.

Plaintiff did not notice the approach of the "bull wagon" until it was upon him, had no time to escape, only time to protect his face, and he, while approaching, and five or six feet north of, the express tunnel traffic-way, threw his shoulder into the "bull wagon" to slow its speed and was injured.

We think plaintiff made a submissible factual issue of defendant's ability to avoid the injury under the humanitarian doctrine by warning plaintiff in time to permit him to escape. Plaintiffs who rely upon refinements of calculations often involved in humanitarian issues should carefully develop the constitutive fact issues. The instant record is not as definite as it might have been made, but under the presentation we deem it sufficient. Defendant concedes there was substantive proof, if believed, of plaintiff being in a position of imminent peril, of defendant's notice, actual or constructive, thereof, and of plaintiff's injury. Consequently, plaintiff being injured, the questioned factual issue is Brown's ability under the humanitarian doctrine to timely warn plaintiff. The litigants argue the issue on the theory plaintiff was in imminent peril at the time Brown lost control, released the tongue, of the "bull wagon." Brown, moving north, saw plaintiff, moving south. Conflicts in the testimony between plaintiff and Waldrop on the one hand and Brown on the other were for the jury. If they believed Brown merely released the tongue of the "bull wagon" or merely slipped and released its tongue, they were privileged to find that Brown instantly realized plaintiff's peril. Plaintiff was walking slowly, pulling the loaded mail truck. According to Brown, he was guiding and a coemployee was pushing the loaded "bull wagon" at a moderate speed over a practically level space. The case appears to have been tried upon the theory the speed of men walking was involved. We have taken judicial notice of the ordinary walking speed of an average man to be two or three miles an hour, 2.9 to 4.4 feet per second. Zickefoose v. Thompson, Mo.Sup., 148 S.W.2d 784, 792[12]. With the two trucks converging upon each other at an average speed of two or two and a half miles an hour, there existed approximately two seconds for Brown to give a timely warning under the testimony most favorable to plaintiff. This was sufficient time in which to warn. Chawkley v. Wabash Ry. Co., 317 Mo. 782, 798, 804, 297 S.W. 20, 24, 27[12] stating: "It is not a violent inference that the fireman could say `Whistle!' and the engineer could pull the cord within the space of a single second or less." And: "We have held that the case was submissible under the humanitarian rule, and on the theory that in a second, or the fraction of one, a warning could be sounded." Zumwalt v. Chicago & A. R. Co. Mo.Sup., 266 S.W. 717, 725[9]; Gould v. Chicago, B. & Q. Rd. Co., 315 Mo. 713, 721 (I), 290 S.W. 135, 137(I); State ex rel. v. Becker, 334 Mo. 115, 119[1], 66 S.W.2d 141, 143[1].

From defendant's argument that Brown was charged with knowledge of plaintiff's imminent peril from the time Brown released control of the "bull wagon," and from Waldrop's testimony that this occurred when the "bull wagon" was fifteen feet from plaintiff, a finding was...