Smith v. Wabash R. Co.

• Decision Date: 02 December 1907
• Parties: SMITH v. WABASH R. CO.
• Court: Missouri Court of Appeals

107 S.W. 22

129 Mo. App. 413

SMITH v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

Rehearing Denied January 27, 1908.

1. RAILROADS — OPERATION — INJURIES TO PERSON ON TRACK — QUESTION FOR JURY.

Evidence that a train was running much in excess of the speed permitted by ordinance, that the engineer saw plaintiff walking on the track towards the train with his head inclined and paying no heed to the signals from the train, but the engineer made no effort to stop it till within 25 feet of plaintiff, presented a question for the jury as to the railroad company's liability under the humanitarian rule.

2. SAME — HUMANITARIAN RULE.

To hold a railroad liable under the humanitarian rule for injuries to a person on the track, its servants need not have absolute knowledge that he was in peril as the train approached him, as they could not assume that he would leave the track if the situation was such as to suggest to a reasonably prudent person that he was not aware of the train's approach.

3. PLEADING — CONSTRUCTION — FAILURE TO DEMUR.

Where no demurrer is filed before trial, though objection is made to evidence on the ground that no cause of action was stated, every reasonable intendment will be made in favor of the petition.

4. RAILROADS — OPERATION — INJURIES TO PERSON ON TRACK — PLEADING.

In a petition alleging injuries by a train to a person on a railroad track, liability under the humanitarian rule may be shown without calling the rule by name.

5. TRIAL — INSTRUCTIONS — EFFECT OF EVIDENCE.

An instruction that plaintiff being present and not testifying is bound by the evidence given in his hearing and not disputed by him was properly refused, being on the weight of the evidence.

6. SAME — CONSTRUCTION AND OPERATION — EFFECT OF CHANGE AS A WHOLE.

An instruction directing a verdict for plaintiff, injured by a railroad train, if its speed in excess of the rate prescribed was the direct cause of the injury, was not erroneous in omitting the hypothesis of his negligence, where other instructions fully explained the effect of his negligence on his right to recover.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Stephen Smith against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. L. Minnis and Higbee & Mills, for appellant. James E. Rieger and Alexander Doneghy, for respondent.

ELLISON, J.

This action was instituted to recover damages for personal injuries received by plaintiff through the alleged negligence of the defendant. He prevailed in the trial court.

Plaintiff is an old negro man who has lived in Kirksville for about 40 years, and for a time prior to the day he was hurt he lived near the railway track, and was familiar with the manner in which defendant's trains came into the city and the speed with which they approached the station. Early on the morning of his injury, in January, 1905, he had been up in the business section of the city sweeping offices and making fires for different persons, and was returning home. His way took him along the railway track, which for many years had been used by the general public as a walk for pedestrians going west and then south from the business section of the town, or south from the station. There was a heavy snow, and the morning was cold, with a brisk wind from the north. There was a comforter around his neck and head, and he had a habit of walking in a somewhat stooped way, with his head so inclined as to put him in the position of looking down and only a short distance in advance. In this condition he went upon the defendant's track and went south from the station. It had once been suggested to him by some acquaintance that there was danger in using the track for a passway, but he replied: "The good Lord will take care of me." Defendant's passenger train was due from the south at this time, and shortly after plaintiff got upon the track it made its appearance more than a quarter of a mile further south. There was nothing to obstruct a clear view of the train by plaintiff had he been looking, or of plaintiff by the engineer. Plaintiff apparently did not see the train; but the engineer saw him, and saw that he came on towards the train. He began to sound the whistle, first for a crossing; but plaintiff did not look up and paid no heed. The snow on the ground and the stiff wind from the north presumably prevented his hearing the noise of the train; and the wind, aided by his comforter around his ears perhaps kept away the sound of the whistle. The engineer continued to give the alarm with no effect; but, singular enough, did not slacken the speed of the train, which was far in excess of the ordinance limit. And thus the train came rapidly up towards the station and approaching plaintiff with nothing in use but the "service brake," which is used to slacken speed in approaching stations. The engineer permitted the train to run, with no effort to get it under control, until within about 25 feet of plaintiff, when he applied the emergency brake, but too late to prevent the engine striking him, knocking him from the track, and doing him serious injury, from which he became blind, and is now in the poorhouse. The train's speed may be judged somewhat by the fact that, with the use of the emergency brake, it still ran some 300 feet beyond the point of collision.

It is clear to us that, conceding plaintiff was negligent, yet a case was made for the finding of a jury under what is known as the "humanitarian rule." We may omit evidence in plaintiff's behalf which was disputed, and only look to that given for defendant, connected with that in plaintiff's behalf which is undisputed, and yet find the trial court justified in refusing to declare as a matter of law that no case was made. It was established that the public had for many years used the track as a passway. It was the only walk between certain streets. Defendant's servants then should have had that fact in view in so governing the train as to have it under control. It was established that the ordinance speed was five miles per hour, and that the train that morning was running much faster than that rate. It was further shown by the defendant's engineer himself that he saw plaintiff upon the track, and while he stated that after he sounded the alarm he noticed that plaintiff stepped on the rail as though to get off, he further stated the engine was then within 50 or 60 feet of him. Shortly, further on in his testimony, he stated that he did not apply the emergency brake until "about the time when I struck him." It seems quite apparent that the evidence tends to show that defendant's servants after becoming aware of (or as ordinarily reasonable and prudent men they should have realized) plaintiff's peril, they did not use ordinary care to save him.

It was not necessary to plaintiff's case that defendant's servants should have had absolute knowledge that plaintiff was in peril, for such state of information could scarcely exist in such situation. So, therefore, defendant will not be permitted to indulge in unreasonable suppositions as to the probability of plaintiff moving out of danger, although apparently oblivious to it, with the engine nearly upon him. An engineer ordinarily has a right to assume that one on the track will leave it at the approach of a train. But that assumption is based upon the person being aware of the train's approach, and, if the situation is enough to suggest to a reasonably prudent person that he is not aware, then the assumption should not be indulged. Klockenbrink v. Ry. Co., 172 Mo. 687-689, 72 S. W. 900. In International Ry. Co. v. Munn (Tex. Civ. App.) 102 S....