State ex rel. Alsup v. Tatlow

• Decision Date: 09 November 1940
• Docket Number: 37045
• Citation: 144 S.W.2d 140,346 Mo. 1025
• Parties: State of Missouri at the relation of Ada Alsup, Administratrix of the Estate of Mary Alsup, Relator, v. W. D. Tatlow, Robert J. Smith and James F. Fulbright, Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

144 S.W.2d 140

346 Mo. 1025

State of Missouri at the relation of Ada Alsup, Administratrix of the Estate of Mary Alsup, Relator, v. W. D. Tatlow, Robert J. Smith and James F. Fulbright, Judges of the Springfield Court of Appeals

No. 37045

Supreme Court of Missouri

November 9, 1940

Writ quashed.

R Kip Briney and Lawrence E. Tedrick for relator.

(1) The opinion of the Springfield Court of Appeals is in direct conflict with the following controlling decisions of the Supreme Court. Crockett v. Kansas City Ry. Co., 243 S.W. 902; McKenzie v. United Rys., 115 S.W. 13; Lynch v. C. & A. Ry. Co., 106 S.W. 68. The Crockett case holds that defendant's answer, which alleged that the plaintiff failed to stop, look and listen, was equivalent to an allegation of obliviousness. In the instant case, the defendant's answer, which is set out in respondent's opinion admits that plaintiff "failed to exercise her faculties of sight and hearing which, had she exercised either of same, would have disclosed to her the approach of defendant's train." This is an admission that plaintiff was oblivious to the approach of the train and dispensed with the necessity of proving that fact. (2) Said opinion is also in direct conflict with the following decisions of the Kansas City Court of Appeals: Dincler v Chicago, etc., Co., 265 S.W. 113; Packer v. Chicago etc., Co., 265 S.W. 119; Hart v. Chicago, etc Co., 265 S.W. 116; Stout v. K. C., etc., 17 S.W.2d 363. And the following decisions of the St. Louis Court of Appeals. Milward v. Wabash Ry. Co., 232 S.W. 226; Dickens v. Wells, 245 S.W. 563.

Langdon R. Jones for respondents.

(1) In certiorari proceedings this court looks to the opinion of the Court of Appeals for the facts and takes the facts as found therein as the facts of the case, with the right to examine any pleading, document or exhibit referred to in the opinion. In addition, this court is not concerned with conflict, if any exist, in other Courts of Appeals, but is only concerned with whether or not the opinion conflicts with controlling decisions of this court. State ex rel. Ry. Co. v. Shain, 134 S.W.2d 89; State ex rel. Massman Construction Co. v. Shain et al., 130 S.W.2d 493. While respondents contend that their opinion reversing this cause outright is in conformity with the controlling decisions of this court on the points ruled upon by respondents, and is right under the decisions of the court, yet it is the rule in certiorari proceedings that this court is not concerned with whether the decision be right or wrong, but the only point at issue is whether or not the opinion of respondents contravened controlling decisions of this court. State ex rel. Ry. Co. v. Shain, 134 S.W.2d 93. (2) It has been uniformly ruled by this court that it is not sufficient to prove in an action of this kind that the deceased was oblivious to danger; that in addition, in order to make a case for the jury, the plaintiff must prove that the agents and servants of the defendant were aware that the deceased was oblivious to her danger, or by the exercise of ordinary care should have been aware of same, before plaintiff can recover. And if the evidence fails to show that there was anything to put defendant's agents or servants on notice that the deceased was oblivious to her danger then plaintiff fails to make a case. (a) The rule is well settled in this State that in cases involving the humanitarian doctrine that the point of entry into the danger zone is one of variable limits, depending upon the facts of each particular case. Hinds v. Railroad Co., 85 S.W.2d 168; Elkins v. Pub. Serv. Co., 74 S.W.2d 603. (b) The law is also well settled in this State that in pedestrian cases the danger zone is confined within very narrow limits, being almost the railroad track itself; this, because it is easy for a person walking to stop within a very short space of time and those in charge of trains have a right to assume that an approaching pedestrian is aware of the approach of the train and will stop. Also, were this not the rule, as some courts say, if a train was required to stop for each pedestrian approaching a railroad crossing it would take several days for a train to cross the State. Boyd v. Ry. Co., 105 Mo. 381; State ex rel. v. Reynolds, 289 Mo. 489, 233 S.W. 223; Beal v. Ry. Co., 256 S.W. 736; Tannehill v. Railroad Co., 279 Mo. 173, 213 S.W. 822; Keele v. Railroad Co., 258 Mo. 80; Markowitz v. Railroad Co., 186 Mo. 359; Schmidt v. Railroad Co., 191 Mo. 215.

OPINION

Gantt, J.

Relator seeks to have quashed the opinion of the Springfield Court of Appeals in Alsup, Admrx. of the Estate of Mary Alsup, v. Henwood, Trustee of the Southwestern Ry. Co., 137 S.W.2d 586. It reversed a judgment for plaintiff for the killing of Mary Alsup by defendant's train at a country public crossing on July 23, 1938, at six P. M. The case was submitted to the jury on failure to warn under the humanitarian rule.

The answer alleged that the deceased "failed to exercise her faculties of sight and hearing, which, had she exercised either of same, would have disclosed to her the approach of defendant's train."

The Court of Appeals ruled that the trial court should have directed a verdict for defendant. From the opinion, the facts may be stated as follows:

In this locality a farm-to-market road crosses the railroad, which runs northeast and southwest, at almost right angles. For a long distance on either side of the crossing the track is straight, the land level and there are no obstructions to the view of either pedestrians or trainmen approaching the crossing. For many years the deceased lived in a house eight hundred forty-five feet east of the crossing. She was seventy-three years of age, of good sight and hearing, very active, enjoyed walking, frequently visited neighbors, and was familiar with the crossing. On the day of the injury she visited a neighbor who lived four hundred fifty feet west of the crossing. At about six p.m. she left for home, carrying an open umbrella "leaning back over her shoulder" and proceeded eastward toward the...