State ex rel. Siegel v. Daues

• Decision Date: 02 December 1927
• Docket Number: 27801
• Citation: 300 S.W. 272,318 Mo. 256
• Parties: The State ex rel. Margaret Siegel, a Minor, by Her Next Friend, Isabel Johnson, v. Charles H. Daues et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

300 S.W. 272

318 Mo. 256

The State ex rel. Margaret Siegel, a Minor, by Her Next Friend, Isabel Johnson, v. Charles H. Daues et al., Judges of St. Louis Court of Appeals

No. 27801

Supreme Court of Missouri

December 2, 1927

Record quashed.

Brownrigg Mason & Altman for relator.

(1) Plaintiff stood at a point about four feet west of the west rail of the defendant's westbound track. The front end of the car, which projected three feet and ten inches over the track, passed within a foot or so of her as she stood there. The rear end at that point overhung five feet and ten inches. Therefore, as she stood and continued to stand in that same position as the car approached and as the front corner passed her, she was in a position of imminent peril. She was oblivious of that peril, because her testimony that she thought that she was safe and that the rear end would not extend further out than the front end was uncontradicted. It is uncontradicted that the defendant had actual notice of her position of peril, and after such notice the motorman had the present ability to have averted the danger without injury to himself or others, because, even after the front end of the car had reached her, there was still ample opportunity to have warned her or stopped the car before the rear end struck her. He did nothing whatever to avert the injury, and by reason thereof plaintiff was injured. The case, therefore comes squarely within the humanitarian rule, as repeatedly announced by this court, and the decision of the Court of Appeals is in conflict with the decisions of this court in Banks v. Morris, 302 Mo. 267; Hill v. Kansas City Ry. Co., 289 Mo. 193; Gould v. Railroad Co., 209 S.W. 135. (2) Standing there at a point near the curve of the track, which she erroneously thought to be a safe distance, but which the motorman undoubtedly knew, or should have known, was near enough for her to be struck, she was menaced by a hidden peril known to the motorman, but obviously unknown to her, on account of her ignorance of the unusual extension of the rear end of the car in rounding the curve. The opinion of the Court of Appeals that under these circumstances the motorman had a right to assume that she would, after the front corner of the car passed her, move out of the position of peril, is in conflict with the opinion of this court in Laurent v. United Rys. Co., 191 S.W. 992.

Charles W. Bates, T. E. Francis and John F. Evans for respondents.

(1) In determining whether or not a conflict exists, the court will accept the evidentiary facts in the opinion as the facts of the case. State ex rel. v. Reynolds, 289 Mo. 479; State ex rel. Railroad Co. v. Allen, 291 Mo. 206; State ex rel. Life Ins. Co. v. Allen, 295 Mo. 307; State ex rel. Presnell v. Cox, 250 S.W. 374; State ex rel. Dowell v. Allen, 250 S.W. 580; State ex rel. American Press v. Allen, 256 S.W 1049. (2) The court will not concern itself with the correctness of the decision of the Court of Appeals, nor with an erroneous application of rules of law to the facts stated in the opinion. The authority for quashing the opinions must rest upon the determination that the opinion and decision of the Court of Appeals runs counter with the Supreme Court decisions on a general principle of law or announces a ruling contrary to that of the Supreme Court under a like state of facts. State ex rel. Railroad v. Allen, 291 Mo. 206; State ex rel. Ins. Co. v. Reynolds, 290 Mo. 362; State ex rel. Calhoun v. Reynolds, 298 Mo. 506; State ex rel. Brotherhood v. Reynolds, 287 Mo. 169; State ex rel. Am. Packing Co. v. Reynolds, 287 Mo 699. (3) Relator does not contend that the opinion announces a ruling contrary to that of the Supreme Court under a like state of facts, but alleges a conflict with certain decisions on a general principle of law and the application of the facts thereto. Neither these cases, nor the rules stated therein, present any conflict with the opinion of the Court of Appeals. (4) Before obliviousness becomes an element of the humanitarian rule, the plaintiff must show that such obliviousness was, or by the exercise of due care could have been, apparent to the defendant. In this case, while relator may have been ignorant of the extent of the outward swing, she knew that the rear end would overhang the track in rounding the curve, and was watching the car as it turned in front of her. Under such circumstances, the Court of Appeals correctly declared that the motorman could assume that she was aware of the situation and would step back, if necessary, to avoid the rear end of the car. Beal v. Ry. Co., 256 S.W. 733. (5) The decision and opinion is in direct accord with the controlling decision of the Supreme Court in Butler v. United Rys. Co., 293 Mo. 259, 238 S.W. 1077, which holds that where a person, sui juris, is standing within the path of an approaching car which she sees, the motorman is under no duty by virtue of the humanitarian rule to avoid collision with her, but may assume that she will move to a place of safety. (6) In holding that there could be no recovery under the facts of this case, the opinion of the Court of Appeals is in accord with and follows the cases listed below, which represent the weight of authority: Jelley v. St. Ry. Co., 76 N. J. L. 191; Miller v. Public Service Corp., 86 N. J. L. 631; Widmer v. St. Ry. Co., 158 Mass. 49; Garvey v. Rhode Island Co., 26 R. I. 80; Beeck v. Railroad Co., 135 N.Y.S. 600; Kaufman v. St. Ry. Co., 43 Misc. 634; Matulewicz v. Met. St. Ry. Co., 95 N.Y.S. 7; French v. Power Co., 122 S.E. 171; St. Ry. Co. v. Besse, 108 S.W. 848; Bukowski v. Light Co., 142 Wis. 517; Louisville Ry. Co. v. Ray, 124 S.W. 313; Brightman v. Union Ry., 216 Mass. 152; Hoffman v. Rap. Tr. Co., 214 Pa. St. 87; Beach v. Traction Co., 237 P. 737.

Walker, C. J. All concur, except Blair, J., who dissents.

OPINION

WALKER

Certiorari is invoked to quash the record in the case of Margaret Siegel, plaintiff, v. Rolla Wells Receiver of the United Railways Company, defendant. In this suit the plaintiff, in a personal injury case, recovered judgment against the defendant in the sum of $ 4,500. Upon an appeal to the St. Louis Court of Appeals the judgment was reversed.

The conflict urged by the relator upon which our jurisdiction is based is the ruling of the Court of Appeals that under the facts the humanitarian rule upon which the relator relied for a recovery was not applicable.

The facts as stated in the opinion are as follows:

The testimony adduced on behalf of plaintiff tended to show that she was struck by the rear end of a westbound car on the defendant's Hodiamont line as it traversed the curve at Twelfth and Locust Streets turning northwardly into Twelfth Street, because the outward swing of the read end of the car in making the turn projected a distance of five and one-half feet over the tracks.

The defendant has two sets of tracks, one for eastbound cars and one for westbound cars, at the point in question. Plaintiff, upon signal from the traffic officer, left the sidewalk at the northwest corner of Twelfth and Locust Avenue and started to walk eastwardly across Twelfth Street and proceeded to a point three or four feet west of the west rail of the westbound tracks of the defendant, where she stopped and waited to permit the westbound Hodiamont car to pass her. Plaintiff saw the car approaching her when it was distant thirty-five feet, and she remained standing at the same point near the west track continuously until the time she was struck by the rear end of said car. According to her testimony the motorman saw her, for he smiled at her. The front end of the car projected three feet ten inches over the tracks on the turn and passed plaintiff in safety, leaving a space of a foot or so between her and the front fender of the street car, and plaintiff testified: "I didn't think the back end was going to pass any closer to me and I continued to stand there" but as the car proceeded on its way around the turn the plaintiff was struck by the rear end of the car, which extended beyond the track five feet ten inches. The car, at the speed it was going, could have been stopped in six feet. The distance from the point where the motorman was standing in the front of the car to the front of the rear vestibule was thirty-four feet.

The cases cited by the relator with which it is alleged the ruling of the Court of Appeals is in conflict are: Laurent v. United Rys., 191 S.W. 992; Hill v. K. C. Ry. Co., 289 Mo. 193, 233 S.W. 205; Banks v. Morris, 302 Mo. 254, 257 S.W. l. c. 1019.

The Court of Appeals held, under the facts as above stated, that "the motorman seeing the plaintiff and knowing that she was aware of the car with no obstacle to keep her from stepping back, if such action became necessary, under the authorities, had the right to assume that she would in due time step back, if necessary, and avoid being struck by the rear end of the car."

The question is whether in view of our rulings in the cases cited by the relator as in conflict with the holding of the Court of Appeals, the motorman was entitled to assume that the relator would be aware of the fact that the rear end of the car would, upon rounding the curve, extend further over the track than the front end, and that if necessary she would step...