State v. Allen

• Decision Date: 30 April 1925
• Docket Number: No. 24912.,24912.
• Citation: 272 S.W. 925
• Parties: STATE ex rel. MISSISSIPPI RIVER & B. Y. RY. v. ALLEN et al., Judges.
• Court: Missouri Supreme Court

272 S.W. 925

STATE ex rel. MISSISSIPPI RIVER & B. Y. RY. v. ALLEN et al., Judges.

No. 24912.

Supreme Court of Missouri, in Banc.

April 30, 1925.

Motion for Rehearing Overruled May 23, 1925.

Certiorari by the State, on the relation of the Mississippi River & Bonne Terre Railway, against William H. Allen and others, Judges of the St. Louis Court of Appeals, to quash the record of that court in the case of Sarah C. Ramsey v. Mississippi River & Bonne Terre Railway Company, 253 S. W. 1079. Writ quashed.

Politte Elvins and W. E. Bennick, both of Bonne Terre, for relator.

Curlee & Hay and Marsalek & Stahlhuth, all of St. Louis, for respondents.

WALKER, J.

This case came to the writer of this opinion by reassignment April 11, 1925.

Certiorari: It is sought in this proceeding to quash the record of the St. Louis Court of Appeals in the case of Sarah C. Ramsey v. Mississippi River & Bonne Terre Railway Company. That suit was instituted by Mrs. Ramsey in the circuit court of St. Francois county to recover damages for the death of her husband, alleged to have been killed by the negligent operation of a locomotive by the railway company. Upon a trial a judgment was rendered against the railway company, and an appeal by the latter to the Court of Appeals resulted in an affirmance of the judgment. The rulings of the Court of Appeals, in the rendition of the judgment are contended by the relator to be in conflict with opinions of this court.

The plaintiff's husband, for whose death she recovered damages, was for many years an employee of the railway company. He was a "general cleanup man" about the yards, and in addition did the work incident to the drying of sand for use in the railway company's locomotives. While pushing a wheelbarrow filled with coal towards the house where he dried the sand, he was struck and killed by one of the railway company's locomotives. The engineer operating the locomotive or engine at the time testified that he did not see Ramsey upon the track before he struck him; that when he last saw Ramsey the latter was standing by the side of the engine with the wheelbarrow, talking to one of the helpers; that shortly thereafter the engineer rang the bell and moved the engine a few feet. Noticing that the track south of him was blocked he reversed the engine, and, after moving 15 or 20 feet north, he felt the engine strike something, but could not see what it was; that from his side of the cab the air pump and a curve in the track did not enable him to see an object on the track immediately in front of the engine. Testifying further, he said:

"I knew about this habit of Mr. Ramsey when I backed up, and I knew it when I started forward. I didn't look to see whether Mr. Ramsey had stepped in front of the train that morning or not. I didn't even look to see whether he was on the platform or not. While he was standing on the platform he was about at the gangway where the tender couples onto the engine. After backing up I reversed the engine, and then, suddenly and instantly, I started it and went straight on forward.

"Q. Never stopped at all? A. I stopped when I heard the wheelbarrow—when I hit it."

Townsend, a firecleaner, was at the time in the cab on the fireman's side, and when he felt the engineer strike something he looked forward, and saw Ramsey falling out from the track toward the west.

The petition, as is disclosed in the Court of Appeals' opinion, counted on several acts of negligence; among others, a right of recovery is predicated on the humanitarian doctrine. It is averred in this charge that Ramsey, when struck, was in a position of peril upon the track, in danger of being struck by the engine, and oblivious of his peril; that the railway company's servants in charge of the engine by the exercise of ordinary to keep a lookout ahead could have discovered his perilous position in time, by the exercise of ordinary care, with the appliances at hand, to have averted striking him, but failed to do so. The answer was a general denial, coupled with contributory negligence and assumption of risk.

At the close of plaintiff's case, and again at the close of the entire case, the defendant offered a peremptory instruction in the nature of a demurrer to the evidence, which in each instance was refused. Thereupon the plaintiff abandoned her other assignments, and by an instruction submitted the case to the jury, asking a recovery under the humanitarian doctrine.

The instruction (numbered 1) asked by the plaintiff and given by the court, which predicated a recovery under the humanitarian doctrine averred in substance, that, if the jury believed from the evidence that the deceased was in a position of peril upon the track and in danger of being struck by the engine, and was oblivious of his peril, and that the defendant's servants in charge of the engine, by the exercise of ordinary care to keep a lookout ahead, could have discovered his perilous position in time, by the exercise of ordinary care with the appliances at hand, to have averted his injury and death, but failed to do so, then the jury was authorized to find a verdict in favor of the plaintiff.

The defendant offered no withdrawal instructions, but asked and was given an instruction (numbered 2), upon...