State v. Cox

• Decision Date: 08 April 1927
• Docket Number: No. 26863.,26863.
• Citation: 293 S.W. 122
• Parties: STATE ex rel. ST. LOUIS-SAN FRANCISCO RY. CO. v. COX, Judge, et al.
• Court: Missouri Supreme Court

293 S.W. 122

STATE ex rel. ST. LOUIS-SAN FRANCISCO RY. CO. v. COX, Judge, et al.

No. 26863.

Supreme Court of Missouri, in Banc.

April 8, 1927.

Original proceeding in certiorari by the State, on the relation of the St. Louis-San Francisco Railway Company, to quash the opinion of Argus Cox and others, Judges of the Springfield Court of Appeals, affirming a judgment for Ota Paul against relator (275 S. W. 575). Writ quashed.

E. T. Miller, of St. Louis, and Ward & Reeves, of Caruthersville, for relator.

McKay & Peal, of Caruthersville, for respondents.

BLAIR, J.

This is an original proceeding in certiorari, seeking to quash the opinion of the respondent judges of the Springfield Court of Appeals, whereby they affirmed the judgment in the case of Ota Paul, Plaintiff, v. St. Louis-San Francisco Railway Co., Defendant, upon appeal from the circuit court of Pemiscot county. It is alleged that the opinion of respondents is in conflict with certain controlling decisions of this court.

The case was argued at our January call, 1926, and assigned for an opinion. Owing to circumstances over which the court had no control, a reassignment of the case became necessary, and it was reassigned to the writer at the present term.

As appears from respondents' opinion, It was alleged by Ota Paul that, through negligence of defendant, her husband was run over and killed by an engine of defendant. The jury returned a verdict for plaintiff in the minimum sum of $2,000. Judgment followed, and the railway company appealed. Respondents affirmed the judgment. Their opinion is reported in 275 S. W. at page 575, to which we refer for a full statement of the facts.

An unattached engine of relator (defendant below) passed over the body of Roscoe Paul, lying on the ties between the rails. He may at that time have been drunk or asleep, or both, or he may have been previously killed and his body placed upon the track to conceal the evidence of homicide, as has been suggested by relator. Respondents held that there was substantial evidence tending to prove that Paul's death was caused by injuries received at the time the engine passed over his body. We do not understand that relator now makes any complaint that such finding of respondents conflicts with any opinion of this court.

I. The main contention of conflict is directed to the finding of respondents that there was substantial evidence tending to prove that the engineer of defendant negligently failed to stop the engine after he saw the deceased in a position of peril. In other words, it is relator's contention that respondents' opinion, holding that a case under the humanitarian doctrine was made by the evidence, is in conflict with certain controlling decisions of this court. We quote from the opinion as follows:

"The foregoing is, we think, a fair statement of the testimony upon which the court was required to determine whether there was sufficient testimony to take the question of whether the engineer was negligent in not stopping the engine after discovering the man lying on the track and before reaching him. In determining that question the court would have before it in condensed form the following evidence: The air was foggy and the track wet. The engineer discovered a man lying on the track about 275 to 300 feet from him. This much might well be conceded to be the facts. Then the engineer and parties with him on the engine testified that the man on the track was discovered as soon as he could be discovered in the foggy atmosphere, and, as soon as discovered, the engineer shut off the engine and applied the brakes and released the sander to drop sand on the rails in front of the wheels, thus doing all that could be done to stop the engine in the shortest time possible. If these facts were all taken as true, then no negligence was shown, and the demurrer to the evidence should have been sustained, but, over against this testimony, is the testimony of other witnesses, one in particular, who was an experienced engineer, to the effect that an engine on a wet, level track, such as this was shown to be, could be stopped in 120 to 130 feet after the engine was shut off and the brakes applied. He also testified that the engine could be shut off and the brakes set so that they would take effect in two seconds. The engineer in charge of the engine testified that he was running 30 miles per hour at the time he discovered that the object on the track was a man. An engine running 30 miles per hour would run 44 feet per second. Allowing two seconds for the engineer to shut off the engine and set the brakes, the engine would travel 88 feet after the discovery of the man before the brakes would take effect. If the engine would run 130 feet before stopping, it would travel 218 feet from the time of the discovery of the man until stopped, and on that basis it would have stopped 57 feet before reaching the man. Instead of that, however, it ran 30 or 40 feet beyond the man before it stopped. If this latter set of facts are to be accepted as true, then there can be no question that the engine was not stopped in as short a time as was practical under the conditions that were shown to exist at the time. It occurs to us that, if a jury is to have any office to perform in any case in which, under the evidence either of two findings of facts may be made, one showing a negligent and the other a careful course of conduct, then the duty to deter nine which of the two courses of conduct which the evidence tends to show in this case was the one shown by the weight of the evidence to have taken place was cast upon the jury, and the court could not take that question away from them."

This ruling is said to conflict with certain cases which respondents noticed and sought to distinguish. In doing so, Cox, P. J., said:

"We are cited to the cases of Burge v. Wabash R. Co., 244 Mo. 76, loc. cit. 101, 102, 148 S. W. 925; Henson v. Railroad, 301 Mo. 415, 256 S. W. 771, loc. cit. 775; Sullivan v. Gideon & I. R. Co. 271 S. W. 983, loc. cit. 990, 991; Degonia v. St. Louis, I. M. & S. R. Co., 224 Mo. 564, 123 S. W. 807.

"The learned judge who wrote the opinions in the Burge and Degonia Cases, in commenting upon the time in which, under the evidence in those cases, the engineer had to act, which was shown to be about ten seconds, uses this expression: `Ten seconds—ten ticks of the watch.' Counsel in this case call attention to the above language, and insist that the time in which the engineer in this case had to act was too short to permit him to stop the engine before striking the man. The comparison made in the Burge and Degonia Cases of seconds to ticks of the watch was unfortunate, and must have been inadvertently made, for the fact is that a standard watch will tick five times in a second instead of only once as there stated. While ten seconds is a short period of time, yet it is an appreciable length of time, and a great many things can be done in ten seconds. A brisk walker, who walks at the rate of 5 miles per hour, will walk 73 1/3 feet in ten seconds. A college athlete will run 100 yards, and the world's fastest trotter would trot 454 feet in ten seconds. By using these facts in comparison, we can get some idea of what an engineer operating an engine can do in a few seconds. Each of the cases above cited holds that under the facts then under review the time was too short to permit the engineer to stop and avoid the collision. We, of course, are bound by the decisions of the Supreme Court, but we do not understand that court, in the cases cited, or any others, to have fixed any arbitrary rule as to the time necessary to be allowed to an engineer in which to stop an engine. Each case must rest upon its own facts, and the trial court, in passing upon a demurrer to the testimony, must be governed by the evidence in the case he is trying. A comparison of the facts in the cases above cited with the evidence in this case will show a wide difference. In all those cases the engine was pulling a train, while in this case the engine was alone. Whether this would make any difference the evidence does not show, except that in the Sullivan Case the train was backing, and an allowance was made for taking up the slack as the train stopped. In some of the cases, signals were required to be given to the engineer before he was required to act. In this case, the evidence most favorable to plaintiff, which we must alone consider when passing on the question of a demurrer to the testimony, shows the following state of facts:

If the engineer was properly attending to his duties, he had his hand on the throttle when he discovered the man lying on the track at least 275 feet ahead. It was then his duty to stop the engine as quickly as he could, and we have always understood that one of the qualifications of a competent engineer who pulls a train on a railroad where human lives are put in his keeping is the ability to act quickly in an emergency. The evidence in this case shows that, if the engineer acted promptly, he could shut off the engine and apply the brakes at the same time and could do that in one second—a short time, and yet a brisk walker would walk 7 feet and an athlete run 30 feet in the same time. After he had moved the lever that sets the brake, another second was allowed in which to permit the air to act and put the brake to work. This engine was running 30 miles per hour or 44 feet per second; hence it would run 88 feet before the brakes would be in effective action. From the same witness we learn that this engine, under the conditions existing at the time, would stop in 120 to 130 feet after the brakes took hold. If we give this engineer the benefit of his own estimate of the distance he was from the object on the track when he discovered it was a man, to wit, 275 feet, and we add 130 feet and 88 feet, we shall have 218 feet as the distance in which he should have stopped the engine, and, had he done that, ...