State v. Reynolds

• Decision Date: 08 July 1921
• Docket Number: No. 22659.,22659.
• Citation: 233 S.W. 219,289 Mo. 479
• Parties: STATE, ex rel. ST. LOUIS-SAN FRANCISCO RY. CO. v. REYNOLDS et al., dodges.
• Court: Missouri Supreme Court

233 S.W. 219

289 Mo. 479

STATE, ex rel. ST. LOUIS-SAN FRANCISCO RY. CO. v. REYNOLDS et al., dodges.

No. 22659.

Supreme Court of Missouri, in Banc.

July 8, 1921.

Motion for Rehearing Denied July 22, 1921.

Certiorari to the St. Louis Court of Appeals by the State of Missouri, on the relation of the St. Louis-San Francisco Railway Company, against Hon. George D. Reynolds and others, Judges of the St. Louis Court of Appeals. Judgment and opinion of the St. Louis Court of Appeals (227 S. W. 129) quashed.

W. F. Evans, B. T. Miller, and A. Stewart, all of St. Louis, for relator.

Perry Post Taylor, Emil Mayer, and Ben L. Shifrin, all of St. Louis, for respondents.

GRAVES, J.

Certiorari to the St. Louis Court of Appeals. Our writ was invoked in a case decided by that court entitled Charles N. Martin v. St. Louis-San Francisco Railway Co. (227 S. W. 129), wherein a judgment of $5,000 obtained by plaintiff in the circuit court was affirmed by the Court of Appeals. The action was one by the husband for the alleged negligent killing of his wife. All charges of negligence were abandoned except the negligence covered by the humanitarian rule. In other words, the case in the trial court was submitted solely on the humanitarian rule. Relator urges many conflicts between our opinions and the opinion of the Court of Appeals, the particulars of which will be noted in the course of the opinion.

The evidentiary facts are thus outlined in the opinion of the Court of Appeals.

"At about 10 a. m., on August 3, 1917, plaintiff's wife was struck and killed by one of defendant's east-bound through passenger trains at Shrewsbury station, St. Louis county. Hence arose this action for damages under the compensatory death act (section 5425, R. S. 1909). All allegations of primary negligence were abandoned by plaintiff, and the case was put to the jury under the humanitarian doctrine, resulting in a verdict and judgment for plaintiff for $5,000. Defendant appeals.

"Defendant's double track runs cast and west at the point, and for about one-half mile west of the station the track is straight, and then curves to the south. West-bound trains use the north track, and east-bound trains the south track. North of both tracks is the station house, and south of the tracks is a platform where passengers board east-bound trains.

"On the morning in question, a local suburban accommodation train was due to stop at Shrewsbury station at 9:46 a. m. This train was late. About 10 o'clock a through passenger train, not scheduled to stop at this station, and running several hours late, and at the rate of 45 miles per hour, rounded the curve one-half mile to the west of the station and proceeded eastwardly on the south of eastbound track on a down grade of about 60 feet to the mile. At this time the deceased, Mrs. Martin, two other ladies, and two children were in the station on the north side awaiting the local train. Hearing a train whistle to the west, they proceeded out of the station and across the track for the purpose of getting upon the platform on the south side, so as to take what they supposed was the local accommodation train that was approaching, and which would stop at the station.

"The inference is plain from the evidence that this group of passengers, including the deceased, knew the train was coming down the grade, but supposed that it was the local train, and it would slow up and stop at the station. In that event there was ample time to cross the track in safety. As it turned out, the train was a through train, running very fast, and not scheduled to stop. The result was that the two ladies and the children barely crossed the track in time, and Mrs. Martin, who was just behind the others, was struck and killed just as she stepped off the south rail of the eastbound track. One second more, or two at the most, and she would have reached a place of safety.

"The testimony of the engineer, who was called by the plaintiff, shows that this train of 9 coaches was running on about the time of the local train which was passed by his train at Valley Park, 12 miles to the west; that as he approached the station traveling 45 miles per hour, and when about one-quarter of a mile (1,320 feet) west of the station he saw this group of passengers leave the depot and start across the tracks, and that he knew they were going to cross in front of his train. While the engineer says that he did not see the deceased until just before his engine struck her, he did see the group of passengers crossing the tracks, and other evidence is to the effect that Mrs. Martin was among the group. Realizing at that moment that these women and children were going to cross in front of his engine, the engineer testified he gave his brakes what is termed a `service application,' which is the ordinary method of stopping the train as distinguished from an `emergency application,' which slows up and stops the train quicker than the `service application,' and which is used in cases of emergency. He says he took this action in order `to give the group of passengers time to get across.'

"While the engineer testifies he applied the brakes as stated, and lessened the speed of the train from a point one-quarter of a mile from the station, there was evidence tending to show that the speed of the train was not slackened until after the deceased was struck. There was further evidence tending to show that, had the engineer given the brakes an emergency application, instead of a service application, the train could have been stopped within the 1,320 feet under the condition that existed. In any event, by such emergency application the speed of the train could have been so slackened that the deceased would have had time to have escaped from the oncoming locomotive. While the engineer says that, having once given the brakes the service application, he could not thereafter, for mechanical reasons, apply the emergency brakes, this is disputed by another experienced engineer, who testified for plaintiff."

Counsel for relator, after setting out the foregoing portion of the Court of Appeals' opinion, and directing our attention thereto, then thus proceed to outline their conclusions of the rulings of the court:

"On this statement of facts, the Court of Appeals held: (1) That when the engineer saw the group of people leaving the station for the purpose of going to the south side of the track to take what they supposed was the local accommodation train, which he knew was following his train, and when he knew that they were going to cross the track, they were from that moment in the danger zone, and the duty then devolved upon the engineer to do everything he could reasonably do to either stop or slow up the train so as to prevent the accident, and that, as there was evidence tending to show that he failed in this duty, the case was properly submitted to the jury under the last chance rule; and (2) that, since the engineer admitted that he knew the group of people were going to cross the track from the time they left the depot building, he was not entitled to presume that persons who were sui juris would not step from a place of safety into one of peril.

"The Court of Appeals further approved the main instruction given by the trial court at the instance of plaintiff, which instruction submitted the case to the jury on the theory of the humanitarian doctrine, but omitted to require the jury to find, as a predicate to returning a verdict for plaintiff, that deceased was oblivious to the impending danger. The petition contained no allegation that deceased was oblivious to the impending danger. The Court of Appeals held that it was unnecessary that the petition should contain an allegation that deceased was oblivious to the impending danger, or that the element of obliviousness should be incorporated in the instruction, because of the evidence of the engineer, who admitted that he knew the group of persons, of which deceased was one, were going to cross the track in front of his engine."

These holdings, they say, conflict with divers opinions of this court. This sufficiently outlines the case.

I. Relator is correct in urging that the Court of Appeals ruled that the deceased was in the danger zone from the time that she left the depot on the north side of the two tracks, and started to the south. On this question, the court said:

"When the engineer saw this group of passengers leaving the station for the purpose of going to the south side of the track to take what they supposed was the local accommodation train which he knew was following his train, and when he knew, as he admits, that they were going to cross the tracks, they were from that moment in the danger zone, the duty then devolved upon him to do everything that he could reasonably do to either stop or slow up his train so as to prevent the accident. As there was evidence tending to show that he failed in this duty, we think the case was properly admitted to the jury under the last chance rule."

It should be noted that the court further says "there was evidence tending to show that the speed of the train was not slackened until after the deceased was struck." From whence this evidence comes the court does not enlighten us in the opinion. Under our rule we take the evidentiary facts in the opinion for the facts in the case, and we shall follow that rule in this case.' Curiosity, however, prompted us to read the record in the Court of Appeals, and it there appears that the woman just ahead of the deceased looked up at the approaching train twice, and saw that it was coining very fast and was not slackening its speed. She was the leading witness for plaintiff. By other persons who were on the south side of the tracks awaiting this local train, it was shown that the speed of the train was not slackened, and that, by the time the train covered half of the clear distance between the curve and the depot, they discovered that it was not...