State v. Trimble

Decision Date04 March 1924
Docket NumberNo. 24879.,24879.
PartiesSTATE ex rel. WABASH RY. CO. et al. v. TRIMBLE et al.
CourtMissouri Supreme Court

Certiorari to Kansas City Court of Appeals.

Certiorari by the State of Missouri, on the relation of the Wabash Railway Company and Sid Briggs, against Francis H. Trimble and others, Judges"of Kansas City Court of Appeals, and Elizabeth Koontz. Writ quashed.

For opinion below, see 253 S. W. 413.

Homer Hall, of St. Louis, and Wm. Paul Pinkerton and Sebree, Jost & Sebree, all of Kansas City, for relators.

John C. Grover and E. M. Tipton, both of Kansas City, for respondents.

HIGBEE, C.

Certiorari to review the record of the Kansas City Court of Appeals in Elizabeth Koontz v. Wabash Railway Co., 253 S. W. 413, affirming a judgment in favor of the plaintiff therein for $6,000 for personal injuries. The facts are thus stated in the opinion of the Court of Appeals:

"The facts shown by the record are that on the morning of June 14, 1920, plaintiff, a woman under 30 years of age, was on her way to the station of defendant in Macon, Mo., where she was to take a south-bound train, due to leave about 10:30. The station, located on the west side of the Wabash tracks and south of Union street (a street running east and west), was five blocks southwest of plaintiff's home. Plaintiff's husband had preceded her to the station to purchase her ticket and check her baggage.

"Plaintiff left her home to go to the station at about 10:10 a. m., and was somewhat delayed on her way in telling some neighbors good-bye and in getting her mail at the post office. While at the home of one of said neighbors she called defendant's station agent on the telephone, and was told that the train was on time. After securing her mail she went north to the intersection of Duff and Union streets, which is a short block east of the point where the Wabash track crosses Union street. On her way she said good-bye to another friend, a Mrs. Van Cleve, and hurried on past her by running and walking fast. Plaintiff was on the south side of Union street, and going west. Union street is paved, and on the south side thereof a brick sidewalk extends to a point a few feet east of the railroad right of way. To travel west from that point on the extended line of the sidewalk one would be required to cross a ditch and pass over some brush. So there is a path from the place where the walk ends leading in a northwesterly direction to the paved portion of the street. In approaching the station pedestrians on the south side of Union street usually follow the sidewalk to its end, and then pursue the path to the paved portion of the street. The sidewalk on the north side of Union street is of concrete, and pedestrians using that walk cross the railroad tracks and then turn south to the station. Persons using the sidewalk on the south side of said street, after reaching a point about thirty feet east of the east rail of the railroad track, turn southwest and use a pathway leading diagonally toward the station platform and generally parallel with the railroad track. The tracks are about six feet higher than the east line of the right of way at Union street, thus making a steep incline going west.

"At about the time plaintiff reached the said point twenty-five or thirty feet east of the track, Mrs. Van Cleve, who was some distance behind her, saw the engine of the train about to cross Washington street, the first street north of Union, and called to plaintiff, who glanced down over her right shoulder in the direction of Mrs. Van Cleve, but did not see her, and kept on running toward the station. Plaintiff, at the time, was wearing a hat that somewhat obscured her face and vision. When she reached a point about fifteen feet from the track she passed south of Dr. J. E. Smith, who was in the paved part of the street, walking in a northwest direction. His attention was attracted to plaintiff by her running, but he did not stop. He turned his head again to the northwest, and for the first time saw the on-coming train, which was then about fifty to sixty feet north of plaintiff, who by this time was about three or four feet east of the east rail of the track. The testimony tends to show that no bell was rung, no whistle blown, or other warning given of the approaching train. The train was running at a speed estimated at five or six miles per hour, and when plaintiff was midway between the rails of the track, or in the act of stepping over the west rail thereof, she was struck by the engine, knocked down in front of it, and rolled over for a distance of about fifty feet, finally landing parallel with the track, where she lay between the west rail and the station platform. At the time of the collision plaintiff's husband was standing on the steps of the old passenger coach which at that time was serving as a station. He ran to plaintiff's aid, and held her head down while part of the train which protruded over the rail passed over her and then came to a stop.

"The testimony of plaintiff is that she did not see nor hear the train, and did not know it was coming. Plaintiff was rendered unconscious, and was taken to her home in an ambulance. While being so conveyed she regained her senses for a short time, and then relapsed into unconsciousness.

"The action is based upon the humanitarian rule, and, while other acts of negligence were charged in the petition, all seem to have been abandoned during the progress of the case, and the cause was submitted under the humanitarian or last clear chance rule. The negligence pleaded, in so far as it applies this rule, is as follows: `laintiff says that while approaching said track she was oblivious of danger, and the servants of the defendant * * * saw or could have seen and observed her position of peril in time to have exercised ordinary care by ringing the bell, sounding the whistle, or slackening the speed, or to have stopped the train, and thus prevented striking and injuring plaintiff which they failed to do, but that said servants of the defendant the Wabash Railway Company and the defendant Sid Briggs carelessly and negligently failed to exercise ordinary care to prevent injuring plaintiff after such discovery,' etc."

Sid Briggs was the engineer in charge of the engine at the time of the accident. The answer is a general denial, coupled with a plea of contributory negligence.

1. It is contended by the relator that the opinion of the Court of Appeals does violence to the humanitarian doctrine as announced by this court; that to make a case under that rule the plaintiff must be in the danger zone, oblivious to her peril, and her obliviousness must have been apparent to the enginemen, citing Keele v. Railroad, 258 Mo. 62, 167 S. W. 433; Reeves v. Railroad, 251 Mo. 169, 158 S. W. 2; Boyd v. Railroad, 105 Mo. 371, 16 S. W..909; State ex rel. v. Reynolds, 286 Mo. 204, 226 S. W. 564; Id., 2S9 Mo. 479, 233 S. W. 219; and Lackey v. United Ry. Co., 288 Mo. 120, 231 S. W. 956.

In these cases the persons killed approached the railroad track at about right angles, with nothing to obstruct the view of the approaching train. In the Keele Case, 258 Mo. loc. cit. 79, 167 S. W. 438, Chief Justice Lamm said:

"The duty to use care to avoid injury on the hypothesis discussed in paragraph 2 arises only on discovery of peril, or on negligence in discovering it when there is a duty to keep an outlook and make discovery of the peril. In either hypothesis it is essential to note that there must be peril, a danger zone. To illustrate, one standing on the track at a crossing is in the danger zone. One, a child, non sui juris, approaching the track and able to reach it before the engine, is in the danger zone by virtue of being non sui juris. One driving on a track is in the danger zone when his horses approach so close, or at such a gait, as to show a present intention to cross. But a person sui juris approaching a railroad track at a crossing, at an ordinary gait on foot at right angles to the track or angling toward the engine and in complete control of his own movement, is not in the danger zone until he takes the last few fatal steps, or, oblivious to his danger, does such things as fairly indicate a present intention to take them. The danger zone on such hypothesis is narrow indeed—a step or two or three at most. We have uniformly ruled that the engineer seeing such a person approaching the track on foot in an ordinary walk may act on the presumption the person will stop before stepping thereon immediately before his engine. He has right to rely in the first instance on such person looking and listening, and, where looking is seeing and listening is hearing, he has a right to presume such person knows the peril and will stop."

See citations from other cases in Beal v. St, Louis & San Francisco Ry. Co. (Mo. Sup.) 256 S. W. 733.

2. The facts, however, in the Koontz Case clearly distinguish it from the cases relied on by relator. Mrs. Koontz did not approach the railroad crossing at right angles, nor was the train approaching from the north within the range of her vision. It was apparent that she was hurrying or running to the station. Athough she had been advised that the train was on time, she neither saw nor heard it. No signals were given by bell or whistle. When she reached a point 25 or 30 feet from the railroad track, she turned southward and ran along a path parallel with the rails, with her back to the train. When she was 3 or 4 feet east of the rails the train was 50 or 60 feet north of her and running 5 or 6 miles an hour. When she was between the rails or in the act of stepping over the west rail, she was struck by the engine, knocked down in front of it, and rolled over for a distance of about 50 feet, finally landing parallel with the track, where she lay between the rail and the station platform. How far she ran on this path before being struck is...

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