Sublett v. Terminal Railroad Association of St. Louis
| Decision Date | 08 April 1927 |
| Docket Number | 26587 |
| Citation | 294 S.W. 718,316 Mo. 1082 |
| Parties | Florence Sublett v. Terminal Railroad Association of St. Louis, Appellant |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied May 23, 1927.
Appeal from Circuit Court of City of St. Louis; Hon. H. A Rosskopf, Judge.
Affirmed.
J L. Howell and R. C. Beckett for appellant.
(1) None of the defendant's employees saw Sublett in a position of peril, and as they were then situated none of them could have seen him, in the exercise of ordinary care in time to have prevented the accident. The humanitarian doctrine deals only with the actual facts of a present situation, and has no concern with the question of what might have been done under different conditions. Grout v. Ry. Co., 125 Mo.App. 552; Henson v. Ry. Co., 301 Mo. 415; Griffin v. Transfer Co., 193 S.W. 810; McGee v. Railroad Co., 214 Mo. 530. (2) As to section hands and other employees engaged in working about the tracks, the defendant had a right to expect a clear track and to rely upon the presumption of a clear track, and that these workmen must and would take care of themselves, and the defendant, therefore, was under no duty to be on the lookout for such persons. Rashall v. Railway Co., 249 Mo. 509; Lusk v. Ellison, 271 Mo. 468; Gabal v. Railroad Co., 251 Mo. 257; Woods v. Railroad Co., 187 S.W. 12; Van Dyke v. Railroad Co., 230 Mo. 282; Degonia v. Railroad, 224 Mo. 587; Kirkland v. Bixby, 282 Mo. 462; Hunt v. Railroad, 303 Mo. 107; Brockschmidt v. Ry. Co., 205 Mo. 435; Bruce v. Railroad Co., 271 Mo. 762; Nivert v. Railroad Co., 232 Mo. 626; Clancy v. Railroad Co., 192 Mo. 615; Taylor v. Railroad Co., 86 Mo. 457. (3) The foregoing rule is exactly the same with reference to other employees whose duties require them to work on or around tracks or to cross tracks. Rashall v. Ry. Co., 249 Mo. 468; Bruce v. Railroad Co., 271 Mo. 762; Taylor v. Railroad Co., 86 Mo. 457. (4) The rule is exactly the same with reference to workmen not employed by the defendant whose duties require them to work on or around railroad tracks, or to cross such tracks in railroad yards or terminal stations. Bruce v. Railroad Co., 271 Mo. 762; Brockschmidt v. Ry. Co., 205 Mo. 435; Van Dyke v. Railroad Co., 230 Mo. 282; Clancy v. Railroad Co., 192 Mo. 615; Taylor v. Railroad Co., 86 Mo. 457.
W. H. Douglass for respondent.
(1) The defendant is in no position to complain of the action of the court in submitting this case to the jury on the theory that by the exercise of ordinary care, its employees could have seen plaintiff in a position of danger in time to have stopped the cars or checked their speed or given timely and adequate warning to decedent of the approach of said cars, for the reason that the defendant in its instruction used this identical language and, therefore, it joined with plaintiff in submitting this issue, and it cannot complain of error which it invited. Lange v. Mo. Pac. Ry. Co., 208 Mo. 475; Simpson v. Wells, 292 Mo. 229; Phillips v. Railway Co., 226 S.W. 886, a case just like this; Kame v. Railroad, 254 Mo. 196; Taylor & Son Brick Co. v. Railroad, 213 Mo. 729; Hiltz v. Railroad, 101 Mo. 36; Gordon v. Park, 219 Mo. 611; Black v. Railroad, 172 Mo. 187; Olfermann v. Railroad, 125 Mo. 415; Heigold v. Railroad, 271 S.W. 776. (2) The facts in this case distinguish it from the cases cited by respondent with reference to the duty of trackmen, section-hands and switchmen working in a yard, and bring it within the rule laid down in the following cases where persons are to be expected at a particular point on the track. State ex rel. v. Trimble, 304 Mo. 533; Aleckson v. Railroad, 213 S.W. 894; Jetter v. Railroad, 193 S.W. 956; Walker v. Railroad, 193 Mo.App. 249; Brimier v. Railroad, 211 Mo.App. 47; 3 Elliott on Railroads, 899 and 900, secs. 1808-1809; Hubbard v. Railroad, 193 S.W. 579. (3) This case was before this court on a former appeal where the evidence was the same as in this case, and the questions raised by appellant were passed on in that opinion, and are not open for review. Sublett v. Railroad, 267 S.W. 622; Trust Co. v. Bagley, 275 Mo. 540; Railroad v. Bridge Co., 215 Mo. 286; Railroad v. Surety Co., 291 Mo. 92, 108; Tetweiler v. Railroad, 242 Mo. 178.
White, J. All concur, except Gantt, J., not sitting.
The plaintiff obtained judgment in the Circuit Court of the City of Saint Louis at the October term, 1921 for $ 10,000 damages on account of the death of her husband, alleged to have been due to the negligence of the appellant. This is the second appeal of this case. The first judgment was reversed. [Sublett v. Terminal Company, 267 S.W. 622.] The second trial resulted in a verdict for plaintiff, followed by this appeal. The case on the present appeal has been argued once in Division One of this court, and twice in Court en Banc. It comes to me on reassignment after the second argument, because of the expiration of the term of the judge to whom it was originally assigned.
Lindsay Sublett, husband of the plaintiff was an employee of the American Express Company. His duties were to load express matter on cars which stood on defendant's tracks under the shed of the Union Station at St. Louis. While in the performance of those duties he was killed September 17, 1920.
The shed of Union Station was about six hundred feet long from north to south. Thirty-two railroad tracks run into that shed from the south. These railroad tracks were arranged in pairs numbered from the west. One and two constituted a pair, three and four a pair, and so on. Between the pairs of tracks were platforms about 15 feet wide extending the length of the shed from north to south. Between the inner rails of each pair of tracks was a space about 7 1/3 feet wide.
The loading of cars was generally done from platforms between the pairs of tracks. Sublett was killed while standing between tracks five and six, which were a pair. The express matter, loaded, on to the cars, was taken from the west side of the shed and carried across the several tracks to the car for which it was intended. A cross walk extended from the west across tracks 1, 2, 3, 4, 5, 6, 7, and 8. This cross walk, sometimes called the old mail-truck way, was 46 feet wide. Mail and express matter were carried by truck and otherwise on this cross walk as far as track 9.
On the morning mentioned, about 8:30, Sublett carried a box of celery on his shoulder from the west along this old truck way to a baggage car standing on track six. This car extended about half its length from the north on to the truck way, leaving sufficient room at the south ends for trucks or persons to pass around. The proper method for the plaintiff was to pass around the end and approach the car door on the east side where he could hand in his box of celery. Instead of that he came up to a door of the car on the west side, standing between tracks five and six, and knocked on the door of the car to attract the attention of the man on the inside of the car. While in that position, two cars pushed by an engine from the south came in on track 5, across the old truck way. Sublett was standing about two feet from the north side of the truck way, with the box of celery on his right shoulder. It was described as weighing about 15 pounds, and as being about 14 by 20 inches in dimension. It seems it was such as to obscure his view to the right from which the car came. He was struck and killed. The facts are much more fully set out in the case at the former hearing of Sublett v. Terminal Railroad Assn., 267 S.W. 622.
The defendant demurred to the evidence at the close of the case and error is assigned to the overruling of that demurrer. Further error is assigned also to the giving of an instuction. The case was submitted to the jury on the humanitarian doctrine. At the former hearing of the case this court held that the evidence was sufficient to submit the issues to the jury on that theory.
I. The defendant first complains of an instruction authorizing a recovery, not only if the operators of the train saw Sublett in a position of peril in time to have prevented injury which caused his death, but if, by the exercise of ordinary care, such employees 'could have seen the deceased in a place of danger, if so, of being struck by the cars in time by the exercise of ordinary care to have stopped the cars or checked their speed or give deceased timely warning of the approach of the said car and thereby avoided any injury to the deceased, yet failed and neglected to do so," etc.
It is argued that the section-hand rule should apply; that it was the duty of Sublett, in the employment in which he was engaged, to look out for himself, knowing that trains were always entering on those tracks and therefore the operatives of the trains had a right to expect a clear track. Appellant cites Bruce v. Missouri Pacific Railroad, 271 S.W. 762, as authority for that construction upon this very situation. In that case, however, the accident occurred outside the shed among the railroad tracks, where no passway was provided. Here there was a broad cross walk for the use of persons operating trucks and loading express matter on the cars. It was said that as many as a hundred persons crossed the tracks on that walk in one morning, although only two or three persons would be passing at one time. From the evidence, the employees of the defendant appeared to recognize their duty to look out for persons crossing the tracks on that cross walk. It didn't extend across all the tracks in the yard, but only across eight of the tracks; for that limited space the employees operating the train in this particular case indicated that it was their duty to watch out for persons crossing.
Mr Perry, Passenger Trainmaster, witness for the defendant,...
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