Sullivan v. Gideon & North Island Railroad Company

• Decision Date: 13 April 1925
• Docket Number: 24742
• Citation: 271 S.W. 983,308 Mo. 48
• Parties: SAMANTHA SULLIVAN v. GIDEON & NORTH ISLAND RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

271 S.W. 983

308 Mo. 48

SAMANTHA SULLIVAN v. GIDEON & NORTH ISLAND RAILROAD COMPANY, Appellant

No. 24742

Supreme Court of Missouri

April 13, 1925

Transferred from Springfield Court of Appeals.

Reversed.

Gallivan & Finch for appellant.

(1) The deceased having walked from a place of safety onto the railroad track and in front of a moving train without looking or listening, in the daytime, when the view was unobstructed while he traveled for a distance of twelve or fifteen feet was guilty of such contributory negligence as bars a recovery, and the court should have sustained defendant's demurrer to the evidence. Burge v. Railroad, 244 Mo. 76; Rollison v. Railroad, 252 Mo. 525; Laun v. Ry. Co., 216 Mo. 563; Underwood v. West, 187 S.W. 84; Keele v. Railroad, 258 Mo. 62; Farris v. Railroad, 167 Mo.App. 392; Blain v. Mo. Pac. Ry. Co., 184 S.W. 1142; Schmidt v. Mo. Pac. Ry. Co., 191 Mo. 215; Green v. Mo. Pac. Ry. Co., 192 Mo. 131; Dyrcz v. Railroad, 238 Mo. 33; Holland v. Railroad, 210 Mo. 338; Mockowik v. Railroad, 196 Mo. 550; Sanguinette v. Railroad, 196 Mo. 466. (2) Where a pedestrian walks in daytime from a place of safety onto a railroad track and immediately in front of a moving train and is struck, there is no grounds for the application of the humanitarian doctrine, even though those in charge of the train were negligent in their operation of the train. Dyrcz v. Railroad, 238 Mo. 33; Burge v. Railroad, 244 Mo. 76; Keele v. Railroad, 258 Mo. 62; Laun v. Railroad, 216 Mo. 563; Reeves v. Railroad, 251 Mo. 169; Rollison v. Railroad, 252 Mo. 525; Farris v. Railroad, 167 Mo.App. 392. (3) No competent testimony having been offered to prove that the train could have been stopped in time to have avoided running over deceased is another reason why no recovery can be had under the humanitarian rule. Burge v. Railroad, 244 Mo. 101.

T. R. R. Ely and George Smith for respondent.

(1) Before the court will hold that the deceased was guilty of contributory negligence the evidence must be such as to permit no other conclusion than that he was negligent, giving the plaintiff the benefit of every reasonable inference that may be drawn from the evidence. Ruenzi v. Payne, 231 S.W. 294; Easley v. Mo. Pac. Ry. Co., 113 Mo. 236; McNown v. Wabash Ry. Co., 55 Mo.App. 585; Carter v. Wabash Ry. Co., 193 Mo.App. 223; Donohue v. Railway, 91 Mo. 357; Kelley v. Railway, 75 Mo. 138. (2) The rule that one approaching a crossing must look both ways or be guilty of contributory negligence as a matter of law is not so unyielding that it must be applied in all its rigor under all circumstances. Baker v. Railroad, 122 Mo. 523; Kennayde v. Railway, 45 Mo. 255; Russell v. Railway, 70 Mo.App. 88; Harshaw v. Railroad, 173 Mo.App. 459; Weller v. Railroad Co., 120 Mo. 635. The measure of precaution to be observed by a traveler depends upon the circumstances and surroundings of that particular case. (3) A person may be so situated as to be disabled, without fault on his part to look or listen for perils by which he may be menaced, his attention may have been distracted to legitimate objects. Contributory negligence will not in all cases be imputed as a matter of law to a person who receives an injury from a danger simply from the fact that it might have been seen. The surrounding circumstances may be such as to distract his attention to other objects. Only after a failure to look and listen can it be said to be negligence as a matter of law. The issue is ordinarily for the jury to determine. 20 R. C. L. 112, 115; 1 Thompson on Negligence, sec. 189; Ruenzi v. Payne, 231 S.W. 294. (4) The humanitarian doctrine applies in this case. If deceased was uninjured until the rear trucks of the front car passed over his body then, under the testimony most favorable to appellant, said train would have had at least one hundred four feet from the time deceased was in a position of peril to have stopped the train. Ruenzi v. Payne, 231 S.W. 294. (5) Competent evidence was offered to prove that the train could have been stopped in time to have avoided running over deceased. Frick v. Ry. Co., 5 Mo.App. 438.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Respondent (plaintiff) sues for the alleged wrongful death of her husband, J. W. Sullivan, arising out of the alleged negligence of appellant (defendant), in the town of Gideon, Missouri, on September 6, 1919. Her petition charges defendant with negligence in these respects: That, on September 6, 1919, as the said J. W. Sullivan was attempting to cross the railroad main track at a public crossing in Gideon from the south, while exercising due care and caution, he was struck by a flat car of defendant, dragged for a long distance, crushed and run over by said car, from the effects of which injuries he immediately died; that the steam engine of defendant was at the time pushing about fifteen small flat cars from the west and that said engine was about four hundred feet west from said public crossing; that defendant was operating said locomotive and train by unskilled and incompetent employees, and that the brakes being used on said train were wholly inadequate to be effective in operating said train; that the front car being so pushed by said engine was the car which struck deceased at said public crossing; that the agents, servants and employees of defendant who were operating said train at the time negligently failed to sound the whistle on said locomotive engine or ring the bell attached to said engine within eighty rods of said public crossing; that defendant had no one at said public crossing, nor on the car that struck deceased, nor anywhere else, to be on the lookout for persons on said railroad, or approaching said railroad, at said public crossing, to give warning or signals of the approaching train; that said flat cars were not over four or five feet high, and did not extend in height above a team and wagon standing by the track; that said cars were coming noiselessly down the track and deceased had no warning of their approach and did not and could not, by the use of ordinary care, have seen or heard said train until he was struck by the same; that said train was upon him before, by the exercise of ordinary care, he could have seen or heard it; that, as said car struck deceased, he grabbed hold of said car and held on to it for a long distance in a perilous position, and, finally, his hold giving way, he was dragged under said train while the same was yet moving and killed by said train; that defendant, by the use of ordinary care, could have discovered the perilous position of deceased in time to have prevented his being run over, if it had had a man on the rear car so backing up, or somewhere else, on the lookout for persons on said railroad track at said public crossing to give signals of warning and danger to such persons, as in duty bound it was required to have had, and by the use of ordinary care it could have stopped said train in time to have prevented the death of said J. W. Sullivan; that the agents, servants and employees in charge of said train which ran over deceased and killed him, saw, or by the exercise of ordinary care could have seen, deceased in a place of danger and peril, in time, by the exercise of ordinary care, to have stopped said train and avoided running over and killing him.

Defendant's answer was a general denial, coupled with the defense that "J. W. Sullivan, by his own negligence, directly contributed to his own death by walking, in broad daylight, from a place of safety onto the railroad track over which defendant operated its trains and immediately in front of a train moving over said track, when if he had either looked or listened he could and would have seen said train and avoided being struck thereby."

No reply is shown upon the record, but the cause was tried as though a reply, denying generally the new matter set up in the answer, had been filed.

The evidence adduced by plaintiff tends to show that the casualty occurred between eight and eight-thirty o'clock on the morning of September 6, 1919, at a point where a public road or street in the town of Gideon crosses the tracks of the St. Louis & San Francisco Railroad Company, jointly used by the latter railroad and defendant company. There are two railroad tracks across this public road, one a main line track, and the other a switch track, running parallel with said main track and immediately south thereof and about twelve feet distant therefrom. The public road runs north and south, and the railroad tracks run east and west, intersecting the public road at approximately a right angle. Deceased was fifty-three or fifty-four years of age, his health was good, and his eyesight and hearing were unimpaired.

Sam J Harris testified: "I was in a coal car loaded with gravel or road material. The street runs north and south as it crosses the railroad. The local train came backing east, and there was a flat car or two ahead, past the car I was in, and I heard the screams of some women, and I seen Mr. Sullivan with his left arm up on top of the flat car. I didn't see the car hit him. He went about fifty or sixty feet, about the length of two cars, in that position before he fell off. I did not see Mr. Sullivan on the track at the time the train was backing up and before he grabbed the car. There was one car of gravel between me and the crossing; one car of gravel right up against the street, and I was in the second car from the street. I never measured it, but I judge the main line track and the switch track at that crossing anywhere from twelve to fifteen feet or eighteen, something like that, apart. There were cars on both sides of the crossing. There is a little feed barn about fifty or sixty feet of the crossing, on the east side. ...