Tavis v. Bush

• Decision Date: 06 January 1920
• Docket Number: No. 20559.,20559.
• Citation: 280 Mo. 383,217 S.W. 274
• Parties: TAVIS v. BUSH.
• Court: Missouri Supreme Court

217 S.W. 274

280 Mo. 383

TAVIS v. BUSH.

No. 20559.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by Callie Tavis against Benjamin F. Bush, receiver of the Missouri Pacific Railway Company. Verdict and judgment for plaintiff, motions for a new trial and in arrest of judgment overruled, and defendant appeals. Reversed and remanded for a new trial.

This is an action for damages brought by plaintiff to the Jackson county circuit court, and was tried therein at the regular May term, 1917, of said court. The trial resulted in a verdict for plaintiff, upon, which judgment was duly rendered by the court. Within the statutory period appellant duly filed its motion for new trial and to arrest the judgment, and on the 30th day of June, 1917, the same being one of the judicial days of said term, the court overruled each of said motions; exceptions to this action of the court were taken, and thereupon the case was duly appealed to this court.

This is a crossing case, and the facts material and necessary to an understanding of them and of the issues involved are substantially as follows:

Respondent is the widow (and during his lifetime the wife) of John W. Tavis. Appellant owned and was operating a railroad, which extends at the place in question a little north of east and a little south of west.

The accident happened on a bright sunshiny day, at an unincorporated village named Dodson, at the crossing of the public road over the railroad. This public road was smooth-surfaced, with a slight elevation as the track was approached, and crossed the same at grade, and crossed the track substantially at right angles from east to west. There was an automatic signal bell near the crossing and a few feet east of the track. Barrett's store and Hurley's Lumber Company buildings are situated on opposite sides of the track. Barrett's store building at its nearest point is 80 or 90 feet from said crossing. On the day of the accident deceased was driving a large motor truck and engaged in delivering bread for a Kansas City concern, and had stopped at said store, where he transacted some business and then got into his truck and started toward the crossing at an estimated speed of 3 miles an hour. At the same time appellant was operating a train, which was approaching the same crossing at a speed of 20 miles an hour. When deceased had traveled approximately one-half the distance between Barrett's store and the crossing, about 40 or 45 feet, he slowed his truck without stopping, to allow a frightened team hitched to a wagon to pass, and to which his attention was apparently directed. On the opposite side of the crossing was a disabled motortruck at the edge of the road deceased was traveling, which parties were trying to extricate from its predicament, and apparently deceased's attention was directed to this after passing the wagon and team. All of the witnesses agree that when deceased was 80 or 90 feet from the crossing the on-coming train was from 400 to 600 feet distant from said crossing, and that there was nothing that interfered with the vision of either party. The fireman, E. E. Hart, testified as follows:

"Q. Did you have your eye on the lookout on the left-hand side of the engine from that time until you got up to the road crossing? A. Yes, sir. Q. I wish you would tell the jury what you saw up there at the road crossing, and when you first saw the automobile, and how it was moving up to the time of the collision. Just tell them about it. A. When we got around the curve there that store was in my line of vision, when we got around the curve there the store would be in my line of vision, and I seen an autotruck; it looked to rue like it just started, moving very slowly, and it moved along slowly, I should say 5 or 6 miles an hour, about that, up until it got within 15 feet or such a matter of the side track that crosses Prospect avenue, and all of that time I supposed the autotruck seen the train and was going to stop, but when he got within about 15 feet of that track his speed increased, and I realized then that he had not seen us or was trying to beat us across, and I yelled to the engineer, `We are going to hit that fellow!' and he applied the brakes in emergency, and by that we hit him."

On cross-examination he testified as follows:

"Q. When did you first see this man? A. When we commenced to swing around the curve; when the engine swung around so the boiler would throw him in my line of vision on the curve. Q. Now, at that time, how far was he from the track? A. He was just leaving the store; he was about 79 feet from the crossing. Q. You saw this man approaching the track 79 feet from the track? A. Yes, sir. Q. At that time you were on the curve? A. Yes, sir. Q. He came forward slowly? A. Yes, sir. Q. You say the truck was going slowly? A. Yes, sir. Q. And that it reached a point about 15 feet from the passing track and then practically stopped? A. Yes, sir. Q. How far is the passing track from the main track? A. Fourteen feet, I believe. Q. How wide is the track? A. Four feet and 8 inches. Q. That makes 18 feet and 8 inches. A. Yes, sir. Q. And the man was still 15 feet beyond that? A. Yes, sir. Q. That makes about 29½ feet that this man was from the track when you saw him start forward? A. Yes, sir. Q. At that time you knew he did not hear— A. (interrupting) Yes, sir. Q. You knew he didn't know your train was coming; isn't that true? A. That is true. Q. Did you then sound the whistle to notify him, when you knew he didn't know you were coming? A. No, sir."

This witness who testified supra that when the truck started up it did so at a speed of 5 or 6 miles an hour, also testified that the train was running 25 or 30 miles an hour. The case was submitted to the jury on the humanitarian doctrine alone.

Edw. J. White, of St. Louis, and Thos. Hackney, of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

MOZLEY, C. (after stating the facts as above).

1. It is strongly insisted by appellant that the facts of the record fall far short of making out a prima facia case under the humanitarian rule, and that the court erred in not giving its peremptory instruction in the nature of a demurrer, directing the jury to return a verdict for defendant.

Under this asssignment, the question confronting us is, Does the record contain substantial testimony tending to show that the operatives of the train were derelict in not using"that degree of care the circumstances imposed upon them? If so, the assignment cannot be disposed of as a law question, but should be submitted to the jury as a question of fact. "The degree of care" imposed under the humanitarian rule "is always commensurate with the degree of danger. The engineer's field of observation to avoid danger is as wide as the field which the danger he creates covers." Holmes v. Missouri Pacific Railway, 207 Mo. 149, 105 S. W. 624.

This is not a case where the traveler stepped suddenly on the track in front of the train so closely that his injury could not be avoided in the exercise of ordinary care by the operatives of the train, or one where the injured party was negligently driving a vehicle on the track, and there was no evidence that he could have been seen in time to avoid the injury, nor is it one where there is nothing to indicate obliviousness to danger. But it is one in which all of the physical facts, as well as the testimony of appellant's fireman, show that, when he was 500 feet distant from the crossing, he saw deceased approaching it at a speed of 5 or 6 miles an hour, and admittedly knew that he was oblivious of the fact that the...