The State ex rel. St. Louis - San Francisco Railway Company v. Reynolds

• Decision Date: 22 July 1921
• Citation: 233 S.W. 219,289 Mo. 479
• Parties: THE STATE ex rel. ST. LOUIS - SAN FRANCISCO RAILWAY COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

233 S.W. 219

289 Mo. 479

THE STATE ex rel. ST. LOUIS - SAN FRANCISCO RAILWAY COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

July 22, 1921

Writ quashed.

W. F Evans, E. T. Miller, and A. P. Stewart for relator.

(1) The ruling of the Court of Appeals that, although deceased, who was sui juris, knew the train was approaching, yet, since the engineer testified that when his train was a quarter of a mile distant he saw a group of persons leaving the depot and knew they intended to cross the track, they were from that moment in the danger zone, and it was his duty at that time to stop or slow up his train so as to prevent the accident and that as there was evidence tending to show that he failed in this duty, the humanitarian doctrine applied, contravenes the ruling of this Court in the following cases: Kinlen v. Ry., 216 Mo. 145, 164; Pope v. Railroad, 242 Mo. 232, 239; Reeves v. Railroad, 251 Mo. 169, 177; Keele v. Ry., 258 Mo. 67, 78; Guthrie v Railroad, 204 S.W. 185; Moore v. Ry., 176 Mo 528, 544; Eppstein v. Ry., 197 Mo. 720, 733, par. (a); Boyd v. Ry., 105 Mo. 371, 379; Moody v. Railroad, 68 Mo. 470, 473; Laun v. Railroad, 216 Mo. 563, 580; Holland v. Ry., 210 Mo. 338, 351. (2) The ruling of the Court of Appeals that, since the engineer admitted that he knew the group of persons were going to cross the track from the time they left the depot building, and when the train was a quarter of a mile distant, he was not entitled to presume that persons who were sui juris, as was deceased, and who knew that the train was approaching, would not step from a place of safety into one of peril, or that deceased would stop and permit the train to pass, but that he was required at that time to make every effort to stop or slacken the speed of the train so as to prevent the collision, contravenes the rulings of this court in the following cases: Keele v. Ry., 258 Mo. 62, 79; Markowitz v. Ry., 186 Mo. 350, 358; Moore v. Ry., 176 Mo. 528, 546; Guyer v. Ry., 174 Mo. 344, 350; Van Bach v. Ry., 171 Mo. 338, 347; Boyd v. Ry., 105 Mo. 371, 380; Tanner v. Ry., 161 Mo. 497, 512; Reardon v. Ry., 114 Mo. 384, 405; Pope v. Railroad, 242 Mo. 232, 240. (3) The petition and plaintiff's main instruction being directly referred to in the opinion of the Court of Appeals, they become a part of the opinion for purposes of this review, and may be examined by this court. State ex rel. v. Ellison, 220 S.W. 498; State ex rel. v. Ellison, 176 S.W. 11. (4) The ruling of the Court of Appeals approving the main instruction given at the instance of plaintiff, which submitted the case on the theory of the humanitarian doctrine, but omitted to require a finding that deceased was oblivious to the impending danger as a predicate to a verdict for plaintiff, and holding it not to be reversible error to omit the element of obliviousness from said instruction, is contrary to the rulings of this court in the following cases: Kinlen v. Railroad, 216 Mo. 145, 164; Pope v. Railroad, 242 Mo. 232, 239.

Perry Post Taylor, Emil Mayer and Ben L. Shifrin for respondents.

(1) We contend that to hold that the plaintiff made no case under the humanitarian rule would contravene controlling decisions of this court in the following cases: Maginnis v. Ry., 268 Mo. 667, 671, 678; Ellis v. Ry., 234 Mo. 657, 673, 680; Holmes v. Ry., 207 Mo. 149, 163; Holden v. Ry., 177 Mo. 456, 468; Tavis v. Bush, 217 S.W. 274. (2) There was good reason for the Court of Appeals to affirm the judgment of the circuit court; hence, such action should be upheld here. State ex rel. v. Reynolds, 270 Mo. 589, 601.

GRAVES, J. Walker J., dissents in opinion filed; J. T. Blair, C. J., concurs in result.

OPINION

In Banc.

Certiorari.

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 Company, 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 6, 1917, plaintiff's wife was struck and killed by one of defendant's eastbound through-passenger trains at Shrewsbury Station, St. Louis County. Hence arose this action for damages under the Compensatory Death Act (Sec. 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 east 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. Westbound 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 Shewsbury Station at 9:46 a. m. This train was late. About ten o'clock a through-passenger train, not scheduled to stop at this station and running several hours late and at the rate of forty-five miles per hour, rounded the curve one-half mile to the west of the station and proceeded eastward on the south or east-bound track on a down grade of about sixty 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 east-bound 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 nine coaches was running on about the time of the local train which was passed by his train at Valley Park, twelve miles to the west; that as he approached the station traveling forty-five miles per hour and when about one-quarter of a mile (1320 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 stopped within the 1320 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 on-coming 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 accomodation 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...