Thompson v. Quincy, O. & K. C. R. Co.

• Decision Date: 05 April 1929
• Docket Number: No. 27557.,27557.
• Court: Missouri Supreme Court
• Parties: THOMPSON v. QUINCY, O. & K. C. R. CO.

18 S.W.2d 401

THOMPSON v. QUINCY, O. & K. C. R. CO.

No. 27557.

Supreme Court of Missouri, Division No. 2.

April 5, 1929.

Rehearing Overruled June 4, 1929.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Action by Charles D. Thompson against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

M. D. Campbell, of Kirksville, and J. G. Trimble and H. J. Nelson, both of St. Joseph, for appellant.

Elmer O. Jones, La Plata, and Philip J. Fowler and Higbee & Mills, all of Kirksville, for respondent.

DAVIS, C.

This is an action for damages for personal injuries sustained by plaintiff, while traversing defendant's tracks, by reason of being struck by one of its passenger trains. The petition is based on the humanitarian doctrine. The jury returned a verdict for $24,000, and defendant appealed from the judgment entered thereon.

The evidence adduced for plaintiff warrants the finding that defendant maintained and operated a railroad through the northern part of the city of Kirksville. The tracks thereof lay east and west. Osteopathy avenue runs north and south across the tracks. Two side tracks run from the main track. One side track begins about two blocks to the west, and extends to the eastern edge of Osteopathy avenue. The other side track runs from a point about 225 feet east of Osteopathy avenue westwardly across the avenue to a packing house. The center track is the main-line track, with a side track on the north and a side track on the south. The main-line track and right of way had for years been used as a footpath for pedestrians, day and night, and paths were well defined and worn between the rails and along the sides.

Plaintiff, who was 73 years of age at the time of his injuries, on September 21, 1921, was out for a walk, and had proceeded along defendant's tracks to a point about a quarter of a mile west of Osteopathy avenue. He then retraced his steps along the tracks to a point about 200 feet east of Osteopathy avenue, and was on the north side track when he heard the passenger train that struck him whistle. On looking around, he observed the train, coming east, about a quarter of a mile to the west of Osteopathy avenue. Believing that he was then on the main track, when in fact he was on the north side track, he proceeded with his head down and with his back to the train to the southeast for about 30 feet to the south side of the main track, which he believed to be a side track. He halted on the tracks at a point about 225 feet east of Osteopathy avenue, with one foot on the end of a tie and the other on the south rail of the main track, facing east with his back to the approaching train, thus standing until the train struck him. According to one witness, the train was traveling just before it struck plaintiff 15 miles an hour, and another said it was running 20 miles an hour as it came up. The engine, the front thereof, stopped at a point 275 to 325 feet east of the point where plaintiff was struck. Osteopathy avenue is 60 feet wide. There was evidence that the train running at 20 miles an hour could be stopped in 250 feet, and at 7 miles an hour in 75 feet or less. Subsequent to the first or crossing whistle, he heard no other whistle or signal; nor was the bell heard. Plaintiff first saw the train a quarter of a mile to the west. A witness observed the fireman sitting on his seat box on the north side of the cab, facing the east. At about the time the train struck plaintiff, or within 10 feet of him, the brakes were heard applied. The fireman could have seen plaintiff at the point where he was struck at a distance of about a quarter of a mile, and the engineer at a distance of 280 feet. When a witness, 75 feet north of the Osteopathy crossing, observed plaintiff, walking within a step or two of the main track and towards it, the train was 600 feet west of him. The main track curved to the northwest.

Defendant's evidence tends to show that plaintiff stepped across the main track and stopped on the track in front of the approaching train, but the distance the train was then from him is not definitely shown by the evidence. The most definite evidence was that it was close. The engineer of the train died about 3 years previous to the trial, and before suit was filed, but his reputation was that of a good engineer and a good man.

The engineer sat on the right side of the engine. Due to the curve and the roll of the engine, his range of vision was somewhat limited. At times he could not see the righthand rail in front of the engine. On the occasion in question, the rail weighed 60 pounds to the yard. Later on, defendant laid a rail weighing 90 pounds to the yard. The fireman sat on the left side of the engine, and, due to his position, he had a clear view of the track for some distance, except the south rail immediately in front of the traveling engine. On this occasion the fireman was in his seat, facing forward, ringing the bell by hand. On approaching Osteopathy avenue, he saw two men walking down the side track in the clear. After that he looked ahead toward the street crossing, and knew nothing about hitting any one. He saw no one on the main track, and did not see plaintiff cross over.

Defendant made tests to determine the distance in which a train could be stopped. The test showed that a train running 15 miles an hour, 17 miles an hour, and 25 miles an hour, could be stopped in 317 feet, 472 feet, and 813 feet, respectively. At 15 miles an hour and 20 miles an hour, a train moves 22 feet and 29 1/3 feet per second, respectively. Other salient facts, if any, will be found in the opinion.

I. Defendant contends that the court should have instructed the jury to find for it, because the facts do not develop a submissible case. Five grounds for the contention are urged: First, the petition does not authorize a recovery on the humanitarian doctrine; second, the proximate cause of his injury was his advent into the danger zone when he knew the train was approaching, developing continuity of negligence until he was struck; third, after he was seen or could have been seen, the evidence fails to show the train could have been stopped; fourth, the evidence, as to the distance of the train from him when he stopped and stood on the main track, and the opportunity of the enginemen to see him, coupled with their ability to stop the train, was vague, indefinite, and uncertain; fifth, obliviousness cannot be predicated on the facts submitted.

(a) We have no hesitancy in reaching the conclusion that the petition was sufficient to invoke the humanitarian doctrine. It avers that defendant carelessly and negligently failed to stop said train or check the speed thereof, when they knew, or by the exercise of ordinary care and diligence could and should have known, that plaintiff was in a position of peril, and was oblivious to the approach of said train, and that, had defendant given any warning of the approach of said train by sounding the whistle or bell, plaintiff could have extricated himself from said dangerous and perilous position. Obliviousness, however, is not a required averment. Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482.

(b) As the other four grounds are interrelated, it is advisable to thus treat them. The facts develop that plaintiff was using the right of way of defendant as a passway, with the knowledge and implied consent of defendant, as shown by the continuous user thereof by people, resulting that defendant should have anticipated and expected foot travelers and the general public thereon, thus casting the engineer and fireman with the duty of using reasonable care to watch and observe the tracks in front of them. Scott v. Davis (Mo. App.) 270 S. W. 433. Plaintiff was on the tracks in front of, and in view of, the engineer and fireman, and, in view of the evidence in that regard, the jury were authorized to draw an inference from it that defendant had constructive notice, at least, that plaintiff's situation on the tracks was perilous. It is said, however, that plaintiff failed to offer a lawful excuse for remaining in the danger zone without again looking, so that his negligence was continuous, and the proximate cause of his injury. However, a plaintiff's negligence is not a defense to a cause of action based on the humanitarian doctrine, for, notwithstanding his negligence, the liability of defendant is predicated on the perilous situation of plaintiff and the ability of defendant, exercising ordinary care, to stop the vehicle before striking the plaintiff with it, after he was seen, or by the exercise of ordinary care could have been seen. With these elements present, the proximate cause of the injury was the failure to stop the train, and recovery may be had, notwithstanding plaintiff's failure to exercise ordinary care for his own safety.

In this connection, according to defendant's witness Shirley, it required four seconds for plaintiff to walk from the side track to the position where he was struck on the main track. According to plaintiff's evidence, he reached the danger zone when he was within a step or two of the track, and proceeding toward it, and at that time the train was at least 600 feet from the place where he was struck. Even if he did not reach the danger zone until he stopped on the track at the place he was struck, according to witness Beatty's testimony, the train was then 335 feet or more away, for plaintiff was 225 feet east of Osteopathy avenue, the avenue was 60 feet wide, and the train was 50 feet or more west of the west line thereof. According to plaintiff's evidence, the train could have been stopped in 250 feet, while defendant's evidence shows that, running at 15 miles an hour, which the evidence most favorable to plaintiff shows the train was traveling, it could have been stopped in 317 feet. Moreover, the evidence tends to show that it was...