Tuck v. St. Louis-San Francisco Railway Co.

• Decision Date: 26 January 1925
• Parties: MARY A. TUCK, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Respondent. *
• Court: Missouri Court of Appeals

268 S.W. 682

217 Mo.App. 442

MARY A. TUCK, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Respondent. *

Court of Appeals of Missouri, Springfield

January 26, 1925

Appeal from the Circuit Court of Christian County.--Hon. Fred Stewart, Judge.

AFFIRMED.

Judgment affirmed.

L Cunningham, of Bolivar, Sam M. Wear, of Springfield, and Hamlin & Hamlin, of Springfield, for appellant.

(1) The defendant invited the public to patronize train No. 103 and for the accommodation of all parties provided a flag for use. Therefore, it was the duty of the engineer and fireman to keep a lookout, and the train under control in approaching the station. Guenther v. St. Louis, I. M. & S. Railway Co., 95 Mo. 286. This case falls within the rule stated in the case of Kellny v. The Mo. Pac. Railway Co., 101 Mo. 67. (2) It was as much the duty of the railroad employees to look out for the deceased on the track, or near it as it was for him to look out for the train. Kellny v Railway Co., supra, page 78; Eswin v. Railroad, 96 Mo. 290. The question whether the deceased acted imprudently in attempting to stop the train as he did should have been passed upon by the jury in the light of all the facts and circumstances in the case. Kellny v Railway, supra, 78; Kelly v. Railroad, 70 Mo. 604; Smith v. Railroad, 61 Mo. 588; Myer v. Railroad, 40 Mo. 151. (3) The deceased had a right to expect a response to his signals, knowing that fact he was in a position of peril from the time the employees saw, or by the exercise of ordinary care could have seen him and his situation of peril continued until the engine struck him. (4) It was the duty of the engineer to see the road crossing, whistling post, switch stand, station-house, and platform, and he "would be expected to keep the track leading to the depot under his eye" . . . the platform and flag "had been used for a long time, with the tacit acquiescence of the defendant by the people of that community in boarding defendant's train" this custom had prevailed for many years and no attempt was made by the defendant to prevent the continuance. Under the facts in the case "the engineer had no right to expect a clear track, . . . it was the duty of the defendant's servants to use ordinary care to discover the peril of the deceased . . . and under the evidence they saw his peril in ample time to have warned him, the demurrer should have been overruled. Murphy v. Railroad, supra. (5) The employees knew the public had a right to use the platform and tracks at the station, that being true, a duty arose requiring them to look out, "and the liability was not limited to want of care after discovery of the danger." Morgan v. Wabash Railroad Co., 159 Mo. 262-79. (6) It is axiomatic that what one knows and what he ought to know are regarded in law as equivalent. Ellis v. Street Railway, 234 Mo. 657-73. He "must be held to have seen what he could have seen had he been exercising the care required of him by law." Lavine v. Railway Co., 217 S.W. 574-6 citing Ellis v. Railroad, supra. (7) Deceased and the defendant's agent flagged the train when it was about the whistling post, one thousand three hundred twenty-nine feet away, nothing intervened to obstruct vision between the points, yet no effort was made to stop the train or slacken its speed until after it struck the deceased. Those facts show negligence on the part of the defendant and entitled the plaintiff to have the issues submitted to the jury. McQuire v. Chicago & A. R. Co., 288 S.W. 541. The deceased had a right to "presume that the engineer and others of the crew managing the train would use ordinary care to avoid injuring him, and would not move the train upon him in a manner contrary to the usual practice . . . Hulse v. Railway Co., 214 S.W. 150-3; Eckhard v. Transit Co., 190 Mo. 593; Moon v. Transit Co., 237 Mo. 425. (8) Elwood was a stopping point and deceased especially had a right to assume that the train would be running at a decreased speed in approaching the station, and further to assume that the agents in charge of said train were performing their duty. Clooney v. Wells, 252 S.W. 72, par. 3, page 74. In approaching the station and especially from the time of reaching the whistling post it was the duty of the engineer to slacken the speed and look out for passengers, and answer all signals indicating that passengers desired to board the train. Cercido v. Railway Co., 221 S.W. 434. In that case the evidence showed the alley in question was a public one, which was used by persons going to and fro and especially at the noon hour. The court said on those facts, "it shows from this that there was a duty resting on defendant to look out for and keep a careful watch for persons near, or on the track as its engine passed through the alley . . . that the appliances on the engine were proper as required by law is presumed." (9) A failure to observe the care required under the circumstances in ascertaining the peril of the deceased by the employees of the defendant renders the company liable notwith-standing the negligence of the deceased. Hanlon v. Railway Co., supra. The deceased was a passenger, therefore, the servants of the defendant owed him the highest duty. Barker v. Railway Co., 98 Mo. 50-4.

W. F. Evans, of St. Louis, John H. Lucas and Wm. C. Lucas, of Kansas City, G. Purd Hays, of Ozark, and W. P. Sullivan, of Billings, for respondent.

(1) There is no room for the application of the Humanitarian Rule. Giving to the respondent the full benefit of all doubt and all reasonable inferences, this fact remains. The deceased with full knowledge of the oncoming train went into the zone of danger, unnecessarily and remained thereon, with knowledge that to do so was to invite death. Her theory is, that seeing an oncoming train running "30 or 40" miles an hour, a quarter of a mile away he could enter the zone of danger, and his act not be the proximate cause of his death, and when notified in time to step from such danger to one of safety, his action was and is not the proximate cause of his death. That is, with less than one quarter of a minute of time, one can court with death and his death not be the proximate cause of his own act. (2) The books abound with convincing and controlling authorities that there can be no recovery. Ever since the opinion of Boyd v. Wabash & Western Railroad, 105 Mo. 371, l. c. 379, 382, without a discordant note a right of recovery has been denied, and will continue to be until we shall write the law, that a public carrier is a public guarantor. "What could the engineer presume, but that such a man, like all other men, having due regard for their own safety, and governed by the ordinary instinct of human nature would stop before he reached the point of peril patent before him." And applying the principle to the instant case, it was in December, early dawn, if the engineer saw the deceased, would he not as a reasonably prudent man, have assumed that he was not in a position of peril, and if he was knowing of the oncoming train he would have stepped aside and not have been struck just as the young lady did? It is urged that a signal might have been given. The purpose of a signal is to give notice. Here deceased knew that the train was approaching and accepted voluntarily a place of danger in endeavoring to flag it to stop. (3) The Boyd case, supra, was fully discussed in Evans v. Central Illinois Railway Company, 289 Mo. 493, 501, it was declared "the act of respondent's husband as shown by the evidence before us in attempting to cross the railroad tracks in broad daylight at a point where he had reason to expect trains at any moment, and where he had an unobstructed view of any train, that might be approaching the crossing without looking for a train or where, if, he had looked he could have seen the train approaching for a distance of three to six hundred feet, constituted negligence on his part that would bar a recovery by his widow in an action based on an allegation of negligence. Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Huggert v. Railroad, 134 Mo. 673; Stotler v. Railroad, 204 Mo. 619. (4) Paraphrased, the act of the husband in the instant case, seeing and knowing of the approach of the train warned that it would not stop, the warning unheeded; going into, or remaining in a zone of danger in his mad attempt to stop the train, seeing and knowing the situation; unheeding the warning of the one who by one step entered the zone of safety, cannot be declared negligence in law, but must be submitted to the jury. "There can be no recovery of damages under the Humanitarian Rule." (5) Should the court be solicitous for further authority, see Monroe v. Chicago & Alton Railway Co., 297 Mo. 649. There are cases, also, in which one may show himself . . . so heedless of danger as to preclude a recovery as a matter of law, in such case he assumes the risk of injury. These principles are established by numerous decisions of this court. Zimmerman v. Railroad, 71 Mo. 476; Henzr v. Railroad, 71 Mo. 636; Hanlon v. Railroad, 104 Mo. 381; Stepp v. Railroad, 85 Mo. 235; Easley v. Railroad, 113 Mo. 236; Kenney v. Railroad, 105 Mo. 284; Gratiot v. Railroad, 116 Mo. 450; Boyd v. Railroad, 105 Mo. 371; Beal v. St. Louis & San Francisco, 256 S.W. 733. (6) But why multiply authorities. A signal would have done nothing more than advise of the coming of the train, this he knew. ...