Turbett v. Thompson
| Decision Date | 10 November 1952 |
| Docket Number | No. 1,No. 42768,42768,1 |
| Citation | 363 Mo. 577,252 S.W.2d 319 |
| Parties | TURBETT v. THOMPSON |
| Court | Missouri Supreme Court |
Thomas J. Cole and Oliver L. Salter, St. Louis, for appellant.
Frank Mattes, Jefferson City, Chelsea O. Inman, St. Louis, for respondent.
Action for damages for personal injuries sustained when plaintiff was struck by defendant's engine. Verdict and judgment for plaintiff for $18,000, and defendant has appealed.
The case was submitted on humanitarian negligence of failure to warn, stop or slacken speed. The question for decision is whether plaintiff made a case for the jury. We, therefore, consider the evidence most favorably to plaintiff's contentions.
Plaintiff was struck on the Sand Plant crossing, at the west end of defendant's Jefferson City yards, which crosses five of defendant's tracks. The general direction of defendant's tractks was east and west. The crossing was about 16 feet wide and the road went north and east to the Sand Plant on the bank of the Missouri River. There was a pump house on the river bank about 55 feet north of defendant's north track. There was also a boat dock nearby. Plaintiff went there about 2:00 A.M. on the night of December 28, 1949 to look for a motor that had been stolen from him. He did not find the motor and as he started back, defendant's freight train had started west from a point in the yards about 1000 feet east of the crossing. The train was on the north track, which was straight for 300 feet east of the crossing and which had a grade of 0.64% ascending to the west. Plaintiff related what happened as follows:
Plaintiff not only saw the headlight but heard the engine chugging loud enough to prevent him from hearing the engine bell and he knew the train was moving. He stopped (coming to a complete standstill) twelve feet from the north rail of the north track and looked east toward the train. He then started forward slowly, walking about two miles per hour, taking steps about two and one-half feet long (plaintiff was about six feet tall), looking west at a red signal light about 900 feet away, walking about a foot west of the center of the road. Plaintiff said he saw no headlight to the west and that there was no other engine at or near the crossing except the one he saw and heard coming from the east. He was not trying to beat the engine; he was not in a hurry and had the whole night to spend. He intended to go back to look for the motor again before morning. The chugging of the engine continued right up to the time he was struck and got louder as the engine approached the crossing. The headlight was bright and would blind him if he looked at it very long, but he could see the outline of the engine. The engineer saw plaintiff standing near the track when the front end of the engine was 50 or 55 feet from him. (He said plaintiff was then three or four feet from the track and that plaintiff waved to him.) The parties agree that the speed of the train was from five to seven miles per hour.
Plaintiff had two expert witnesses on stopping distances, James T. Walker and Frederick Biery, retired locomotive engineers. Both testified 25 to 30 feet would be the stopping distance at six miles per hour (defendant's evidence was 80 feet) for a train of the length and weight of the one involved on the grade shown. (2 engines, 5 empties, 39 loads, 2 cabooses, total weight 2510 tons.) Walker said the engineer's reaction time would be 6/10 of a second. Biery said it would take approximately two seconds from the time the valve was put into emergency until the brakes were fully applied. During that time he said the train would travel about 18 feet. Walker said at six miles per hour the speed would be reduced two-thirds after running 20 feet after the brakes were applied. The overhang of the engine was 34 inches and Biery said a man four feet from the rail would be in the clear of a slow moving train.
Plaintiff's theory is that his danger zone of imminent peril commenced when he started toward the track from the point where he stood still 12 feet from the north rail. He walked, at 2 miles per hour, between 16 and 17 feet. (12 feet to the rail; the distance between the rails was 4 feet 8 1/2 inches and plaintiff had not cleared the south rail.) The train going three times as fast as plaintiff was, therefore, about 50 feet from plaintiff's path over the crossing when he started toward the track. However, we think plaintiff's theory is incorrect in assuming that the engineer's duty commenced at that time. Only obliviousness of the approach of the train could extend the danger zone that far and the engineer was only required to act on reasonable appearances of obliviousness. Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Allen v. Kessler, Mo.Sup., 64 S.W.2d 630. Thus the danger zone would commence at the point where reasonable appearances of obliviousness began.
Plaintiff claims obliviousness because he thought the train was on the second track but the engineer could not know what he thought and failure to anticipate that he would think so would not be humanitarian negligence. The reasonable appearances of the situation were that plaintiff knew the train was approaching when he looked directly at it. There could hardly be a more evidence warning of its approach than its bright headlight and in addition to that there was the chugging noise of the engine which plaintiff said was louder than the engine bell. A whistle would not have given plaintiff any more information than he had as to which track the train was on, and plaintiff so admitted in his testimony, but in any event there was no humanitarian duty to warn when the reasonable appearances were that plaintiff was aware of the approach of the train. Pentecost v. St. Louis Merchants' Bridge Terminal R. Co., 334 Mo. 572, 66 S.W.2d 533; Dister v. Ludwig, 362 Mo. 162, 240 S.W.2d 694. The engineer was not bound to anticipate that plaintiff (walking slowly) would go on the track when the bright headlight of the engine was shining directly on him. It was said in oral argument (on rehearing) that a whistle after plaintiff got on the track would have caused him to accelerate his pace so that he could have escaped. We think it is wholly a matter of speculation and conjecture, under these circumstances, whether a whistle would have prevented the casualty. See Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785. Plaintiff's cited cases, Marczuk v. St. Louis Public Service Co., 355 Mo. 536, 196 S.W.2d 1000, loc.cit. 1002-1003; Larey v. Missouri-Kansas-Texas R. Co., 333 Mo. 949, 64 S.W.2d 681, loc.cit. 684; Diel v. St. Louis Public Service Co., 238 Mo.App. 1046, 192 S.W.2d 608, are not in point on this situation.
On the issue of obliviousness plaintiff says a distinction must be drawn between 'obliviousness of an approach of an instrumentality' and 'obliviousness of impending danger' from it, stressing Marczuk v. St. Louis Public Service Co., 196 S.W.2d loc.cit. 1003. However, it is not the mental state of the plaintiff that imposes a duty upon the operator of a vehicle. It is the reasonable appearances of the situation that imposes the duty...
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