Wagner v. Pryor

• Decision Date: 08 June 1920
• Docket Number: No. 16036.,16036.
• Citation: 204 Mo. App. 478,222 S.W. 857
• Parties: WAGNER [VV v. PRYOR et al.
• Court: Missouri Court of Appeals

222 S.W. 857

204 Mo. App. 478

WAGNER [VV v. PRYOR et al.

No. 16036.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Appeal from St. Louis Circuit Court; Kent N. Koerner, Judge.

Action by Peter Wagner against Edward B. Pryor and another, receivers of the Wabash Railroad Company. From a judgment for plaintiff, defendants appeal, and, the original plaintiff having died since trial, the action was revived in the name of Ellen Wagner, administratrix. Affirmed.

N. S. Brown, of St. Louis, and A. E. L. Gardner, of Clayton, for appellants.

Frank A. Thompson and M. U. Hayden, both of St. Louis, for respondent.

NIPPER, C.

This is a suit originally instituted in the circuit court of the city of St. Louis by Peter Wagner to recover damages for personal injuries sustained by him from being struck by a locomotive owned and operated by appellants. The accident is alleged to have occurred in front of defendants' railroad station at Ferguson, Mo., at about 7 o'clock in the morning on the 9th of June, 1914. The original plaintiff having died since the trial of this case in the court below, the cause has been revived in the name of the present plaintiff.

The petition counts upon the negligence of appellants: (1) Failure to give warning; (2) failure to keep a watch or lookout, when it was known, or should have been known by the exercise of ordinary care, that persons were likely to be crossing the tracks at the place where the accident occurred; (3) operating and running the locomotive at a high and dangerous rate of speed; (4) failing to exercise ordinary care to stop or slacken the speed of the locomotive, after it we',I known, or should have been known, that plaintiff was in a position of peril, and was oblivious to the danger. The answer was a general denial, and a plea of contributory negligence. The reply was a general denial.

At the close of plaintiff's evidence, defendants offered an instruction in the nature of a demurrer to the evidence, which the court overruled. Defendants offered no evidence. The case was submitted to the jury under the "humanitarian" or "last clear chance" doctrine. Plaintiff recovered judgment in the sum of $2,000. Defendants in due form and manner perfected their appeal.

The contention of appellants in this court is: (1) The court erred in overruling the demurrer to the evidence, offered at the close of plaintiff's case, for the reason that plaintiff was guilty of contributory and concurring negligence, and the "humanitarian" doctrine has no application. (2) The court erred in giving plaintiff's instruction, in that it omitted to submit to the jury the element involving plaintiff's right to be upon the tracks of defendants at the time and place mentioned in the evidence. Appellants, in their brief and argument with respect to the demurrer, seem to rely solely upon the testimony of plaintiff himself, without regard to the testimony of plaintiff's witnesses who testified in his behalf.

At the time of this accident, plaintiff was near 73 years of age, and lived in the town of Ferguson, and had lived there for many years prior thereto. He testified he worked for the United State government, in the city of St. Louis, and had so worked, with the exception of an interval of 3 years, since 1861. In going to his work each morning, he would board a train of defendants at Ferguson and ride into the city of St. Louis. On this particular morning he was ascending the embankment leading up to the railroad tracks of defendants, immediately in front of the station. There was a path leading diagonally up this embankment, which was used by the public, and had been so used for many years, as the most convenient way to reach the station from that portion of the town from which plaintiff was going. There were two tracks in front of the station, running north and south at that point. Plaintiff says these tracks were about 4 feet apart, but other witnesses place the distance at 8 feet. Plaintiff says that when he crossed the easternmost track there was a freight car standing on this track almost in front of the station; that he placed his hand on the coupling, leaned over, and looked, and saw no locomotive in sight (although it was shown by other evidence that one could have been seen for half a mile), then stepped hurriedly in an effort to cross the western track immediately in front of the station, and while taking the last step he was struck by one of defendants' locomotives; that he did not see the same until it had struck him. At this time there were two or three other witnesses standing a little more than 100 feet away, who were watching plaintiff at the time the accident occurred. All of these witnesses contradict plaintiff as to his having looked, and as to the rate of speed at which he was walking. Each of them testified that plaintiff did not look, and was walking very slowly. Only one...