Wolf v. New York, C. & St. L. R. Co.
| Decision Date | 12 March 1941 |
| Docket Number | 36828 |
| Citation | 148 S.W.2d 1032,347 Mo. 622 |
| Parties | Emma J. Wolf, Administratrix of the Estate of Arthur H. Wolf, v. New York, Chigago & St. Louis Railroad Company, a Corporation, Appellant |
| Court | Missouri Supreme Court |
[Copyrighted Material Omitted]
Reported at 347 Mo. 622 at 631.
Original Opinion of March 12, 1941, Reported at 347 Mo. 622.
Rehearing Denied.
Jones, Hocker, Gladney & Grand and Web A. Welker, all of St. Louis (W. F. West, of Cleveland, Ohio, of counsel), for appellant.
B. Sherman Landau, of St. Louis, for respondent.
On Motion for Rehearing.
Appellant in its motion for rehearing charged that in our opinion we incorporated facts cited in opinions in other cases and considered such facts as evidence against appellant in this case. If that charge were true appellant would have just grounds for complaint. Such is not the case. Respondent's witness, Kaveney, had had thirty years' experience as an engineer. He testified that if the engineer operating the train had applied the emergency brake at the time the service brake was applied the truck in which deceased was riding would have cleared the track in safety. He also testified that the use of an emergency brake under the circumstances would not have been dangerous. Kaveney's evidence in conjunction with the evidence of the engineer operating the train made a submissible case of negligence. Appellant in its brief, however, made the following assertion with reference to the evidence of Kaveney:
In its brief appellant urged this court to declare as a matter of law that the evidence of Kaveney should be disregarded because it presented a physical impossibility. It was in answer to that contention that we cited cases where engineers, who had operated trains figuring in collision cases, had testified that they applied the emergency brake on passenger trains under similar circumstances without endangering the passengers. That was the only purpose of citing those cases. We adhere to our original opinion. The evidence without doubt justified a finding that the engineer was negligent, also that we were not authorized to ignore the evidence of Kaveney.
A more serious charge in the motion for rehearing is, that this court misstated the facts and that absent such misstatements the evidence showed the deceased would have been guilty of contributory negligence as a matter of law. We grant that the evidence presented a close question on this point. The writer has reread the entire record in considering the motion for rehearing. We will consider the charges of misstating the facts in the order as made in the motion. Appellant states:
Appellant is correct. There is no such evidence. The record did show that a freight train was due at the watch-tower at Alhambra at 7:20 A. M., a distance of about two miles to the northeast. The train which struck the truck in question traveled that distance in less than three minutes. The misstatement in the opinion was not serious enough to be a material variance. The next charge is:
The record does not contain any direct evidence to support that statement, but such fact may be inferred from the evidence. Note that appellant in its brief stated as follows:
"The undisputed testimony shows that the deceased, Arthur H. Wolf, had lived his whole life in the neighborhood of the crossing, and had, for several months immediately preceding his death, passed over the crossing at least once each day, and was thoroughly familiar with the existing surroundings and conditions."
It might be argued that the deceased was acquainted with all the facts and circumstances except the train schedule. But note that appellant introduced evidence tending to prove that the train which struck the truck was frequently late. The collision occurred on December 9. Evidence of the time when the train passed through on previous days was offered by appellant which showed it was frequently late. Appellant also introduced evidence showing that the freight train due to go northeast about the time of the collision was frequently late, at times as much as five hours. This evidence was worthless if the deceased had never heard of a train schedule. We are justified in asserting that the evidence was offered for the sole purpose of showing that the deceased not only knew the regular train schedule, but also had knowledge of the fact that the trains were frequently late, and therefore he could not have placed any reliance on the regular schedule. In view of that evidence and appellant's assertion that the deceased "was thoroughly familiar with the existing surroundings and conditions" we may assert that appellant assumed the deceased was acquainted with the train schedule. Again, appellant states in its motion:
Appellant in its original brief said:
"Furthermore the appellant was not required to anticipate or foresee that...
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