Pope v. Wabash Railroad

KENNISH, J.

On the 13th day of September, 1907, in the city of Kirksville, Adair county, Joseph Pope, deceased, was struck and killed by appellant’s train. Respondent, his widow, brought this action for damages under the provisions of section 5425; Revised Statutes 1909. Upon a trial a verdict was returned in her favor, awarding damages in the sum of two thousand dollars. The defendant appealed to this court. In its answer the defendant assailed the constitutionality of said statute; hence the appellate jurisdiction of this court.

The acts of negligence assigned in the petition are that deceased, Joseph Pope, being upon the defendant’s railroad track, where the same is much travelled by pedestrians, by the negligence of defendant’s agents in charge of and operating defendant’s train upon its said track, was knocked down and received *236 injuries from which he died; that by the exercise of ordinary care on their part, the said agents so in charge of said train might have seen said Pope and become aware of his peril in time to have stopped the train before it reached him, and thus have avoided striking and killing him; that the defendant’s said agents negligently failed to ring the bell or sound the whistle as the train approached said Pope, and that the said agents negligently operated said train at a high and dangerous rate of speed in said city, in violation of a city ordinance, thereby causing the injury complained of.

The answer contained four defenses: a general denial; a defense of contributory negligence; that the ordinance limiting the speed of trains was unreasonable and void; and that section 5425, Revised Statutes 1909, under which the action was brought, was unconstitutional.

At the close of all the testimony, the defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused. Defendant saved its exceptions and, among other errors assigned, complains of the action of the court in refusing said instruction. This assignment necessitates a review of all the evidence tending to support plaintiff’s cause of action, whether introduced by plaintiff or by defendant.

There was very little conflict as to the material and determinative facts in evidence. It was shown by the undisputed testimony that appellant’s railway track runs north and south at the place of the.alleged injury. Elizabeth street runs east and west on the north side of the city of Kirksville, and it was at the intersection of said street and railway track that the deceased was killed. The track is straight and the view unobstructed for a distance of more than half a mile to the north, so that a person walking thereon where the accident occured could plainly see an ap *237 proaching train for that distance, and conld as plainly he seen for the same distance by the engineer of a south-bound train.-

Plaintiff’s first witness was M. B. Cowan, the conductor on the train that killed deceased. He testified that the deceased was struck by a south-bound passenger train at about eight o’clock in the morning; that the crossing signal was given about fifteen hundred feet north of Elizabeth street crossing, and that the emergency brake was put on and the alarm signal given about the same time; that along the track, where a path made by pedestrians led from the pasture to the place of the accident, there was no obstruction to hinder a person from stepping off on either side to a place of safety from á passing train; that at the rate of speed the train was running that morning it could not have been stopped within a distance of less than about twelve to fifteen hundred feet.

Plaintiff testified in her own behalf. She was the only eyewitness to the accident, except the crew operating the train. She testified that she was sixty-three years of age and the deceased seventy-nine at the time of the accident; that they lived about a half of a quarter of a mile south of Elizabeth street crossing and about thirty yards west of the railway track; that she and deceased, the morning of the accident, had gone to the pasture to milk, as they had done twice a day for three years during pasture time, and as they were returning by way of the path upon the railway track, the deceased was struck by a south-bound passenger train and killed; that before he got upon the track plaintiff looked and listened, but heard no train; that as they walked south plaintiff felt a jar and looking back saw the approaching train north of the bridge; that they were then about sixty steps from Elizabeth street crossing, and immediately began to run so as to reach the crossing before the arrival of the train; that plaintiff looked back' again when they were about *238 twenty or twenty-five steps from the crossing and, seeing the train coming on, urged the deceased to run faster, and as they crossed the cattle-guard and got off the track on the east in Elizabeth street, the train passed, striking her husband and instantly killing him; that they were about midway in the cut north of the cattle-guard when they first saw the train, and that they did not get off the track sooner because of the ditch and embankment on each side; that the ditch was about a foot and a half deep, and that plaintiff had crossed the ditch before when no train was near.

There was testimony for plaintiff tending to •prove that the alarm signal was not given until the train was near Elizabeth street crossing.

I. Since the trial of this case the constitutionality of section 5425, Revised Statutes 1909, on which the action was based, has been sustained by this court, and therefore appellant’s attack thereon need not be further considered. [Young v. Railroad, 227 Mo. 307 .]

II. The alleged negligence of defendant, (1) in failing to give signals as the train approached, and (2) in exceeding the speed-limit ordinance read in evidence, were removed from the case as actionable issues by plaintiff’s testimony.

Witnesses for plaintiff testified that signals were given, and, besides, plaintiff testified that she saw the train long before it reached them and she and deceased attempted to run and did run fifty yards on the track after they saw the train.

The object of a signal is to give warning, and if those on the track know of the train’s approach without the signal, in time to escape from danger, then failure to give the signal is of no legal importance. [Mockowik v. Railroad, 196 Mo. l. c. 570, and cases cited; McManamee v. Railroad, 135 Mo. l. c. 449.]

*239 It was shown by plaintiff’s testimony that those operating trains on defendant’s railway had never observed the speed-limit ordinance, neither had any effort been made to enforce it. Plaintiff lived within thirty yards of the railway track, and testified that she was familiar with the running of defendant’s trains and their speed. There was no evidence that plaintiff and the deceased, in running toward and crossing the cattle-guard to get off the track, were in any manner influenced by the belief that the train was running within the time prescribed by the ordinance. These facts show that the failure to observe the ordinance was not the proximate cause of the injury, and preclude a right of recovery on the theory of negligence in the violation of the ordinance pleaded. [Laun v. Railroad, 216 Mo. 563 ; Kinlen v. Railroad, 216 Mo. 145 ; Moore v. Railroad, 176 Mo. 528 .]

III. This leaves in plaintiff’s case only the theory that the' defendant’s agents were negligent in not seeing the peril of the deceased and stopping the train in time to have avoided the injury. It was upon that theory the court submitted the case to the jury. It is known in our decisions as “the humanitarian doctrine.” As applied to the facts of this case, it means that if those in charge of the train became aware of deceased’s peril in time so that by the exercise of ordinary care they could have stopped the train or checked its speed and thus have averted the injury, the plaintiff was entitled to recover. But plaintiff does not bring her case within that rule.

In the case of Kinlen v. Railroad, 216 Mo. l. c. 164, this court said: “The humanitarian doctrine only applies and authorizes a recovery where the injured party is ignorant or oblivious to the impending danger; but if he knew of the approaching danger, then clearly he would be guilty of such contributory *240 negligence as would prevent a recovery whatever the conduct of the agents in charge of the train might be. ’ ’

The foregoing language must be understood as applying to a case in which a person is upon the track at a place where he could safely have gotten off and out of danger when conscious of the train’s approach. That was the situation in this case. The deceased knew of the oncoming train. He could have stepped off the track and have been safe. Those operating the train had the right to presume that he would get off, and there was no testimony tending to show any negligence on the part of the engineer after he saw the peril of deceased, that is, after it became apparent that the deceased did not intend to step to one side of the track, but was intending to run across the cattle-guard and into the street, before leaving the track.

Doubtless the plaintiff and her husband were confused and were acting as they thought best under the circumstances, but it is unreasonable to expect, and the law does not require, that a train should be stopped every time a person is seen walking on the track ahead. To have done so under the testimony in this case would have necessitated the application of the air brakes a quarter of a mile before reaching the place of the accident. While those in charge of a train may not wilfully or recklessly injure persons upon the railroad track, but must use care to avoid such injury, yet, on the other hand, they have the right to rely upon the presumption that an adult person upon the track will be regardful of his own safety and will get out of the way of the train. [Candee v. Railroad, 130 Mo. 142 ; 3 Elliott on Railroads (2 Ed.), sec. 1257a, and cases cited.]

We have carefully considered the evidence in this case and, under the most favorable view to plaintiff, there is an entire failure to show actionable negligence. Entertaining these views, we hold that the court should have given the instruction in the nature *241 of a demurrer to the evidence. Accordingly the judgment is reversed.

Ferriss, P. J., and Brown, Jconcur.