Opinion
March 6, 1940.
1. NEGLIGENCE: Contributory Negligence: Jury Question. In an action for injuries to plaintiff while crossing a track when struck by defendant's motorcar, the failure of plaintiff to see the approaching motorcar when he looked might preclude his recovery in an action based on primary negligence of defendant, but it would not preclude recovery in an action arising in a humanitarian case.
In such action it was a question for the jury whether plaintiff, when he looked, actually saw the approaching motorcar.
2. NEGLIGENCE: Failure to Warn. In an action for injuries to plaintiff under the humanitarian rule plaintiff's own evidence made a case for the jury on the failure to warn and on other elements of the case, and contradictory evidence of defendant could not be considered in determining whether a case was made.
3. NEGLIGENCE: Railroad Crossing. It was the duty of a railroad company to keep a lookout for persons at a crossing used by the public and which had been so used for several years.
The waiver of a right to expect a clear track applies to such places.
In an action for injuries to one crossing the track at such place the humanitarian doctrine should be applied.
4. NEGLIGENCE: Instruction: Position of Peril. In an action for injuries to plaintiff when struck at a crossing by defendant's motorcar, an instruction authorizing a recovery for plaintiff, if the servants of defendant in charge of said motorcar saw or by the exercise of care could have seen the plaintiff "approaching and in such position of imminent peril, etc.," was erroneous under the humanitarian rule which requires that the plaintiff should have been in a position of peril.
5. NEGLIGENCE: Obliviousness. A railroad company owes no duty to an oblivious person, not in a position of imminent peril in crossing its track, although the obliviousness of such person crossing the track may extend his position of imminent peril to a point where his obliviousness is so apparent to the operator of the vehicle as to indicate an intention to continue across the track in the path of the vehicle to his injury.
Appeal from Circuit Court of City of St. Louis. — Hon. Thomas L. Anderson, Judge.
REVERSED AND REMANDED.
T.M. Pierce, Walter N. Davis, Wm. A. Thie and Arnot L. Sheppard for appellant.
(1) Appellant's peremptory instruction in the nature of a demurrer to the evidence should have been given at the close of all of the evidence, for the following reasons: (a) Respondent's evidence wholly failed to show such user of appellant's tracks at the time and place of his injury as to change his status from that of a trespasser to that of an invitee or license. Consequently his evidence is insufficient to make a jury question as it is not claimed that it shows wantonness or willfulness on appellant's part. English v. Wabash Ry. Co., 108 S.W.2d 57; Frye v. St. L., I.M. S. Ry. Co., 200 Mo. 377. (b) Respondent submitted his case solely on humanitarian negligence, which is not supported by any substantial evidence. His own testimony was that he was walking at about two and one-half miles an hour; he could see a distance of 140 feet in the direction from which the motorcar was coming; between his last look in that direction and his injury he traveled only three or four feet, and the elapsed time therefore was .82 of a second, or 1.09 seconds, clearly too brief an interval upon which to predicate humanitarian negligence. Clay v. Wheelock, 20 S.W.2d 556; Sullivan v. Railroad Co., 271 S.W. 991, 308 Mo. 48; Burge v. Railroad Co., 244 Mo. 102, 148 S.W. 932; Rollison v. Railroad Co., 252 Mo. 541, 161 S.W. 999; State ex rel. Wab. Ry. Co. v. Bland, 281 S.W. 692; Williams v. Fleming, 284 S.W. 797. (c) If respondent could not see the motorcar when he last looked for it, then obviously the driver of the motorcar could not see him at that moment. Necessarily, if respondent's testimony is of any value, the motorcar moved at least 140 feet while respondent moved three or four feet. As he was walking at the rate of two and one-half miles an hour, the motorcar was traveling at about 116 miles an hour if respondent moved only three feet or 87.5 miles an hour if he moved four feet. That kind of testimony is so contrary to human experience and natural laws as to be insubstantial and valueless. Dunn v. Alton Ry. Co., 104 S.W.2d 311; Steele v. Railroad Co., 265 Mo. 115; Flack v. Railroad Co., 224 S.W. 421; Lindsey v. Shaner, 236 S.W. 322; Miller v. Schaff, 228 S.W. 491. Respondent cannot now say that the driver of the motorcar could see him in a place of peril without impeaching his own evidence; because he says he looked and the motorcar was not in sight. Necessarily, if he could not see the motorcar, the driver thereof could not see him. Each must have been able to see the other at the same moment. Therefore when respondent was only three or four feet from the track, the motorcar driver could not see him. This is the inevitable consequence of respondent's testimony. He cannot now say he made a jury question because appellant's evidence shows the motorcar driver saw him in time to stop, because he would then be going to the jury on evidence which impeaches his own evidence. This cannot be permitted. Meese v. Thompson, 129 S.W.2d 847; De Lorme v. St. L. Pub. Serv. Co., 61 S.W.2d 250; Murray v. Transit Co., 176 Mo. 183; Elkin v. Pub. Serv. Co., 74 S.W.2d 600; Pentecost v. St. L., M.B.T. Ry. Co., 66 S.W.2d 533; State ex rel. v. Trimble, 52 S.W.2d 864; McCullough v. C., R.I. P. Ry. Co., 88 S.W.2d 402. Nor can respondent successfully urge that appellant is conclusively bound by the testimony of its witnesses as to time, distance and speed. Smith v. Producers Cold Storage Co., 128 S.W.2d 303; Scott v. K.C. Pub. Serv. Co., 115 S.W.2d 518; Haddow v. St. L. Pub. Serv. Co., 38 S.W.2d 284. (d) Respondent was guilty of such contributory negligence as bars a recovery herein, and, of course, made no case for the application of the humanitarian doctrine. He saw the motorcar approaching, even though he denied it while testifying. It was in plain view, and where to look is to see, one will not be heard to deny that he saw. State ex rel. v. Shain, 105 S.W.2d 918; State ex rel. Hines v. Bland, 237 S.W. 1019; Evans v. I.C. Railroad Co., 289 Mo. 501; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 374; Smithers v. Barker, 111 S.W.2d 53; Carner v. St. L.-S.F. Ry. Co., 89 S.W.2d 953; Hook v. Mo. Pac. Ry. Co., 162 Mo. 581; Pope v. Wab. Ry. Co., 242 Mo. 240; Dyrcz v. Mo. Pac. Ry. Co., 238 Mo. 46; Carton v. St. L.-S.F. Ry. Co., 102 S.W.2d 612; Knight v. Wab. Ry. Co., 85 S.W.2d 399. (2) Instruction 1 given at respondent's request is erroneous because: (a) It permits him to recover upon a finding based upon failure to warn, that he "was approaching and in a position of imminent peril and oblivious thereto," when he could not have been oblivious to the approach of the motorcar if his evidence that he looked for it is true; and if untrue, his own negligence bars a recovery. Buehler v. Festus Merc. Co., 119 S.W.2d 970; Perkins v. Term. Railway Assn., 102 S.W.2d 924; Smithers v. Barker, 111 S.W.2d 53; Schneider v. Term. Railway Assn., 107 S.W.2d 790; Pentecost v. St. L., M.B. Ry. Co., 334 Mo. 572, 66 S.W.2d 533; Phillips v. St. L.-S.F. Ry. Co., 337 Mo. 1068, 87 S.W.2d 1035; Lamereaux v. St. L.-S.F. Ry. Co., 73 S.W.2d 331, 87 S.W.2d 642. (b) Respondent must have seen the motorcar coming if his testimony is true that he looked when only three feet from the point where he was struck. Therefore, because of his contributory negligence as a matter of law there is no place for the submission of humanitarian negligence, as this instruction does. State ex rel v. Shain, 105 S.W.2d 919; Smithers v. Barker, 111 S.W.2d 53; Dyrcz v. Mo. Pac. Ry. Co., 238 Mo. 46; Carton v. St. L.-S.F. Ry. Co., 102 S.W.2d 612.
Hay Flanagan for respondent.
(1) The evidence was uncontradicted that respondent was crossing appellant's tracks at a path which had been worn by members of the public, men, women and children, who had been crossing the tracks over this path for as long as twenty-two years without objection, and with the tacit consent and acquiescence of appellant. This was sufficient user to afford reasonable ground to appellant's employees to expect or anticipate the presence of persons on the track, and to impose a duty on them to keep a lookout for respondent as he approached appellant's tracks on this path. Frye v. St. L., I.M. S. Ry. Co., 200 Mo. 377, 98 S.W. 566; English v. Wab. Ry. Co., 341 Mo. 550, 108 S.W.2d 57; Ahnefeld v. Wab. Ry. Co., 212 Mo. 305, 111 S.W. 95; Weiss v. C., R.I. P. Ry. Co., 335 Mo. 1168, 76 S.W.2d 118; Rice v. Jefferson City B. T. Co., 216 S.W. 752; Epstein v. Mo. Pac. Ry. Co., 197 Mo. 734, 94 S.W. 967. (b) The evidence was clearly sufficient to make a case for the jury under the humanitarian doctrine. In endeavoring to sustain its contention to the contrary, appellant ignores the evidence favorable to respondent contrary to the rule that in determining the propriety of the court's ruling on a demurrer to the evidence, the evidence must be regarded in the light most favorable to the plaintiff. Graves v. Mo. Pac. Ry. Co., 343 Mo. 542, 118 S.W.2d 787; Smith v. Wallace, 119 S.W.2d 813; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66. Taking the most favorable view of the testimony from respondent's standpoint there was evidence that respondent could have been seen approaching and in a position of imminent peril of being struck by appellant's motorcar, oblivious to his peril at a time when said motorcar was as far as 125 feet from respondent and could have been stopped in as little as twenty feet. The court, therefore, did not err in submitting the case to the jury on the theory that appellant's employees could have stopped or slackened the speed of the motorcar, or have sounded a warning of the approach thereof in time to avoid injuring respondent. Wise v. Chicago, R.I. P. Ry. Co., 335 Mo. 1168, 76 S.W.2d 118; Zumwalt v. C. A. Ry. Co., 266 S.W. 719; Wagner v. Pryor, 204 Mo. App. 478, 222 S.W. 857; Milward v. Wab. Ry. Co., 207 Mo. App. 345, 232 S.W. 226. Appellant's argument that the time remaining for appellant to act after respondent came into a position of peril was too short for appellant to do anything to avoid injuring respondent is based on the idea that there was no duty on appellant to attempt to avoid the accident until respondent was about to step on track 71, with but three or four feet to go before being struck, and that in the second or so it would take respondent to walk that distance, appellant could not have done anything to save respondent from injury. Appellant thus arbitarily undertakes to fix where the danger zone commenced, ignoring the rule that the extent of the danger zone is ordinarily a question to be determined by the jury. Womack v. Mo. Pac. Ry. Co., 337 Mo. 1160, 88 S.W.2d 372; Hinds v. C., B. Q. Ry. Co., 85 S.W.2d 168; Hodgins v. Jones, 64 S.W.2d 309.
This is an action for damages resulting from personal injuries sustained by respondent when he was struck by the railroad's gasoline motorcar, similar to a handcar, while crossing a track in the switchyards at the Cupples Station properties in St. Louis. Judgment for $9000 was rendered against the railroad. The respondent worked at the Cupples building at Eighth and Poplar Streets and about the other buildings which surround the switchyards. Along Spruce Street are a number of commercial buildings and warehouses which abut the yards. The respondent was employed by the Union Electric Light Power Company which supplied heat and power to the buildings. The electric company also maintained three tunnels across the yards through which ran water, steam and power lines. The respondent was an inspector and maintenance man for the freight elevators which carried freight from the loading platforms.
Seventh Street bounds the yards on the east. No cross streets intersect the yards as you go west as far as Twelfth Street, which is carried over the yards by a bridge. Poplar Street bounds the yards on the south up to about Ninth Street where it runs into the yards. In addition to a number of switch tracks there are two main-line tracks running through the yards which come from the southwest and make a 45 degree angle to the northeast in order to enter the tunnel leading to Eads Bridge. The opening of the tunnel is under Eighth Street, where it joins Spruce Street. The main-line tracks are numbered 72 and 71 from south to north respectively. On the morning of his injury the respondent was proceeding northwardly across the yards to look after an elevator on the platform of one of the Spruce Street buildings. He first crossed a switch track. Then he crossed track 72 and was proceeding across track 71. He was within one step of clearing it when he was struck. He claimed he neither saw the motorcar approaching nor heard any warning given. The case was submitted on the humanitarian doctrine only.
Appellant contends that respondent made no prima facie case under this doctrine because the respondent could not have been oblivious of the approach of the motorcar on his testimony that he could see 140 feet to the west and that he had looked to the west. To look is to see, the appellant argues, and the respondent will not be heard to deny that he saw the motorcar. This argument finds support in cases involving primary negligence and is used to demonstrate contributory negligence as a matter of law. [State ex rel. K.C. So. Ry. v. Shain, 340 Mo. 1195, 105 S.W.2d 915.] This convenient phrase "to look is to see" is not an accurate expression of the legal implications involved. What is meant is that a person who has testified that he looked and failed to see when from the physical facts in the case it could not be true that he failed to see, then it is conclusive that he was negligent in looking. Under these circumstances, we have found such to be negligence as a matter of law. We said in Carner v. St. Louis-San Francisco Ry. Co., 338 Mo. 257, 89 S.W.2d 947: ". . . plaintiff's failure to see the approaching locomotive when he looked, as he says he did look, constituted negligence as a matter of law directly contributing to his injuries, . . . and he is precluded from a recover on the grounds of primary negligence." In that case and in others cited by the appellant the question was one of contributory negligence which does not arise in a humanitarian case.
The pertinent question here is whether the respondent was oblivious. We have not ruled that to look is conclusive evidence of seeing. In English v. Wabash Ry. Co., 341 Mo. 550, 108 S.W.2d 51, a case on the humanitarian doctrine we found that testimony of looking was merely circumstantial evidence of seeing. Under the facts of that case we held it was a question for the jury to determine whether the respondent was actually seen on the track. And so in this case, it is for the jury to determine whether the respondent actually saw the motorcar when he looked westwardly in spite of his testimony that he did not see it. The respondent's testimony was that before he reached No. 72 he looked to the west and as he was proceeding he looked to the east. It was shown that the tracks come from the southwest and turn to the northeast to enter the tunnel so that when the respondent looked west the car may have been to his rear and out of his vision. In Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, obliviousness was not an issue so that case is not in point. Nor does the testimony produced by the appellant necessarily impeach respondent's. The operator of the motorcar testified that when the car was some fifty or fifty-five feet from him he saw the respondent looking east at a locomotive coming up on No. 72 and to avoid it he was running and jumping across 72 and onto 71 where he was struck. This witness may not have seen the respondent look to the west but noticed him only while he was looking to the east.
We find under the humanitarian doctrine the plaintiff, on his own evidence, has made a case for the jury on a failure to warn. Also when his evidence is considered in connection with the concurring evidence of defendant, which supports the theory on which the plaintiff has presented his case, he has made a case on the other elements submitted. No contradictory evidence of the defendant can be considered in determining this. [Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600.]
It was the duty of the railroad to keep a lookout for persons where the respondent was crossing because public usage in crossing the tracks there was clearly established. There is a crossing tower from which are operated warning gates at the south of the yards where Ninth Street joins Poplar from the south and stops. East of this tower about eight or ten feet is a building. There was testimony of a path opposite this space between the tower and the building which led to Spruce Street on the north of the yards. The evidence showed that every day and every hour of the day men, women and children would cross. Customers and employees from the Simmons Company city department would cross to the company's warehouse. This usage had continued over a period of as many years as the witnesses had worked about the yards, some about seven years. It was in a busy little community. One of respondent's witnesses described the block at Ninth Street between the north switch track and Spruce Street as "Simmons City." There the buildings house the Simmons Hardware Company, Graham Paper Company, A. G. Grocery Company, Wheeling Corrugated Company and the Pittsburgh Plate Glass Company. The use described here meets the requirements expressed in English v. Wabash Railway Co., 341 Mo. 550, 108 S.W.2d 51, supra. There it was held that the rule of waiver of the right to expect a clear track may be applied to places of limited extent which are continuously used for access to shops, industries and other similar places where a considerable number of people go regularly at certain times.
It cannot be successfully argued from the facts above set out and the inference favorable to the respondent that the humanitarian doctrine should not be applied. The situation described in Knight v. Wabash Ry. Co. (Mo.), 85 S.W.2d 392, is not similar and the ruling of that case, that where a person who is sui juris negligently moves from a place of safety to a place of danger so close before the engine or car that, by ordinary care, his injury cannot be averted, then there is no room for the play of the humanitarian doctrine, is not applicable. Other cases cited are not pertinent.
The respondent's main instruction after describing the date, place and circumstances of the injury continued as follows: ". . . and if you further find and believe from the evidence that at and prior to the time of the collision of said motorcar with the plaintiff, if so, the plaintiff was approaching and in a position of imminent peril and oblivious thereto, of being struck by said motorcar, and if you find from the evidence that the defendant, by and through its agents and servants, if so, in charge of said motorcar, saw or by the exercise of ordinary care, could and would have seen the plaintiff approaching and in such position of imminent peril, and oblivious thereto, if you so find the facts, of being struck and collided with by said motorcar, and if you find from the evidence that the defendant, by and through its agents and servants in charge of said motorcar, could in time, thereafter, by the exercise of ordinary care, . . . have stopped said motorcar, etc. . . ."
An instruction containing the same words we have italicized which likewise imposed a duty on the defendant when the plaintiff was only approaching a position of imminent peril was held to be reversible error in Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961. On this point we said at page 970: "The writer ventures to renew here criticisms recently made of a similar instruction in Perkins v. Terminal Railroad Assn., 340 Mo. 868, 886, 896, 102 S.W.2d 915, 924, 930, this because it was thought by some of the judges of this court that the question was not raised by the appellant in that case. It is squarely raised here, and the instruction falls within the condemnation of both the dissenting opinions in the Perkins case. It undoubtedly predicates liability on the failure of appellant's truck driver to avert the collision if he could have done so after seeing, or being bound in the exercise of the highest degree of care to see, the Ford coupe crossing Mill Street, approaching and in a position of imminent peril. That word approaching meant something in the instruction. According to its ordinary meaning it indefinitely extended the field within which vigilance under the humanitarian doctrine was exacted. But the law is that that duty does not arise until a situation of peril arises. [State ex rel. Fleming v. Bland, 322 Mo. 565, 572, 15 S.W.2d 798, 801.] The use of the word approaching in such instructions was impliedly condemned in State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 347, 85 S.W.2d 420, 423, but that was a certiorari case and the question was only one of conflict. The phrase "coming into a position of imminent peril" was expressly condemned by the Kansas City Court of Appeals in Lakin v. Chicago, R.I. P. Ry. Co., 229 Mo. App. 461, 468, 78 S.W.2d 481, 485, 95 S.W.2d 1245. The question is fully covered in the Perkins case."
That case bluntly announces that the defendant is under no duty to act before the plaintiff is actually in a position of imminent peril. To say a plaintiff is approaching a position of imminent peril expressly denies that he is in present, existing imminent peril. Until a plaintiff is in such a position there is no indication to a defendant of an injury impending so as to invoke the humanitarian doctrine.
But, the respondent argues, when a plaintiff is oblivious then a defendant owes him a duty while he is only approaching a position of imminent peril. That is not the law. A defendant owes no duty to an oblivious plaintiff who is not in a position of imminent peril. Obliviousness may, under the facts of the particular case, tend to create imminent peril which would not exist except for such obliviousness. For instance, when a plaintiff is proceeding obliviously and that fact is or should be apparent to the defendant then the plaintiff may be in imminent peril before he has reached the actual path of danger, in this case the railroad track. The fact of obliviousness thus extends the position of imminent peril beyond the actual path of the vehicle creating the danger. That position, however, is limited to a point where the obliviousness of the plaintiff is or should be apparent to the defendant and reasonably indicates an intention on the part of the plaintiff to continue into the path of the vehicle to his injury.
There is no merit in the appellant's complaint about the refusal of certain of its instructions.
For the error in giving the above instruction the judgment is reversed and the cause remanded. All concur.