Summary
In Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 212 S.W.2d 764, it was held that the Supreme Court will not dismiss an appeal on the ground that statement of case in brief is intermingled with argument and conclusions in violation of court rule, where the court is able to glean from the statement the facts determinative of the sole issue upon appeal.
Summary of this case from Bachler v. BachlerOpinion
No. 40726.
July 12, 1948.
1. APPEAL AND ERROR: Motion to Dismiss Denied. The motion to dismiss the appeal because of an improper statement in the brief is denied.
2. NEGLIGENCE: Railroads: Grade Crossing Collision: Humanitarian Rule: No Submissible Case. The truck driven by the deceased approached the crossing at a speed of 8 to 10 miles per hour, able to stop within 3 or 4 feet, and slowing down all the time, and then within a few feet of the track started up and was immediately struck by defendant's train. The driver of the truck did not appear to be oblivious and was not in imminent peril until he started up a few feet from the track and too late for any warning signal to be given. There was no submissible case under the humanitarian rule.
Appeal from Adair Circuit Court. — Hon. Tom Brown, Judge.
REVERSED.
Jayne Jayne for appellant.
(1) Where plaintiff alleges several grounds of negligence, and then instructs on only one, all others are abandoned and therefore if the evidence in this case does not support plaintiff's theory that defendant was guilty of negligence under the humanitarian doctrine in that defendant failed to warn deceased of the approach of defendant's train by use of the whistle after defendant saw, or in the exercise of care could have seen, deceased in a position of peril and thereby have avoided the accident, then defendant's motion for a directed verdict at the close of the case properly raised that issue and plaintiff was not entitled to recover. White v. Kansas City Pub. Serv. Co., 193 S.W.2d 60; Guthrie v. St. Charles, 152 S.W.2d 91, 347 Mo. 1175; Sec. 113, Civil Code of Procedure, Laws 1943. (2) Every necessary element of a cause of action based on humanitarian negligence must be established by the evidence to justify submission of the case on the humanitarian theory. Gurwell v. Jefferson City Lines, 192 S.W.2d 683. (3) Obliviousness is one of the essential elements of a cause of action where defendant is charged with a failure to warn under the humanitarian doctrine, and where the evidence leaves such an essential element to guess work, conjecture, speculation or surmise, it does not make out a submissible case under the humanitarian doctrine. Hendrick v. Kurn, 179 S.W.2d 717, 352 Mo. 848; Swain v. Anders, 140 S.W.2d 730, 235 Mo. App. 125; Alsup v. Henwood, 137 S.W.2d 586. (4) Where deceased approached defendant's crossing at a slow speed and had a clear view of defendant's train had he looked, defendants were entitled to assume that deceased was conscious of his surroundings and knew of the approach of defendant's train until such time as deceased indicated by his actions that he was oblivious to the approach of defendant's train or until such time as defendant realized that such was the case, and it is presumed that deceased saw and heard the approaching train and plaintiff must produce evidence to overcome such presumption. Alsup v. Henwood, 137 S.W.2d 586. (5) Plaintiff's uncontradicted evidence affirmatively shows that deceased was not oblivious to the approach of defendant's train and so plaintiff has failed to make a submissible case on the question of whether or not defendant was guilty of a failure to warn under the humanitarian doctrine and the trial court erred in overruling defendant's motion for a directed verdict at the close of the evidence. Hendrick v. Kurn, supra; Swain v. Anders, supra; Alsup v. Henwood, supra. (6) Plaintiff has failed to produce any evidence showing, or from which it could be inferred, that deceased was oblivious to the approach of defendant's train and therefore when plaintiff's only instruction offered charged defendant with failure to warn under the humanitarian doctrine, the court was in error in not sustaining defendant's motion for a directed verdict. Hendrick v. Kurn, supra; Swain v. Anders, supra; Alsup v. Henwood, supra. (7) One of the essential elements of a case based on the humanitarian doctrine is that the peril must arise and be discovered in time for defendant to avoid the accident. White v. Kansas City Pub. Serv. Co., 193 S.W.2d 60; Ramel v. Kansas City Pub. Serv. Co., 187 S.W.2d 492. (8) Defendant is not required to sound a warning whistle merely because he sees an automobile approaching the track and so long as the automobile is traveling at such a speed that it can be stopped before going on the track and there is nothing in the driver's conduct to indicate that he is unaware of the approaching train, no duty rests on defendant to sound such warning. Thomasson v. Henwood, 146 S.W.2d 88, 235 Mo. App. 1211; Camp v. Kurn, 142 S.W.2d 772, 235 Mo. App. 109. (9) Defendant and its employees had a right to assume that the driver of a truck slowing down from 10 miles an hour to nearly a stop, as it approached defendant's tracks, would stop such truck before entering the danger zone a very few feet from the track. Thomasson v. Henwood, supra. (10) Deceased's truck did not enter a position of peril until it reached the point where it could not be stopped before entering the pathway of defendant's train. Thomasson v. Henwood, supra. (11) Failure of defendant to sound emergency warning or whistle after seeing deceased in position of peril, failed to present a jury question under the humanitarian rule where, after seeing deceased's peril defendant could not have averted a collision. Camp v. Kurn, 142 S.W.2d 772, 235 Mo. App. 109. (12) Plaintiff's uncontradicted evidence in this case affirmatively shows that defendant could not have sounded a warning or averted the collision after deceased entered a position of peril and the trial court erred in overruling defendant's motion for a directed verdict at the close of the evidence. Camp v. Kurn, supra; Thomasson v. Henwood, supra. (13) Plaintiff failed to sustain her burden of proof to show that after deceased entered a position of peril defendants could have sounded a warning and thereby have averted the collision and the trial court erred in failing to sustain defendant's motion for a directed verdict at the close of the evidence. Camp v. Kurn, supra; Thomasson v. Henwood, supra. (14) Where the only evidence tending to establish one of the necessary elements of her cause of action was the testimony of a witness called by plaintiff, it is necessary for the court to consider that testimony as true in its ruling on whether or not defendant's motion for a directed verdict should have been sustained. Rowe v. Henwood, 207 S.W.2d 829; Borrini v. Pevely Dairy Co., 183 S.W.2d 839. (15) Where a party produces a witness to testify in party's behalf he ordinarily vouches for the credibility of said witness' testimony and in the absence of contradictory evidence, is bound thereby and on a motion for a directed verdict may not say that it should not be given such consideration as its natural probative value entitled it to receive. Borrini v. Pevely Dairy Co., supra; Rowe v. Henwood, 207 S.W.2d 829. (16) The only evidence of deceased's obliviousness was the uncontradicted testimony of two witnesses called for plaintiff, and as their testimony affirmatively shows that deceased was not oblivious, plaintiff is bound by that testimony and the court in considering defendant's motion for a directed verdict was bound to consider it as true and therefore erred in failing to direct a verdict for defendant. Rowe v. Henwood, 207 S.W.2d 829; Borrini v. Pevely Dairy Co., supra. (17) The only evidence of defendant's present ability to avoid the accident after deceased entered a position of peril was the testimony of a witness called for plaintiff, and the trial court was bound to consider such testimony as true, and since it affirmatively showed that defendant did not have the present ability to sound a warning or avoid the accident after deceased entered a position of peril, the trial court erred in overruling defendant's motion for a directed verdict. Rowe v. Henwood, 207 S.W.2d 829; Borrini v. Pevely Dairy Co., supra.
Philip J. Fowler and W.E. Shirley for respondent.
(1) The evidence justifies the inference that, as plaintiff's husband, Delmar Kirkpatrick, approached the place where appellant's railroad track is intersected by Hamilton street, driving a motor truck at a rate of speed of ten miles an hour, he did not slow down or slacken said rate of speed before going upon said railroad track. (2) The jury was authorized to accept as true said testimony as given by the witness Palmer on direct examination and to reject as erroneous his testimony on cross-examination, which was contrary to and in conflict with his said testimony on direct examination. Moore v. Dawson, 220 Mo. App. 791, 277 S.W. 58. (3) The jury was justified in rejecting as unreliable the statement made by Gillespie in his testimony that said Delmar Kirkpatrick "slowed down at the crossing" because, at the time said Kirkpatrick reached said railroad crossing, said Gillespie was directly behind and much more than half a block distant from said moving vehicle, i.e., in no position to discern whether, at said time and place, said motor truck did or did not slow down. Gould v. C., B. Q. Railroad Co., 300 Mo. 611, 274 S.W. 705. (4) It is a matter of general and common knowledge that one who is in a position directly behind a moving vehicle cannot discern its rate of speed, nor any acceleration or diminution in such rate of speed, and accordingly, it is a matter of which judicial notice will be taken. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9. (5) Respondent is not bound by said statement in Gillespie's testimony that the truck "slowed down there at the crossing," for the further reason that said statement constitutes nothing more than a mere estimate as to rate of speed, such testimony being of insufficient probative force, to be regarded as binding or conclusive. Scott v. K.C. Public Service Co., 115 S.W.2d 518. (6) As conceded by appellant in its brief, the evidence shows that "there was a clear view to the south for a distance of 78 feet 6 inches west of the tracks," so that, as Mr. Kirkpatrick drove from the west, moving eastward on Hamilton street toward the railroad crossing where he was killed, his position of imminent and impending peril could have been discerned as soon as he came within said distance (78½ feet) of said railroad crossing. (7) As conceded by appellant in its brief, "there was uncontradicted testimony that deceased with ordinary brakes could have stopped within 3 or 4 feet at any time." (8) As conceded by appellant in its brief, there was evidence that no warning was sounded of the approach of the railroad train. (9) Warning could have been sounded in a second or a fraction of a second. Kick v. Franklin, 342 Mo. l.c. 723, 137 S.W.2d 512. (10) By reason of all of the evidence above referred to and by reason of the evidence as a whole and the justifiable inferences therefrom, the plaintiff made a submissible case under the humanitarian rule. Kick v. Franklin, 342 Mo. 715, 137 S.W.2d 512; Alexander v. St. L.-S.F. Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023; Logan v. C., B. Q. Railroad Co., 300 Mo. 611, 254 S.W.2d 711. (11) Under point numbered II at page 13 of its brief, appellant does not "specify any allegation of error" within the meaning of this court's rules, for the reason that there is no specification nor designation, either by reference to the transcript on appeal or in any other manner, as to what was said in argument by respondent's counsel of such character as to be "improper, inflammatory and prejudicial." Rule 1.08, Supreme Court of Missouri.
Respondent-plaintiff recovered a judgment for $8,000 against appellant-defendant, Wabash Railroad Company, for the death of her husband which resulted on the afternoon of July 20, 1946, when the truck he was driving east was struck by defendant's northbound freight train on the Hamilton Street crossing in Kirksville, Missouri. From that judgment defendant has appealed.
[1] At the outset we are confronted with plaintiff's motion to dismiss the appeal. As ground for such motion plaintiff contends defendant's statement of the case in its brief "is intermingled with argument and with conclusions" in violation of our Rule 1.08. That motion was taken with the case. While defendant's statement in [766] its brief includes some irrelevant and merely formal matter, some argument and conclusion of the brief writer, and while it is not all that could be desired as a "concise statement of the facts without argument", as to the situation of the instant case we are able to glean from the statement the facts determinative of the sole issue upon this appeal. We have concluded that we should not here apply the harsh remedy of dismissal. Therefore, the motion to dismiss the appeal is overruled.
Plaintiff pleaded both primary negligence and a violation of the humanitarian rule in a failure to warn by sounding the whistle. But abandoning other pleaded negligence plaintiff submitted her case to the jury solely upon the above noted humanitarian theory. At the close of the evidence adduced by plaintiff, defendant offered its motion for a directed verdict, and standing upon such motion, offered no evidence. It here insists the trial court erred in overruling that motion. Specifically, defendant contends the record evidence fails to make a submissible case, in that it neither appears nor is it inferable from the record facts that deceased was oblivious of the approach of the train until such time as it was too late to sound a warning and avoid the collision. Plaintiff contends the contrary is true.
These contentions call for a detailed statement of the facts of record. Under these circumstances we herein state and consider the record facts and the reasonable inferences therefrom in the light most favorable to the jury's verdict and give plaintiff the benefit of every favorable inference the evidence tends to support.
Hamilton, a public street, extended east and west but immediately east of the railroad jogged slightly north and then continued east. The railroad at that point ran generally north and south (slightly east of north and slightly west of south). Both north and south of Hamilton Street the railroad track was straight for some distance. From the north, Osteopathy, another public street, ran south into and ended at Hamilton Street and intersected the north side of Hamilton just a few feet west of the railroad crossing. Both streets were paved and level. The crossing was level and the day was clear. From Hamilton Street west of the crossing the view to the south along the track was clear and unobstructed after one going east on Hamilton passed to the east of a grocery store which was located 78.5 feet west of the railroad track and on the south side of Hamilton. In the general neighborhood of the crossing there were houses on both Osteopathy and Hamilton except as above noted. There was much traffic over the crossing.
The railroad track approached Hamilton Street from the south up a slight grade but at a point on the tracks 450 to 500 feet south of Hamilton the view of Hamilton Street was clear to the west for 78.5 feet. From that point on west on Hamilton Street the view along Hamilton Street was obstructed by the grocery store and other buildings. From the same points on the railroad track south of Hamilton the view was likewise clear and unobstructed to the north on Osteopathy Street. The speed of the approaching train was estimated at from 25 to 50 miles per hour. As the truck was attempted to be driven east upon the crossing the left front corner of the locomotive struck the right front corner of the Kirkpatrick truck. Plaintiff's husband was alone in the truck. The impact threw the truck up in the air and down onto the west side of the right of way.
While other witnesses also testified, only two persons saw the truck before the actual impact of the collision. We note their testimony with particularity.
Joe Gillespie was operating a truck east on Hamilton Street. When he was a half block west of the crossing he stopped preparatory to turning north into an alley running north from Hamilton. While Gillespie was stopped at that point plaintiff's husband passed Gillespie driving on east on Hamilton toward the railroad track in his (Kirkpatrick's) truck. Gillespie had known Kirkpatrick nine years. As the latter passed going east they exchanged greetings. Gillespie testified Kirkpatrick "never was going over eight or ten miles [767] an hour"; that "within a few feet of the track he (Kirkpatrick) slowed down"; that "he (Kirkpatrick) slowed down there at the crossing and he went on"; that he (Gillespie) could not tell whether Kirkpatrick looked for a train when he slowed down at the crossing, "you couldn't hardly tell, — but he slowed down to look, I know. Q. And then he proceeded on? A. Yes, sir". Gillespie further testified he heard no whistle or warning given by the train at any time.
Gilbert Palmer, also called as a witness by plaintiff, testified that he was the head brakeman of the train and was riding in the left (west) seat of the locomotive cab; that approaching the Hamilton Street crossing from the south his view to the west of the track on Hamilton Street was unobstructed to the grocery stone, "around eighty feet" west of the track; that the Kirkpatrick truck, however, came south down Osteopathy Street to Hamilton Street; that he first saw Kirkpatrick's truck 100 feet from the crossing; "And what, if anything did you do then? A. Not a thing at that time, sir. Q. The car was coming toward the crossing? A. Yes, sir. Q. And you did nothing about it? A. At 150 yards, no sir. Q. And the train proceeded on there, and the car came on? A. Yes, sir. Q. And did they strike together? A. Yes, sir. . . . Q. Did you hit the front — did the front of the car and the engine come together? A. We hit the right front side. . . . Q. And this car was still in an angle, was it? A. No, he had made the turn on to Hamilton, off of Osteopathy". Palmer testified the regular crossing whistle was being blown by the engineer as the train approached and passed over the crossing.
Palmer further testified: "Q. As you ride in the engine, what are your duties as head brakeman there, in coming through a town? A. Nothing other than watching the crossing. Q. What do you watch for at the crossing? A. People and vehicles. Q. If you see people in vehicles what do you do? A. Well, if I happen to holler at every man I see or automobile I see, we would be stopping all the time. Q. What do you do? A. Nothing. Q. You don't do a thing? A. Only just set there and watch them." He also testified the Kirkpatrick truck while on Osteopathy Street could turn either west on Hamilton or east on Hamilton toward the track; that its speed was "around ten miles an hour"; that "he (Kirkpatrick) was slowing down all the time"; that his speed was always so slow that he could have stopped in three or four feet; that as Kirkpatrick approached the crossing his truck was slowed down "as if it was stopping", but it started on again; that there was not sufficient time after Kirkpatrick started up, after he had slowed down near the crossing, to give the engineer any information before the collision; that for a quarter of a mile the automatic bell ringer had been ringing the bell on the locomotive; that the appliances to blow the whistle or stop the train were all on the other side (east side) of the cab; that the engineer was seated on the east side of the cab, six or eight feet away; that after the locomotive was within three or four hundred feet of the crossing the extension of the boiler on the engine out in front prevented the engineer from seeing any traffic west of the crossing; that he and the fireman both "hollered (at the engineer) and we hit"; that although there was nothing between him and the engineer the latter could not hear him hollering because the crossing whistle was then blowing.
Other than Gillespie and Palmer no witness saw either the train or the Kirkpatrick truck until after the collision had occurred.
[2] The sole question presented on this appeal is, do these facts or any inferences favorable to plaintiff require the trial court to submit the case to the jury?
It is noted that Gillespie and Palmer disagreed as to which street it was upon which Kirkpatrick approached the point of [768] this tragedy. Palmer testified Kirkpatrick came south on Osteopathy Street, turned left and east on Hamilton, slowed down as though to stop, then started up and was struck by the train. Gillespie testified Kirkpatrick was at all times east bound on Hamilton Street, and when "within a few feet of the track" slowed down, then started up and was struck by the train. It is not here required that such factual question be determined. For the purpose of the issue to be ruled upon this appeal we are not concerned with whether Kirkpatrick came south on Osteopathy Street or came east on Hamilton Street. But we are concerned with determining where he was when his peril arose, when it was the defendant had a duty to warn, and whether a warning could thereafter have been given in time to have avoided the collision.
The undisputed testimony as to how the collision occurred is that Kirkpatrick, driving at only 8 to 10 miles an hour, and at all times able to stop within 3 or 4 feet, and "slowing down all the time", came to "within a few feet" of the track, slowed down, and then started up to cross the track, and was immediately struck. The railroad crossing sign immediately before him and the railroad track itself was a warning of danger. In failing to see the approaching train plainly visible before his eyes if he had looked and in failing to stop instead of driving into certain collision with the locomotive Kirkpatrick was conclusively negligent.
However, under the humanitarian rule, the beneficent principle of "extreme regard for human life" causes the law to disregard the negligence which "brings about or continues the situation of peril" (Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482), but, of course, the protection of the humanitarian rule is not extended to one who with knowledge of danger willfully or wantonly rushes into it.
"Position of peril" or "imminent peril" as applied to the humanitarian doctrine does not mean a bare possibility of danger. It means a certain peril, a place where danger is imminently impending. Wallace v. St. Joseph Ry., Lt. Ht. Pr. Co., 336 Mo. 282, 77 S.W.2d 1011; Branson v. Abernathy Furn. Co., 344 Mo. 1171, 130 S.W.2d 562; Thomasson v. Henwood, 235 Mo. App. 1211, 146 S.W.2d 88.
Plaintiff invokes the presumption which the law indulges against suicide. There is no contention by any one that Kirkpatrick, knowing that the train was approaching, drove into collision with the train. But the record tends to establish that while he was in fact oblivious to the approach of the train, the movement of his truck, in slowing as if to stop, indicated he was aware of its approach.
Obliviousness to impending danger is always a constitutive element of a humanitarian case of failure to warn. Pentecost v. St. Louis Merchants' Bridge Term. R. Co., 334 Mo. 572, 66 S.W.2d 533. Our courts have often stated that: "`It is not enough that the defendant should see the plaintiff in a position which would be dangerous were the plaintiff not aware of what is going on. The defendant must also realize or have reason to realize that the plaintiff is inattentive and, therefore, is in peril. The defendant is entitled to assume that the plaintiff is paying or will pay reasonable attention to his surroundings; until he has reason to suspect the contrary, he has no reason to believe that the plaintiff is in any danger. Therefore, the defendant is liable only if he realizes or has reason to realize that the plaintiff is inattentive and consequently in peril. Thus, if an engineer of a train approaching a level highway crossing sees a traveler approaching the track on foot or in a vehicle, he is not required to take any steps either to warn the traveler by an additional blast of his whistle or to bring the train under special control, since he is entitled to assume that the traveler has discovered or will discover the oncoming train and will stop before reaching the crossing.'" (Italics ours.) Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368, Thomasson v. Henwood, supra; Camp v. Kurn, 235 Mo. App. 109, 142 S.W.2d 772; Stark v. Berger, 344 Mo. 170, 125 S.W.2d 870; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13. But if the demeanor of the approaching traveler be such as to indicate to a reasonably prudent [769] person in the position of the trainmen that the traveler is or may be oblivious, the trainmen must take such steps as a reasonably prudent person may consider necessary. And when peril arises, such steps must, in any event, be taken.
Whether Kirkpatrick moved south upon Osteopathy Street or east upon Hamilton Street to this collision all the evidence is that his speed was only 8 or 10 miles per hour, that at any time he could stop in 3 or 4 feet and that all the time he was slowing down. When "within a few feet" of the crossing he slowed down to his lowest speed, then started forward to the almost instantaneous collision. Neither eye witness undertook to state in feet how close it was to the track that he slowed to his lowest speed and then began to accelerate his speed to go on across the tracks. "Few" means "not many; of small number". It is an indefinite expression for a small or limited number. Pittsburg, C., C. St. L. Ry. Co. v. Broderick, 102 N.E. (Ind.) 887, 893; U.S. v. Margolis, 138 F.2d 1002, 1003. In any event the record before us shows he was quite close to the track. Such a low speed while approaching and the continued deceleration of that low speed indicated Kirkpatrick's intention to stop before crossing. From the movement of Kirkpatrick's truck, it would have reasonably appeared obvious to Palmer, and would have been so to any reasonably prudent person observing him, that Kirkpatrick was conscious of the oncoming train and intended to stop and let the train pass. Under the instant facts Kirkpatrick did not enter a position of peril until his truck reached a point so near the west rail that it could not be stopped before coming within the overhang of the locomotive. It was not until he reached his lowest speed and then thereafter accelerated his speed to go on across that there was any indication to any one that he was in fact oblivious to the danger of the oncoming train. It was at that instant that peril arose. It was at that instant that the duty to warn arose.
Plaintiff argues that, assuming Kirkpatrick came from the east on Hamilton Street, he was in peril when he first could have been seen 78.5 feet west of the crossing. We cannot agree to that contention for reasons we note above.
It is apparent from the record facts that at the time the duty to warn arose Kirkpatrick was within only a very few feet of the overhang of the locomotive. Under every possible inference from these facts only a second or two, possibly less, thereafter elapsed before the actual collision. When Kirkpatrick started forward, Palmer and the fireman hollowed to the engineer. All the appliances for warning and slowing down were on the engineer's side of the cab of the locomotive. It is plain from these facts that there was no time to convey information to the engineer in time for a warning signal to have been given in time to have averted this collision. Kirkpatrick had made that impossible when he started forward at accelerated speed from a point so close to the rail. To make a submissible jury case under the theory submitted in plaintiff's instruction 1 the evidence must disclose that a reasonably sufficient time was afforded, after peril was discoverable, during which time it was reasonably possible for the whistle to have been sounded, for Kirkpatrick to have heeded the blast of the whistle and to have stopped short of the collision. Stark v. Berger, supra; Thomasson v. Henwood, supra; Camp v. Kurn, supra; Smith v. Siedhoff, 209 S.W.2d 233; Poague v. Kurn, supra.
We have carefully examined the cases cited by plaintiff. Her argument and the cases she cites are founded upon her own interpretation of the testimony we state and quote above. She urges us to ignore the record testimony of her witnesses, Gillespie and Palmer, to the effect that Kirkpatrick slowed down within a few feet of the track. Plaintiff urges that Gillespie's testimony be discarded because Gillespie was substantially directly west of Kirkpatrick's east bound truck; and that we should judicially notice that because of his location Gillespie's testimony that Kirkpatrick "slowed down there at the crossing" lacks probative value. That we cannot do. Rereading and close analysis of the unequivocal testimony of Gillespie [770] and Palmer compels the conclusion that the case should not have been submitted to the jury. As above noted, Palmer's testimony, in all the matters essential here, verifies and supports that given by Gillespie. Palmer's testimony must be considered in its entirety. He was plaintiff's witness but his testimony does not take plaintiff's case to the jury. On the contrary, it demonstrates, as does Gillespie's testimony, that until Kirkpatrick accelerated the speed of his truck when within a few feet of the track those on the locomotive had no reason to suspect he was oblivious to his danger, and that thereafter there was no time or opportunity for the enginemen to have averted the collision. There is no testimony to the contrary in the record. Plaintiff's contentions respecting her interpretation of the testimony are not supported by the record in the case and must be overruled.
We cannot escape the conclusion that the trial court erred in overruling defendant's motion for a directed verdict and in submitting the case to the jury, and we so rule.
It appearing that the case has been fully developed as to facts, and that plaintiff cannot in any event recover, the judgment of the circuit court is reversed with directions to enter a judgment for the defendant. It is so ordered. All concur.