Opinion
NOTE: Opinion filed at May Term, 1935, July 30, 1935; motion for rehearing filed; motion overruled at September Term, November 12, 1935.
1. NEGLIGENCE: Submissible Case. In an action for injuries caused to plaintiff when his automobile was struck by defendant's railroad train at a crossing, where the evidence showed that the wheel of plaintiff's car ran into a chug hole against the railroad rail, killing his motor, that plaintiff saw the train approaching at a distance of fifteen hundred feet, and failing to start his motor, attempted to leave his car and was struck, the negligent failure of the engineer to reduce the speed of the train was properly submitted to the jury.
2. NEGLIGENCE: Failure to Warn. Where plaintiff sued for injuries caused when his automobile stalled on the railroad track, was struck by an oncoming train, and the evidence showed that he could see the train approaching at a distance of fifteen hundred feet, he could not recover against the defendant on its negligent failure to warn of its approach.
In the absence of evidence tending to show plaintiff was oblivious of the train's approach, defendant was under no duty to warn him.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. McElhinney, Judge.
REVERSED AND REMANDED.
J.W. Jamison, C.H. Skinker, Jr., and A.E.L. Gardner for appellant.
(1) Plaintiff submitted his case to the jury under the humanitarian doctrine alone. To authorize a recovery under this doctrine mere speculation and conjecture cannot be indulged in to determine facts which authorize its application. It requires more than a mere possibility that the accident might have been avoided in order to bring the case within the last-chance rule. Markowitz v. Ry. Co., 186 Mo. 359; Roenfeldt v. Railroad Co., 180 Mo. 567; Goodson v. Schwandt, 318 Mo. 667. (2) The word "peril" as used in the application of the humanitarian doctrine means an imminent, impending or certain peril, and goes beyond the bare possibility of an injury occurring. Baldwin v. Wells, 27 S.W.2d 436; State ex rel. v. Trimble, 300 Mo. 92; Stewart v. Mo. Pac., 308 Mo. 383, 272 S.W. 694; Wilson v. Wells, 13 S.W.2d 541. (3) The engineer in charge of an oncoming locomotive and train of cars, having the right to assume that the driver of the slowly approaching automobile would stop before going on the railroad tracks, owed no duty to slacken speed of train or sound warning until it was, or should have been, apparent to him that the driver of the automobile did not intend to stop, or was oblivious to his imminent peril. Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; Guyer v. Railroad Co., 174 Mo. 344; Beal v. Ry. Co., 256 S.W. 733; State ex rel. Ry. Co. v. Reynolds, 289 Mo. 489; Lackey v. United Rys. Co., 288 Mo. 120; Markowitz v. Ry. Co., 186 Mo. 350. (4) It was error to give plaintiff's Instruction 1, for the reason that it authorized the jury to return a verdict in favor of plaintiff if the jury found that the operator of the locomotive described in the evidence failed to "sound a warning of its approach;" and this for the obvious reason that plaintiff testified that at the time he drove upon the railroad tracks he looked in the direction of the oncoming train, saw it when it was some fifteen hundred feet distant, and knew that it was bearing down upon him with terrific speed until he was struck. In this situation it is uniformly held that the failure, if any, to give warning of the train's approach was not the proximate cause of the collision in question and plaintiff's resulting injury; and such failure, if any, should not have been submitted to the jury. Peterson v. United Ry. Co., 270 Mo. 76; Murray v. Trans. Co., 176 Mo. 183; Hutchinson v. Railroad Co., 195 Mo. 546; Mockowick v. Railroad Co., 196 Mo. 550; Young v. Railroad Co., 227 Mo. 307; Heints v. Transit Co., 115 Mo. App. 670; Weddle v. Ry. Co., 47 S.W.2d 1098; Pope v. Railroad Co., 242 Mo. 232; Walradt v. Power Co., 48 S.W.2d 96; Wilson v. Wells, 13 S.W.2d 545. (5) Plaintiff's Instruction 1, which covered the entire case and directed a verdict for plaintiff, submitted the disjunctive negligence on the part of the defendant in failing to stop said locomotive and train, or to slacken the speed thereof, or to sound a warning of its approach. Therefore, if the record fails to show negligence on the part of the defendant proximately causing plaintiff's injuries in any one of the three respects submitted in the instruction, the instruction is erroneous. State ex rel. v. Cox, 310 Mo. 367, 276 S.W. 869; De Moss v. Rys. Co., 296 Mo. 526, 246 S.W. 566; Driscoll v. Wells, 29 S.W.2d 50; Bury v. Ry. Co., 223 Mo. App. 483, 17 S.W.2d 549; Weddle v. Ry. Co., 47 S.W.2d 1098. Douglas H. Jones and John W. Milford for respondent.
(1) Demurrer was properly overruled, as plaintiff presented a perfect case under the humanitarian doctrine. A cause is properly submitted to the jury under the humanitarian doctrine when it is shown that the injury could have been averted by stopping, slackening the speed or sounding a warning signal after plaintiff reached a position of imminent peril. Alexander v. Frisco, 327 Mo. 1012, 38 S.W.2d 1023; Vowels v. Mo. Pac., 8 S.W.2d 7, 320 Mo. 34; Carney v. Railroad Co., 23 S.W.2d 993; Spoeneman v. Uhri, 60 S.W.2d 9. (2) Defendant's negligence in failing to warn was properly submitted to the jury in plaintiff's humanitarian instruction; and it was correct in that respect. Defendant owes duty to plaintiff to warn him of his danger and this warning must be given if it will avert the danger, even though plaintiff saw defendant approaching. McNulty v. Pub. Serv. Co., 60 S.W.2d 701; Moran v. Railroad Co., 330 Mo. 278, 48 S.W.2d 881; McGowan v. Wells, 24 S.W.2d 633, 324 Mo. 652; Hill v. Rys. Co., 289 Mo. 204, 233 S.W. 205; Ellis v. Met. St. Ry., 234 Mo. 683; Bradley v. Becker, 321 Mo. 405, 11 S.W.2d 8; Riggle v. Wells, 287 S.W. 803; Steigleder v. Lonsdale, 253 S.W. 487; McKinney v. Bissels, 263 S.W. 533; Hill v. Ry. Co., 289 Mo. 193, 233 S.W. 205; American Auto. Ins. Co. v. United Rys. Co., 200 Mo. App. 317, 206 S.W. 257; Woodis v. Ry. Co., 199 Mo. App. 348, 203 S.W. 489; Thompson v. Railroad Co., 18 S.W.2d 401; Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Todd v. Frisco, 37 S.W.2d 557; Beck v. Ry. Co., 327 Mo. 658, 37 S.W.2d 917; Maher v. St. L. Pub. Serv. Co., 53 S.W.2d 1099; Oxford v. Frisco, 331 Mo. 53, 52 S.W.2d 983; Epstein v. K.C. Pub. Serv. Co., 78 S.W.2d 534; Curtis v. K.C. Pub. Serv. Co., 74 S.W.2d 255; Peck v. Williamson, 68 S.W.2d 847; State ex rel. St. L. Pub. Serv. Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141; Larey v. M.-K.-T., 333 Mo. 949, 64 S.W.2d 681; Willhauck v. C.R.I. P., 332 Mo. 1165, 61 S.W.2d 336; Berryman v. Peoples' Motorbus Co., 54 S.W.2d 747; Allen v. C.R.I. P., 227 Mo. App. 468, 54 S.W.2d 787; Rice v. Railroad Co., 52 S.W.2d 746; Henzeman v. Railroad Co., 199 Mo. 65, 94 S.W. 973; Chawkley v. Wab. Ry. Co., 317 Mo. 782, 297 S.W. 20; Alexander v. Frisco, 38 S.W.2d 1023, 327 Mo. 1012. (3) Defendant waived question of failure to sound a signal by giving instructions on same theory and is therefore estopped to question the propriety of its submission. Where defendant submits same issue to jury he cannot complain of plaintiff's submission of that question. Armstrong v. Scullin Steel Co., 268 S.W. 386; Ramsey v. Ry. Co., 253 S.W. 1079; State ex rel. v. Allen, 308 Mo. 487, 272 S.W. 925; Wielms v. St. Louis Gas Co., 37 S.W.2d 455; Rice v. Gray, 225 Mo. App. 890, 34 S.W.2d 567; Bryson v. Baum, 278 S.W. 412; Grasher v. K.C. Pub. Serv. Co., 35 S.W.2d 645; Pulsifer v. City, 226 Mo. App. 529, 47 S.W.2d 233; Peters v. Fleming, 46 S.W.2d 581, 329 Mo. 690; Johnson v. Ry. Co., 64 S.W.2d 674, 334 Mo. 22; Cole v. Railroad Co., 61 S.W.2d 344, 332 Mo. 999; Cantley v. Plattner, 67 S.W.2d 125; General Motors Acc. Corp. v. Farm Home S. L. Assn., 58 S.W.2d 338, 227 Mo. App. 832; Stewart v. K.C. Pub. Serv. Co., 49 S.W.2d 1061; Ellyson v. Mo. P. L. Co., 59 S.W.2d 714. Where defendant refers to plaintiff's instructions he thereby adopts that instruction. Conley v. Ry. Co., 259 S.W. 153; Quinn v. Atchinson, 193 S.W. 933; Consolidated School Dist. No. 3 v. West Mo. Power Co., 329 Mo. 690, 46 S.W.2d 174. (4) Defendant's withdrawal instruction on danger signals was properly refused. Where plaintiff submits case on humanitarian doctrine alone it is error to give withdrawal instructions for defendant. Martin v. Frisco, 329 Mo. 738, 46 S.W.2d 149; Wainwright v. Westborough Country Club, 45 S.W.2d 86; Silliman v. Munger Laundry Co., 329 Mo. 235, 44 S.W.2d 159; Perryman v. Mo. Pacific, 31 S.W.2d 462; Doyle v. Terminal, 326 Mo. 425, 31 S.W.2d 1010; Willis v. Applebaum, 26 S.W.2d 823; Poppen v. Wagner, 2 S.W.2d 199; King v. Friederich, 43 S.W.2d 843; Viermann v. St. Louis Contracting Co., 73 S.W.2d 734; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43.
Action for personal injuries resulting from the collision of an automobile with defendant's engine at a public crossing in Valley Park. Judgment for $24,500. Defendant appealed.
The petition alleged specific negligence, including a charge that defendant saw, or could have seen, plaintiff in imminent peril in time, by the exercise of ordinary care, to have reduced the speed of the engine, stopped the same, or sounded a warning and thereby avoided the collision. The answer was a general denial with pleas of contributory negligence. Plaintiff replied by general denial. The case was submitted solely under the humanitarian rule.
I. It is contended that the court should have directed a verdict for defendant. There was evidence tending to show the following:
Defendant's tracks extend north and south, and Marshall Avenue extends east and west across the tracks. East of and near defendant's right of way, St. Louis Avenue extends north and south. Plaintiff resided in northeastern Valley Park and was station agent of the Missouri Pacific Railroad at Glencoe, west of Valley Park. In going to and from Glencoe he daily crossed the tracks at Marshall Avenue. The tracks consisted of the two main lines and a spur east of the northbound main track. Plaintiff knew that defendant's northbound passenger train from Texas was due through Valley Park at seven-twenty A.M. daily. On June 5, 1931, at seven-fifteen A.M. he left for Glencoe in an automobile with the front windows down and traveled southward on St. Louis Avenue to Marshall Avenue at twenty miles an hour. He moved westward on Marshall Avenue up the incline to the spur track at five miles an hour. On account of obstructions he could not see south of the crossing until within fourteen feet of the northbound main track. At that point he stopped the automobile and looked north and south. He saw no train approaching from either direction, and on proceeding westward at five miles an hour the front wheels of the automobile ran into a "chug hole" east of the east rail of the northbound track, which caused said wheels to jump said rail, thereby killing the motor. At that time he looked south and saw defendant's northbound passenger train fifteen hundred feet south of the crossing. He made several attempts to start the motor, and on again looking south he saw the engine within twenty-five to thirty yards of the crossing. Immediately he opened the north door of the automobile, intending to abandon the car. As he stepped on the running board, the engine collided with the automobile. At five miles an hour the automobile could be stopped in two or three feet. The train consisted of an engine and sixteen coaches. It was moving from thirty-five to fifty-five miles an hour and could have been stopped in from four hundred fifty to eight hundred fifty feet. The signals at the crossing gave no warning of the approach of the train, no warning signals were given by the engine until it was within sixty to one hundred feet of the crossing, and the train brakes were not applied until the engine was within said distance of the crossing.
We think the questions of failure to reduce the speed or stop the train were properly submitted to the jury.
II. Defendant next contends that the instruction authorizing recovery on failure to warn was error.
Plaintiff argues that if warning had been given before he proceeded to cross the track, he would have waited for the train to pass. He was not in peril until the failure of the motor. At the time he proceeded to cross the track the engine was more than fifteen hundred feet from the crossing, and he had ample time to cross in safety. Absent peril, there was no duty on the part of the engineer to warn.
Furthermore, plaintiff was familiar with the crossing and the train. On failure of the motor he looked and saw the train fifteen hundred feet from the crossing. There is no evidence tending to show that thereafter he became oblivious of its approach. He was well aware of his peril. Absent obliviousness, there was no duty to warn. [Pentecost v. Terminal Railroad Co., 334 Mo. 572, l.c. 577, 66 S.W.2d 533.]
Plaintiff cites McNulty v. Pub. Serv. Co., 60 S.W.2d 701; Moran v. A., T. S.F. Railroad Co., 330 Mo. 278, 48 S.W.2d 881, and McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633.
In the McNulty case the plaintiff was standing between the rails of a street car track and saw an approaching street car eighty feet east of him. At that time his attention was directed to an automobile in the intersection and approaching from the west. On this account he became oblivious of the approaching street car and stopped on the track. It was correctly ruled that the question of plaintiff's obliviousness and the motorman's knowledge thereof was properly submitted on the issue of failure to warn. In other words, there was substantial evidence tending to show obliviousness.
The Moran case was an action under the Federal Employers' Liability Act. The negligence charged was failure to reduce the speed or stop the train. There was no charge of negligence in failing to warn. The reference to failure to warn was in connection with the consideration of assumption of risk. Furthermore, the plaintiff's back was to the approaching train.
The McGowan case was submitted on the humanitarian rule in failing to reduce the speed or stop. There also was no charge of negligence in failing to warn.
The other cases cited on the question are distinguishable on the facts.
It is clear that the failure to warn was not the proximate cause of the collision. The judgment should be reversed and the cause remanded. It is so ordered. All concur.