Knorp v. Thompson , 357 Mo. 1062 ( 1948 )

[3] I respectfully dissent from the holding of the principal opinion that a statutory crossing signal made by sounding a locomotive whistle is a valid substitute for emergency or alarm signals when the enginemen see a traveler on a public road exposing himself to peril by attempting to cross a railroad track in front of an oncoming locomotive, especially where he is apparently oblivious of the approach thereof. It may be the statutory crossing signal such as was given in this instance was sufficient if sounded clear up to the crossing, though I doubt that unless it clearly appeared that the injured party was so close he could not have failed to hear and understand it. But to lay down such a general rule is error in my opinion, and in conflict with all the decisions that have considered the question.

In the first place, the statute, Sec. 5213, R.S. 1939-Mo. R.S.A., provides alternative methods of giving such crossing signals: (1) the engine bell may be kept ringing for 80 rods until the engine has crossed the highway; (2) or the whistle may be sounded for the same distance, but only at intervals of unspecified duration, and such an interval may be the last step in the operation. In other words the whistle need not be sounding while the engine closely approaches and crosses the highway. Furthermore, while such signals are warnings, they are not alarm or distress signals. They must be given regardless of whether any one is at the crossing. On the other hand alarm signals not only apprise the traveler of the approach of the locomotive, but also inform him that the enginemen (with their better knowledge of the speed of the locomotive and their ability to control it) consider his continued approach to the railroad track will imperil him. And for nearly sixty years it has been held that signals in addition [589] to those prescribed by the statute must be given if necessary to protect persons who have a right and do use the crossing space in common with the railroad. Burger v. Mo. Pac. Ry. Co., 112 Mo. 238, 246(3), 20 S.W. 439, 440(2), 34 A.S.R. 379.

I think it may be affirmed, as a matter of common knowledge that the customary statutory crossing whistle signal is two long and two short blasts over a distance of 80 rods, whereas the customary alarm, or danger, or emergency signal is short successive blasts. This is shown by a number of our decisions.¹ Thus, in the Hinzeman case just cited below it was held that both the bell and whistle must be sounded where a human being is imperiled at a highway crossing, the opinion adding: "The blowing of a locomotive whistle is the ordinary and usual means of giving a sharp alarm, . . . The monotonous stroke of a bell may be one thing; the incisive, ear-splitting scream of a whistle, a signal known to man and beast as performing the office of an `alarm signal,' is another. Under given circumstances, a bell might suffice — under other circumstances, a whistle is ordinary care." This language is quoted or adopted in a number of subsequent decisions.

In the Dutcher case it was conceded the locomotive had given the usual crossing signal by whistle, and there was a dispute as to "the time and extent of the alarm signals," and a verdict for plaintiff was upheld. In the Rollison case the engineer testified he "gave alarm signals by blowing his whistle in three or four sharp short blasts." A verdict for the defendant railroad was upheld. In theMaginnis case the engineer gave the statutory crossing signal and when within 40 to 70 feet from the crossing gave the alarm signal or warning but the court concluded they were not sounded soon enough and reinstated a verdict for plaintiff. In theMurrell case there was evidence that the enginemen had failed to give the statutory signal, and some to the contrary that the bell was rung and the station whistle sounded. But this court affirmed a judgment for plaintiff holding "a few sharp blows of the whistle might have arrested (the deceased's) attention," and saved his life. In the Logan case the engineer admitted he "did not give a succession of short whistles and emergency whistles" and another witness said "he did not hear any whistle or distress signal or shap blast or anything of that kind," but conceded the bell was ringing on the engine and that the whistle had been sounded at the last street crossing (in Hannibal). Judgment for plaintiff was affirmed.

In the Zumwalt case the enginemen testified (and the plaintiff denied) that they had already given the statutory crossing signals by bell and whistle — two long and two short blasts — but the opinion held the evidence indicated the enginemen were negligent in not sounding "the emergency whistle," which admittedly they did not do until too late. The opinion went on to say "We have often held that the enginemen must give an emergency whistle if by due care they can do so, if they cannot stop or slacken the train in time to avoid injuring passengers in peril approaching a public crossing." The Allen case quoted the Hinzeman case and modified an instruction asked by the defendant which told the jury the law did not require the engineer to sound both the bell and whistle, and that if the whistle was sounded or the bell was rung as required by the statute the railroad company had complied with the law. The court qualified the instruction by adding a clause stating, unless the conditions and surroundings at the crossing were such that a person of ordinary prudence in the exercise of ordinary care would have sounded both the bell and whistle. And this instruction was approved by this court.

[590] All these cases have been followed in three recent decisions: Bebout v. Kurn, 348 Mo. 501, 513-4 (4),154 S.W.2d 120, 127 (9); William v. Thompson (Mo. App.), 166 S.W.2d 785, 788(5), and Hutchison v. Thompson, 175 S.W.2d 903, 910(8). The Bebout and Hutchison cases both required alarm signals consisting of short blasts.

The ordinary duty of enginemen to ring the bell or blow the whistle is merely statutory. But cumulative of that they have the added common law duty of giving such additional warning, if possible, as will be adequate in the exercise of reasonable care after a traveler is discovered in or apparently going into peril. Hoelzel v. C., R.I. P. Ry. Co., 337 Mo. 61, 70(4), 85 S.W.2d 126, 129(5, 6). This is true in a case based on primary negligence; if based on the humanitarian doctrine the duty will not arise until after the traveler is in a position of imminent peril. Buehler v. Festus Mere. Co., 343 Mo. 139, 158(8), 119 S.W.2d 961, 970(11). But the point is that the common law duty requiresmore than the statute. Under a number of our decisions already cited — several of them written in the characteristic style of Judge Lamm — if a highway crossing signal has been ineffective a more intensive alarm or distress signal must be given. And if that is ineffective the locomotive must be slowed up or stopped if possible.

The principal opinion is largely based on Blackwell v. U.P. Rd. Co., 331 Mo. 34, 43(3), 52 S.W.2d 814, 816(3), which was written by Frank, J., who was also the author of the later Hoelzel decision, supra. The part of the Blackwell case relied on is that which says: "A failure to warn by a particular method would not be negligence if an adequate warning was given by some other method." But that case originated in Kansas and was decided on Kansas decisions and law — apparently the common law. If there is a bell or whistle crossing statute in that state the opinion does not show it.

The facts there were that in a crossing collision between an automobile and a backing train the injured plaintiff submitted her case on an instruction predicated solely on her innocence of contributory negligence, and the railroad's failure to give her "any signal of warning," plus the fact that such failure was the sole cause of her injuries. The railroad's evidence was that (1) an arc light illumined the crossing; (2) that the back of the train had lights; (3) that an automatic crossing bell was ringing; (4) that a watchman with a lantern was stationed there; (5) and apparently that the engine bell and whistle were being sounded. The opinion held the instruction authorizing a verdict for plaintiff solely if no "signal of warning" was given, etc., was erroneous because it was based solely on the lack of signals by sound, and ignored the railroad signals by lights, which were equally effective. It is obvious that this did not accord with Missouri law, which would not acquit the railroad of liability to avert the casualty by further efforts even if the plaintiff was not stopped by the crossing signals by sound, or light, or both (in the predicated absence of contributory negligence on her part.)

It seems to me obvious that short sharp blasts of a locomotive whistle are distinctive and more effective than an ordinary statutory crossing whistle commonly heard every day by persons near railroad crossings, and which are required by statute (in the alternative) to be sounded even when nobody is near. We all know that moving objects engage attention more than those that are still. For instance, the revolving lights on the towers along airplane routes; the blinker or wigwag signals often installed at railroad crossings; electric advertising signs that change color, or go off and on — all these are for the purpose of capturing public attention more than lights continuously shining would do. The nearest approximation to that in sound is by breaking it into separated parts or changing the volume or pitch in such way as to relieve its monotony. The undulating whine of a siren on a fire truck or ambulance, or the intermittent blasts of a fog horn are good examples. A motorist instinctively "ponds his horn" when a collision threatens. It is, I think, not only established by our decisions but by common knowledge, that the short sharp blasts of a locomotive whistle are more effective than a commonplace crossing whistle.

¹ Hinzeman v. Mo. Pac. Rd., 199 Mo. 56, 65(2), 94 S.W. 973(1); Dutcher v. Wabash Ry. Co., 241 Mo. 137, 154-5, 157-8, 145 S.W. 63, 67, 68; Rollison v. Wabash Ry. Co., 252 Mo. 525, 534, 538, 160 S.W. 994, 996, 997-8; Maginnis v. Mo. Pac. Rd.,268 Mo. 667, 674-5, 187 S.W. 1165, 1167; Murrell v. K.C., St. L. C. Rd. Co., 279 Mo. 92, 110-2(5, 6), 213 S.W. 964, 968-9; Logan v. C.B. Q. Rd. Co., 300 Mo. 611, 622, 624-5, 627-8, 254 S.W. 705, 707, 708, 709; Zumwalt v. C. A. Rd. Co., 266 S.W. 717, 721, 725 (6-9); Allen v. C., B. Q. Rd. Co., 313 Mo. 42, 59,281 S.W. 737, 741.