Tuck v. St. L. S.F. Ry. Co. , 217 Mo. App. 442 ( 1925 )

^* Headnotes 1. Carriers, 10 C.J., Section 1490; 2. Carriers, 10, C.J. Section 1490 (Anno); 3. Carriers, 10 C.J., Section 1490 (Anno). Action for damages for death of plaintiff's husband. At the close of plaintiff's testimony a demurrer thereto was sustained and judgment went against her and she appealed.

The plaintiff's husband was a minister of the gospel living at Elwood, Missouri, a station on defendant's railroad, at which some trains made regular stops and others only stopped when flagged. The deceased purchased a ticket at Elwood to go from there to Rogersville, Missouri. The train on which he sought to take passage did not stop at Elwood except when flagged. The defendant had provided a flag and kept it hanging on a nail on the outside of the depot and it was the custom of persons desiring to take passage on a train to use the flag themselves at their convenience for the purpose of giving notice to the approaching train to stop. On the morning in question a lady who was in charge of the depot and the deceased both stepped to the edge of the track and the flag was used by both in their efforts to stop the train. The train was visible for one-half mile before it reached the station, and at the time the lady and deceased first gave the signal the train was at the whistling post which must have been a long distance from the depot. It was the custom for the engineer to answer the signal to stop by two short whistles. On this occasion the engineer did not answer the signal and the train kept steadily on at a fast rate of speed without slackening until after the collision. Both the lady and the deceased were standing so near the track that the train could not pass without hitting them unless they moved and that situation must have been apparent to the engineer when the engine was a long distance from them. The parties kept waving the flag and when the train was near them, the lady then had the flag handed it to the deceased and he used it. When the train became very close to them, the lady saw the train was not going to stop and stepped back out of the way and spoke to the deceased and told him that she thought the train would not stop. The deceased made some effort to get back but was too late and the train struck and killed him.

On the facts proven, it was plainly the duty of the engineer to be on the watch for a stop signal at the station at Elwood. He had a clear view of the track and persons on or near the track for one-half mile. When the signal to stop was given, it was his duty to answer it by two short blasts of the whistle and then stop the train. He did neither. He evidently was not looking and did not see the signal or the parties giving it or he wilfully disregarded it. In either case he was guilty of negligence. It must be conceded also that the deceased saw the train approaching and could easily have stepped back so it would not hit him, so he was therefore guilty of contributory negligence. The only question in this case is whether as a matter of law on the facts proven by plaintiff, the humanitarian rule can be applied and whether, under the testimony, the question of liability of defendant under that rule should have been submitted to the jury. We are cited to a great number of cases by appellant which it is insisted hold that under the facts in this case, the question of defendant's liability under the humanitarian rule should have gone to the jury. Appellant's counsel state in their brief that they are relying solely on the rule announced in Kelley v. The Mo. Pac. Ry. Co.,101 Mo. 67, 13 S.W. 806; Murphy v. Wabash R.R. Co., 228 Mo. 56, 128 S.W. 481; Morgan v. Wabash Ry. Co., 159 Mo. 262, 60 S.W. 195; Frick v. The St. Louis, Kansas City Northern Ry. Co.,75 Mo. 595; Martin v. St. Louis-San Francisco Ry. Co., 227 S.W. 129; Banks v. Morris Co., 257 S.W. 482; State ex rel. v. Trimble, 260 S.W. 1000.] We have carefully examined all these cases as well as others and we have found no case which we consider parallel to this case in which a recovery has been upheld. In the Banks case, supra, the atmosphere has been cleared on the question of the necessity to plead and prove that the deceased was oblivious to his danger and it is there held by our Supreme Court that there may be instances in which a party is aware of his danger and may even remain in a place of danger when he could get away from it and still recover under the humanitarian rule, but neither that case nor any other that we have been able to find has held that the engineer who may or ought to have seen a man on or near the track when it is apparent to the engineer that the man sees the train approaching and that he can readily step out of danger is bound to slacken or stop the train until something occurs which will convey information to the engineer that the party does not intend to get out of danger. No matter how negligently the engineer may disregard his duty, yet the company cannot be held liable under the humanitarian rule unless there is a failure on the part of those in charge of the train to use ordinary care to avoid the injury after something has occurred which should convey information to those in charge of the train that the party in danger will not extricate himself.

In this case the deceased stood so near the track in using the flag that the train could not pass without hitting him. Whether the engineer saw him or not, he could and ought to have seen him and we must therefore proceed on the theory that he did see him. While that is true, yet, the engineer had the right to assume that the deceased would act as an ordinarily prudent man would act in regard to his own safety. The ordinarily prudent man standing on or near the track of a railroad watching a train approach would step out of danger before the train could strike him even though it did not slacken its speed. With nothing to prevent his moving there would be no legal excuse for his not doing so and it is apparent that the deceased in this case could have avoided injury by stepping back after the train was so near him that it would have been impossible to have stopped the train or to have slackened its speed in time to have avoided the collision and, under the facts shown in this case, the engineer could not know that the deceased would not step back in time to have done anything to avoid striking him. We think the trial court was right in sustaining a demurrer to plaintiff's testimony in this case. [Butler v. United Railways Co., 293 Mo. 259,238 S.W. 1077.]

The judgment will be affirmed. Bradley, J., concurs; Bailey,J., not sitting.