Sullivan v. Missouri Pacific Railway Co. , 117 Mo. 214 ( 1893 )

DIVISION ONE.

Brace, J.

— On the third of August, 1889, at the crossing of Lydia avenue and Front street in the city of Kansas, an old lady, Mrs. Ellen Sullivan, was run over and killed by a train of defendant’s freight cars being propelled by a switch engine along said Front street, and over said crossing.

In .this action afterwards instituted by the plaintiff, her only minor child, he obtained judgment in the circuit court of Jackson county for $5,000, under the statute, for her death. The defendant- appeals.

By the ordinance of the city of Kansas the running of a locomotive and cars within the city limits at a greater rate of speed than six miles an hour, is-prohibited.

The evidence of the plaintiff tended to prove that-when Mrs. Sullivan was struck by defendant’s cars, the train was running at the rate of about twenty miles an hour, and that no bell was ringing nor whistle blowing; that it consisted of a switch engine and two box cars in front of it; that Mrs. Sullivan and six or seven other ladies had been visiting a lady residing on. the north side of the railroad track and Front street, and near the point where she was killed; that leaving. her house they approached the crossing, and all started to cross over, four or five of the ladies in advance followed by a Mrs. McKeever and Mrs. Sullivan, a few steps in their rear, Mrs. McKeever leading and Mrs. Sullivan following. The ladies in advance crossed the track and just as Mrs. McKeever stepped upon it some one exclaimed “the switch engine is coming;” Mrs. McKeever, answered, “we will make it,” and stepped across the track; as she was stepping off the track Mrs. Sullivan looked up and down the track, stepped on it, and as she did so, either tripped against the rail or caught her foot in her dress and fell. She was a large woman; she got partly up, fell again, struggled toward or ^ onto the south rail and was struck before she could get over it, and died within a minute; that the train ran on, after passing over her, about a block before it stopped; that at the time Mrs. Sullivan stepped on the track the train was distant from the crossing from two to four hundred feet; that the track was straight and in plain view of the operatives; that such a train running at the rate of six miles an hour could be stopped in about ten feet; at eight miles an hour in fifteen or sixteen feet; at ten miles an hour in eighteen or twenty feet; at fifteen miles an hour in forty or fifty feet and at twenty miles an hour in one hundred and fifty feet, at, twenty-five miles an hour in about two hundred and twenty-five or-two hundred and fifty feet.

The evidence for the defendant tended to prove that the train consisted of a switch engine and four freight ears, two loaded and two empty, the engine in the middle of the train; that it was running from eight to ten miles an hour; that the bell was ringing and the whistle blowing; that the operatives discovered the ladies approaching the track when the train was about a block from the crossing; that they did not check the speed of the train; that four of the ladies crossed the track; that the deceased came up near the track, stopped, looked in the direction of the coming train, and when it had approached within the distance of six or eight feet, as one witness says, or within the distance of a car length of the crossing, as other witnesses say, she stepped on the track, fell and was killed; and that nothing could have been done that was not done after she stepped upon the track that ■could have prevented the train from striking her.

The evidence of the defendant further tended to prove that such a train running at the rate of six miles an hour could not be stopped inside of thirty-five or forty feet. At the rate of eight miles an hour, it would take fifty-five or sixty feet to stop; at ten miles an hour between seventy and eighty feet; at twelve miles an hour about one hundred feet; at fifteen miles an hour about one hundred and fifteen or one hundred and twenty feet and at twenty miles an hour about ■one hundred and fifty feet.

The errors complained of as ground for reversal are, the refusal of the court to direct a verdict for the •defendant on the evidence, and the giving of the following instructions for the plaintiff:

“4. You are instructed that while it was the duty •of Ellen Sullivan to look and listen before stepping upon the track, yet if you find from the .evidence that she did seethe train, then she had the right to presume, unless she knew to the contrary, that the person in ■charge of said train would run the train at a rate of speed not exceeding six miles per hour and to act upon said presumption.

“5. Although you may believe from the evidence that Ellen Sullivan was guilty of negligence in stepping upon the track, yet if you further find from the evidence that after said Ellen Sullivan was guilty of negligence, the agents, servants and employees of defendant in charge of the locomotive and cars discovered or could have discovered by the use of ordinary care, her condition, and the danger of the same, if it was dangerous, and could have avoided injuring her by the use of ordinary care, and failed to do so, then such negligence of said Ellen Sullivan is no defense to this action, (and in this regard the court further instructs you that although you believe from the evidence that Ellen Sullivan was guilty of negligence in stepping upon the track, and although you may believe from the evidence that the servants, agents and employees of defendant in charge of said train, after seeing her on the track, and discovering the danger of her position, if it was dangerous, could not have avoided injuring her by the use of ordinary care, yet if you further find and believe from the evidence that their inability to avoid such injury after discovering her condition, was caused by their running at' an illegal rate of speed, and if they had then and there been running at a legal rate of speed they could have avoided injuring her, by the use of ordinary care, then such, negligence of said Ellen Sullivan is no defense to this action).”

I. There was no error in the refusal of the court to direct a verdict for the defendant on the evidence. To have done so would have been to have totally ignored the evidence for the plaintiff.

It is clear from the evidence that the defendant’s servants were running this train along and across the public streets of the city at a rate of speed in excess of that prescribed by the city ordinances. And there was evidence upon which the jury might well have found that the deceased, in attempting to cross the defendant’s track (laid and operated in one of those streets) was in the exercise of ordinary care and prudence. To have declared as a matter of law that she was not, in this case, would have been to declare that a citizen lawfully pursuing his way across a public highway, who comes to a railroad track laid along it, and before he enters upon it, looks (as a careful and prudent person should do) up and down the track for danger, and sees an approaching train distant two to four hundred feet (as plaintiff’s evidence tended to show) whose rate of speed he cannot determine, for the reason that it is coming directly towards him; but who relying^ upon the assurance that the law gives' him; that the train is being run at no greater rate of speed than six miles an hour, then undertakes to make the next three or four steps in his pathway that will safely land him across the track, is, by so doing guilty of negligence and forfeits all right to protection against the negligence of the railroad company, is against reason and the law. Eswin v. Railroad, 96 Mo. 290; Kellny v. Railroad, 101 Mo. 67.

A reasonably prudent person might well suppose that he could safely cross the track under such circumstances. It was for the jury to determine under all the circumstances as detailed in the evidence whether the deceased acted as a reasonably prudent person would have acted in her situation, in attempting to do so. The shouting upon which so much stress is laid in the argument of counsel upon this point, except the exclamation that “the switch engine is coming” which she evidently heard and acted upon, was after the unfortunate woman had stepped upon the track and fallen or was about to fall, and when monitions could no longer do her any good in the struggle she was making to extricate herself froin the terrible situation in which she was.

Even if the jury had found as a matter of fact that the deceased under the circumstances was guilty of negligence in entering upon the track, it did not follow that she could not recover. We do not know, and it is not for us to determine, neither was it for the judge who tried the case below to determine, how far this train was from the crossing, or at what rate of speed it was running at the time deceased stepped upon the track.

There is no question in this case about negligence of the defendant’s servants in failing to discover the perilous situation of the deceased in time to prevent the .accident. They saw her from the beginning to the end •of the tragedy; and there is evidence upon which the jury might have found that if the defendant’s servants had been at their posts and on the watch for persons likely to be on the track at the crossing of two public streets in a populous city, as this was, and as was their ■duty, they could by the prompt use of the proper means, have stopped or cheeked the train so as to have ■avoided the accident; for it is to be remembered that the evidence of the distance of the train from her at the time the deceased ■ stepped on the track ranged all the way from six to four or five hundred feet, and the speed of the train all the way from six to twenty miles an hour; and whichever standard furnished by the •evidence be adopted to measure the distance within which the train could have been stopped, it is manifest that there was evidence upon which the jury could have found that the train was at such a distance and going at such a rate of speed when the deceased stepped on the track, that it might have been stopped ■or checked in time to have prevented the accident.

II. The court committed no error in giving the fourth instruction. The criticism upon it is not well founded, and the authorities cited in support thereof are not in point. The jury in this instruction are not directed to presume a fact, concerning which there is evidence; but are simply told on the one hand what under the law was the duty of the deceased, and on the other, what was her right. Every one is presumed to know the law, and his rights and duties under the law, and t'o act in accordance with them, and it is the peculiar province of the court to advise the jury what those rights and duties are in a given case.

III. Instruction number 5 given by the court for the plaintiff is unobjectionable down to the qualifying clause contained within brackets. "With this clause omitted, the instruction is in harmony with instruction number 4 given for defendant, and with every ruling of this court upon the subject since the case of Harlan v. Railroad, 65 Mo. 22, in which, it may be said, the doctrine recognized and applied in earlier cases was first distinctly formulated, by which, a plaintiff was permitted to recover, notwithstanding the fact that his own negligence contributed to produce the injury- of which he complains. This doctrine is so well understood in. this state, and the cases are so numerous in which it has been reiterated, as to be unnecessary of citation or review. In the ruling of no one of them will be found support for the qualifying clause introduced into this instruction. After going through them all the only color of support for it, that we can find among our authorities, is a redundant remark of the learned judge made arguendo in Maher v. Railroad, 64 Mo. 276, and paraphrased in Dunkman v. Railroad, 95 Mo. 232. In both of these cases the remark was foreign to the ruling made, purely obiter, and in which at the same time the well recognized rule on the subject was stated.

The first time the doctrine contained in this qualifying clause came before this court in such a tangible shape as to warrant a ruling upon it, was in the case of Guenther v. Railroad, 95 Mo. 286, in which it was disapproved. The next was in Kellny v. Railroad, 101 Mo. 67, and the last in Dlauhi v. Railroad, 105 Mo. 645, in both, of which it was also disapproved. The reasoning in these cases shows that to adopt it would be, in this class of cases, to practically abrogate the doctrine of contributory negligence. For while the principle which lay at the root of the accepted doctrine was that although the plaintiff was guilty of negligence contributing with that of the defendant to the production of the injury, yet if the defendant could by the exercise of due care, after the situation became or might have become apparent to him, have prevented the injury, he was held responsible. The principle of this new doctrine is that he is to be responsible whether he could have prevented the injury or not, after the situation became or might have become apparent to him.

In applying this new doctrine to the facts in this case the jury may well have concluded from this instruction that although they might find that the deceased was guilty of gross negligence in entering upon the track in front of the approaching train, yet if they further found that the train was being run at a greater rate of speed than six miles an hour, they ought to find for the plaintiff, though the death of his mother was the result of these two concurring acts of negligence, provided they further found the fact to be that she went upon the track at any distance from the train within which it could have been stopped before it struck her if the train had been going at no greater rate of speed than six miles an hour. Thus the power to prevent the injury is practically eliminated by the instruction from the law of contributory negligence as a basis of recovery ; and the right to recover is predicated upon concurrent negligence of both parties, and the finding of a fact tending only to prove that the deceased , was not negligent.

It is to be regretted that in so close a case as this, otherwise so well tried, an error such as this should have been committed. But the error being of such a character as that it may have affected the result, the judgment must be reversed and the cause remanded for new trial.

All concur, except Barclay, J., who dissents.