Stottler v. Wabash Railroad , 181 Mo. App. 642 ( 1914 )

NORTONI, J.

(after stating the facts). — The averments of negligence relied upon in the petition go to the effect that defendant moved the locomotive and box car backward as plaintiff’s husband was about to pass through the aperture between the. car attached to the engine and the refrigerator car, without giving any warning as by sounding the bell or otherwise. The last chance or humanitarian doctrine is not counted upon in the petition and, indeed, it does not appear that plaintiff’s husband might have been saved if his dangerous situation was discovered by those in charge of the locomotive. Neither is an ordinance of the city relied upon, but the case proceeds, as stated, on the theory alone that defendant had blocked the street crossing with its car and locomotive and left an opening between the cars near the crossing which operated as an implied invitation to persons on the street to leave the thoroughfare and pass through such opening. It is to be conceded that, on the most favorable view of the evidence for plaintiff, the locomotive and ear were standing still and the crossing thus blocked when plaintiff’s husband approached. But the evidence by no means sustains the theory that an implied invitation was extended to pedestrians to leave the sidewalk and pass to the northwest between the poultry house and the box car and then on through the opening between the two cars. [Touching that matter, see Stillson v. Hannibal, etc. R. Co., 67 Mo. 671, 677.] Then, too, it is obvious the car had stood at rest but a moment or two at most or a very short time. Ordinarily it would be difficult to perceive wherein a charge of negligence could be sustained against defendant in a case of this character, for it is not required to anticipate as within the range of reasonable probabilities that persons will leave the sidewalk in the public street and wend their way through a narrow passage, to cross the track in its private switch yards between'standing cars. But plaintiff introduced one of defendant’s rules in evidence requiring the bell on the locomotive to be sounded whenever an engine was moved, and the train men admit on the witness stand that this obligation obtained in the instant case. It may be that this rule inured to the benefit of plaintiff’s husband, though it does not appear he knew of it at the time and relied thereon; or this may not be true. We decline to examine and decide that question, for the case is to be disposed of on other grounds, even if defendant was negligent at the time.

Though it be conceded that defendant were negligent in not sounding the bell before moving the engine and the box car backward, as it is said the evidence for plaintiff tends to prove, no one can donbt that if plaintiff’s husband was careless of his own safety at the time and that such carelessness or negligence on his part concurred proximately with that of defendant in causing the injury from which he died, then no recovery may be allowed. [See Corcoran v. St. Louis, I. M. & So. R. Co., 105 Mo. 399, 16 S. W. 411.] Here, it appears that defendant’s husband was negligent beyond question. On no view of the case may it be said that he took such precautions for his own safety, before going between the cars, as usually attend the conduct of an ordinarily prudent man, when it is remembered that the law requires one sui juris, possessing all his faculties, to see or hear that immediately before him, and charges him with knowledge of those dangers existing in his very presence, and especially so when approaching such a dangerous situation as the crossing between standing cars, with locomotive attached, in the company’s private yards. The evidence is, that plaintiff’s husband was an alert, intelligent man, possessed of good eyesight and hearing. His faculties were in no wise impaired or different from that of the average man of his age — about sixty-eight years. Then, too, there was no long train of cars and the attendant circumstances connected with such involved in the case, for it appears from all of the evidence he was required to look out for but one car and locomotive attached to it. The length of the box •car attached to the engine, it is said, was about thirty-six feet, and the locomotive of the size and pattern now in common use. It was obvious to him, as it was to all others, that the locomotive was engag’ed in switching and dealing with cars about the poultry house. Every witness in the case states such to be the fact, though at the very moment when plaintiff ’s husband left the sidewalk and walked to the opening between the cars,' both the box car and the engine were at rest. The aperture between the two ears and through which plaintiff’s husband sought to pass was, according to the evidence most favorable to her, from four to five feet. And the witness Mentz passed through it immediately before the decedent. He stopped on the other side to see the car moved backward or ‘ ‘ spotted, ’ ’ as he says, simultaneously with plaintiff’s husband’s being caught between the cars and, according to the evidence of this witness, who testified for plaintiff, but three seconds were consumed by him in passing between the cars. Obviously plaintiff’s husband was not more than three seconds behind him in point of time, and this being true, must have turned between the cars about the time the backward movement of the box car commenced. No witness says he did not do so and the evidence of plaintiff’s witness, Mentz, reveals as much to be true, for he says, upon completing the passage through, “I looked back when Mr. Stottler was being caught between the couplers.” All of the witnesses say the car moved backward slowly and not at high speed, and the witness Mentz states the couplers were then just “easing up” against Mr. Stottler’s abdomen and he was turning his body to the southeast as though to squeeze through.

No one can doubt that railroad tracks are an ever present signal of danger, and especially is this true when one attempts to pass between cars standing thereon with locomotive attached. [See Dyrcz v. Mo. Pac. R. Co., 238 Mo. 33, 47, 141 S. W. 861; Gurley v. Mo. Pac. R. Co., 104 Mo. 211, 16 S. W. 11.] Because of this fact one must always look and listen for approaching trains before entering thereon, and especially is this true in the circumstances of the instant case, for the cars are present at hand in the railroad private yards where switching is usually in progress and within a foot or two at most of the party and the entire train, consisting of car and locomotive, all within the range of his vision.

But it may be said that no witness testified plaintiff’s husband did not loot and listen, and the proposition of fact thus stated is true. Neither does any one say he did so look or listen: But the law indulges a presumption to the effect that every person conducts himself in accordance with the precepts of ordinary care for his own safety. [See Buesching v. Gas Light Co., 73 Mo. 219; Wack v. St. Louis, I. M., etc. R. Co., 175 Mo. App. 111, 157 S. W. 1070.] Although such be true, this presumption is by no means conclusive, for it may be dispelled in every case when the facts concerning the situation of the party appear to rebut it. [Mockowik v. Kansas City, etc. R. Co., 196 Mo. 550, 571, 572, 94 S. W. 256.] Here the presumption may not obtain in aid of the plaintiff, for it is certain that had Mr. Stottler looked and listened before stepping between the cars he would have observed the immediate danger at hand. On the other hand, if we allow the benefit of the presumption to plaintiff and treat her husband as having looked and listened immediately before turning between the cars, no recovery may be allowed, for the law charges him with the knowledge of that which was open and obvious at the time. The hour when plaintiff’s husband went between the cars was about 11:30 in the forenoon and no obstruction whatever existed between him and the locomotive attached to the southeast end of the box car. He walked along beside the car from the sidewalk and at most was not more than one or two feet from it at any time, for the pathway between the car' and the poultry house'was only three feet in width. Had he turned and looked toward the locomotive, before entering upon the track, or even at the box car beside him, he must have recognized the presence of danger, for all the evidence shows it was either in the act of starting or about to do so. The physical facts alone con-■elude the matter. In such, circumstances our Supreme Court has but recently said on this question:

“Moreover, given daylight and no obstructions, given a situation where to look is to see, then such person is conclusively held to see; for on that hypothesis looking is equivalent to seeing. Hence, for one to say . . . that he did not see an engine bearing down upon him and so close to him as to strike him as he crossed the track, is precisely the same as if he had said he did not look at all. No judgment should stand on an impossibility; for.- example, on the fact that one saw around a corner with a naked eye, or through a solid stone wall, or in broad day looked and did not see a locomotive engine hard by on a straight .and unobstructed track.” [Dyrcz v. Mo. Pac. R. Co., 238 Mo. 33, 47, 141 S. W. 861.] It is clear that plaintiff must be denied a recovery because of the concurrent negligence of her husband which at least co-oper.ated proximately to his injury.

The judgment should be reversed. It is so ordered.

Reynolds, P. J., and Allen, J., concur.