Opinion
No. 40548.
June 14, 1948.
NEGLIGENCE: Railroads: Pedestrian Killed At Grade Crossing: No Submissible Case. Defendant's freight train was coming down a grade with air pressure almost exhausted from two prior applications of the brakes and short blasts of the whistle were sounded when the deceased pedestrian approached the track at a grade crossing and the brakes were applied shortly afterwards. The deceased was struck in about the middle of the track and it would be pure speculation whether the speed of the train could have been slackened sufficiently to permit the deceased to cross the track if the brakes had been applied as soon as the whistle was sounded. There was no submissible case.
Appeal from Cooper Circuit Court. — Hon. Sam C. Blair, Judge.
AFFIRMED.
Don C. Carter and Thomas G. Woolsey for appellant.
(1) The court erred in sustaining motion for directed verdict on the part of defendant J.W. Murrell because there was sufficient evidence offered on the part of plaintiff to make a case against him. Courts should never take a case from the jury unless it is clear that there are no questions of fact to be submitted to the jury. Trial by jury is the birthright of every man. Standard Oil Co. v. McDaniel, 52 App. D.C. 19, 280 F. 993; Dowell v. City of Hannibal, 200 S.W.2d l.c. 555; Clader v. City of Neosho, 198 S.W.2d l.c. 528. (2) The court erred in directing and receiving a verdict for the defendants against the plaintiff because there was sufficient evidence offered in the case on the part of plaintiff to make a case against each of the defendants. Banks v. Morris Co., 302 Mo. 254, 257 S.W. l.c. 484; Woods v. Kurn, 183 S.W.2d 852; Gould v. Railroad, 290 S.W. l.c. 138; Trussell v. Waight, 285 S.W. l.c. 117; State ex rel. v. Haid, 62 S.W.2d l.c. 403; Tharp v. Thompson, 139 S.W.2d 1116.
Carl S. Hoffman, Schaumburg Martin and W.H. Martin for respondents.
(1) Calculations as to ability to stop or slacken the speed of a locomotive, must take into consideration the time required for the fireman's eyes to see and his brain to grasp the change in the situation and for his voice to execute a warning or for him to otherwise inform the engineer of the danger and for the engineer's ears to hear or his eyes to see and for his mind and muscular system to react and set the brakes and for the brakes to take hold. Hutchinson v. Thompson, 175 S.W.2d l.c. 910. (2) The fireman upon seeing the deceased approaching the crossing, while the deceased was still in a place of safety and at such distance from the crossing as to yet allow the deceased a reasonable time to stop before going upon the crossing in front of the train, had the right to assume and to act upon the assumption that the deceased was not oblivious to the approaching train and would stop in a place of safety until it became apparent, or in the exercise of reasonable care should have been apparent to the fireman that deceased was not going to stop in a position of safety. Poague v. Kurn, 140 S.W.2d l.c. 16, 346 Mo. 153. (3) A pedestrian is not in a position of peril until he takes the last step or two from a place of safety into a danger zone. Costello v. Pitcairn, 116 S.W.2d l.c. 257; Knight v. Wabash Ry., 85 S.W.2d l.c. 399. (4) For the jury to have found negligence would have required the jury to indulge in speculation and guesswork. Wolverton v. Kurn, 156 S.W.2d 638, 348 Mo. 908.
Charles Taylor was struck and killed by a freight train belonging to respondent railway and operated on its track by its employees. Taylor's administrator, alleging that the death was due to the negligence of the defendants under the humanitarian rule, sued the railroad and its engineer and fireman for $10,000.00. At the close of plaintiff's case the trial court sustained a motion for a directed verdict in favor of defendants and entered judgment accordingly. Plaintiff appeals.
The tragedy occurred on the main line track of the railway where it crosses Spring Street, an east and west street in the city of Boonville. Three other tracks cross the street west of the main track, the distance from the west rail of the main track to the east rail of the next track, termed the "passing track," is about ten feet. Starting from Spring Street the tracks curve to the southwest disappearing from view at a point about 600 feet from the crossing. The tracks rise in a fairly heavy grade for a considerable distance to the southwest from Spring Street. On the street at each side of the tracks are electric signals which both flash a light and ring a bell. The evidence shows the east signal was working. There was no testimony as to the west signal. The train was a north bound through freight, two engines, forty-six cars, weighing about twenty-five hundred tons. The engineer testified that coming down the grade toward Boonville he made two applications of the air brakes. The first had reduced the speed of the train and had been released. When the speed increased the second application was made and the brakes were on as the train reached the crossing. These two applications had so reduced the pressure in the train line that a complete emergency stop could not be obtained. The engineer was on the outside of the curve and could not see the crossing or anyone approaching it. The train whistle had been started about one-fourth of a mile southwest of the crossing and was still sounding when the train reached the crossing.
When the front end of the engine was from 104 to 154 feet from the crossing the fireman saw deceased walking slowly east toward the train just as he stepped over the west rail of the passing track. The train was then traveling twelve or fifteen miles per hour and deceased, a feeble old man, was walking one or two miles per hour with his head down. The fireman testified that he told the engineer "blow your whistle, there's a man coming across the track." The engineer at once began to sound short blasts of the whistle and, when the fireman sprang up and waved to deceased, the engineer moved the brake valve handle to the emergency position. Deceased was about the center or a little east of the center of the main track when struck and his body was thrown east of the train. The train came to a stop in about 450 feet. The engineer testified that had he applied the emergency brake at the exact time he started the short blasts of the whistle the speed of the train would not have been slackened appreciably before it reached the crossing.
Testimony as to speeds, distances and the actions of the engineer and fireman was furnished by the two trainmen who were put on the stand by plaintiff. As defendants and employees of the railroad they were interested parties, but their testimony was uncontradicted and was corroborated by another witness for plaintiff as to the sounding of the train whistle and the working of the warning signal at the crossing.
When the trial court was considering defendants' motion for a directed verdict, one of plaintiff's attorneys admitted that it should be sustained as to the fireman because the evidence did not show any negligence on his part.
Appellant cites the following cases: Banks v. Morris Co., 302 Mo. 254, 257 S.W. [414] l.c. 484; Woods v. Kurn, (Mo. App.) 183 S.W.2d 852; Gould v. Railroad, 315 Mo. 713, 290 S.W. l.c. 138; Trussell v. Wright, (Mo. App.) 285 S.W. l.c. 117; State ex rel. v. Haid, 333 Mo. 76, 62 S.W.2d l.c. 403; Tharp v. Thompson, (Mo. App.) 139 S.W.2d 1116; Standard Co. v. McDaniel, 280 F. 993. Those cases discuss the humanitarian rule as it is applied in Missouri, but differ in their facts from the instant case.
Boiled down, appellant's attempt to apply the rule is as follows: the engineer testified that, had he applied the emergency brake immediately upon being told by the fireman that a man was coming on the track, he could have slackened speed "very little"; that means he could have slackened speed " some"; and, as deceased was in the center or slightly east of the center of the track when hit, a slight slowing of the train would have permitted him to escape injury. Therefore, appellant says, the engineer failed to employ all reasonable means in his power to avoid injuring deceased.
We think appellant's argument is untenable because based largely upon conjecture. By conceding that the fireman was not negligent, appellant also concedes that there was no duty on the engineer to act until the fireman warned him. The fireman did not tell the engineer to apply the emergency brake. He told him to sound the whistle, apparently thinking that emergency blasts of the whistle would be sufficient warning. [Deceased was nearly deaf, but there is no proof that the fireman knew or should have known that fact.] But, conceding that the engineer should have applied the emergency brake when told to sound the emergency whistle, there is no proof of "reaction" time, that is, the time necessary for the mind and muscles of the engineer to react to the warning. Nor is there any proof as to how much the speed could have been slackened had the emergency brake been sooner applied. When the fireman saw deceased he was stepping over the east rail of the passing track, ten feet from the west rail of the main track. We take judicial notice that the standard gauge of railroad tracks is 4 feet 8 ½ inches. We also know that locomotives are wider than the tracks, how much wider we do not know and the evidence does not inform us. So, deceased would come into the path of the overhang of the engine in less than ten feet from the place where the fireman saw him and would have had to travel more than fifteen feet to clear the main track and the overhang of the engine.
Appellant does not contend that the train could have been stopped before deceased reached its path. He argues that by instantaneous application of the emergency brake the speed could have been slackened enough to permit deceased to clear the path of the train, or, at least, that that was a question for the jury. We do not think so. The proof shows that the train traveled four hundred and fifty feet after the emergency brake was applied. How much the speed could have been slackened in going 104 or 154 feet [or a less distance if any allowance is made for reaction time] and how far deceased had to travel to a place of safety would have been matters of pure conjecture for the jury and are such for us. There was no evidence from which the jury could reasonably find that the engineer after receiving notice from the fireman "had the present ability, with the means at hand, to have averted the impending injury." [Banks v. Morris, 302 Mo. 254, 257 S.W. 482.]
In Wolverton v. Kurn, 348 Mo. 908, 156 S.W.2d 638, on facts quite like those in the instant case we held that there was no submissible case.
The judgment of the trial court is affirmed. All concur.