* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1174, n. 99; Death, 17CJ, p. 1316, n. 82; p. 1317, n. 88 New; Railroads, 33Cyc, p. 1129, n. 68.
This is an action to recover damages for the wrongful death of plaintiff's husband, resulting from a collision between a Dodge touring car he was driving and the locomotive engine of one of defendant's passenger trains, at the intersection of Themis and Water streets, in the city of Cape Girardeau. The collision occurred shortly after noon on November 1, 1922. This action was commenced on January 9, 1923. A trial was had, with a jury, which resulted in a verdict and judgment in favor of plaintiff for the sum of six thousand dollars. The court granted defendant a new trial on the grounds (1) that the court had erred in refusing to give an instruction in the nature of a demurrer to the evidence requested by defendant, and (2) that the verdict was against the weight of the evidence. From the order granting a new trial the plaintiff appealed to this court. Upon that appeal the order of the court granting a new trial was affirmed by this court on the grounds (1) that the decedent's contributory negligence defeated his recovery for any primary negligence on the part of the defendant, and (2) that there was no evidence sufficient to support the verdict under the humanitarian rule. After the cause went back to the court below the plaintiff amended her petition. Upon a retrial of the cause, with a jury, the defendant again requested an instruction in the nature of a demurrer to the evidence, which the court refused to give. There was a verdict and judgment in favor of plaintiff for the sum of six thousand dollars, and the defendant appeals.
Upon this appeal the defendant assigns reversible error for the refusal of its instruction in the nature of a demurrer to the evidence.
The petition as amended charges that on or about November 1, 1922, at about 12:30 P.M., an automobile which plaintiff's husband was driving eastwardly on Themis street at the intersection of Themis and Water streets was struck by the locomotive engine of one of defendant's trains, whereby he sustained injuries from which he died, and that his death directly resulted from the negligence of defendant, as follows, to-wit: First, that defendant's agents and servants in charge of and operating said engine and train, negligently operated its said engine and train at a greater rate of speed than eight miles per hour, in violation of an ordinance of the city of Cape Girardeau; second, that defendant's agents and servants in charge of and operating said engine and train, negligently failed to sound a bell at a distance of at least eighty rods from Themis street and to continue sounding a bell at intervals until
said engine and train had crossed over Themis street; and, third, that defendant's agents and servants in charge of and operating said engine and train saw or by the exercise of ordinary care could have seen plaintiff's husband in a position of imminent peril in time thereafter by the exercise of ordinary care, with the brakes and appliances at hand, with safety to the crew and passengers, to have diminished the speed of said engine and train, or to have stopped said engine and train, or to have sounded a signal warning of the approach of said engine and train, and thereby avoided striking said automobile.
The facts as disclosed by the record upon the present appeal are in several respects materially different from the facts as disclosed by the record upon the former appeal.
The facts as disclosed by the present record are substantially as follows:
Water street runs north and south along the river front next to the levee on the east. Themis street runs east and west, and intersects Water street from the west. Broadway, which is north of Themis street runs east and west, and intersects Water street from the west. Independence street, which is south of Themis street, runs east and west, and intersects Water street from the west. The main track of defendant's railroad runs north and south over and along the east side of Water street. There is an old passenger depot located north of Broadway on the east side of the main track. Looking southward there is a left curve in the track just north of the old depot. Broadway, Themis and Independence streets terminate at Water street. The distance from Broadway to Themis street is 345 feet. The width of Broadway from building line to building line is about fifty-six feet. The sidewalks on Broadway are about ten feet wide. The width of Broadway from curb to curb is about thirty-five feet. The distance from the north building line of Broadway to the old passenger depot is 150 feet. The width of Themis street from building line to building line is fifty-six feet. The sidewalks on Themis street are about ten feet wide. The width of Themis street from curb to curb is thirty-five feet. The distance from Themis street to the old depot is 550 feet. The distance from the building line on the west side of Water street to the west rail of the main track of defendant's railroad is about thirty-nine feet. The distance from the curb on the west side of Water street to the west rail of the main track is twenty-eight feet. The width of the sidewalk on the west side of Water street is about eleven feet. There is about a one per cent downgrade in the track from the old depot to Themis street. There are no obstructions to the view between the old depot and the intersection of Themis and Water streets. Though Broadway,
Themis and Independence streets terminate at Water street, they were at the time of the accident and for a long time prior thereto much traveled by vehicles going east to the levee on the river front, and in so traveling the vehicles passed over the defendant's railroad tracks as though the streets extended east over the levee. In fact, the whole levee was much traveled by vehicles. Decedent was engaged in the passenger transfer business. At the time of the accident the Steamer Bald Eagle was landing or had just landed at the levee. Decedent was driving his Dodge touring car east on Themis street and across the intersection of Themis and Water streets. As the automobile crossed the main track of defendant's railroad on Water street, it was struck by the engine of a southbound passenger train. The automobile was shoved or carried on the pilot of the engine a distance variously estimated by the witnesses at 125 to 160 feet before the train stopped.
A number of witnesses, including the engineer in charge of the engine which collided with decedent's automobile, were produced and testified, on behalf of plaintiff. The fireman did not testify. In fact, no evidence whatever was produced on behalf of defendant.
O.E. Maybrey testified: "I saw the automobile come down Themis street and then I saw the train coming down across Broadway. The front wheels of the automobile had cleared both rails of the track and the rear wheels were between the rails of the track when the engine struck the automobile. When the front wheels of the automobile were at the west rail of the track, the engine was about half way down the block between Broadway and Themis street. I could not tell exactly. The engine struck the automobile about half way from the center of the automobile to the rear. I did not hear any bell rung or whistle sounded. The automobile wasn't going very fast as it went upon the track. From the time the automobile emerged into Water street until the time of the collision, it was going east. It did not make any turns either to the north or to the south. It went straight ahead.
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* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1174, n. 99; Death, 17CJ, p. 1316, n. 82; p. 1317, n. 88 New; Railroads, 33Cyc, p. 1129, n. 68.
This is an action to recover damages for the wrongful death of plaintiff's husband, resulting from a collision between a Dodge touring car he was driving and the locomotive engine of one of defendant's passenger trains, at the intersection of Themis and Water streets, in the city of Cape Girardeau. The collision occurred shortly after noon on November 1, 1922. This action was commenced on January 9, 1923. A trial was had, with a jury, which resulted in a verdict and judgment in favor of plaintiff for the sum of six thousand dollars. The court granted defendant a new trial on the grounds (1) that the court had erred in refusing to give an instruction in the nature of a demurrer to the evidence requested by defendant, and (2) that the verdict was against the weight of the evidence. From the order granting a new trial the plaintiff appealed to this court. Upon that appeal the order of the court granting a new trial was affirmed by this court on the grounds (1) that the decedent's contributory negligence defeated his recovery for any primary negligence on the part of the defendant, and (2) that there was no evidence sufficient to support the verdict under the humanitarian rule. After the cause went back to the court below the plaintiff amended her petition. Upon a retrial of the cause, with a jury, the defendant again requested an instruction in the nature of a demurrer to the evidence, which the court refused to give. There was a verdict and judgment in favor of plaintiff for the sum of six thousand dollars, and the defendant appeals.
Upon this appeal the defendant assigns reversible error for the refusal of its instruction in the nature of a demurrer to the evidence.
The petition as amended charges that on or about November 1, 1922, at about 12:30 P.M., an automobile which plaintiff's husband was driving eastwardly on Themis street at the intersection of Themis and Water streets was struck by the locomotive engine of one of defendant's trains, whereby he sustained injuries from which he died, and that his death directly resulted from the negligence of defendant, as follows, to-wit: First, that defendant's agents and servants in charge of and operating said engine and train, negligently operated its said engine and train at a greater rate of speed than eight miles per hour, in violation of an ordinance of the city of Cape Girardeau; second, that defendant's agents and servants in charge of and operating said engine and train, negligently failed to sound a bell at a distance of at least eighty rods from Themis street and to continue sounding a bell at intervals until
said engine and train had crossed over Themis street; and, third, that defendant's agents and servants in charge of and operating said engine and train saw or by the exercise of ordinary care could have seen plaintiff's husband in a position of imminent peril in time thereafter by the exercise of ordinary care, with the brakes and appliances at hand, with safety to the crew and passengers, to have diminished the speed of said engine and train, or to have stopped said engine and train, or to have sounded a signal warning of the approach of said engine and train, and thereby avoided striking said automobile.
The facts as disclosed by the record upon the present appeal are in several respects materially different from the facts as disclosed by the record upon the former appeal.
The facts as disclosed by the present record are substantially as follows:
Water street runs north and south along the river front next to the levee on the east. Themis street runs east and west, and intersects Water street from the west. Broadway, which is north of Themis street runs east and west, and intersects Water street from the west. Independence street, which is south of Themis street, runs east and west, and intersects Water street from the west. The main track of defendant's railroad runs north and south over and along the east side of Water street. There is an old passenger depot located north of Broadway on the east side of the main track. Looking southward there is a left curve in the track just north of the old depot. Broadway, Themis and Independence streets terminate at Water street. The distance from Broadway to Themis street is 345 feet. The width of Broadway from building line to building line is about fifty-six feet. The sidewalks on Broadway are about ten feet wide. The width of Broadway from curb to curb is about thirty-five feet. The distance from the north building line of Broadway to the old passenger depot is 150 feet. The width of Themis street from building line to building line is fifty-six feet. The sidewalks on Themis street are about ten feet wide. The width of Themis street from curb to curb is thirty-five feet. The distance from Themis street to the old depot is 550 feet. The distance from the building line on the west side of Water street to the west rail of the main track of defendant's railroad is about thirty-nine feet. The distance from the curb on the west side of Water street to the west rail of the main track is twenty-eight feet. The width of the sidewalk on the west side of Water street is about eleven feet. There is about a one per cent downgrade in the track from the old depot to Themis street. There are no obstructions to the view between the old depot and the intersection of Themis and Water streets. Though Broadway,
Themis and Independence streets terminate at Water street, they were at the time of the accident and for a long time prior thereto much traveled by vehicles going east to the levee on the river front, and in so traveling the vehicles passed over the defendant's railroad tracks as though the streets extended east over the levee. In fact, the whole levee was much traveled by vehicles. Decedent was engaged in the passenger transfer business. At the time of the accident the Steamer Bald Eagle was landing or had just landed at the levee. Decedent was driving his Dodge touring car east on Themis street and across the intersection of Themis and Water streets. As the automobile crossed the main track of defendant's railroad on Water street, it was struck by the engine of a southbound passenger train. The automobile was shoved or carried on the pilot of the engine a distance variously estimated by the witnesses at 125 to 160 feet before the train stopped.
A number of witnesses, including the engineer in charge of the engine which collided with decedent's automobile, were produced and testified, on behalf of plaintiff. The fireman did not testify. In fact, no evidence whatever was produced on behalf of defendant.
O.E. Maybrey testified: "I saw the automobile come down Themis street and then I saw the train coming down across Broadway. The front wheels of the automobile had cleared both rails of the track and the rear wheels were between the rails of the track when the engine struck the automobile. When the front wheels of the automobile were at the west rail of the track, the engine was about half way down the block between Broadway and Themis street. I could not tell exactly. The engine struck the automobile about half way from the center of the automobile to the rear. I did not hear any bell rung or whistle sounded. The automobile wasn't going very fast as it went upon the track. From the time the automobile emerged into Water street until the time of the collision, it was going east. It did not make any turns either to the north or to the south. It went straight ahead. When I saw the automobile coming out of Themis street the train was coming down from Broadway somewhere, just past Broadway, coming down, the front end of the train had just passed Broadway."
Birdie Randolph testified: "I was walking north on the west side of Water street. I saw the automobile coming down Themis street. When I first saw it, it was just passing the building line on the west side of Water street. It was going east towards the river. From that time on until the collision occurred, the automobile continued traveling east — always straight east. It was moving five to six miles per hour. I saw the passenger train approaching from the north. It was at the old depot when I first saw it.
There was no bell rung or whistle sounded on the engine. The engine struck the back part of the automobile. The front wheels of the automobile were over on the east side of the track and the rear wheels just past the middle of the track. It was a clear day. The streets were dry. I think the rails were dry. When I first saw the train, the engine was at the old depot, and the automobile was coming in on Water street, and when the automobile was about ten feet from the track the train was down at about Broadway. The automobile was moving real slow."
Several witnesses testified that the train was moving at about the speed of twenty-five miles per hour as it approached the scene of the accident.
H.R. Davis, the engineer, testified that the train was moving about twenty miles per hour as it passed the old depot, and that it was going about the same rate of speed when it got down to Broadway; that he shut off steam there, and the speed was thereby reduced to sixteen or seventeen miles per hour; that the train was moving at about fifteen miles per hour when the engine was about 100 feet north of the point of collision, and it was moving at the same rate of speed when the collision occurred.
R.T. Bosswell, an employee of defendant, testified that he was standing about 300 feet north of Themis street and that when the train passed him it was running at a speed of fifteen to eighteen miles per hour. He also testified that the automobile as it approached the track was moving at a speed of six to ten miles per hour.
The engineer further testified that there were six coaches on the train his engine was pulling, one baggage coach, one mail coach, one private coach, and three passenger coaches; that the train was equipped with air brakes; that each one of the coaches was equipped with its own braking power; that each coach took care of itself in stopping; that is, it stopped just the same as if there were only one or two coaches; that the engine was also equipped with its own braking power; that the reservoir of the engine carried air pressure of ninety pounds to the square inch, and that each coach carried air pressure of seventy pounds to the square inch; that the full force of this pressure was utilized when the brakes were applied in emergency; that the train running at a speed of twenty-five miles per hour could, by application of the brakes in emergency, with safety to the crew and the passengers, have been stopped in a distance of 225 feet; running at a speed of twenty miles per hour, in a distance of 200 feet; running at a speed of seventeen miles per hour, in a distance of 175 feet; running at a speed of sixteen miles per hour, in a distance of 170 feet; and running at a speed of fifteen miles per hour, in a distance of
165 feet; that an interval of from three to five seconds would elapse after the application of the brakes in emergency before the brakes would take hold so as to affect the movement of the train, and that the distances given by him in which the train could have been stopped were the distances the train would travel after the brakes took hold; that as he approached the point of collision he was seated on the right-hand side of the engine; that when he was 150 feet north of Themis street he had an unobstructed view of the intersection of Themis and Water streets from the track to a point fifty feet west of Water street; that when he first saw the decedent's automobile it was about fifteen feet from the west rail, going straight towards the track, at a speed of about ten miles per hour, and the head of the engine was about 100 feet from the point of collision; that he then realized that the automobile was going upon the track and immediately applied the brakes in emergency and sounded several sharp blasts of the whistle, but was unable to avoid the collision; that the fireman was ringing the bell continuously as the engine approached the point of collision.
A.J. Potter, an experienced locomotive engineer and trainman, testified that the train running at twenty-five miles per hour could have been stopped with an ordinary service application of the brakes, with safety to the crew and passengers, in a distance of 130 feet, and with an emergency application in a distance of 100 feet; running at twenty miles per hour, with a service application in a distance of ninety feet, and with an emergency application in a distance of seventy-seven feet; running at a speed of seventeen miles per hour, with a service application in a distance of seventy-five feet, and with an emergency application in a distance of fifty-seven feet; running at fifteen miles per hour, with a service application in a distance of fifty feet, and with an emergency application in a distance of forty-five feet; that the operation of applying the brakes in emergency was instantaneous; that in a service application there would be a slight interval before the brakes would take hold, but that in an emergency application the brakes would take hold of the wheels of the engine and coaches instantaneously.
It is manifest, without discussion, that the facts as disclosed by the present record were sufficient to take the case to the jury under the humanitarian rule.
The court committed reversible error, however, in the giving of plaintiff's instruction No. 7, of which defendant complains, telling the jury that if they found for plaintiff they should assess her damages at such sum as they believed to be a fair and just pecuniary compensation for damages to her occasioned by the death
of her husband. [Treadway v. United Railways Co., 300 Mo. 156,253 S.W. 1037; McDaniel v. Davis (Mo.), 266 S.W. 710.]
The Commissioner recommends that the judgment of the circuit court be reversed and the cause remanded.