Paul v. United Railways Co.

NIXON, P. J. (after stating the facts as above). — I. As to the last chance doctrine, it may be said that there is not a scintilla of evidence proving, or tending to prove, how far the car was from the point of the collision when the plaintiff emerged from behind the northbound car and entered the danger zone, nor is there any evidence as to the distance in which a car running at the rate of speed this car is said to have been running (twenty miles an hour), could have been stopped, and there was, therefore, no showing that the car could have been stopped in time to have averted the collision, after plaintiff placed himself in a position of peril. The humanitarian or last chance doctrine is realistic in its operation, and seizes hold of conditions that actually exist at the time of the injury, and does not apply to conditions that could or should exist; and, in order to recover under it, it devolves upon the plaintiff to prove that after a situation of peril arose, the defendant by the exercise of ordinary care could have averted the injury to the plaintiff and failed to do so. As we said in the case of Wilkerson v. St. L. & S. F. R. Co., 140 Mo. App. l. c. 316, 124 S. W. 543: “As there are no tangible facts or circumstances to show where the deceased went on the track or so near it as to imperil his safety, there is no proof that the engineer could have stopped his train in time to have averted the accident, and there being a failure to prove negligence, no liability would attach to the defendant company.” To the same effect is Zurfluh v. Peoples Ry. Co., 46 Mo. App. l. c. 642, where the St. Louis Court of Appeals said: “Now the difficulty which we encounter is, that the plaintiff’s evidence fails to show how far away the car was, when he started the second time to cross the track, and within what distance the car could have been stopped. It seems to us that it was absolutely neces — 584 — sary for the plaintiff to introduce some evidence tending to prove these facts. Otherwise, it would he impossible for the jury to decide intelligently, whether the defendant’s servants were lacking in diligence or not, or whether they used proper efforts to stop the car or not.” Further citation of authorities to sustain a proposition so self-evident would be superfluous. II. Plaintiff testified that he was standing behind the north-bound car near the west rail of the northbound track, and that he looked north from behind the car to see whether there was a car approaching on the south-bound track; that he could then see about forty feet only, the north-bound car preventing him from seeing farther than this along the track. After taking this look, he crossed the intervening space between the tracks —about five feet — going west, without looking, and he did not look again for an approaching car until he was upon the south-bound .track, at which time the car which struck him was so close that a collision was unavoidable. He testified that at this time it was light enough to have seen an object fifty or one hundred yards away if it was large enough, and his counsel in their brief state: “Although it was dark, plaintiff does not contend that he conld not have seen a car more than forty or fifty feet if no obstruction had been in the way.” The law in regard to pedestrians entering upon the tracks of a railroad company, under the circumstances shown by the plaintiff’s own testimony in this case, is that while ordinary care does not usually require a traveler to look and listen constantly at all points of his approach to the railroad crossing, it does require that he should look just before going upon the .track or so near thereto as to enable him to cross before a train within the range of his view going at the usual rate of speed would reach the crossing. [33 Cyc. 1013.] Under the conceded facts which we have detailed, coming from the mouth of the plaintiff, we have a case exactly parallel to that of Giardina v. St. L. & M. R. R. — 585 — Co., 185 Mo. 330, 84 S. W. 928, in which our Supreme Court said: “It may he conceded that the defendant was negligent in running its car at a high rate of speed and without sounding the gong past a standing car from the rear of which the motorman ought to have known that people were liable to pass. . ' . . Plaintiff was familiar with the location and also with the movements of the cars. . . . From where he stood the body of the east-bound car shut off his view to the east, but one who was as familiar with the movements of cars as he said he was, in fact, any man of common experience in plaintiff’s place, should have known that in a moment the east-bound car would have gone and the obstruction of his vision would have been removed. . . . His act in stepping on or near the north track without looking for the west-bound car was negligence and it contributed to cause the accident.” In the case of Hornstein v. United Rys. Co., 195 Mo. l. c. 455, 92 S. W. 884, the Supreme Court again expounded the law applicable to the state of facts disclosed in this record, as follows: “As was well said by Bland, P. J.: ‘Common prudence would have dictated, when the southbound car began to move away that the plaintiff stop for a moment that he might have an unobstructed view of the east track, and see whether or not it was safe to proceed across the street. His failure to exercise this precaution was negligence, and there is no escape from the conclusion that this act of negligence contributed to and was the proximate cause of the injury; where this is the case the law is well settled that no recovery can be had.’ ” In the case of Hafner v. St. Louis T. Co., 197 Mo. l. c. 201, 94 S. W. 291, the law is declared as follows: “It is negligence for a motorman to run his car at a high rate of speed to a crossing where pedestrians are liable to be when his view of the crossing is so obstructed by a passing wagon that he cannot see whether or not the crossing is clear, but it is also negligence for a full-grown man to approach a railroad track — 586 — behind a wagon which so obstructs his view that he cannot see whether or not a car that he knows is liable to be coming is actually coming and enter upon the track without looking or pausing until the obstruction to his view has passed and when the negligence of the two thus combined to cause the accident, the street railroad company is not liable.” In Ross v. Metropolitan St. Ry. Co., 125 Mo. App. l. c. 618, 102 S. W. 1036, the Kansas City Court of Appeals said: “The law is that when a car is in the way of a view of the track in the direction from which the car is liable to come a person must, in common prudence, wait until the obstructing car has passed on so that he may then look to Some purpose.” These cases are so clearly identical in their facts with those in the case at bar that we think they may be properly denominated — in the parlance of respondent’s attorneys — “Spotted mule cases.” III. But plaintiff’s counsel contend that he was not guilty of contributory negligence as a matter of law as “he took care to see he would be safe from a car running at lawful rate of speed and he had a right to assume that cars would not be running at a reckless and unlawful rate of speed.” A person has nO' right to assume the existence of a certain state of facts, when, by exercising ordinary care, he could discover the true state of facts; and a person who looks, while some distance from the track, to see whether or not a car is approaching and sees none, has no right to go blindly forward without again looking, in reliance upon the presumption that a car will not approach at a high rate of speed. As said in Gumm v. The K. C. B. Ry. Co., 141 Mo. App. l. c. 314, 125 S. W. 796: “Plaintiff argues that she was justified in presuming that the train was not running to exceed six miles an hour. No presumption gave her the right to fail to make reasonable use of her senses for her own safety, and she had but to look from her place of safety — 587 — to know that the train was too close and was coming too fast for the attempt to be made to cross until it had passed. Evidently, she suffered her attention to be absorbed in something else, probably by the passing freight train, and forgot to look to the east. Her negligence, as a matter of law, is indisputable and it deprives plaintiff of any cause of action based on negligence of defendant which merely conduced to place his wife in peril.” Further, as said in Cole v. Metropolitan St. Ry. Co., 121 Mo. App. l. c. 610, 97 S. W. 555: “He (plaintiff) had the right to indulge in the presumptions that the motorman would not run the car at a negligently high rate of speed; that he would sound the bell as the car neared the crossing and would reduce its speed, to avoid a collision, but this did not absolve him from the performance of his duty to observe the advancing car. A person approaching a railroad crossing whether in the country or in tbe city is not permitted to rely entirely upon presumptions, but must make reasonable use of his senses to guard his own safety and the failure to do this is negligence. The duty thus to protect one’s own safety continues until the crossing has been traversed. A person in the exercise of reasonable care who is unhindered and whose view is unobstructed cannot take a last look at some distance from the crossing whether it be twenty feet or two thousand feet away and then shut his eyes and go blindly forward relying implicitly on the presumption that the servants of the railroad company will not be negligent in the running of its trains of cars.” IY. In no event could it be presumed in this case in excuse 'of plaintiff’s contributory negligence that he relied on an observance of the speed ordinance since he did not testify he was familiar with the provisions of such ordinance and relied upon the same. The rule is, that courts will not assume an injured person relied upon the observance of speed regulations where he tes — 588 — tifies but does not state that he was aware of the speed regulations and relied on them. -This question has also received the consideration of our Supreme Court in the case of Mockowik v. K. C., St. J. & C. B. R. Co., 196 Mo. l. c. 571, 94 S. W. 256, Judge Lamm delivering the opinion, wherein it was said: “But will the law indulge presumptions where all parties to the actual occurrence are alive and go upon the stand and the facts are fully disclosed? If plaintiff knew of the ordinances and relied on the fact that defendant was obeying their provisions and acted on that reliance, could he not have said so? Under such conditions, reliance would seem to be a fact susceptible of proof as are other facts, and should be proved by the best evidence of which the case would admit. He of all men knew what the facts were, and, having declined to speak, may he invoke the aid of friendly presumptions? ‘Presumptions,’ as happily stated by a scholarly counselor, ore terms. in another case, ‘may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.’ That presumptions have no place in the presence of actual facts disclosed to the jury,, or where plaintiff should have known the facts had he exercised ordinary care, is held in many cases, of which samples are, Reno v. Railroad, 180 Mo. l. c. 483; Nixon v. Railroad, 141 Mo. l. c. 439; Bragg v. Railroad, 192 Mo. 331. To give place to presumptions, on the facts of this case, is but to play with shadows and reject substance.” From what has been said it follows as night follows day that the judgment of the trial court sustaining the demurrer to the evidence was the only one authorized by law, and it is hereby affirmed. All concur.