Kleiber v. People's Railway Co.

Macfarlane, J. Plaintiff sued the defendants, the People’s Railway Company and the Missouri. Pacific Railway Company, jointly for $10,000. damages-on account of personal injuries alleged to have been, sustained by her, by reason of their negligence. In June, 1887, the date of plaintiff’s injuries, the-defendant street railway company operated a horse-car-line of street railroad along Fourth street, in the city of St. Louis, and defendant, the Missouri Pacific Railroad Company operated a steam railroad along Poplar-street and across Fourth street. At the Poplar street crossing of Fourth street, the steam railway company — 246 — maintained gates or barriers for the purpose of closing the way along Fourth street to prevent persons • from crossing the railroad when dangerous to do so on account of passing trains. It also had a watchman in charge of these gates, whose duty it was to raise and lower them when necessary, and to give warning on the approach of a train. On the day in question plaintiff was a passenger on an open summer car of the street railway going south. On this car there were forty-six passengers. When the car reached Poplar street, being alarmed on account of apparent danger from a collision with an engine on the railroad, plaintiff jumped from the car and was injured. The charge in the petition against the People’s railway was that, in disregard of its duty to its passengers, its agents and servants carelessly drove the car on until it reached the railroad crossing, negligently placed the car in such close proximity to a moving locomotive that a collision seemed inevitable, and plaintiff thus being exposed to great danger, and believing her life to be in peril jumped therefrom in order to free herself from danger. As to the Missouri Pacific Railway Company, the charge was that it was negligent in the management of its gates and locomotive after the peril of plaintiff was discovered, “'not having closed its barriers in a timely manner, began and continued to shut down said barriers upon the horses and car in which plaintiff was being carried, causing said barriers to inclose said car and horses carelessly between them and in front of said locomotive,” so as to render it seemingly impossible to avoid a collision between the car and the locomotive. The answer of each defendant was a general denial and a plea of contributory negligence. Judgment was rendered by the circuit court against both defendants, and both have appealed. Each defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and the principal contention by — 247 — defendants here is that the evidence was insufficient to justify the verdict, and the demurrers to the evidence should have been given. ' I. It is as well settled as any other principle of the law of negligence that, if one, by the negligence of another, has been placed in a situation of apparent imminent peril, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not dominated by terror of impending danger; and if, without having time to deliberate, and acting upon the instinct of self-preservation, and as a prudent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true, though no injury would have resulted had no attempt to escape been made. Beach on Contrib. Neg., p. 43, and cases cited; Whittaker’s Smith’s Neg. sec. 392; Jones v. Boyce, 1 Stark. 493; Stokes v. Salstonstall, 13 Peters, 181; 2 Shearm. & Redf. on Neg., sec. 477. These are the leading cases in England and this country, and have generally been followed, as will be seen by reference to cases cited by Beach and Smith, supra. The principle is well illustrated by numerous adjudged cases. In Twomley v. Railroad, 69 N. Y. 160, plaintiff jumped from a moving street car to avoid the apparent danger of a train of cars running on an intersecting railroad. She fell and was injured, but the car passed over the railroad track without a collision. The suit was against the street-car company for negligence in crossing the railroad track in such near proximity to an approaching train. In delivering the opinion the court says: “The peril of remaining in the car was properly judged by the circumstances as they then appeared to the passengers, and not by the result. The fact that the car did pass over safely — 248 — cannot reflect upon the action of the plaintiff, and does not prove that she was imprudent or negligent in jumping from the car ; she was compelled to act, and chose the hazard which appeared to be the least, that is, to act upon the probabilities as they appeared at the time. A traveler, to avoid impending danger from a defective street, leaped from his carriage, and was thereby injured. In a suit for damages against the town, the court says: ‘ ‘ Plaintiff, not having come in actual contact with the defect in the highway, it is said that the liability has not attached to the town. But this, we think, is too limited a construction of the statute. The injury to be compensated for by the town is one that has been occasioned by reason of any defect or want of repair in any highway, etc. Such injury to the person may be occasioned by reason of the defect of the highway, when the traveler, being brought suddenly into imminent peril by his near approach to it, in the exercise of ordinary care and prudence, voluntarily leaps from his carriage, and suffers an injury thereby, the circumstances must be such as to justify his conduct, and the defect in the highway must have been the cause of his voluntary act of throwing himself from the carriage.” Lund v. Inhabitants, 11 Cush. 566. In the case of Wesley City Coal Co. v. Healer, 84 Ill. 129, plaintiff sued the coal company for negligently causing the death of her husband. Defendant was operating certain coal mines in which it had neglected to provide more than one shaft as required by the statute.' The plaintiff’s husband was a laborer in the mine. A fire occurred in the shaft, smoke was filling the mine and a cry of fire was given ; plaintiff and the other operatives rushed to the shaft, which was the only, means of escape. In the rush deceased fell through a ■shaft into a second mine and was killed. The fire was -extinguished and the alarm was unnecessary. The — 249 — negligence charged was the failure to provide additional shafts for the safety of the operatives. In his opinion Dickey, J., said : “Bad there been a second mode of escape, no such cause of alarm would have existed. Men of ordinary prudence would have felt safe, and been left to exercise their caution in avoiding accidents on their way to a sure mode of escape. It has long-been settled that a party having given another reasonable cause for alarm cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility from damages resulting from the alarm.” Prom these decisions the following rules, essential to liability may be deduced: First, the peril or alarm must have been caused by the negligence of the one against whom indemnity is sought; second, the apprehension of peril, from the standpoint of the injured person, must have been reasonable, and, third, the-appearance of danger must have been imminent, leaving-no time for deliberation. On the other hand the danger must be judged by the circumstances as they appear,, and not by the result. ' II. Applying these principles to the evidence in this case, was the court justified in submitting the issues-to the jury as to whether these defendants, or either of them, were guilty of negligence which exposed plaintiff to apparent impending danger, and whether the apprehension of danger on the part of plaintiff, from her standpoint, was reasonable ? The following facts were undisputed: The railroad track, itself a place of danger, passed along a very narrow street. Where the-street-car line crossed the railroad, the view of the track, of the railroad to the west was wholly obstructed by buildings until the street car' reached Poplar street, within fifteen feet of the track. Gates or barriers were-maintained on each side of Poplar street, to be lowered, in order to prevent persons on foot or in vehicles from crossing the railroad track, when dangerous to do so — 250 — on account of passing engines and trains. A watchman was in charge of the gates whose duty it was to close the crossing on the approach of a train and to direct and warn persons crossing the railroad. The position of.the watchman was on the north side of Poplar street and from his own position he could operate both gates. Poplar street was twenty-one feet in width from curb to curb and about twenty-five feet between the gates. The street car with the team in front was about twenty-five feet in length, also, having barely room for them to stand between the gates. The evidence then tends to prove, which satisfies the inquiry, that the street car was driven slowly and ■carefully down to Poplar street without warning or signal from the watchman. When the front of the car had reached a point about opposite the gate, the horses being probably on the railroad track, the watchman •“ yelled” to the driver to stop, and commenced lowering the gates. The car came nearly or quite to a stop, the gate on the opposite side of the street in front of the ■car was half way down. At this juncture, when there was clearly apparent danger of a collision with the horses, and when signals of danger had been given in the most emphatic manner, the watchman called out, or “yelled” asoneor more witnesses expressed it, “Go on, ■go on.” It appeared then that the horses and car ■would be inclosed between the gates and across the railroad. The excited language of the guard and the confusion of his orders, taken with the lowering ■of the gates and the position of the car, would have created in the mind of' the most self-possessed apprehensions and alarm. At this momentsome one screamed “My God, we will all be killed,” and plaintiff turned her eyes to the west and saw an engine approaching on a down grade and within one hundred feet of the car. Immediately, cries arose from persons on the street, and from passengers on the car, such as “look out, look .out,” ‘‘drive on quick,” “stop, locomotive is coming.” — 251 — All became confusion, excitement and terror, and plaintiff with many others jumped from the car. In fact, the engine was barely moving, and was under complete control of the engineer, and no actual danger of a collision existed. This state of facts, from the standpoint of the passengers, certainly tended to prove reasonable cause to apprehend imminent danger of a collision, and that no time or opportunity was afforded plaintiff to deliberate. In adopting the dangerous-alternative plaintiff could not, as a matter of law, be declared guilty of contributory negligence. Siegrist v. Arnot, 86 Mo. 200; Adams v. Railroad, 74 Mo. 554. It is true plaintiff testified that the gateman commenced raising the gate, and the car had started forward before she jumped, and that her attention was first called to the engine by the outcry of one of the passengers. Tet she does not testify at all in reference to other additional facts which were detailed by other witnesses, and which should properly be considered. In view of the fact that the whole occurrence transpired in a few seconds, and in view of her serious injuries, her memory would necessarily be confused ahd indistinct. But taking her own testimony as conclusive against her in determining the cause of her alarm, we do not think it can be declared as a matter of law, that the fact of lowering the gates, at th.e time and in the manner shown by her evidence alone, itself a most emphatic declaration of danger, made by one charged with the duty of watching, and to whom plaintiff had the right to look for warning, did not create in her mind reasonable ground for apprehending a collision, which apprehension culminated in terror on seeing the approaching engine. III. Such ground of apprehension may have existed, however, without the fault of defendants or either of them. The inquiry then arises by whose negligence was plaintiff caused to apprehend danger 2 — 252 — While it is true that the street-car company was a ■carrier of passengers, and owed to plaintiff, as a passenger, the highest degree of care practicable in the ■circumstances, it was not an insurer of her safety, and unless guilty of some negligence would not be liable for her injury. After a careful examination of the testimony, we are unable to discover any evidence, tending to prove the driver of the street car in any respect wanting in the high degree of care imposed upon him as a carrier of passengers. He drove, as all the evidence shows, slowly aud carefully down to Poplar street, checked-his speed almost or entirely to stop at a signal from the guard, and no real danger appearing to him, and none in fact existing, he drove across the track. He manifested no excitement, or loss of self-possession which could have been communicated to the passengers. It is true, one or possibly more witnesses testified that he stopped his car on the railroad track. The weight of the evidence was to the contrary, but the evidence of one witness to this fact would have required the submission of the issue to the jury, but for the fact that it .appeared, also, from all the evidence that plaintiff had jumped, and her injuries had been received before the car stopped, and the act of stopping the car on the track, if it was done, could not, therefore, have controlled or induced her action. To properly measure the duty of the street-car driver, the fact must also be kept in view that there was no real danger nor, from his standpoint, appearance of danger. If there had been in fact real danger of a collision, the case might have been different. The negligence of the watchman would not in that case probably have excused the driver from the high degree of care •exacted of carriers by passengers, to know and avoid the danger of crossing. Railroad v. Boyer, 97 Pa. St. 91. Besides this the gateman was the agent of the railjroad company, placed there for the express purpose of — 253 — warning and directing those using the street, and of preventing collisions with passing trains, and the driver of the car seeing him at his post of duty had the right to rely and act upon his warnings, signals and directions, in the absence of ’opportunity, as in this case, to know for himself the situation. Beach on Con. Neg., p. 199; 2 Wood, Ry. Law, 1328; Whelan v. Railroad, 38 Fed. Rep. 15; Pennsylvania Co. v. Stegemeier, 118 Ind. 305; Railroad v. Clough 45 Am. & Eng. R. R. Cases (Ill.) 137; Central Trust Co. v. Railroad, 27 Fed. Rep. 159. On the other hand, while the railroad company only owed to plaintiff the duty of ordinary care in the circumstances, we think it very clear that there was evidence tending to prove a want of such care. It must be kept in mind that there was no collision, and that the injury was caused by a voluntary leap by plaintiff from the car, to avoid a supposed danger. The inquiry is whether the evidence tended to prove that the negligence of the gateman caused the condition of terror under which plaintiff was induced to adopt the dangerous alternative. As has been said, the view of the railroad was wholly obstructed until the car came within the limits of the narrow street upon which the track was laid. The driver and passengers on the car had no means of knowing that the crossing was clear and safe before .getting in very close proximity to the track, except from the warnings of the watchman. Much reliance must have been placed upon his watchfulness, judgment and ■discretion. Not until the horses drawing the car were almost, if not entirely, upon the railroad track, was a word or sign of warning given. At that moment a cry ■came from him “ Stop, stop,” and the gates commenced lowering, apparently inclosing the car and horses on the track ; almost immediately, he yelled, “Go on, go on,” implying that a desperate alternative of trying to cross the track should be made. Now when we consider the •dangerous locality, we can but say that the confused — 254 — and contradictory orders of the watchman, his manifest excitement in giving directions, together with the lowering of the gates when apparently too late for protection, were matters well calculated to excite consternation, among the passengers and to create the panic which resulted. Y. Objection was made to the admission of the.acts of other passengers, and of outcries made by them and bystanders on the occasion. We think this evidence was admissible as descriptive of the occurrence and as part of the res gestee, and also as evidence that plaintiff' was actuated by reasonable apprehension of danger, and not by rashness and imprudence. Twomley v. Railroad, supra; Railroad v. Ashcraft, 48 Ala. 15; Railroad v. Fay, 16 Ill. 558. YI. Objections are made to the rulings of the court in giving and refusing instructions. The instructions have been carefully examined, and the action of the court in its rulings thereon Is found to be in conformity to the conclusions reached in the consideration of the principles governing the case. These questions need not be further discussed. Judgment as to the People’s Railway Company, reversed, and affirmed as to the Missouri Pacific Railway Company. All concur except Sherwood, C. J., and Brace, J., who concur in reversing as to the People’s Railway Company, but dissent in affirming as-to the Missouri Pacific Railway Company.