Neas v. Chicago Burlington & Quincy Railway Co.

REYNOLDS, P. J. (after stating tbe facts). — We have set out tbe substance of tbe evidence in tbe case and following tbe earnest appeal of counsel for plaintiff may add, that we have read not only tbe testimony they have called our attention to but have read every line of the testimony as set out in the abstract. We are compelled to reverse this case for error contained in the first and second instructions given at the instance -of plaintiff. The error in the first instruction is found in this: the jury are told that if they found that the defendant’s employees became aware of the peril of deceased being struck and killed or injured “in time to have enabled them by the exercise of ordinary care to have sounded the whistle and have averted the injury to said deceased, and they failed to exercise said care or sound said whistle, and that by reason of such failure tp exercise ordinary care the said whistle was not sounded in time to avert said injury and the said Levi S. Neas was by said locomotive struck and killed, then the jury must find for the plaintiff, though the jury may find he was guilty of negligence in being at said place of danger.” In effect, this assumes that to have sounded ■the whistle would have averted the injury to the deceased. It assumes that if the whistle had been sounded the deceased would have heard it and would have removed himself from danger and so have avoided the danger. Granting that the engineer and fireman saw deceased and that in the exercise of ordinary care, to say nothing of their duty as human beings, they, aware of the peril in which the deceased was, had sounded the whistle, it does not follow, as a matter of law, nor as a fact that the jury would be warranted in assuming, that the accident would have been averted. Thus to [505] find that the sounding of the whistle would have averted the accident, the jury would have had to assume that deceased was awake, was sober, and that he heard it and had heeded it, and that he had time, after hearing the sound, to have removed himself from danger and avoided the accident. Assuming that at three hundred yards, the longest distance any witness swears the handcar could have been seen, the engineer had blown the whistle as a danger signal, the train going forty-four feet a-second, the deceased would have had to act almost instantly, or, the engineer, seeing the deceased paid no attention to the warning, would have had to act almost instantly and applied the brakes, otherwise the train would be down on the handcar. When we are dealing with seconds of time we have but slight margin to indulge in presumption. This involves deciding a case, not on a fact from which a given presumption may arise, but upon a presumption upon another presumption. [United States v. Ross, 92 U. S. 289; Bigelow v. Met. Street Ry. Co., 48 Mo. App. 367, l. c. 374; Warner v. St. L. & Mer. R. Ry. Co., 178 Mo. 125.] The second instruction is wrong in this part of it, in which the jury are told: “And unless, at the time of the injury, the employees of the defendant in charge of said train used the means at their command to provide for the safety of the deceased, after they discovered his imminent peril, the jury may find a verdict for plaintiff in this case.” That assumes, as did the other, that signaling on'the part of the train men would have been heard by the deceased and would have been regarded by him and that hearing it and paying attention to it he could have saved himself by getting out of the way of the train. It also, in this part of it, assumes that the engineer and fireman discovered the peril in which deceased was. That was wrong and it was prejudicial error to have given it in this shape, without qualifying it with the caution that the jury must have found that the engineer or fireman had discovered the [506] peril of deceased. For the error in these instructions alone, the case will have to be reversed. Going further however, we have here a case of gross negligence on the part of the deceased. He was an employee of the defendant, proven to have had actual notice of the rules of the company requiring him to use a red light and a white light on a handcar when using it at night. He had been warned not to run a handcar alone; he was familiar with the train times; he knew that this train was due to pass at this time. Under these facts and the absence of any direct evidence tending to prove that the engineer or fireman saw him at all, or that, by the exercise of ordinary care, they might have seen the deceased in time to have prevented the accident, and in the absence of any fact in evidence on which a presumption can rest, that if they had seen him, they could have prevented the accident, the humanitarian doctrine, or last clear chance doctrine, have no place here. Plaintiff’s counsel did not rely, either by instructions asked and given, or in their argument, upon the theory that the engine crew might have seen deceased, but by instructions and by brief and by argument, they have rested their case solely on the theory that the engine crew did see the deceased, and that they saw him in time to have saved his life. It is averred in the petition, in effect, that Neas was hammered to death by the handlebars beating on him after being struck down and while the handcar was being shoved forward by the swiftly moving engine. At the trial, in the examination of the engineer and fireman the fact was brought out and dwelt on, that the former, after seeing the sparks, had walked out on the running-board, some ten or twelve steps and back again, the train all the while in motion. All this evidently oh the theory that if the engine had been stopped at once the life of the unfortunate man might have been saved. The evidence refutes this theory and removes the act of the engineer, in not coming to an im [507] mediate stop when he saw the sparks, or certainly when he saw the handcar impaled on his engine, from the causal act. It was proven without contradiction that the handlebars could not have moved after the impact of the engine and handcar. There is no evidence tending to prove that the back or chest or body of the deceased were hammered. All that the evidence discloses is that his legs and arms were broken and his arms bruised. If we were to indulge in probabilities from known facts, they tend to the belief that the violence of the impact tore his hands from the bar and threw him with such force and violence as to break his limbs and in all probability injure him internally. His fatal injuries, so far as disclosed by the evidence, were received when the engine hit the handcar, and the delay of the engineer in stopping his train thereafter, did not contribute to the fatal result; to have stopped immediately after the impact would not, so far as the evidence shows, have saved the life of the poor man. We are compelled to hold that the instruction in the nature of a demurrer to the evidence, asked by defendant at the close of the case, should have been given. So holding, the judgment of the circuit court is reversed. All concur.