Peperkorn v. St. Louis Transfer Railway Co.

REYNOLDS, P. J. (after stating the facts).— This class of cases has been so frequently before our appellate courts that it would seem that the principles governing them and which should control in their determination have been so thoroughly discussed that an elaborate examination of the authorities is no longer necessary. Speaking broadly of the testimony in the case, it may be said of it that it was not subject to demurrer. It was sufficient to require a submission of the cause to the jury, and to sustain the verdict. As observed by the learned counsel for appellant, counsel for respondent, while bringing the action in part on that, do not base their right to recover upon the last chance rule. They are right in this, for, from the evidence, neither that nor the humanitarian rule have a place in this case. Neither the crew of this train, nor, for that matter, anyone else, saw the deceased on the track at the time, nor saw the accident. Counsel for appellant argue that the case is to be — 724 — determined on the construction and interpretation of city ordinance No. 22902. We have set out the substance of that ordinance, so far as here material. This ordinance, it will be noted, provides that if any “cars or locomotives propelled by steam power be backing within said limits of the city, a man shall be stationed on top of the car at the end of the train farthest from the engine to give danger signals.” That no such man was there in place is conceded. The argument of the learned counsel for appellant, however, on this point, is that the evidence shows that it was impracticable to have a man stand on the top of this car; that the space between the top of the car and the obstructions in the chute were so small that no man could stand there, and it is asserted that the evidence shows that a man could not go through the chute on top of the car unless he was lying flat on the top. We do not agree that this is borne out by the evidence. It is true that one witness testified that he laid down when he went through on one occasion; but this same witness said that one could not go through “without stooping.” The inference that the jury had a right to draw from that was, that if he stooped he could go through in safety. The dimensions given, however, thirty-five inches between the running board on top of the car, which as we all know is the highest part of the car, and the arch or beam of the. door, was thirty-five inches, and when the beam of the door was passed, and the car was inside of the door, the height was from forty-four to fifty-three and fifty-six inches. There is nothing whatever in this space or height to prevent any ordinary man, a man of any ordinary height and size, from sitting down and going through in safety, even if it was necessary to duck his head or stoop, immediately when passing under the beam. There was nothing to prevent him from sitting upright after that point was passed. All the argument and the cases cited by learned counsel for appellant, — 725 — to the effect that it was impracticable or unsafe to place a man in the position required by the ordinance upon the rear end of the front car, as for instance Baltimore & Ohio R. Co. v. Mali, 5 Atl. Rep. 87, l. c. 90, and Rafferty v. Missouri Pacific Ry. Co., 91 Mo. 33, 3 S. W. 393, are entirely inapplicable. It has further been said of this provision of the ordinance re-. quiring a man to be on the rear end of the car which is being moved in front so that he can give danger signals, that it is not meant to construe it so closely and narrowly as to squeeze the life out of this humane regulation; that, broadly construed, the ordinance “contemplates that brakemen should be so located on a moving freight train in St. Louis that they can not only see and hear danger signals, but can give them to those whose duty it is to see and obey them.” [Harper v. St. Louis Merchants Bridge Terminal Co., 187 Mo. 575, l. c. 587, 86 S. W. 99.] Looking at the duty of this defendant in the instant case, suppose a man could not with safety stand or sit or even lie flat on the top of the car, there was not only nothing to prevent, but everything, under the circumstances, to require sending one ahead along the track, or even along the floor of the elevator. The cars were being pushed slowly through this chute at midnight; the chute so dark that the foreman did and could not distinguish persons even going through with a light; was not sure 'that he saw one or two people walking or just where they were. It was such a place as would naturally invite persons to walk there. Ordinary care, irrespective of the ordinance, as well as the spirit of that ordinance, demanded care and a lookout in backing a train through such a place. Mindful of the danger to the wayfarer of moving a train propelled by steam power through any part of so densely populated a city as is St. Louis, this ordinance further provides that “no freight train shall at any time be moved within the city limits unless it — 726 — be well manned with experienced brakemen at their posts, who shall be so stationed as to' see the danger signals and hear the signals from the engine.” In the case at bar this train, so far as the evidence shows, was not manned at all. There is not a scintilla of evidence in the case to show that there was a brakeman, whether experienced or inexperienced, except the “hind man,” who was at least a hundred and eighty-five feet away from the south end of the chute when the train started through. The foreman was over a hundred and twenty-five feet off and out of sight of the chute. The engineer was the length of the cars, the tender and engine further away. No living human being is testified to have been anywhere in charge of or in communication with this train except the foreman, the engineer and the “hind man.” No one preceded this train as it was slowly backed or pushed through this, blind passageway. There was no warning to notify anyone who might be on the track of the approaching train. The duty to have this train well manned, not only with a brakeman on the rear end of the forward car but, referring to this “well manning” clause of the ordinance, is clearly announced by our Supreme Court in Harper v. Terminal Company, supra.' Moreover, at the instance of appellant the court submitted to the jury, as a question of fact for their determination, if they found that the foreman, in sending his “hind man” through this shed or chute, did so for the purpose of complying with the city ordinance, to determine whether that was a substantial compliance with the city ordinance, and if they did find that it was, their verdict should be for defendant. We do not hold that this instruction should or should not have been given. All we do say of it is that having been given at its own instance, defendant has no ground of complaint and is concluded as to that by the verdict of the jury, the jury undoubtedly find — 727 — ing that this act was not a substantial compliance with that provision of the ordinance. Learned counsel for appellant argue, first, that there is no causal connection shown between the absence of all these precautions, which the ordinance of the city requires, the neglect to conform to the ordinance, and the death of this old man; second, those counsel suggest that he may have died of heart failure, or that he may have seen and did not heed the approaching train. As to the first, we hold that there was ample evidence to prove that the cause of death was the failure to observe the ordinance. There is nothing in the evidence to support the second suggestion; no evidence that the deceased had every had any trouble with his heart. That this old man was on the track when this train was being pushed through, is shown by the fact that his body was found under a car, on that track, between the rails; one leg severed from the body and carried a distance of sonje sixty feet from the place where the body rested and in the direction in which the train had been moved; blood was found around there; blood and shreds of clothing were found upon the forward trucks or wheels of the forward car which had been pushed through the chute. What stronger evidence could possibly he offered of the fact that this old man came to his death by having been struck and run over by this particular train? The evidence is that no other train had passed through there that night. That his death was caused by being run over by this particular train is beyond doubt. The law presumes in a case of that kind, that one had not committed suicide, and if there is any ground for presumption, it is directly against that of carelessness. Carelessness is usually contributory negligence and it is for the defendant to allege and the burden is on it to prove contributory negligence. There was no ground for any speculation, conjee728 tare or guesswork in tais case; no reason to suppose that the death occurred in any other way other than by means of this train. Hence the instruction, cautioning the jury against indulging in speculation, conjecture and guesswork, asked by appellant, was properly refused. That instruction as asked, instead of cutting off conjecture, would have thrown the door wide open for it. By its concluding sentence it would have set the jury to guessing and conjecturing for a cause, instead of confining them to the only known cause disclosed by the evidence. The old and leading case of Buesching v. St. Louis Gas Light Co., 73 Mo. 219, settles this proposition beyond controversy. There it is held that presumptions are not to be allowed in the face of known facts. The very able and exhaustive opinion in that case has been followed in every case since considered by our appellate courts in which that proposition has arisen. Counsel cites in support of that instruction, a late decision of the Kansas City Court of Appeals, Rogers v. Hammond Packing Co., 167 Mo. App. 49, 150 S. W. 558, point 3. An examination of that case and of the opinion shows very conclusively that it has no application whatever to the facts in the case at bar. Judge JOHNSON there quoted from Goransson v. Manufacturing Co., 186 Mo. 300, l. c. 307, 85 S. W. 338, to the effect that it is a rule of universal law that in suits of the character before the court, it is necessary for the plaintiff to allege and prove a causal connection between the injury and the negligence of the master. “The corollary of this rule,” says the court, “is that if the accident might have resulted from more than one cause, for one of which the master is liable and for the other he is not liable, it is necessary for the plaintiff to prove, in the first instance, that the injury arose from the cause for which the master is liable; for it is not the province of a court or jury to speculate or guess from which cause the accident happened.” No one will dispute that rule, — 729 — but it is not applicable to the facts in the case at bar. As we have before said, there was no room for speculation or conjecture or guesswork. There were no two causes here. In the presence of the known, visible facts, no room was left to court or jury to go hunting around for something else that might have been the cause of the accident. Finally it is claimed, as to this ordinance, that it does not cover the place of this accident. That proposition is settled against this claim by the decision of our Supreme Court in Grube v. Missouri Pacific Ry. Co., 98 Mo. 330, l. c. 337, 11 S. W. 736, where Rafferty v. Missouri Pacific Ry. Co., 91 Mo. 33, 3 S. W. 393, relied on by appellant, is explained. [See, also, Merz v. Missouri Pacific Ry. Co., 88 Mo. 672; Prewitt v. Missouri, K. & T. Ry. Co., 134 Mo. 615, l. c. 626, 36 S. W. 667; and Jackson v. Kansas City, Ft. S. & M. R. Co., 157 Mo. 621, l. c. 633, 58 S. W. 32.] These are all cited by counsel for respondent in their brief. As counsel for appellant, in their reply brief, make no comment on this, we may assume that those learned gentlemen have abandoned the point. Whether they have or not, we hold against them on it. We see no error in the clauses in the first instruction given at the instance of plaintiff which were pointed out by the learned counsel for appellant, and which we have italicized. They are, taken in connection with the body of the instruction, entirely correct. CoBsidering the instructions given on behalf of plaintiff and of the defendant, surely defendant has no cause whatever to complain. The court went to the very farthest limit under the law in giving defendant the benefit of every possible theory upon which, within the issues and the evidence, it could be asked by defendant. The only assignment of error in the admission of the testimony is to overruling the objection to the question as to whether there was a light on the front of — 730 — the car as it went through this chute. That objection was made after the question had been asked and the answer given. That was too late. Counsel for appellant say that we should take notice of the fact that witnesses frequently answer so quickly that an objection cannot be interposed. We may know that happens, but we cannot assume that it occurred here. We must be governed by the record in the case and no such state of facts appear here. A consideration of the case and of the authorities presented by the learned counsel for appellant leaves us no latitude whatever, gives us no ground whatever, upon which to sustain a reversal of this judgment. The trial was without any error materially affecting or prejudicing the rights of defendant, the verdict is not claimed to be excessive and, as we think, was for the right party. The judgment of the circuit court is affirmed. Nortoni and Allen, JJ., concur.