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Maginnis v. Railroad.

saw, or by the exercise of ordinary care could have seen, the deceased while approaching and attempting to cross the tracks.

The answer, in addition to containing a general denial and an admission of the incorporation of defendant, pleaded contributory negligence and an unavoidable accident.

Upon the first trial a verdict for $2,000 was returned by a jury in plaintiff's favor, and upon an appeal the judgment, in accordance therewith, was reversed, and the cause remanded by the St. Louis Court of Appeals because of erroneous instructions. [Maginnis v. Missouri Pacific Ry. Co., 182 Mo. App. 694.]

Upon the second trial a verdict in the sum of $2,000 was again returned, but this was set aside by the trial court and a new trial ordered on the ground that the court should have sustained a demurrer to the evidence. From this action the plaintiff appealed, and upon the second hearing a majority of the St. Louis Court of Appeals sustained the action of the trial court, while one member dissented, and the cause was, at the instance of the dissenting judge, certified to us for final decision. Since the case involves but one question, namely, the sufficiency of the evidence, the facts will be stated and dealt with in the opinion.

It is difficult, indeed, to arrive at a full and complete understanding of the question presented for our decision, owing to the failure of the parties to incorporate in the record or file for our inspection the numerous photographs and diagrams admitted in evidence, and constantly referred to by the witnesses. This renders a portion of their evidence so vague and indefinite as to make it almost unintelligible.

Maginnis v. Railroad.

The members of the Court of Appeals differed as to the facts disclosed, the majority holding there was no substantial conflict in the evidence, and under it plaintiff could not recover, while one member was of the mind that there was a conflict, and that the case was one for the jury. When reduced to its last analysis we find the controversy in a narrow compass. There is no difficulty in determining the principles of law applicable to the case. If the deceased so suddenly transformed his position of safety into one of danger that the accident could not have been avoided by defendant when exercising the degree of care called for by the circumstances, the plaintiff cannot recover. On the other hand, if the deceased, although himself careless, was in a perilous position and oblivious thereto, and this was known, or should have been known, to the defendant, and it failed to use the means reasonably at hand to avert the injury, it is liable under the last-chance doctrine.

The accident occurred at a recognized and authorized crossing of the railroad tracks by a public highway, a place where a clear track could not be expected or relied upon. This phase, however, so important and decisive in many cases, is unimportant here, because the engineer admits that he actually saw and carefully observed the actions of the deceased while he was approaching the point of the accident and at the times, upon plaintiff's theory, when warnings should have been but were not given.

As against the demurrer the following facts are established without question. Respondent was maintaining double railroad tracks through Glenwood, the locus in quo, running east and west and intersecting at about right angles a public dirt road running north and south, and known as Berry Road. East

Maginnis v. Railroad.

bound trains are operated on the south track, and westbound trains on the north track, these being ten or twelve feet apart. The view from the track for at least a half mile west of the crossing is unobstructed, and the train at the time in point was coming from the west. On the south side of defendant's tracks and right of way, and abutting the west side of Berry Road, is located the store of one John P. Evers, facing the east. The northeast corner thereof is about fifteen feet from the south line of defendant's right of way, and about 56 and one half feet south of the south rail of the south or east-bound track. In front of this store and along the west side of Berry Road is a plank sidewalk extending to within 22 feet of the southwest point of the railroad crossing, and to within 17 feet of the south rail on a direct line, the southwest point of said crossing being east and north of this terminus of the foot walk. Between the Between the end of this walk and the railroad crossing the ground surface was of cinders and dirt. The crossing consisted of the tracks and planks laid both inside and outside of the rails, these planks being 16 feet in length and lying parallel with the rails. On the north side of the tracks the board sidewalk was on the east side of Berry Road, so that the ordinary course of a pedestrian going from the south to the north would be north along the plank walk to the end thereof, thence northeast in a diagonal direction across the tracks to the east side of Berry Road, where he would reach a plank walk extending north, there being no sidewalk on the east side of Berry Road south of the track and no sidewalk on the west side of Berry Road north of the track. Berry Road was 40 feet in width, but only about ten feet thereof was generally used for travel. At a point 17 feet south of the east-bound

Maginnis v. Railroad.

track, and about 30 feet east of the traveled part of Berry Road, is located a small station-house for the use of defendant's patrons, the northwest corner thereof being also about 90 feet from the northeast corner of Evers' store. The plank sidewalk at a point 20 or 30 feet south of the track makes a bend or turn towards the northeast, and in the direction of the southwest corner of the railroad crossing.


The evidence is undisputed that preceding the accident the deceased walked north on the plank sidewalk to some point beyond the northeast corner of Evers' store and south of the east-bound track. The point to which he thus walked and the course he then took are the questions on which it is said by the plaintiff and one member of the Court of Appeals there is a conflict of evidence, it being contended that a part of the evidence shows that he proceeded on the plank walk to or near the end thereof, thence to the southwest corner of the crossing, thence down the tracks for a distance of 16 feet to the end of the planks on the crossing, and was there killed. The defendant contends, and in this a majority of the Court of Appeals concurs, that all the evidence shows that he did not so proceed, but that when near the northeast corner of Evers' store he crossed the Berry Road, going east in the direction of the station-house, and so continued until he reached a point on the east line of Berry Road, when he suddenly, and without previous manifestation of such an intention, turned directly north onto the track, where he was killed. There seems but little difference of opinion as to the point where he was struck by the train, this being at the northeast end of the railroad crossing.

268 Mo.-43

Maginnis v. Railroad.

As we read and understand the testimony of Evers, it is that immediately after the train struck the deceased, and after it had passed over the crossing, he saw the remains lying on the north or westbound track. It had rained during the preceding night and there was mud on the road, cinders and crossing. After the train finally left he and others located and traced the foot-prints of deceased, identifying them by means of a break or hole in the sole of his shoe which left definite impressions on the muddy cinders and planks. The first of these foot-prints were found at or near the southwest corner of the railroad crossing, the others (there being six in all) were on and along the crossing going east and parallel with the tracks to the east end of the crossing boards at the northeast corner of the crossing where he was struck.

The engineer testified that he first observed the deceased as he emerged from in front of the Evers' store, when about three feet from the east end thereof; that he was in a run and going north on the plank walk, but after advancing three or four steps thereon and before reaching the end of the walk, he diverted his course, turning eastward and diagonally in the direction of the station-house. He proceeded in that general course until he crossed the Berry Road and reached a point just opposite the plank walk located on the north side of the track, this placing him on the east side of Berry Road, when he suddenly turned north and went onto the track where he was struck. He further says that from the conduct and actions of the deceased it was his impression that he was endeavoring to reach the station with the intention of boarding a train; that he gave the crossing signal when within 80 rods of the crossing, and when within from 40 to 70 feet of the crossing he gave the

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