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Maginnis v. Railroad.

alarm signal or warning. There is evidence from other witnesses that he did not give a crossing signal, and that the only warning or signal given at any time was the aforesaid alarm signal.

There can be but little doubt that if the engineer's evidence is to be accepted as the only probative evidence, the plaintiff cannot recover, because if the deceased took the course described by the engineer, and the engineer gave the warnings and signals to which he testified, he could have done nothing more that would have prevented the accident, and the last-chance doctrine would not apply. Under the facts detailed by him he was warranted in acting on the presumption that the deceased heard the warnings and knew of the approach of the train, and that he would not suddenly, and without any manifestation of such an intention, change his then position of safety into one of danger. [King v. Railroad, 211 Mo. 1; McGee v. Railroad, 214 Mo. 530; Burge v. Railroad, 244 Mo. 76; Guyer v. Railroad, 174 Mo. 344; Dyrcz v: Railroad, 238 Mo. 33.]

While it is true the plaintiff introduced the engineer as his own witness, this does not preclude him from establishing a case by other testimony, even though it is contradictory of that which he first offered. While he would not be permitted to impeach his witness, he may show by other witnesses what he contends to be the true facts. [Phelan v. Paving Co., 227 Mo. 666; Knorpp v. Wagner, 195 Mo. 637; State v. Shapiro, 216 Mo. 359.]

The trial court sustained the motion for new trial upon the ground that it had erred in not sustaining a demurrer to the plaintiff's evidence, and in reviewing such action it is well settled that we must make every inference of fact in favor of the plaintiff. A demurrer to the evidence, so

Maginnis v. Railroad.

run the rulings, admits the facts the evidence tends to prove, and in passing upon it the court is required to make every inference of fact in favor of the party offering the evidence which the jury might with any degree of propriety have inferred in his favor, and if, when viewed in this light, it is sufficient to support a verdict the demurrer should be overruled. [Troll v. Drayage Co., 254 Mo. 332, 1. c. 337.] To give full effect to this rule we cannot weigh conflicting evidence, nor can we make inferences of fact in favor of the defendant to countervail or overthrow inferences of fact in favor of the plaintiff. After careful consideration of the evidence, it is our opinion that the facts testified to by other witnesses offered by plaintiff are clearly contradictory of the statements of the engineer, and if such are believed by the fact triers, as they evidently were in this and the preceding trial, the plaintiff is entitled to recover. If the deceased's foot-prints were as described by other witnesses it was impossible for him to have pursued the course or gone upon the track in the manner and at the place testified to by the engineer. In the first place, the point at which the engineer says the deceased suddenly turned, and from which he went onto the track is, according to the testimony of one of defendant's employees, about twelve feet east of the east end of the railroad crossing and where the deceased was killed. According to his testimony the deceased was at no time on the west side or end of the crossing, whereas his foot-prints disclose that it was at this place that he entered upon the track. They further show that he proceeded. down the track to the east end of the crossing, a distance of 16 feet, all of which was impossible if the engineer is correct in his statements. Another thing which the jury had a right to consider in

Maginnis v. Railroad.

determining whether the engineer was telling the truth, is that, according to his testimony, he saw the deceased when he was about three or four feet from the northeast corner of Evers' store.

A. S. Butterworth, who was an employee of the defendant and who made measurements in this case at its instance, testified that, owing to the manner in which the Evers' store was located, the rear thereof being within within a few inches of the right-of-way, while the front was about 15 feet away, and owing to a certain bill-board located to the rear of this store, a person would have to be approximately at the north end of the board walk before he could have a clear view 500 feet west. If this testimony is true, then the deceased proceeded north on the sidewalk approximately to the end thereof, otherwise he could not have been seen by the engineer when the engineer says, and . this would tend to corroborate the theory of the footprints; or if he left the sidewalk at the place. where the engineer says, then, in taking the course by him described the measurements show that the deceased, a man of 69 years of age, traveled on foot, and over muddy ground, a distance of 87 feet, while the train, running at a speed of 45 miles per hour, covered 500 feet. While this is not utterly impossible, it is capable of an inference decidedly favorable to plaintiff's cause.

Unless we reject as unworthy of belief or as having no probative force the evidence of witness Evers relative to the foot-prints and the course they indicate the deceased pursued, we find there is substantial evidence tending to show that the deceased walked north on the plank walk to some point, and from there to a point from which he passed upon the defendant's tracks at the west end of the crossing, and then proceeded east on the

Maginnis v. Railroad.

track to the northeast end of said crossing, a distance on the track of 16 feet. The testimony of the engineer shows that he actually observed the deceased from the time he was within at least 60 feet of the crossing, if he traveled as the footprints indicate, and until he came upon or near the tracks. His evidence also shows that the deceased was apparently oblivious to his danger and conscious of the approach of the train. Under such circumstances his duty was plain and began when it became apparent to a prudent operator that the deceased was intent on so acting as to place He could not himself in a position of danger. defer action until the man actually went upon the tracks, because, under the circumstances detailed He the danger zone extended beyond these limits. should have at least given a warning when the impending danger first became apparent, thereby bringing the unwary traveler to a realization of his danger and duty to act, and this, according to some of the evidence, the engineer did not do. [Eppstein v. Railroad, 197 Mo. 720; Degonia v. Railroad, 224 Mo. 564.]

The circumstances and physical facts show, assuming, as we think the evidence justifies, that the deceased traveled the course indicated by the footprints, the engineer saw, and under the law governing this case was bound to see, because charged with looking, and looking was seeing, the deceased in a perilous position in sufficient time to have given proper warnings, thereby preventing the accident. Surprise on the part of the engineer at the appearance of the deceased and that consequent mental confusion which sometimes prevents instant action in the most intelligent way (Underwood v. Railroad, 182 Mo. App. 252; McGee v. Railroad, 214 Mo. 530) cannot be pleaded here, because during

Maginnis v. Railroad.

the time the deceased was traveling on foot, a distance of from 70 to 87 feet, he was constantly under the eye of the engineer. Instead of expecting a clear track at this public crossing, the engineer had to anticipate the possible, and even probable, presence of persons, and he was required to be in a position to not be surprised and to act quickly and intelligently.

The evidence also shows that the air or emergency brakes were not applied until the train was within 40 feet of the deceased, and that the train was brought to a stop within 600 feet after the application of such brakes. It is also in evidence that the speed of the train could have been reduced to 20 miles an hour within a distance of from three to four hundred feet, which is less than the distance at which the deceased could be seen by the engineer while approaching the track.

Finding from the present record the facts as above stated, the Court of Appeals in its opinion on the first appeal of this case, where a judgment for the plaintiff was reversed because of erroneous instructions, found that the case was one for the jury. The law applicable to these facts and inferences is well and fully stated in that opinion. (Maginnis v. Missouri Pacific Railway Co., 182 Mo. App. 694), and a repetition would be but fruitless toil for both ourselves and the profession. Giving to the plaintiff the favorable inferences which the facts reasonably warrant, and this we are required to do, it is our opinion that the court erred in holding the evidence insufficient to sustain the verdict.

It is accordingly ordered that the action of the trial court in setting aside the verdict and granting a new trial because of the insufficiency of the evidence, be reversed and set aside, and that a judgment in accordance with the verdict be rendered. All concur.

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