Davenport v. Electric Co.

v. Mo. Edison Elec. Co., 173 Mo. 1. c. 674; Young v. Waters-Pierce Oil Co., 185 Mo. 1. c. 664; Ryan v. St. L. Transit Co., 190 Mo. 1. c. 634; Von Trebra v. Gaslight Co., 209 Mo. 1. c. 659; Clark v. Railroad, 234 Mo. 1. c. 421.]

IV. The charge in the petition in this case is negligent maintenance of a dangerous electrical wire. This does not bring it within the purview of those decisions where it is ruled that when specific acts of negligence are pleaded, it devolves upon plaintiff to prove the particular negligence averred.

The recovery in this case was had upon the theory that the broken wire had been in that condition, and dangerously charged with electricity, for a sufficient length of time to make its existence at the time plaintiff was hurt an act of negligent maintenance on the part of the defendant. There was testimony inferably proving these facts. The recovery was had on that theory alone, and not for some different or other unpleaded negligence. The instructions in this case submitted this issue properly. Nor are they open to the objection of assuming facts in dispute. Nor can we find any evidence that the court by refusing other instructions than those it gave for defendant excluded from the jury any issue proper for their consideration. The result is that the judgment herein is affirmed. Brown, C., concurs.

PER CURIAM.-The foregoing opinion of BOND, C., is adopted as the opinion of the court. All the judges concur, as per curiam opinion filed herewith.

PER CURIAM.-The court concurs in the reasoning of our learned commissioner as expressed in his opinion, and to that extent adopts his opinion as the opinion of the court. We are however of the opinion

Bennett v. Railroad.

that the verdict and judgment in this case are excessive, and for that reason the judgment should not be affirmed except upon a remittitur being entered in the sum of $1500, so as to leave such judgment in the sum of $7500. If therefore the plaintiff will within ten days enter a remittitur in the sum of $1500, as and of the date of the judgment in this cause, then said judgment so reduced to $7500 will be affirmed in that sum as and of the date of its original entry.

If however plaintiff refuses to file such remittitur within said ten days, then this judgment shall be reversed and the cause remanded. To this extent the opinion of our commissioner is modified and as thus modified is adopted as the opinion of the court. All the judges concur.

GEORGE BENNETT, by his next Friend, v. TERMINAL RAILROAD ASSOCIATION

LOUIS, Appellant.

Division One, March 29, 1912.

OF ST.

1. TRIAL: Province of Jury: Evidence. If there is material evidence tending to prove a cause of action, although it conflicts with other evidence, or if an inference can be legally drawn from undisputed evidence which tends to prove a cause of action although a contrary inference might be legally deduced, then the case is for the jury.

2. NEGLIGENCE: Privileges of Licensees on Railroad Tracks: Duty of Licensees. Laborers employed by a contractor to whom a terminal railroad association lets work in its yards, are privileged to be on and about its yards and to use the same to the extent implied from their avocations, and for all reasonable and proper purposes of entering and leaving the places where they are at work, though they must use the yards and tracks with due regard to the danger arising from the necessary movement of trains.

Bennett v. Railroad.

3. Care Due to Licensees in Railroad Yards. A terminal railroad association owes to the employees of a contractor to whom it lets work in its yards that degree of care and watchfulness which an ordinarily prudent person would exercise under similar circumstances to prevent injury.

4.

5.

Last Clear Chance Doctrine. The person who has had the "last clear chance" to avoid injuring another who is, whether negligently or not, in a position of apparent peril, must exercise ordinary care to prevent the injury, else he will be liable on the ground that his failure to exercise such care was the proximate cause of the injury. Held, by VALLIANT, J., concurring in the result, that the doctrine which allows recovery in some cases despite the contributing negligence of the person injured is well called the "humanitarian doctrine," for it is simply an exception, on humanitarian grounds, to the general rule. For example, when an engineer sees a man in peril on his track, or, even though he does not see him, is running his engine through a district where he knows people are likely to be upon the track, and can save his life by a mere lifting of his hand, he is not excused for failing to do so by the fact that the man was guilty of negligence in going on the track.

Evidence: Directed Verdict. Where the plaintiff, a workman employed by a contractor in defendant's yards, testified that he did not see the train that struck him until it was right upon him; and the engineer testified that his view was obstructed by the tank of the tender while his engine backed so that he did not see the plaintiff when he was struck; and where the lookout on the front of the tender, corroborated by another witness, says that he saw the plaintiff in a position of danger when 150 feet away, that he was warned and stepped in the clear, and then, while attempting to board a train going in an opposite direction, backed into danger just at the time the tender reached him, there is no basis for the application of the "last clear chance" rule for the plaintiff's benefit, and the trial court should have directed a verdict for defendant.

6. TRIAL: Province of Jury: Testimony of Adverse Party. When the defendant, after having introduced evidence, seeks to have the case taken from the jury by a peremptory instruction, the plaintiff is entitled to the benefit of the probative force of testimony given on behalf of the defendant, or any legitimate inferences therefrom.

Appeal from St. Louis City Circuit Court.-Hon. Virgil Rule, Judge.

Bennett v. Railroad.

REVERSED.

McKeighan & Watts, Wm. P. Gentry, T. M. Pierce and J. L. Howell for appellant; G. T. Priest and S. P. McChesney of counsel.

The court erred in refusing to direct a verdict in favor of defendant: (a) Because the plaintiff was injured solely through his own negligence in suddenly stepping from a position of safety in front of the moving engine and tender. Lennon v. Railroad, 198 Mo. 514; Giardina v. Railroad, 185 Mo. 330. (b) Because. the plaintiff was a workman whose business took him. about the railroad tracks, and as it was his duty to look out for the movement of cars, the humanitarian doctrine had no application. Degonia v. Railroad, 224 Mo. 564; Van Dyke v. Railroad, 230 Mo. 259; Brockschmidt v. Railroad, 205 Mo. 435; Ginnochio v. Railroad, 155 Mo. App. 163; Hitz v. Railroad, 152 Mo. App. 687.

Rassieur, Buder & Buder for respondent.

(1) The facts bearing on the issue of contributory negligence are disputed, or when they are undisputed but admit of different constructions and inferences, the issue must be left to the jury. Eckhard v. Transit Co., 190 Mo. 593; Waddell v. Railroad, 213 Mo. 8; White v. Railroad, 202 Mo. 539; Felver v. Railroad, 216 Mo. 195; Ellis v. Railroad, 234 Mo. 673. (2) The law is well settled now in this State, that where one oblivious of his danger is run down and injured by a train, the company is liable, if the catastrophe occurred where it is entitled to a clear track, only when the engineer or those in charge of the train actually saw the injured in time to have averted the collision. But where it has no right to assume the track is clear and may anticipate the presence of persons on the

Bennett v. Railroad.

track at all times, then the law imposes upon it the duty of keeping a watchful lookout for them and the duty of exercising ordinary care to avoid injuring them. Murphy v. Railroad, 228 Mo. 56; Ellis v. Railroad, 234 Mo. 657.

BOND, C.-Plaintiff, seventeen years of age, was an employee of a contractor who had been engaged by defendant to install for it a block system of signals for use in its tracks and yards in St. Louis and at other points. Plaintiff had been doing this work for six weeks or two months. It was the custom of defendant to provide for plaintiff and persons in the same service a "plug" train which would take them to their work across the river in the morning and bring them back in the evening. This train stopped at a point in the city of St. Louis near which Eighth street extended to double tracks owned by defendant. The street did not cross these tracks but lay entirely south of them.

On the 8th of July, 1908, plaintiff, in company with his foreman and others, returned on this train to its stopping point, about 5:20 p. m. After they debarked, plaintiff was told by his foreman that the pay train would not be in that afternoon, and probably on that account the men would not be paid on that day. Plaintiff then observed that two of the men who had come over with him and who had left while he was talking to his foreman were about to enter into a curve which the defendant's two tracks describe at that point, and through which, over an elevation beginning at the point where plaintiff was standing, they proceeded across trestle works for about four blocks and then six blocks due west until they reached the union station. Plaintiff's employers kept an office in the yards at the union station, where plaintiff and his fellow-workman were paid, and plaintiff says he