Ervin v. St. Louis, Iron Mountain & Southern Railway Co.

CONCURRING OPINION.

COX, J.,

concurring. I concur in the result reached in this case by which it is reversed and remanded, but do not concur in the holding that because the engineer was backing his train and could not see deceased on the track, and did not know as a matter of fact deceased was on the track, he was not guilty of negligence towards him in failing to obey the emergency stop signal after he saw it.

.To my mind it is a monstrous doctrine to say that an engineer in charge of a backing train who could not see the track ahead, and who must depend upon signals from the brakeman for information to guide him in the movement of the train, can deliberately refuse to obey an emergency signal, and by such'refusal *60destroy a human life, then excuse himself, as was attempted in this case, by saying he did not know there was a man on the track, but thought the signal meant there was danger of derailing the train.

While the deceased may have been a trespasser, and the engineer entitled to expect a clear track, yet, the very purpose of the emergency signal was to convey information to him that there was danger ahead, and that something unexpected and extraordinary had happened, making it necessary to stop the train quickly to avoid injury of some character. In this condition it was not his “to reason why.” His sole duty was to stop the train as quickly as possible, and his. failure to do so ought in all reason to make him responsible for whatever injury proximately resulted from a neglect of that duty. In other words, when he saw the emergency stop signal he should be held to have notice of the condition, whatever it was, which made it necessary for the brakeman to give him this signal, and his failure to obey it after seeing it should make him responsible to the same extent as if he had seen what the brakeman saw before he gave the signal. [Chicago, I. & L. Railway Co. v. Pritchard (Ind.), 79 N. E. 508, l. c. 513; Coy v. Indianapolis Gas Co. (Ind.), 46 N. E. 17.]

,1 do not think the case of Hufft v. Railroad Company, 222 Mo. l. c. 303-304, when closely analyzed is such an authority against the views I have expressed as to compel us to follow it. We, of course, are bound by what the Supreme Court decides in a case, but I do not understand that we are bound by the language used in an opinion that is obiter in the ease. What is said in the Hufft case on this question is as follows: “Grant it to be true that a prompt response to the stop signal would have saved the plaintiff, yet if the plaintiff was at a place where the engineer in charge of the engine had no right to expect persons, other than employees, to be, his failure would not be negli*61gence as to the plaintiff. In other words if the engineer was at a place where he was entitled to expect a clear track, his duties as to looking out for stop signals is quite different to what they would be if he was running his train at a place where he was not entitled to expect a clear track. If the place of injury was where the engineer had the right to expect a clear track, then as said before his failure to immediately heed the same would not be negligence towards plaintiff, because such signals at such a place would not be given for his benefit'. In other words, stop signals at such a place would not contemplate plaintiff’s presence there and a failure to heed them might be negligence as to some parties, but not as to him.

“On the theory that there had been no sufficient us'er shotun, then defendant’s instruction numbered 2, refused by the court, properly declares the law. So that it matters not which motion was enteretained by the trial court, there was error in instruction numbered 1 for plaintiff. That is to say, if the trial court meant to declare as a matter of law; that such user had been shown, then there was error for that reason, and on the other hand if the court meant to declare that there was no user, and that the place was one where defendant was entitled to a clear track, then the instruction is erroneous, because it imposes the duty to observe the stop signal for the benefit- of plaintiff, who, to the engineer, was an unknown and unseen trespasser. To such a person the engineer only owed the duty of obeying the stop signal after he saw it. He was not guilty of negligence toward the plaintiff until he did see it, any more than he would have been of failing to stop in that class of cases wherein he has a right to expect a clear track and fails to discover a person on the track in time to avert the injury.” ' (The italics are ours.)

What was really decided in the extract we have given was that plaintiff’s instruction No. 1, was er*62roneous and that defendants refused instruction No. 2, properly declared the law. This refused instruction was as follows:

“2. The court instructs the jury that as to the plaintiff Opal Hufft, the engineer in charge of defendant’s engine that backed the cars over said plaintiff’s foot was not required to be on the lookout for stop signals, and was not required to stop his engine until he actually saw said signals; and if you believe and find from the evidence that as soon as said engineer saw said stop signals he did all he could to stop his engine and cars, and stopped them, your verdict must be for the defendant. ’ ’

This instruction declares in effect that in that case the plaintiff was a trespasser at a point where the engineer had the right to expect a clear track, and therefore, the engineer owed him no duty to be on the lookout for stop signals, but it was his duty after having seen the- stop signal to obey it, and do all he could to stop the train. The court having decided that that instruction properly declared the law, the language .of the opinion in conflict therewith should be regarded as obiter and not binding upon us, but we should be guided by what was in fact decided, and the language in harmony therewith. By noting the language italicized in the quotation from the opinion above it will be seen that there is as strong language supporting the view I have herein expressed, as there is opposing it, for -the court says: “To such a person (to-wit, an unknown and unseen trespasser) the engineer only owed the duty of obeying the stop signal after he saw it. He was not guilty of negligence toward the plaintiff until he did see it.” But when he did see and refused to obey it he was guilty of negligence.

This negligence too was negligence towards the. deceased, for it was his position of the peril which caused the signal to be given, and. it was given for his express benefit. If the engineer was not guilty of *63negligence towards deceased in failing to obey tbe emergency signal after be saw it, then all tbe Railroad Companies would have to do to avoid all liability to trespassers under all circumstances, would be to run their trains backwards, and keep tbe engineer in a position where be could not see tbe track ahead of tbe moving train, and hence, could not know that a man on tbe track caused tbe signal to be given, and then no matter bow often ánd bow urgent tbe signals might be, be could disregard them, though seeing them, and ruthlessly run over and kill anyone on tbe track, and nobody be required to answer for it.

I cannot assent to that position, but am of tbe opinion that tbe dictates of humanity as well as tbe general rule which requires all persons to exercise ordinary care for tbe safety of others, requires that tbe engineer should obey tbe emergency signal after be saw it.