Quinley v. Springfield Traction Co.

SEPARATE CONCURRING OPINION.

STURGIS, J.

I fully concur in the opinion of Judge Farrington in this case. In view of another trial I have thought it best to say that in my opinion instruction numbered 2, given for plaintiff and quoted in full in that opinion, when taken alone is faulty, in that, being an instruction on the whole case, it loses sight of one essential element of the humanitarian rule as applied to cases of this character, to-wit, that plaintiff must have been oblivious to her own danger and that such fact must have been reasonably apparent to the motorman in charge of the car. This element is given full recognition in plaintiff’s instruction numbered 3, also there quoted in full, in that the jury are told that if plaintiff “was approaching said track and that she was unconscious of the approach of said car and that it toas apparent to a reasonably prudent person that she was unmindful of danger and was going upon said track, then it was the duty of the motorman to at once have taken precaution to avoid the collision. ’ ’ It is true that these two instructions are taken from and approved in Ellis v. Metropolitan Street Ry. Co., 234 Mo. 657, 675, 138 S. W. 23, and'when taken together may be unobjectionable, but I do not find that the error here mentioned was there called to the court’s attention and it is not discussed.

That, in cases like this, the fact that plaintiff was unconscious of her danger and that this was reasonably apparent to the person operating the car is an essential element of the humanitarian doctrine, which holds defendant liable for its negligence regardless of the previous and contributory negligence of plaintiff, is shown by the Ellis case, supra, where the court says: *309“If the evidence is to he believed, it was plain he was approaching the track bent on crossing it at a gait and with a demeanor showing unconsciousness of impending danger. Under the facts, a reasonably prudent motorman conld see so much as that, if on watch and performing his duty in looking ont. That duty did not commence merely when the horse’s feet were actually on the south track. It commenced at such- time as a prudent motorman could see that he was intent on pursuing his journey across the track, oblivious to danger from the car. Then was when he came within the danger zone. ... If the conduct and actions of a party approaching a street railway track would lead a motorman of ordinary prudence to conclude that such party was going upon the track in front of the car, the right of the motorman to act on the presumption that the person would stop before going on the track ceases.” In Waddell v. Railroad, 213 Mo. 8, 16, 111 S. W. 542, the court, in specifying the elements which are included in the humanitarian doctrine, says that, where plaintiff is guilty of contributory negligence concurrently with that of the motorman, the defendant could not be held liable “unless it appeared from the evidence that the motorman could have stopped the car in time to have prevented the injury to plaintiff after he had become aware, or by the exercise of reasonable care could have known, of her ignorance of the danger which confronted her and of her purpose to enter into it.” The rule is stated in Degonia v. Railroad, 224 Mo. 564, 595, 123 S. W. 807, in these words: “Plaintiff’s case therefore must proceed upon the theory that defendant’s servants saw the perilous position of the deceased, and saw such things as would lead prudent persons to believe that deceased was oblivious to such perilous position, and after so seeing had time to obviate and avoid the accident by ordinary care and caution upon their part. It devolved upon the plaintiff to show these facts. ’ ’ The Supreme Court also pointed *310out this element of the humanitarian doctrine in Dutcher v. Railroad, 241 Mo. 137, 165, 145 S. W. 63, by saying : ‘£ There is a working presumption indulged that a party approaching a street car track will stop and not step upon it in front of a going car, but that presumption ceases when by the actions and conduct of the traveler it would be apparent to a prudent motorman that he does intend to go upon the track.” [Ellis v. Railroad, 231 Mo. l. c. 680-1 and eases.cited.] Many other cases might be cited and quoted from to this same effect but these will suffice.

This doctrine is often called the “last chance doctrine” and is said to be based on the theory that defendant has the “last clear chance” to avoid the collision. It is clear that defendant does not have the last clear chance unless the plaintiff is oblivious of her own danger, for, if cognizant of her danger and free to act, the plaintiff has an equal or later chance to save herself; and, unless there is something to apprise the defendant that plaintiff is unaware of her peril, it would have a right to presume that plaintiff would refrain from going into a place of danger or, if already there, would extricate herself. In this respect a person oblivious to danger is treated much the same as a person who, from mental or physical infirmity, is incapable of appreciating danger or extricating himself therefrom.

It seems to me that in a case like this an instruction covering the whole case as to liability is deficient in merely telling the jury, as this one does, that if plaintiff, though by her own negligence, was in a perilous situation from danger of being struck by the car, and that defendant’s motorman saw or could have reasonably seen her in a situation of danger and the motorman was thereafter negligent in avoiding the injury, that plaintiff should recover, for this ignores the element of plaintiff being unaware of her danger and defendant’s knowledge of that fact. It seems to *311me that such clause of the instruction should he so modified as to read substantially: ‘ ‘ and if you further find from the evidence that in crossing said track the plaintiff was in a perilous situation arising from danger of being struck by said car and was oblivious to her danger, and that defendant’s motorman saw or by the exercise of ordinary catre could have seen her in said situation of danger and that she was unaware of the same, and that thereafter said motorman was negligent,” etc. The words in italics indicate the modification. It seems to me that the criticism of an instruction similar to this is the case of Chamberlain v. Railroad, 133 Mo. 587, 605, 33 S. W. 437, 34 S. W. 842, is applicable to instruction numbered 2, given in this case, to-wit: “But the instruction would not he proper in all cases, as the signal if given in time would be all that was required to apprise a trespasser, until it is seen he apparently does not hear it. The engineer is not required to stop his train if the trespasser is far enough away to warn him, and a timely warning is sufficient until it is seen that for some cause it is not heeded; then it is his duty to avoid killing, even a trespasser, if by the exercise of ordinary care it can be done.”

This is not written because of any difference between my views and that of the other judges on this question.