Plaintiff as the widow of William Milward sues for the alleged wrongful death of her husband who was struck by defendant's northbound passenger train on November 26, 1915, where the tracks of defendant cross Bartmer avenue about two blocks west of the St. Louis city limits. *Page 352
The right of recovery is grounded solely on the last chance theory, the petition alleging that defendants (being the railway and J.N. Butterly the engineer in charge of the train) could have discovered that the deceased William Milward was approaching and crossing the track and was in danger of being struck by the locomotive in time to have averted his death by exercising ordinary care to sound the emergency whistle and in time to have prevented his death by reducing the speed of the locomotive in the shortest time they could by the exercise of ordinary care and in time to permit said William Milward to escape. It is alleged that the defendants negligently failed to keep a vigilant watch for persons in said highway and moving toward and upon said track, when they by performing that duty could have discovered that the said deceased was in said highway moving toward and upon said track and in danger of being struck by said locomotive, and that the defendants negligently failed to give deceased sufficient warning of the approach of said locomotive by sounding the emergency whistle, and negligently failed to reduce the speed of the locomotive in the shortest time they could by the exercise of ordinary care, which acts of negligence caused the death of plaintiff's husband.
The answer was a general denial coupled with a plea of contributory negligence to the effect that the deceased's injuries were caused by his own negligence in failing to look and listen for the approach of defendant's train and in walking into a position of peril and danger where he would be struck by defendant's train such a short time and space in front of said train that the same could not be stopped before striking him, and in stepping immediately in front of a rapidly approaching train.
The substantial question in the case is whether the evidence warranted the submission of the cause to the jury under the last chance doctrine and involves the action of the court in refusing to sustain the defendant's *Page 353 demurrer to the evidence offered at the close of plaintiff's case.
The defendant stood on its demurrer and failed to introduce any evidence, so we are concerned only with the evidence of plaintiff. Viewing that evidence in the light most favorable to plaintiff, which is our duty in considering the question, the facts are these:
Bartmer avenue, a much used public highway, runs east and west. At a point two blocks west of the St. Louis city limits it is crossed by defendant's railway which at that point runs north and south. The defendant operates two tracks at the point, the east track being used for northbound and the west track for southbound traffic. At about 2.15 in the afternoon of the day referred to William Milward was struck by defendant's northbound passenger train at this crossing, receiving injuries from which he subsequently died. At the time deceased was walking eastwardly on the south side of Bartmer avenue and approaching the crossing from the west, pushing in front of him a loaded wheelbarrow. When defendant's train was at a point 300 feet south of the crossing there were no obstructions which would prevent the engineer from seeing the deceased approaching the crossing from a point within 100 feet of the tracks, and the evidence warrants the inference that the engineer sitting in the cab at a point 300 feet south of the crossing could have seen the deceased as he approached the crossing from a point 100 feet west therefrom. William Milward pushing the wheelbarrow in front of him walked across the west track, the space between the tracks, crossed the east track and had reached a point about six inches beyond the east end of the ties of the east track and almost to a place of safety, when the cylinder on the east side of the engine which projects out from the side thereof struck him and hurled his body northward about fifty feet and against the fence on the north side of the street.
Plaintiff's evidence tended to prove that the bell of the engine was not ringing; that the whistle was not *Page 354 sounded and that no attempt was made by the engineer to stop or slacken the speed of the train until after William Milward was struck by the engine. As it appeared that the deceased was pushing the wheelbarrow in front of him and all the time was walking until the very moment he was struck by the engine the jury could reasonably infer that the deceased at the time did not know the train was approaching and was unaware of his peril.
One witness testified that when Milward was on the west edge of the west track and was proceeding over the west track the locomotive was then at a point 300 feet south, and it appeared from other evidence that the train was approaching the crossing at the rate of between twenty-five and thirty miles an hour. From the testimony of the fireman who was put on the stand by the plaintiff it appeared that at the time he was firing the engine and was not in a position to have seen the deceased, and an inference can be drawn from his testimony that the engineer was on his seat in the cab of the engine and in a position where he could see William Milward approaching the crossing. Were such not the fact the law would presume, in the absence of anything to the contrary, that the engineer was in his proper place as it was his duty to be in the cab looking down the track for the purpose of observing those who might be upon the crossing. [Murrell v. Railroad, 279 Mo. 92, l.c. 111, 213 S.W. 964.]
Immediately after the engine struck deceased the engineer applied the emergency brakes and the train was stopped within about 250 feet.
The foregoing facts present a case where a train approaching this much used crossing at the rate of twenty-five or thirty miles an hour and when at a point 300 feet south of the crossing the engineer in charge of the train saw or could have seen deceased had he been looking approaching the track on which the train was traveling and at the time on the adjoining or west track pushing a wheelbarrow in front of him and walking towards *Page 355 the track on which the train was running. At that time the engineer doubtless had the right to assume that the deceased would stop and not go from a place of safety into a place of danger. This right to assume however that the plaintiff would stop and not go on the track ended when it appeared or should have appeared to a reasonably prudent engineer that the deceased was not going to stop and was going headlong into a place of danger. After the deceased had left the west track and was approaching over the space between the tracks and especially when the front of his wheelbarrow arrived on the east track, it should have appeared to a reasonably prudent engineer that the deceased was not going to stop but was going upon the track in front of the engine. At that time it was the duty of the engineer to avert the catastrophe if he could do so by the exercise of ordinary care. This duty to prevent the accident would have been performed by giving the emergency whistle which doubtless would have warned the deceased so that he would have hurried over the track as he needed only one more step and he would have been in a place of safety. Or if the engineer had put on the emergency brakes and slowed up the speed of his train even to a slight degree the death of William Milward would have been prevented. As the train was stopped within 250 feet after the accident it may be inferred that its speed could have been sufficiently slackened before the accident so as to have avoided striking plaintiff's husband.
The engineer did not testify, so the evidence is dark as to whether he actually saw the deceased before he was struck. It was his duty to keep a vigilant watch as he approached this crossing and the law says that he saw what he might have seen. [Ellis v. Railway, 234 Mo. 657, 138 S.W. 23.]
The facts present a case for the application of the humanitarian doctrine, and the court did not err in submitting the cause to the jury. [Holden v. Mo. Pac. Ry. Co., 177 Mo. 456, l.c. 468, 76 S.W. 973; Holmes v. Mo. Pac. Ry. Co., 207 Mo. 149, l c. 163, 105 S.W. 624; Ellis *Page 356 v. Railway Company, 234 Mo. 657, 138 S.W. 23; Maginnis v. Railroad, 182 Mo. App. 684, 165 S.W. 849; s.c. 268 Mo. 667, l.c. 678, 187 S.W. 1165; Martin v. St. Louis-San Francisco Ry. Co., 227 S.W. 129; Tavis v. Bush, 217 S.W. (Mo. Sup.) 274; Lyons v. Ry. Co., 253 Mo. 143-152, 161 S.W. 726; Epstein v. Railway Company, 197 Mo. 720, l.c. 735, 94 S.W. 967; Waddell v. R.R., 213 Mo. l.c. 16, 111 S.W. 542.]
Defendant complains because the petition omits the charge that at the time the deceased was oblivious to the danger and also that plaintiff's instruction submitting the cause to the jury omitted the necessary element of obliviousness.
The petition was not challenged until after verdict and the defendant's answer alleged and admits that William Milward in approaching the track failed to look and listen for the train and that he walked into a position of peril and danger. In view of this admission tending to show that the deceased was unaware of his peril at the time and was oblivious to the danger, the question of obliviousness on the part of deceased was not an issue in the case. The admission eliminates the question, cures the defect in the petition, if any, renders the proof of such fact unnecessary, and also does away with the necessity if any of incorporating the element of obliviousness in the instruction. Defendant in its answer does not contend that the deceased wantonly went into a place of danger, but says that he went upon the track without looking or listening and walked into the danger zone, thereby impliedly at least stating that at the time he was unaware of the danger. It is elemental that an admission in an answer may cure a defect in a petition and render the proof of such fact unnecessary and the instructions in such a case need not require a finding of such admitted fact.
Where as here the defendant admits that the deceased went upon the track without looking or listening and walked into a place of danger; and where as here the evidence indicates that the deceased was unaware of *Page 357 the impending peril; and where the defendant offers no evidence to the contrary, the question of obliviousness is not a controverted question in the case. [Newton v. Harvey, 202 S.W. l.c. 251 (Kansas City Court of Appeals); Woodis v. United Railways Co., 199 Mo. App. l.c. 354, 203 S.W. 489; Acqua Contracting Co. v. United Railways Company, 203 S.W. l.c. 484; Bybee v. Dunham, 198 S.W. 190; Martin v. St. Louis San Francisco Railway Co., 227 S.W. 129 (St. Louis Court of Appeals).]
In view of the ruling herein that the facts present a case for the application of the humanitarian doctrine, we do not think the court committed error in refusing the defendant's instructions. The judgment should be affirmed.