
    CALLIE TAVIS v. BENJAMIN F. BUSH, Receiver of MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    January 6, 1920.
    
      1. NEGTiIG-ENCE: Humanitarian Rule: Degree of Care. The degree of care imposed under the humanitarian rule is always commensurate with the degree of danger. The engineer’s field of observation to avoid danger is as wide as the field which the danger he creates covers.
    2. -: -: Failure to Warn Traveler. Where the fireman, when his engine was 500 feet from the crossing, saw deceased approaching in a large motor truck at a speed of five or six miles an hour, and testifies that he knew deceased was oblivious of the fact that the train was coming, and failed to warn him with the blast of the whistle, but proceeded ahead until the engine struck the truck, the plaintiff is entitled to recover under the humanitarian doctrine.
    3- -: Instruction: Measure of Compensatory Damages: Negligent Acts. In an action brought by a widow under Section 3425, Revised Statutes 1909, in which she seeks to recover $10,000 for the negligent killing of her husband, and in which her petition charges simple negligence, an instruction which tells the jury that, in estimating her pecuniary loss, they “may take into consideration the facts constituting negligence on the part of defendant causing his death,” is erroneous, and not harmless. The circumstances of his killing, or the negligent acts of defendant, are not elements of damages, or of her pecuniary loss. [Following State ex rel. Dunham v. Ellison, 278 Mo. 649.]
    Appeal from Jáckson Circuit Court. — Hon. William O. Thomas, Judge.
    Reversed and remanded.
    
      Edward J. White and Thomas Hachney for appellant.
    (1) The court erred in overruling defendant’s demurrer to the evidence interposed at the close of plaintiff’s evidence and again renewed at .the close of all the evidence. The testimony was insufficient to authorize the submission of the case to the jury under the humanitarian rule. Keele v. Railroad, 258 Mo. 79; Tannehill v. Railroad, 213 S. W. 818; McMiens v. United Rys. Co., 274 Mo. 331; Burge v. Railroad, 244 Mo. 102; Begonia v. Railroad, 224 Mo. 596; Pope v. Railroad, 242 Mo. 232; England v. Railroad, 180 S. W. 36 ; Armstrong v. Railroad, 203 S. W. 249; Guyer v. Railroad, 1,74 Mo. 351; Schmidt v. Railroad, 1'91 Mo. 23'5; McGee v. Railroad, 214 Mo. 543; Porter v. Railroad, 199 Mo. 82. (2) It was the duty of the deceased in driving the truck on the public road as he approached' the railroad crossing to “use the highest degree of care that a very careful person would use' under like or similar circumstances” to prevent the collision with defendant’s train. Par. 9, Sec. 12, Laws 1911, p. 330. He owed this' duty to defendant as well as to others on the highway. Threadgill v. United Rys. Co., 279 Mo. 66, 214 S. W. 161. The engineer and fireman had the right to presume that the deceased in approaching the crossing at a confessedly slow speed variously estimated at from 2 to 8 miles per hour, with the train in plain view, had both seen and. heard the train. Keele v. Railroad, 258 Mo. 79; Ehgland v. Railroad, 180 S. W. 36, (3) The court erred in giving Instruction No. 5 at the plaintiff’s instance. By this instruction the jury were told that in determining plaintiff’s damages they could take into consideration the pecuniary loss occasioned to plaintiff by the death of her husband, if any; also “and you may also take into consideration the facts (if any) constituting negligence (if any) on the part of the defendant causing the death (if you so find).” This action was for compensatory damages only, being brought under Sec. 5425', R. S. 1909. *No punitive damages were asked. In such case it is error to instruct the jury that in - assessing the damages they may take into consideration the facts constituting negligence causing death. State ex rel. Dunham v. Ellison, 213 S. W. 459.
    
      Hoy sett $ Hoyle for respondent.
    (1) Deceased did not have ample warning of the approach of the train. Stotler v. Railroad, 200 Mo. 137; Murray v. Transit Go., 176 Mo. 188; Dutcher v. Railroad, 241 Mo. 141. See also Muller v. Harvey, 204 S. IV. 929; Advance Transfer Co. v. Railway Go., 195 S. W. 567; Doyle v. Railway Co., 185 S.*W. 1175; Buckrey-Ellis v. Railroad, 158 Mo. App. 499; Underwood v. Railway. 190 Mo.. App. 407. (2) This court has laid down the rule that even where the engine hell is ringing, hut where such warning by the bell is apparently ineffective, there is a duty on the part of the engineer to sound the whistle. Rollinson v. Railroad, 262 Mo. '538; Dutcher v. Railroad, 241 Mo. 137; Eppstein v. Railroad, 197 Mo. 735; Reyburn v. Railroad, 187 Mo. 573. (3) The claimed error in Instruction 5 on the measure of damage was harmless. The McGowan Case, 199 Mo. 518, is directly in point and in principle is exactly like the case at bar. Where a verdict is manifestly for the right party, and the amount thereof is manifestly and indisputably reasonable, it would be “intolerable” (as this court said in the Shinn Case, 248 Mo. 180-183) to reverse the judgment for an error in an instruction on the measure of damage's, which obviously has had no prejudicial effect whatever in increasing the amount of the verdict.
   MOZLEY, C.

This is ' an action for damages brought by plaintiff to the Jackson County Circuit Court, and was tried therein at the regular May term, 1917, of said court. The trial resulted in a verdict for plaintiff, upon which judgment was duly rendered by the court. Within the statutory.period appellant.duly filed its motions for new trial, and to arrest the judgment, and, on the 30th day of June, 1917, the same being one of the judicial days of said term, the court overruled each of said motions; exceptions to this action of the court were taken and, thereupon, the case was duly appealed to this court.

This is a crossing case and the facts material and necessary to an understanding of them and of the issues involved are substantially as follows:

Respondent is the widow (and during his lifetime the wife) of John W. .Tavis. Appellant owned and was operating a railroad which extends at the place in question a little north, of east and a little south of west.

The accident happened on a bright sunshiny day at an unincorporated village named Dodson at the crossing of the public road over the railroad. The public road was smooth-surfaced, with a slight elevation^ as the track was approached,, and crossed the same at grade and crossed the track substantially at right angles from east to west. There was an automatic-signal ball near the crossing' and a few feet east of the track. Barrett’s store and Hurley’s Lumber Company buildings are situated on opposite sides of the track. Barrett’s store building at its nearest point is 80' or 90 feet from said crossing. On the day of the accident deceased was driving a large motor truck and engaged in delivering-bread for a Kansas City concern, and had stopped at said store, where he transacted some business, and then got into his truck and started toward the crossing at an estimated speed of three miles an hour. At the same time appellant was operating a train which was approaching the same crossing at a speed of twenty miles an hour. When deceased had traveled approximately one-half the distance between Barrett’s store and the crossing, about 40 or 45 feet, he slowed his truck, without stopping, to allow a frightened team hitched to a wagon to pass and to which his .attention was apparently directed. On the opposite side of the crossing was a disabled motor truck at the edge of the road deceased was traveling, which parties were trying to extricate from its predicament and apparently deceased’s attention was directed to this after passing the wagon and team. All of the witnesses agree that when deceased was 80 or 90 feet from the crossing the on-coming train was from 400 to 600 feet distant from, said' crossing, and that there was nothing; that interfered with the vision of either party. The fireman, E. E. Hart, testified as follows:

“Q, Did you have your eye on the lookout on the left hand side of the engine from that time until you got up to the road crossing? A. Yes, sir.
“Q. 1 wish you would tell the jury what you saw up there at the road crossing and when you first saw the automobile and how it was moving up to the timei of the collision. Just tell them about it? A. When we got around the curve, there that store was in my line of vision, when we got around the curve there the store would be in my line of vision, and 1 seen am auto truck; it looked to me like it just started, moving very slowly, and it moved along slowly, I should say five or six miles an hour, about that, up until it got within fifteen feet or such, a matter of the side, track that crosses Prospect Avenue, and all of that time I supposed the auto-truck seen the train and was going to stop, but when he got within about fifteen feet of that track his speed increased, and I realised then that he had not seen us or was trying to beat us across, and I yelled to the engineer, ‘we are going to hit. that fellow/ and he applied the brakes in emergency and by that we hit him.”

On cross-examinatiou he testified as follows:

££Q. When did you first see this man*? A. When we commenced to swing around the curve; when the ev gine swung around so the boiler would throw him ir my line of vision on the curve.
££Q. Now, at that time how far was he from the track?' A. He was just leaving the store, he was about 79 feet from the crossing.
l£Q. You saw this man approaching the track 79 feet from the track? A. Yes, sir.
- “Q. At that time you were on the curve? A. Yes, sir.
“Q. He came forward slowly? A. Yes, sir.
“Q. You say the truck was going slowly? A. Yes, sir.
“Q. And that it reached á point about fifteen feet from the passing track and then practically stopped? A. Yes, sir.
“Q. How far is the passing track from the main track? A. Fourteen feet, I believe.
Q. How wide is the track? A. Four feet and eight inches.
“Q. That makes eighteen feet and eight inches. A. Yes, sir.
“Q. And the man was still fifteen feet beyond that? A. Yes, sir.
“Q. That makes about. twenty-nine and one-half feet that this man was' from the track when you saw him start forward? A. Yes, sir.
“Q. At that time you knew he did not hear— A. (interrupting) Fes, sir.
“Q. You ltnev> he. didn’t know your train was coming, isn’t that truef A. That is true.
“Q. Did you■ then sound the whistle to notify him, when you knew he didn’t know you, were coming¶ A. No, sir. ’ ’

This witness who testified, supra, that when the truck started up it did so at a speed of five or six miles an hour, also testified that the train was running twenty-five or thirty miles an hour.

The case was submitted to the jury on the humanitarian doctrine alone.

I. It is strongly insisted by appellant that the facts of the record fall far short of making out a prima-facie case under the humanitarian rule, and that the court erred in not giving its peremptory instruction in the nature of a demurrer directing the jury to return a verdict for defendant.

TJndor tills assignment, tlie question confronting us is, does the record contain substantial testimony tending to show that the operatives of the train were derelict in 2lot ushig that degree of care the circumstances imposed upo2i them? If so the assignment cannot he disposed of as a law question, hut should be submitted to the jury as a question of fact.

“The degree of care imposed under the humanitarian rule is always commensurate with the degree of danger. The engineer’s field of observation to avoid danger is as wide as the field which the danger he creates covers.” [Holmes v. Missouri Pacific Railway, 207 Mo. 149.]

This is not a case where the traveler stepped suddenly on the t2'Rcl*: in front of the train so closely that his injury could not be avoided in the exercise of ordinary care by the operatives of the train, or one where the injured party was negligently driving a vehiclé on the track and there was no evidence that he could have been seen in time to avoid the injury, nor is it one where there is nothing to indicate obliviousness to danger.

But it is one in which all of the physical facts as well as the testimony of appellant’s fireman who, when he was 500 feet distant from: the crossing, saw deceased approaching it at a speed of five fir six miles an hour and admittedly knew that he was oblivious of the fact that the train was coming and of his danger, and failed to warn him with a blast of the whistle and thereby save his life.

If the humanitariaji rule will not apply to the facts of this case then it is a rule without value and ought to be discarded.

We think the facts disclosed by the record, in the instant case, bring it fairly within the rulings of this court in the cases of Maginnis v. Railroad, 2.68 Mo. l. c. 678; Lyons v. Metropolitan St. Rv. Co., 253 Mo. 143-152; Murrell v. Kansas City, St. L. & C. R. Co., 213 S. W. 964; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, l. c. 735; Waddell v. Railroad, 213 Mo. l. c. 16. There are many other cases ruling likewise which we deem unnecessary to cite.

In the Bppsteiu case, supra, at page 735, it was said: “Appellant’s servants Avith plenty of space and plenty of time to see, Avith no obstructions in the way of seeing, warned by his preoccupied attitude and conduct of ■the fact that he Avas oblivious to their approach, owed him, we think, the simple and easy duty to tell him they at once purposed occupying the identical spot he was on with their ponderous engine. This is not requiring anything extraordinary at their hands— a twist of the wrist would have done it presumably.” In the Waddell case, at pages 16-17, the court laid doAvn this rule, viz.: “ ‘When a defendant sees, or by the exercise of ordinary care can see, the peril of the plaintiff caused by the latter’s contributory negligence, in time to avoid injuring him, them the plaintiff can recover, notwithstanding his contributory negligence. This is now the accepted and settled exception to the general rule that plaintiff’s contributory negligence bars a recovery.’” (Italics ours.)

The facts of the case in hand are as strong, if not stronger, than those of the cases just quoted from and point unerringly to the negligence of the train operative from Avhich the death of J ohn W. Tavis resulted.

We thinPc the court did not err in submitting the' case to the jury and rule the point against appellant.

II. Appellant makes the point that Instruction No. o given by the court on behalf of plaintiff is erroneous to the extent of affecting- its rights prejudicially and, for this reason, the case ought to be reversed and remanded. The instruction is on the measure of damages and reads as follows:

“The court instructs the jury that if you find the issues for the plaintiff you shall allow her a sum not less than two thousand dollars and not more than ten thousand dollars, in the discretion of the ÉWT; and in determining the amount you Avill alloAV her, you may take into consideration the pecuniary loss occasioned to the plaintiff by the death of her husband (if any) and you may also take into consideration the facts (if any) constituting negligence (if any) on the part of the defendant causing the death (if you so find), and in considering the subject of her pecuniary loss you may consider what would have been the value of her support from her husband from the time of his death during the time he probably would have lived and supported her, and you .may also consider the additional burden, if any falls upon her, for the support of her minor child by reason of his death.” (The italics are ours).

The action was brought under Section 5425, Eevised Statutes 1909, and the petition so far’ as necessary to quote charges the following acts of negligence against appellant: (a) in that appellant’s agents and servants negligently operated said train at a negligent rate of speed under circumstances then and there existing; (b) negligently failed to ring the bell placed upon the locomotive engine of such train at least eighty rods from said crossing and negligently failed to keep said bell ringing until the crossing was affected; (c) negligently failed to sound the steam whistle attached to said] engine 80 rods from said crossing and negligently failed to sound said whistle at intervals until said crossing was affected; (d) negligently failed to give said John "W. Tavis any warning of the approach of said train; (e) negligently permitted the automatic signal bell at said crossing to become out of repair so' that it would not ring and give warning of the approach of the train, and (f) although defendant’s employees in charge of and operating said train saw, or by the exercise of ordinary care upon their parti should have seen, said John Y. Tavis approaching a position of peril, and in a position of peril, in front of said train, and oblivious to his peril, in time by the exercise of ordinary care on their part to have sounded a warning, or stopped or slackened the speed thereof-and thereby have avoided the injury to and resultant death of said Tavis, yet they negligently did neither and on account thereof the collision, injury and death ensued. As above stated the case wás submitted to the jury upon the humanitarian doctrine alone.

In a very recent case, State ex rel. Dunham v. Ellison, et al., Judges of Kansas City Court of Appeals, 278 Mo. 649, our Court in Banc had before it for decision the precise question under consideration upon an instruction the exact counterpart of the one under consideration. The opinion of the Court- of Appeals was quashed on the ground that said instruction there given told the jury that the negligence of defendant might be considered for the purpose of enhancing the amount of damages the plaintiff was entitled to recover, and the court said: “By this instruction the jury was told that, in considering the amount of damages they would award plaintiff, the jury could consider two things: (1) The pecuniary loss occasioned to her by the death of her husband, and (2) the facts constituting negligence upo'n the part of defendants. The instruction clearly authorized the jury to consider both of these things in fixing the amount of the damages to plaintiff. . . . We do not think this is proper under this section [5425] of the statute, with the petition before us in this case, if indeed it would be proper in any case under such section of the statute. . . -. The statute (Section 5425); does not contemplate a consideration of the character of the negligent acts to either increase or diminish plaintiff’s compensatory damages. Any kind of negligence shown authorized the recovery of the penalty of $2000. We have no degrees of negligence in Missouri, so far as the right to recover for negligence is concerned. We are confining our remarks to tho case in hand, and to the statute under which it is brought., . . . The principle is common to cases under both statutes. That common principle is that, under a petition charging simple negligence, a consideration of the negligent acts themselves for the purpose of enhancing compensatory damages is improper. . . . The instruction is erroneous, in that it permits the jury to consider the eireumstances of the killing in aggravation of the widow’s compensatory damages.”

The instruction under discussion is unmistakably stamped with the same erroneous character as the instruction in the case just quoted from, since, as above stated, there is no difference in the wording of the two.

We cannot agree with the last-resort contention of learned counsel for respondent that if said instruction is erroneous, it is, nevertheless, harmless and appellant has no right to complain because not hurt by it.

What has been said above sufficiently shows it was prejudicial to appellant’s defense in the case.

On account of the error pointed out. the case will have to be reversed and remanded for a new trial. It is so ordered.

White, G., concurs; Bailey, G., not sitting.

PER CURIA,Mu — The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.  