Stotler v. Chicago & Alton Railway Company

• Decision Date: 11 June 1907
• Parties: GEORGE W. STOTLER et al. v. CHICAGO & ALTON RAILWAY COMPANY et al., Appellants
• Court: Missouri Supreme Court

103 S.W. 1

204 Mo. 619

GEORGE W. STOTLER et al. v. CHICAGO & ALTON RAILWAY COMPANY et al., Appellants

Supreme Court of Missouri, Second Division

June 11, 1907

Appeal from Audrain Circuit Court. -- Hon. A. H. Waller, Judge.

Reversed.

Scarritt Scarritt & Jones for appellants.

P. H Cullen, W. H. Logan and Walter Burch for respondents.

OPINION

FOX, P. J.

From a judgment rendered in the circuit court of Callaway county Missouri, in favor of plaintiffs, defendants appeal. This suit was originally instituted in the circuit court of Audrain county on July 18, 1903. The cause was removed upon the application of the defendants Wiseman and Haines to Callaway county, where it was finally tried at the August term, 1904, of said court.

This is a suit by the minor children of Phoebe Stotler to recover statutory penalty of five thousand dollars for the wrongful killing of their mother. The plaintiffs' petition states, in substance, that they are minors under the age of eighteen and twenty-one years; that their father and mother are dead, and that they bring this suit by John W. Stotler, their duly appointed guardian and curator; that the defendant railway company is incorporated under the laws of the State of Illinois, and operates a railroad running from Louisiana, Missouri, through the city of Laddonia, in Audrain county, to Kansas City; that defendants Wiseman and Haines are residents of Missouri and employees of their codefendant, acting respectively as engineer and conductor of the train doing the injury. That on the -- day of April, 1903, the deceased was driving a vehicle in Laddonia, Missouri, and that while driving north on a public road or street in said city, commonly called Pine street, which said street crosses defendant railway company's track in said city, and while said vehicle and the deceased were in the act of crossing the track they were struck by an engine and caboose owned by and under the control of defendants, running east on defendant's track, and the said Phoebe Stotler was killed. Plaintiffs then pleaded a violation of an ordinance of the city of Laddonia, which provides that it shall be unlawful for any railroad company or its agents, servants or employees to run upon its tracks or switches within that part of the corporate limits of said city where said railroad track, tracks or switches are unfenced, any locomotive, car or train of cars, at a rate of speed to exceed eight miles per hour. The petition further states that at and near said crossing the tracks of defendant are unfenced and that said crossing is in the corporate limits of said city; that it was the duty of defendants to have its locomotives and cars under full control and to keep a lookout for travelers when approaching said crossing; that defendant did not within eighty rods, or within any other distance of said crossing, ring the bell or blow the whistle on said train of cars and keep the same ringing and blowing until said engine had passed said crossing, but negligently and carelessly and unlawfully failed and refused to give any signals at all of the approach of said train at said crossing, and that the defendant saw and knew, or by the exercise of due diligence might have seen and known, that the deceased was in a perilous position and unaware thereof, and unable to escape from the impending danger, and that they negligently failed to sound the usual and ordinary signals of danger in time to avert the injury, and negligently and carelessly failed to stop or slacken the speed of said train, when as a matter of fact by the exercise of due care they might have stopped or slackened the speed thereof in time to avert said injury; that the deceased at the time of her death was a widow and left no husband surviving her, and that the plaintiffs herein are her minor children and that they were dependent upon her for support.

In due time the railway company filed its petition and bond in the circuit court of Audrain county for the removal of the cause to the United States Circuit Court for the Eastern District of Missouri, on the ground of diverse citizenship between the defendant and plaintiffs and their guardian and curator. The petition further alleged that defendants Wiseman and Haines were residents of Missouri, and that they are fraudulently and improperly joined as parties defendant for the sole purpose of defeating the right of defendant company to such removal, and that plaintiffs' petition stated no cause of action against Wiseman and Haines; that the negligence alleged against Wiseman and Haines is nonfeasance only, and for which said defendants are liable only to the defendant company. The petition denies that plaintiffs have any cause of action against it or its codefendants, and avers that the defendants have a good and sufficient defense thereto, and even if the facts alleged in the petition are true, the liability, if any, exists against the defendant company only; that in pleading an ordinance of the city of Laddonia, plaintiffs do not allege that said ordinance had been accepted by the petitioner or its co-defendants, and that said ordinance is merely penal and not binding on the defendants. The petition for removal of the cause was denied.

The defendants Wiseman and Haines filed a demurrer, alleging that the petition of plaintiffs does not state a cause of action against either of these defendants, that they are not necessary parties to a complete determination of the action and that there is a misjoinder of parties defendant. This demurrer was by the court overruled.

Thereafter, during the same term, defendants Wiseman and Haines filed their application for a change of venue, and the venue of said cause was by order of court changed to the circuit court of Callaway county, Missouri. In the circuit court of Callaway county defendant company filed what is termed by them a plea in abatement, in which the jurisdiction of the State court is challenged, and setting forth the various unsuccessful steps taken for the removal of the cause, together with the adverse rulings of the circuit court of Audrain county thereon, which plea in abatement was by the court overruled, to which the defendant company duly excepted.

The answer of the defendant company was a general denial and a further plea that the death of plaintiffs' mother was caused by her own contributory negligence and that of plaintiff Eugenia Stotler; the answer pleaded the unreasonableness and invalidity of the speed ordinance of the town of Laddonia and want of jurisdiction of the court grounded upon the application for the removal of the cause to the Federal court. The answer of defendants Wiseman and Haines consisted of a general denial and plea of contributory negligence.

The reply was a general denial.

The testimony developed at the trial of this cause was substantially the same as in the case of Eugenia Stotler against these same defendants, 200 Mo. 107, 98 S.W. 509, and tended to show about this state of facts: Laddonia is a small town of about seven hundred inhabitants in Audrain county, about four miles east of Rush Hill. Most of its inhabitants live south of defendant railway company's right of way, which extends substantially in an easterly and westerly direction through the northern part of the land included in the city limits. On or about the 22d day of April, 1903, between six and seven o'clock, the deceased and her daughter were riding in a one-horse buggy, with the top down, going north on Pine street. At this crossing Pine street runs directly north and south. When at this crossing the hind wheels of their buggy were struck by a train, consisting of engine and caboose, running east on said track. In the collision the mother of the plaintiffs was killed. The crossing was the most frequented crossing in Laddonia. On the part of the plaintiffs the testimony tended to show that a number of dwelling houses are located on the west side of Pine street, and on the south side of the railroad, and that a few feet south of the right of way of the defendant company are two frame buildings, one of which is a story-and-a-half and the other a one-story building.

R. S. McKinney testified for the plaintiffs that he was surveyor of Audrain county. This witness made a plat of the crossing and measurements. He testified that a person would have to be within fifty feet of the tracks to get a view to the west.

C. A. Smith and J. A. Pierce also testified for plaintiffs. They state that they secured a horse and buggy and made some observation at the place where the accident occurred, as to distance, time and so forth. These witnesses testify that before one riding in an ordinary one-horse buggy could see to the west, the horse's head would be within thirty feet of the south rail of the main track. It was further shown that an ordinary buggy measures about nine feet from the seat to the end of the shaft, and that a horse's head is usually about two or two and a half feet above the shaft.

T. Kidd testified for plaintiffs substantially as follows: That at the time of the accident he was traveling south on Pine street, about two blocks from the crossing; that his attention was attracted by the whistle of the train and that he saw the train about the time it struck the vehicle; that he did not hear a whistle sounded or bell rung prior to the time the train reached the cattle guard and before the accident. In describing the manner in which the deceased approached the track this witness said: "She just came up in a slow trot; she drove up on the track; and it looked to me like the horse just slacked up a little when the train struck the buggy. Q. Where was the horse at the time you say it slacked up a little? A. The horse was right on the track. Q. Up to that time...