Crumpley v. Hannibal & St. Joseph Railroad Co.
| Decision Date | 18 March 1889 |
| Citation | 11 S.W. 244,98 Mo. 34 |
| Parties | Crumpley v. The Hannibal & St. Joseph Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Jos. P. Grubb, Judge.
Reversed and remanded.
Strong & Mosman for appellant.
(1) A recovery of five thousand dollars is only authorized in a case falling within the provisions of section 2121, Revised Statutes, 1879. That section does not authorize the recovery of any such penalty in the case of a citizen who is killed while driving along the public road in consequence of the failure of the railroad company to construct and maintain a crossing over its track. R. S. 1879, sec. 2121. (2) Plaintiff cannot recover under the first subdivision of that section because the "negligence, unskilfulness or criminal intent of any officer, agent, servant or employe," referred to in that section must relate to the "running conducting or managing of" a locomotive, a car, or a train of cars, and such "negligence, unskilfulness or criminal intent" must occur "whilst" such "officer, agent, servant or employe" is engaged in running, conducting or managing "a locomotive, a car, or a train of cars." Schultz case, 36 Mo. 26-27. (3) He cannot recover under the second subdivision, because the recovery permitted by it, in the case of a death "resulting from or occasioned by any defect or insufficiency in any railroad, or any part thereof," is by its terms, confined to passengers. Schultz v. Railroad, 36 Mo. 24; Higgins v. Railroad, 36 Mo. 431-2. (4) A failure to construct a crossing, or a failure to maintain a crossing, is not a "defect or insufficiency in" the railroad within the letter or the spirit of the section. Potter's Dwarris, 184-185; Rohback v. Railroad, 43 Mo. 195; Evans v. Railroad, 62 Mo. 57; Metallic Co. v. Railroad, 109 Mass. 280; Procter v. Railroad, 64 Mo. 112; Mann v. Railroad, 86 Mo. 347. (5) This instruction authorized a recovery of five thousand dollars, under section 2121, if the defendant failed to construct and maintain a crossing out of the materials mentioned, and in the manner described in section 809, R. S. 1879, regardless of the fact whether a failure in either of these particulars constituted a "defect or insufficiency in" the railroad within the meaning of that section. It might be true that the defendant had not constructed a crossing out of the materials mentioned in that section, and yet be true that there was no defect or insufficiency in the railroad. Section 2121 of the statute is a penal statute. "The words forfeit and pay are punitive." Procter v. Railroad, 64 Mo. 128-131; Rafferty v. Railroad, 15 Mo.App. 559. A penal statute must be strictly construed, so as not to enlarge the liability it imposes, nor allow a recovery unless the party seeking it brings his case strictly within the terms and conditions authorizing it. The right to recover under section 2121 "is a cause of action created by the statute, and no one can sue unless he brings himself strictly within its terms." McNamara v. Slavens, 76 Mo. 331; Gibbs v. Hannibal, 82 Mo. 148.
White & Spencer and Green & Burnes for respondent.
This is an action by the widow of Samuel Crumpley to recover damages in consequence of the death of her husband, who was killed by one of defendant's trains of cars, while he was driving a team over defendant's railroad at a public crossing. The causes of action set out in the petition, so far as brought forward as grounds of recovery, are, first, a negligent failure on the part of defendant's servants in charge of the train to ring the bell or sound the whistle, as required to do by section 806, R. S., 1879, and second, a failure on the part of the defendant to construct and maintain the crossing in a manner and of the materials specified in section 807.
The court directed the jury that if they found for the plaintiff, either on the ground of a failure to ring the bell or sound the whistle, or on the ground of a failure to construct and maintain the crossing as prescribed by statute, or on both grounds, then they should assess the damages at five thousand dollars. The respondent has filed no brief in this court, and as the appellant's abstract does not set out the evidence, there is but one question before us for consideration, and that is whether there is error in the instructions as to the measure of damages.
The sections before mentioned are found in the statute law concerning railroad corporations, and section 806 contains this clause: "Said corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect," and section 807 contains a clause to the same effect. The contention is that as these sections give a remedy, and do not fix a penalty, the damages must be compensatory only, and that section 2121 of the personal damage act does not apply. In the application of section 2121, it can make no difference whether the...
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