Chandler v. Chicago & Alton Railroad Company

• Decision Date: 28 June 1913
• Citation: 158 S.W. 35,251 Mo. 592
• Parties: MYRTLE CHANDLER v. CHICAGO & ALTON RAILROAD COMPANY and O. HOLLIDAY, Appellants
• Court: Missouri Supreme Court

158 S.W. 35

251 Mo. 592

MYRTLE CHANDLER v. CHICAGO & ALTON RAILROAD COMPANY and O. HOLLIDAY, Appellants

Supreme Court of Missouri, First Division

June 28, 1913

Appeal from Franklin Circuit Court. -- Hon. R. S. Ryors, Judge.

Reversed and remanded.

Scarritt Scarritt, Jones & Miller for appellants.

(1) In order for the widow to maintain an action under the statute (now Sec. 5425, R.S. 1909), of the suit is instituted more than six months after the death sued for, it must be alleged and proven that the deceased left no minor children. Barker v. Railroad, 91 Mo. 86; McIntosh v Railroad, 103 Mo. 131; Mathieson v. Railroad, 219 Mo. 548. (2) The peremptory instructions asked by defendants at the end of the evidence should have been sustained. The verdict of the jury was necessarily founded upon conjecture rather than upon substantial affirmative evidence. A verdict founded upon mere speculation or conjecture will not be allowed to stand. Moore v Railroad, 28 Mo.App. 622; Warner v. Railroad, 178 Mo. 125; Yarnall v. Rail road, 113 Mo. 570; Trigg v. Lumber Co., 187 Mo. 234; McGrath v. Transit Co., 197 Mo. 97; Railroad v. Cathey, 70 Miss. 332; Wintuska v. Railroad, 20 S.W. 819; Ogelsby v. Railroad, 177 Mo. 272; Short v. Railroad, 69 Miss. 848; Corcoran v. Railroad, 133 Mass. 507; Rogers v. Railroad, 88 F. 452; The Columbia, 106 F. 145; Railroad v. O'Brien, 132 F. 593; Railroad v. Shertle, 977 Pa. St. 450; Orth v. Railroad, 47 Minn. 384; Asbach v. Railroad, 74 Iowa 248; Railroad v. State, 73 Md. 74; Perkins v. Railroad, 103 Mo. 52. (3) There is not a particle or even a scintilla of evidence in the record tending to show any negligent act on the part of Holliday. If defendant railroad company is liable at all in this matter, it is by virtue of the doctrine of respondeat superior. It follows that inasmuch as Holliday alone of defendant's servants was singled out and charged with negligence in the petition and as there was no proof of any negligent act on his part, the company cannot be held liable. McGinnis v. Railroad, 200 Mo. 361.

E. S. Gantt and Barclay, Fauntleroy, Cullen & Orthwein for respondent.

(1) The system of rules or methods adopted by the master for the conduct of his business forms a part of the contract of hiring and is binding on both master and servant. The violation thereof by the master to the injury of the servant is culpable negligence. Lewis v. Railroad, 142 Mo.App. 585; Jordan v. Transit Co., 202 Mo. 423; Railroad v. Burton, 78 S.W. 823; Railroad v. Heck, 17 A. & E. R. Cas. 389; 4 Thomp. Neg. (2 Ed.), sec. 4165; Railroad v. Whitcomb, 111 Ind. 212; Wharton, Neg., secs. 205, 233; Luebke v. Railroad, 63 Wis. 91; Sobieski v. Railroad, 41 Minn. 169; Railroad v. Murphy, 50 Ohio 135; Railroad v. McElyea, 71 Tex. 389, 1 L.R.A. 411. (2) When the master, as is the case at bar, adopts a system of notification of danger the servant has a right to rely upon such notification, and the master is guilty of negligence, if he omits the customary signal. Tetwiler v. Railroad, 242 Mo. 178; Lewis v. Railroad, 142 Mo.App. 585; Jordan v. Transit Co., 202 Mo. 423; Speed v. Railroad, 71 Mo. 303; Railroad v. Rhea, 84 S.W. 428; Barker v. Railroad, 21 S.W. 340; Railroad v. Schultz, 19 Ohio 639; Ring v. Railroad, 112 Mo. 220; 1 Labatt, Master & Servant, p. 452, sec. 209; Anderson v. Mill Co., 42 Minn. 424. (3) The customary method of the defendant in the particular respect in question is always competent to explain the acts of the parties and may be considered on the issue of defendant's negligence, and plaintiff's freedom from contributory negligence. Stockyards v. Godfrey, 198 Ill. 288; Bachant v. Railroad, 187 Mass. 392. (4) That negligence may be inferred from circumstances there is no doubt in reason or upon authority, and likewise the due care of the person injured or killed and the place where he was at the time he was killed may be proven by circumstances. Lynch v. Railroad, 208 Mo. 1; 3 Ency. of Ev., 103; 6 Thomp. Neg. (2 Ed.), secs. 7863 and 7912; 7 Ib. 7863; Black v. Tel. Co., 26 Utah 451; Rine v. Railroad, 100 Mo. 228; Harned v. Railroad, 51 Mo.App. 482; Haynes v. Railroad, 54 Mo.App. 585; Rosenfield v. Arrol, 44 Minn. 393. (5) Brakeman has a right to assume that engine will not be moved without signal from him. Railroad v. Courtney, 30 Tex. Civ. App. 541; Railroad v. Caskey, 84 S.W. 264; 7 Thomp. Neg., pp. 829-830-831. (6) If it is the custom of a railroad company to warn employees working upon the track, of the approach of an engine, by ringing the bell, or sounding the whistle, or otherwise, such servants are in a large measure relieved from the strict rule of self-protection and in very few cases can it be said that they are guilty of contributory negligence as a matter of law. Ordinarily it is a question for the jury whether the injured servant was guilty of contributory negligence where the custom was not observed. Railroad v. Jackson, 78 Ark. 100, 6 L.R.A. 646; Sloan v. Railroad, 101 Minn. 113; Joyce v. Railroad, 100 Minn. 225; Goodfellow v. Railroad, 106 Mass. 461; D'Agostino v. Railroad, 72 N.J.L. 358; Ditberner v. Railroad, 47 Wis. 138; Schultz v. Railroad, 44 Wis. 638; Davis v. Railroad, 159 Mass. 532. (7) It is not necessary to plead the existence of rules or of a custom. They are mere evidence bearing upon the question on the part of the defendant or its employees and the care and diligence of the person killed or injured. Alcorn v. Railroad, 108 Mo. 81; Logan v. Railroad, 77 Mo. 663; Henry v. Railroad, 66 Iowa 52; Pilkington v. Railroad, 70 Tex. 226.

LAMM, J. Woodson, P. J., and Bond, J., concur; Graves, J., concurs in separate opinion filed. Graves, concurring and dissenting.

OPINION

LAMM, J.

Plaintiff, widow of Albert Chandler, sued defendant railroad and Holliday (a locomotive engineer in its employ) in the Audrain Circuit Court on April 1, 1908, for the alleged negligent death of her husband on June 24, 1907, occasioned whilst operating a train of cars. The venue being changed to the Franklin Circuit Court, on a trial a jury gave her a verdict of $ 5000 against both defendants. From a judgment on that verdict, they, on apt steps and in due time, appealed here.

I. There is well lodged in the record a constitutional question, to-wit, whether the act to amend section 2864, Revised Statutes 1899, concerning damages, approved April 13, 1905 (Laws 1905, p. 135 -- now Sec. 5425, R.S. 1909 -- amended, Laws 1911, 203) is constitutional. True it is, the constitutional question, to-wit, the statutory plan permitting discretion in a jury to allow damages on a sliding scale from $ 2000 to $ 10,000, is now at rest (Young v. Railroad, 227 Mo. 307; Burge v. Railroad, 244 Mo. 76); but as the appeal was taken prior to the decision of the Young case and while the constitutional question was open, that fact vested jurisdiction in this court. Here it remains. So the precedents run. Thus: In Gabbert v. Railroad the constitutionality of a constitutional amendment permitting nine concurring jurors to render a verdict was first settled. Appeals were pending here at the time the Gabbert case was decided in which our jurisdiction hinged solely on the question. We retained jurisdiction of them. Lee v. Jones, 181 Mo. 297, is a sample. Following precedents, we retain jurisdiction of this appeal.

II. Two propositions advanced by appellants are that the petition states no cause of action and that demurrers to the evidence should have been given.

On the first day of April, 1908, plaintiff sued for the wrongful death of her husband occurring on the 24th day of the prior June, i. e., nine months gone. The statute by virtue of which plaintiff may alone sue provides that the individual or corporation guilty of certain negligent acts resulting in death, as here, shall forfeit and pay as a penalty the sum of not less than $ 2000 and not exceeding $ 10,000, which may be sued for and recovered, "first, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased," etc. The statute goes on to provide third and fourth contingencies in which a father and mother or the survivor of them or an administrator may sue, but they do not concern us.

Though the petition shows that the death of Mr. Chandler occurred nine months before suit brought, yet it is silent on the existence of minor children. However, plaintiff's proof shows that Mr. Chandler was about thirty years of age and left plaintiff as his widow and three children -- the latter necessarily minors. Neither does the petition make any averments that would toll the six month statute; for instance, that she had appropriated the cause of action by a timely suit, but had suffered a nonsuit and commenced a new action within one year, thereby cutting the minors out. [R.S. 1909, sec. 5429; Packard v. Railroad, 181 Mo. 426 et seq., and cases cited and commented on; McQuade v. Railroad, 200 Mo. 157 et seq. See averments in the petition in the McQuade case as to appropriation of the cause of action in time and a dismissal.]

Demurrers, offered below to plaintiff's evidence, were overruled and on saved exceptions are now pressed. Moreover, appellants insist here that the petition states no cause of action.

As to those grounds, we are of opinion the judgment stands for reversal on either or both. Because:

(a) There are some aiding general rules pertinent to the questions in hand, viz:

(1) In the first place, a petition that states no cause of action at all presents a defect in the nature of a jurisdictional one. The fatality of such defect is due to be...