The State ex rel. Iron Mountain & Southern Railway Co. v. Reynolds

• Decision Date: 31 December 1920
• Citation: 226 S.W. 564,286 Mo. 204
• Parties: THE STATE ex rel. IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

226 S.W. 564

286 Mo. 204

THE STATE ex rel. IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

December 31, 1920

Writ quashed in part and sustained in part.

H. H Larimore and James F. Green for relator.

(1) In holding that the deceased was not guilty of negligence as a matter of law barring recovery on the part of plaintiff respondents, have failed to follow the rule announced in the latest controlling decisions of the Supreme Court, as follows: Keele v. Ry. Co., 258 Mo. 62; Burge v Railroad, 244 Mo. 76; Dyrcz v. Ry. Co., 238 Mo 33; Bennett v. Railroad Assn., 242 Mo. 125; McGee v. Railroad, 214 Mo. 543; Laun v. Railroad, 216 Mo. 563; Stottler v. Railroad, 204 Mo. 619; Holland v. Railway, 210 Mo. 351; King v. Railroad, 211 Mo. 13; Sanguinette v. Railroad, 196 Mo. 466; Green v. Railroad, 192 Mo. 131; Markowik v. Railroad, 196 Mo. 550; Ries v. Transit Co., 179 Mo. 1; Kelsay v. Railroad, 129 Mo. 365; Vonbach v. Railroad, 171 Mo. 344; Hook v. Railroad, 162 Mo. 569; Hayden v. Railroad, 124 Mo. 566; Ries v. Railroad, 179 Mo. 1; Lane v. Railroad, 132 Mo. 4; Huggart v. Railroad, 134 Mo. 673; Stepp v. Railroad, 85 Mo. 229; Butts v. Railroad, 98 Mo. 272. (2) Respondents' opinion affirms the case on the theory that the alleged failure of those operating the train in question to give warning by a bell or whistle in approaching the point of accident in violation of Sec. 3140, R. S. 1909, made out a prima-facie case for the plaintiff and relieved the plaintiff of making proof that the failure to give such signals was the proximate cause of the accident. This, without a finding that the point of accident was where defendant's track was crossed by a traveled public road and in the face of a finding by respondents that deceased entered the right-of-way of defendant through a gate in the right-of-way fence. The following decisions by this court announce a different rule: Bauer v. Railway, 69 Mo. 219; Hodges v. Ry. Co., 71 Mo. 50; Parish v. Railroad, 63 Mo. 284. (3) The holding of respondents that the fact that a fast limited train is approaching at about the time a local train is due places upon the traveler approaching a railroad track a different standard of conduct than if such situation did not exist, or that it can be taken in consideration by a court in determining whether such traveler was in the exercise of ordinary care, is in violation of the following previous decisions of this court: Boyd v. Railway, 105 Mo. 371; Moody v. Railroad, 68 Mo. 470; Giardina v. Railroad, 185 Mo. 330; Laun v. Railroad, 216 Mo. 563; Holland v. Railway, 210 Mo. 338; Stottler v. Railroad, 204 Mo. 619.

Leonard, Sibley & McRoberts and Shepard Barclay for intervenor.

(1) The Court of Appeals ordered a remittitur of $ 3000 as a condition to affirmance of judgment there for $ 2000, after which plaintiff made an unsuccessful motion to modify that order as being erroneous. After which (to end the litigation and under such compulsion) and to obtain affirmance in that court, without delay, plaintiff filed the remittitur required. But defendant would not have it so. It repudiated the affirmance, and sued out this certiorari to reverse the judgment while insisting, meanwhile, on holding on to its benefits and enforceing the enforced remittitur, which had been filed only on the theory of final affirmance in that court to end the case at once. Plaintiff solemnly protests against the injustice of such inconsistent positions of relator. If appellant, as relator, is allowed to obtain here a review of the opinion by certiorari, and so avoid an affirmance there, and an end of the case which the order for the remittitur was intended to attain, the respondents should likewise be permitted to have a review of such parts of the same opinion as come within range of the corrective scope of the same writ. Appellant, having by the force of supersedeas, incident to the writ of certiorari, prevented for a great many months the operation and effect of the "affirmance" in the Court of Appeals for the lesser sum (ordered upon remittitur) and then brought the opinion here for another review on one feature of it only, respondent should be accorded the like privilege of review as to the rest of the learned opinion so brought by appellant into this court, and that part of the opinion requiring of plaintiff a remittitur should be subject to the same review. "A party cannot avail himself of such parts of a judgment as are favorable to him and appeal from those parts which are not." Sperry v. Hillman, 13 N.Y.S. 271. (2) The pending writ is analogous to appeal in that respect. Certiorari should not be allowed to segregate for its scrutiny or revision a slice merely or segment of the opinion which may seem unsatisfactory to appellant. If part comes to this court for review, the whole opinion should be considered, according to recognized principles applicable to this writ. State v. Ellison, 273 Mo. 218. That ruling is neither unusual nor exceptional. A. recent decision in the highest federal court holds that "the whole case is here on certiorari." Camp v. Greso, 250 U.S. 318. Another holds that only one such writ is needful to review the same record. Gompers v. United State, 233 U.S. 604. (3) Compliance, however, with a judgment is not always a bar to process to revise or reverse it. Even payment of a money judgment does not prevent an appeal which, if successful, carries an order of restitution to obtain a refund of the payment. Lumaghi v. Abt, 126 Mo.App. 221; O'Hara v. MacConnell, 93 U.S. 154. (4) It is accepted law that after a party has properly excepted and objected to a ruling of the court (as plaintiff did here) he may conform (as he necessarily must) to the ruling without thereby waiving his prior objection. Tobin v. Railroad, 18 S.W. 996; Barker v. Railroad, 126 Mo. 143.

Shepard Barclay, of counsel, for respondents.

(1) The opinion of the Court of Appeals fully states the facts in evidence on the issue of contributory negligence, and furnishes the scope and limit of review upon certiorari. State v. Reynolds, 272 Mo. 588; State v. Reynolds, 257 Mo. 19; State v. Dunham, 213 S.W. 459; State v. Reynolds, 213 S.W. 804; State v. Sturgis, 221 S.W. 91. (2) The ruling in said opinion (223 S.W. 757) as to the issue of contributory negligence, is not in conflict with any decision of the Supreme Court, but in conformity with the latest of those decisions. Jones v. Railway, 220 S.W. 484; Monroe v. Railway, 219 S.W. 68. See, as to similar facts Stearns v. Railroad, 75 N.H. 40; Sage v. Johnson, 205 Ill.App. 85. See as to principles applicable Railroad v. Griffith, 159 U.S. 606; Carter v. Railroad, 193 Mo.App. 223. (3) The second assignment of error by relator based on the idea that the crossing in question was not found to be "a traveled public road," within the meaning of Sec. 3140, R. S. 1909, is groundless, for the opinion refers to the "road" and the "road-crossing;" and the allegations of the petition and finding thereon indicate that this "crossing" is within the purview of that statute. State v. Wells, 70 Mo. 635; Easley v. Railroad, 113 Mo. 236; Meiners v. City, 130 Mo. 284; 18 Corpus Juris, p. 58; 9 Am. & Eng. Ency. Laws (2 Ed.), 66.

BLAIR, J. Williams, Graves, Goode and Williamson, JJ. concur; Woodson, J., concurs in separate opinion; Walker, C. J., concurs except in subparagraph "2" of Paragraph II, from which he dissents.

OPINION

In Banc.

Certiorari.

BLAIR J.

Certiorari. The record brought here is that of the St. Louis Court of Appeals in the case of Ludwig Schulz, Admr., v. St. Louis, Iron Mountain & Southern Railway Company, 223 S.W. 757. In this court, Schulz, the administrator, who was plaintiff in the action the record of which is here, asks leave to intervene and move to quash that portion of the opinion and record of the Court of Appeals which ordered him to enter a remittitur, on pain of a reversal and remandment of the cause. Relator contends that the Court of Appeals brought its opinion into conflict with controlling decisions of this court in holding that (1) there was negligence on the part of relator; (2) deceased was not guilty of negligence which barred his recovery as a matter of law; and (3) in giving weight to deceased's knowledge that a train other than that which struck him was about due and that it always stopped at the station deceased was approaching when struck. In view of the character of these questions, it is necessary to set out the facts as they are stated by the Court of Appeals. They are as follows:

"The petition charges negligence of the defendant in operating its train, in that it approached the crossing in question without giving the statutory signals. The answer is a general denial and a plea of contributory negligence, which plea was denied by plaintiff's reply.

"The deceased was 24 years of age and unmarried, and left surviving him, besides his father, four brothers and two sisters, ranging in age from 20 to 38 years and all self-supporting. The deceased was employed as a farm hand at $ 25 per month, in addition to which he was given his room and board and feed for his horses. The place of his employment was situated about three-quarters of a mile southeast of Munson's Station, which station was maintained by defendant company mainly for the purpose of picking up cans of milk that were shipped from that point by the farmers in the neighborhood to St. Louis. For a long time prior to the date of the accident defendant had a train from the south, known as the 'milk train,' stop at the station at the hour of 6:30 a. m. The deceased usually drove a team hitched to a two-wheel cart, loaded with two or three cans of milk, from the farm to said station each...