271 S.W. 806 (Mo. 1925), 24731, Hiatt v. St. Louis-San Francisco Railway Company

Docket Nº:24731
Citation:271 S.W. 806, 308 Mo. 77
Opinion Judge:Graves, J.
Attorney:W. F. Evans, Grayston & Grayston and Mann & Mann for appellant. Sizer & Gardner for respondent.
Case Date:April 13, 1925
Court:Supreme Court of Missouri

Page 806

271 S.W. 806 (Mo. 1925)

308 Mo. 77




No. 24731

Supreme Court of Missouri

April 13, 1925

Appeal from Jasper Circuit Court; Hon. Grant Emerson, Judge.


W. F. Evans, Grayston & Grayston and Mann & Mann for appellant.

(1) The court erred in giving Instruction 1. This instruction is erroneous in two particulars. (a) It told the jury that if they found that the automobile in which plaintiff was riding was struck by defendant's train on a public road crossing "then under the laws of the State of Arkansas a presumption arises that plaintiff's said injuries, if any, were caused by the negligence of said railway company." It is not the law in Arkansas that a presumption of negligence arises from the mere happening of such an accident. Section 8568 of the Arkansas statute, known as the lookout-statute, does place the burden of proof upon the railway company to establish the fact that the "duty to keep such lookout has been performed." In respect to all other acts of negligence, made so by statute, the burden of proof rests upon the plaintiff to prove such negligence. There being acts of negligence alleged and submitted to the jury by this instruction other than the violation of Section 8568 it was error to instruct the jury that the happening of the accident raised the presumption that the defendant was guilty of negligence in respect to all the various allegations of negligence. (b) In cases where negligence is presumed, for example as in those where the res ipsa loquitur doctrine is invoked in Missouri, the plaintiff cannot take advantage of the presumption that the defendant was guilty of negligence, and cast the burden on defendant of freeing itself from the negligence, where specific acts of negligence are alleged. Rice v. White, 239 S.W. 144; Pate v. Dumbauld, 250 S.W. 52; McGrath v. Transit Co., 197 Mo. 97. (c) If it be the law of Arkansas that the mere happening of the accident raises a presumption of negligence and casts upon the defendant the burden of freeing itself from negligence, it is a matter of practice; it applies to the remedy and is no part of the right. Rue v. Buck, 124 Mo. 178; Scudder v. Bank, 91 U.S. 406; Hughes v. Winkleman, 243 Mo. 81; LaDuke v. Dexter, 202 S.W. 257; Tremain v. Dyott, 161 Mo.App. 217; Eingartner v. Ill. Steel Co., 94 Wis. 70; Heaton v. Eldridge, 46 N. E. (Ohio) 638; Union Ins. Co. v. Pollard, 94 Va. 146; Stock v. Detour Lumber Co., 151 Mich. 21, 114 N.W. 876; Geoghegan v. Atlas S. S. Co., 22 N.Y.S. 749; Railroad Co. v. Mitchell, 92 Ga. 77; Johnson v. Railroad Co., 91 Iowa 248; New Orleans Railroad Co. v. Harris, 247 U.S. 1, 371, 62 L.Ed. 1167; Pennsylvania v. McCann, 54 Ohio St. 10; 12 C. J. 485; Smith v. Wabash, 141 Ind. 92; Helton v. Railroad Co., 97 Ala. 275. (d) Presumptions apply only in the absence of any evidence upon the question. They are indulged by the law ex necessitati. If there is any evidence on the question the presumption takes flight. Mockowik v. Ry., 196 Mo. 571; Burge v. Railroad, 244 Mo. 76; Tetwylder v. Railroad, 242 Mo. 178; Huggart v. Railroad, 134 Mo. 673; Brunswick v. Ins. Co., 213 S.W. 50. This is true although the facts appear from defendant's witnesses. George v. Mo. Pac. Ry., 251 S.W. 729; Rashall v. Railroad, 249 Mo. 509; Guthrie v. Holmes, 272 Mo. 215; Hurck v. Railroad, 252 Mo. 39; Schmidt v. Railroad, 191 Mo. 215. It is improper, and, therefore, reversible error to instruct a jury with reference to presumptions of fact as they relate to questions submitted for their determination after hearing the evidence. McKenna v. Lynch, 289 Mo. 16; State ex rel. v. Ellison, 268 Mo. 239; Rodan v. Transit Co., 207 Mo. 392; Morton v. Heidorn, 135 Mo. 608; Ham v. Barret, 28 Mo. 388; Moberly v. Ry., 98 Mo. 183. (2) The remaining portion of this instruction tells the jury that if the defendant failed to keep a constant lookout, and that "if such lookout had been kept the employees in charge of such train could have discovered the peril of the plaintiff as said automobile approached and went upon said crossing, in time to have prevented the injury," etc. This part of this instruction is error. (a) The lookout statute of Arkansas is but an enactment by statute of the last clear chance, or humanitarian doctrine, as applied in Missouri. To make this statute actionable the plaintiff must have been in peril for such a time that her peril could have been discovered by the exercise of ordinary care in time for the operatives of the train thereafter, by exercising ordinary care, to have avoided the accident. The proof did not warrant the submission of this question to the jury. Under the decisions of Arkansas the statute is not actionable, and the operatives of the train are under no duty to reduce the speed of the train or warn until the peril is apparent. Blythesville Railroad v. Gessell, 250 S.W. 882; Barnes v. Mo. Pac. Ry. Co., 251 S.W. 675. (b) This instruction nowhere required the jury to find that the plaintiff was in peril, and it further assumes that she was in peril, a fact necessary for plaintiff to prove in order to make the violation of this statute actionable. Zini v. Railroad, 235 S.W. 86; Glaser v. Rothschild, 221 Mo. 180. (3) Instruction 1 told the jury that if defendant "failed to sound the whistle on said locomotive for a distance of at least eighty rods from the place where said railroad crossed over said public road, and failed to keep the same whistling until said locomotive crossed said public road, then you will find the defendant guilty of negligence." Unless it is a sufficient compliance with the statute to sound the whistle "at reasonable intervals," then the Arkansas statute cannot be complied with unless the whistle is sounded when eighty rods from the crossing and the whistle cord held tightly, and one continuous whistle for a quarter of a mile is given. Under our theory of this statute it would, of course, be for the jury to find what constituted reasonable intervals between whistles, and this instruction left it to their judgment. There is no half way point between whistles "at reasonable intervals" and constant whistling. (4) The verdict is excessive in amount, and so excessive as to show passion and prejudice on the part of the jury.

Sizer & Gardner for respondent.

(1) The Supreme Court of Arkansas has consistently held that the cause of action so created does not contain the element of negligence, default or wrongful act, and, therefore, it is not incumbent upon the plaintiff, in enforcing this statute, to prove negligence; but that mere proof that injury was caused by the running of trains makes out a prima-facie case or raises a presumption of negligence. This is not a mere matter of proof or procedure, but inheres in the cause of action itself. Railroad v. Payne, 33 Ark. 816; Railroad v. Davis, 83 Ark. 217; Railroad v. Blalock, 117 Ark. 504; Railroad v. Pollock, 93 Ark. 240; Railroad v. Puckett, 88 Ark. 204; Railroad v. Carr, 94 Ark. 246; Railroad v. Drew, 103 Ark. 374; Baringer v. Railroad, 73 Ark. 548; Railroad v. Neely, 63 Ark. 636; Railroad v. Taylor, 57 Ark. 136; Railroad v. Davis, 83 Ark. 217; Railroad v. Steel, 87 Ark. 308; Railway v. Frambro, 88 Ark. 12; Railway v. Tomlinson, 78 Ark. 251. (2) This "statutory presumption," as announced by the Supreme Court of Arkansas, therefore clearly inheres in, and is a part of the cause of action created by this statute; that is, the plaintiff's cause of action is completely shown when he proves the injury resulted from the running of a train. He need not prove that it resulted from negligence on the part of the railroad company, or that it was by wrongful act, neglect or default. When the mere happening of the accident is shown it is incumbent upon the railroad company to show, if it can, that it was free from any fault or neglect. (3) Likewise, the application of this presumption is not confined to any particular charge of negligence, but universally obtains where injury results from the running of trains notwithstanding the petition may have charged specific acts of negligence. Railroad v. Fitzhugh, 121 Ark. 683; Railroad v. Evans, 80 Ark. 19. (4) A statute similar in all respects to this Arkansas statute is the Carmack Amendment passed by Congress, regulating the transportation of property in interstate commerce. That act makes the carrier liable to the lawful holder of the bill of lading "for any loss, damage or injury to such property caused by it or by any common carrier to which such property may be delivered." This statute leaves, however, to the carrier the right to show it was free from fault and without negligence. The cause of action created thereby does not have in it the element of negligence, default or wrongful act. 34 Stat. L. 584 (U.S. Comp. Stat. Supp. 1911, p. 1288, sec. 7); Railroad v. Robinson, 233 U.S. 173, 58 L.Ed. 901; Railroad v. Moore, 232 U.S. 182, 58 L.Ed. 906. (5) Appellant contends that no presumption of negligence obtains in Arkansas as to any negligence except the violation of the lookout statute. The fallacy of this contention has been demonstrated already. Plaintiff's cause of action was based, and recovery had upon Section 8562, heretofore dealt with, but a violation of the lookout statute was pleaded and submitted as a ground of negligence under Section 8562. Plaintiff's Instruction 1 submitted to the jury that if they found the appellant had violated the lookout statute, then it was guilty of negligence. In reality the provision in the lookout statute as to burden of proof did not impose upon railroad companies any additional duties than were already imposed upon them by Section 8562. Railroad v. Neely, 63 Ark. 636; Railway v. Taylor, 57 Ark. 136; Railway v. Davis, 83 Ark. 217; Railroad v. Steel, 87 Ark. 308; Railroad v. Frambro, 88 Ark. 12; Railroad v. Tomlinson,...

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