Hiatt v. St. Lows-S. F. Ry. Co.

Decision Date13 April 1925
Docket NumberNo. 24731.,24731.
Citation271 S.W. 806
PartiesHIATT v. ST. LOWS-S. F. RY. CO.
CourtMissouri Supreme Court

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

Action by Maud Hiatt against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, Grayston & Grayston, of Joplin, and Mann & Mann, of Springfield, for appellant.

Sizer & Gardner, of Monett, for respondent.

GRAVES, J.

Action for personal injuries received at a railroad crossing near Ft. Smith, Ark. The cause of action, as stated in the amended petition upon which it was tried, is one under Arkansas statutes, as the same have been construed by the Supreme Court of Arkansas. The statutes and the rulings of the court are all specifically pleaded. Plaintiff was riding in an automobile, owned and driven by another. In other words she was a mere passenger or guest in the automobile. The material portion of the petition reads:

"That said defendant was at all the times hereinafter mentioned the owner of and operating a line of railroad extending from St. Louis, Mo., in a southwesterly direction through Monett, in Barry county, Mo., and then running in a southerly direction through Barry county, Mo., into the towns of Rogers, Fayetteville, Winslow, Van Buren, and Ft. Smith, in the state of Arkansas, in a northerly and southerly direction, and there crosses, some 3½ miles north of the city of Ft. Smith, in the state of Arkansas, a certain public highway running in a northeasterly and southwesterly direction, which public highway crosses the main line of the defendant railway company's tracks near an electric park north of the corporation limits of the said city of Ft. Smith, Ark., which said public highway and the crossing over said tracks was, at and prior to the time of the injuries to plaintiff, as hereinafter set out, a much traveled public highway or thoroughfare. That on the east side of the defendant's railroad tracks the view of an approaching train running south towards Ft. Smith, Ark., on the defendant's said railroad tracks, was obstructed so that persons approaching said crossing and going in a southwesterly direction along said highway could not see the approach of a train running south as aforesaid, on account of high weeds and high embankments on either side of the tracks, caused by a cut in the construction of said railroad, on account of which cut the view of an approaching train was obstructed until the occupants of a motor car or vehicle were in a place of danger upon the tracks of the defendant. That on and prior to the time of plaintiff's injuries, as hereinafter set forth, the defendant had permitted a large quantity of weeds and brush and other obstructions to be on the right of way, and on the embankments adjacent to said crossing, and timber and other obstructions thereon situated, together with the curves and angles at said crossing, made said crossing a very dangerous one to persons traveling in vehicles, automobiles, or other conveyances over said crossing.

"Plaintiff states that on the 20th day of July, 1921, she was riding as a guest in a certain Chevrolet motor car being driven by one of her neighbors and friends, and that the driver thereof was driving along said highway, in a southwesterly direction towards said crossing, and as plaintiff and said driver approached said crossing she exercised ordinary care for her own protection, listened and looked for approaching trains, and, hearing no bell ringing and hearing no whistle being sounded, or other signals, said automobile proceeded to cross said tracks with plaintiff seated therein as a guest; and as soon as said automobile got near to said track and in a place of danger, plaintiff and said driver observed a rapidly moving train then and there being pulled and drawn by a steam locomotive bearing down upon them, and said driver immediately used all possible means to extricate himself and plaintiff from imminent peril into which they had been thrown, and immediately turned said automobile to the left and undertook to get it out of danger, but said rapidly moving passenger train approached and came over said crossing without sounding the whistle or giving warning of any kind, and struck the side of said car before said driver could extricate himself and plaintiff, and plaintiff was thereupon hurled with great force and violence from said car, and was thrown a long distance, and portions of said locomotive struck plaintiff's body with such great force and violence that her left arm and shoulder, the muscles, ligaments, tendons, and nerves of her body, arm, shoulder, and neck were sprained, lacerated and torn, and the bones and muscles of her arm and shoulder were fractured and dislocated and otherwise injured, and plaintiff's back and spine and her head and face and the muscles, nerves, ligaments and tendons of her back and body, neck and face were broken, lacerated, torn, and injured, and the bony structures of her back and spine were dislocated and impaired, and the vital organs of plaintiff were impaired and are now failing to function, and on account of the shock and injuries to her head and skull the bones and tissues of her head and skull were fractured and injured, and plaintiff's brain was injured and affected so that plaintiff's mental powers are impaired and are not functioning properly."

Further, the petition proceeds:

"Plaintiff states that on the 20th day of July, 1921, at the time of her injury, and for a long time prior thereto, there was and had been in force and effect as a part of the statutory law of the state of Arkansas the following provisions, known as section 1432, section 8562, section 8568, section 8568a and section. 8575 of Crawford & Moses' Digest, of the Statutes of Arkansas for the year 1921, which said sections and provisions are as follows, to wit:

"Section 1432. The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defect of the common law made prior to the fourth year of James the First (that are applicable to our own form of government), of a general nature and not local to that kingdom, and not inconsistent with the Constitution and laws of the United States or the Constitution and laws of this state, shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state."

"Sec. 8562. All railroads which are now or may be hereafter built and operated in whole or in part in this state shall be responsible for all damages to persons and property done or caused by the running of trains in this state."

"Sec. 8568. It shall be the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employe of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employe or employes in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact, that this duty to keep such lookout has been performed.

"Sec. 8568a. A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of two hundred dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to the county; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect."

"Sec. 8575. In all suits against railroads, for personal injury or death, caused by the running of trains in this state, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employes of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence."

"Plaintiff states that on said date it was the law and rule of decisions, as announced by the opinions and decisions of the Supreme Court of the state of Arkansas, that it was and is the duty of the employes of a railroad company to keep a constant lookout and watch for persons on or approaching the track or railroad crossings, and to station and place themselves on the moving trains as to make their lookout effective, and to use all precaution to discover and warn travelers along the highway of impending danger of the approach of trains or cars to a public crossing, and to stop said trains or cars, or slacken the speed thereof, if it is possible to do so, to avoid injury to persons or property at such public crossing; that if a person is injured by a moving train within the state of Arkansas, the law presumes that such injury was the result of negligence upon the part of the operative of said train, and the burden is upon said railroad company to overcome said presumption, by the greater weight of the evidence, and to show that its duty to comply with the lookout statute of said state of Arkansas has...

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