41 S.W. 246 (Mo. 1897), Graney v. St. Louis, Iron Mountain & Southern Railway Company

Citation:41 S.W. 246, 140 Mo. 89
Opinion Judge:Macfarlane, J.
Party Name:Graney et ux. v. St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:Martin L. Clardy and Henry G. Herbel for appellant. W. B. Thompson for respondents.
Judge Panel:Macfarlane, J. Barclay, C. J., and Gantt and Brace, JJ., concur. Sherwood, Burgess and Robinson, JJ., dissent. Barclay, C. J., and Gantt and Brace, JJ., concur. Sherwood, Burgess and Robinson, JJ., dissent.
Case Date:June 08, 1897
Court:Supreme Court of Missouri

Page 246

41 S.W. 246 (Mo. 1897)

140 Mo. 89

Graney et ux.


St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

June 8, 1897

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Reversed and remanded.

Martin L. Clardy and Henry G. Herbel for appellant.

(1) The court erred in admitting as evidence the opinions of James E. Lavin, and Edwin C. Carlin, as to the effect of the draft caused by a rapidly moving train. They were not experts, nor is it shown that they possessed any special knowledge of the laws of physics. Their experience was only such as comes to every individual. Lawson on Expert Evidence, 195, 196; Naughton v. Stagg, 4 Mo.App. 275; 1 Greenleaf on Evidence, 578; Rogers on Expert Evidence, pp. 23, 33, 64; Ferguson v. Hubbel, 97 N.Y. 507; Riley v. Sparks Bros., 52 Mo.App. 572; Lockridge v. Fesler et al., 37 S.E. 65; Dickenson v. Fitchbury, 13 Gray, 546; Benjamin v. Railroad, 50 Mo.App. 602; Railroad v. Kellogg, 94 U.S. 472; Brown v. Road Co., 89 Mo. 155; Eubank v. City, 88 Mo. 655; Hurt v. Railroad, 94 Mo. 260; Gutridge v. Railroad, 94 Mo. 472; Senn v. Railroad, 108 Mo. 142; State v. Watson, 65 Me. 70. (2) The speed of the train was violative of the ordinance in force at the time of the accident, but was not in violation of the one in effect at the time of the trial. Coe v. Ritter, 86 Mo. 282; City of St. Louis v. O'Eters, 36 Mo. 456; Edmonson v. Ferguson, 11 Mo. 346; Billion v. Walsh, 46 Mo. 492; State ex rel. v. Hager, 91 Mo. 456; Cooley's Const. Lim., pp. 471 and 343; Watson v. Mercer, 8 Peter, 88; Yeaton v. United States, 5 Cranch, 281; Drehman v. Stifel, 41 Mo. 184; South Carolina v. Gaillard, 101 U.S. 433; City of Kansas v. Clark, 68 Mo. 588; Mayor v. Swink, 35 S.W. 554. (3) Where a statute is penal it should be strictly construed, and so as not to enlarge the liability it imposes nor allow a recovery unless the party seeking it brings his case within the terms or conditions authorizing it. Hoag v. Railroad, 85 Pa. St. 293; Breen v. St. L. Coop. Co., 50 Mo.App. 212; Bell v. Railroad, 72 Mo. 58; Railway Accident Law (Patterson), sec. 160; Railroad v. Feathers, 15 Am. and Eng. R. R. Cases, 446; Johnson v. Railroad, 13 Am. and Eng. R. R. Cases, 623; Hodges v. Railroad, 71 Mo. 50; Bauer v. Railroad, 69 Mo. 219. (4) The court is not bound to adopt plaintiff's theory of the cause of the accident, but will take judicial notice of the scientific facts involved to determine whether the theory advanced can be sustained. Terhune v. Phillips, 99 U.S. 592; King v. Gallan, 109 U.S. 99; Underhill on Evidence, 366 and 371; Gas Light Co. v. Ins. Co., 33 Mo.App. 348; 1 Greenleaf on Evidence [15 Ed.], sec. 5. (5) The contributory negligence of deceased precludes a recovery in this case. He has no right to put himself in a place of danger in order to experiment with the effects of a passing train. Yarnall v. Railroad, 75 Mo. 583; Guenther v. Railroad, 108 Mo. 18; Prewitt v. Eddy et al., 115 Mo. 283; Dlauhi v. Railroad, 105 Mo. 645; Ridenhour v. Railroad, 102 Mo. 270; Payne v. Railroad, 129 Mo. 421; Spillane v. Railroad, 37 S.W. 198.

W. B. Thompson for respondents.

(1) This violation of the statute and of the ordinances of the city of St. Louis constitutes negligence per se. Dahlstrom v. Railroad, 108 Mo. 525; Keim v. Railroad, 90 Mo. 314; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 330; Kellny v. Railroad, 101 Mo. 67; Murray v. Railroad, 101 Mo. 236. (2) The deceased, James Graney, had the right to assume that the train of defendant moving along and upon a public traveled street would be operated in obedience to the commands of the ordinance, and that he could stand at a sufficient distance to protect himself from any danger or accident if the train was moving over the street in obedience to the said ordinance. Railroad v. Then, 42 N.E. 971; Railroad v. Harrington, 49 Am. and Eng. R. R. Cases, 355; Gratiot v. Railroad, 116 Mo. 450; Sullivan v. Railroad, 117 Mo. 214. (3) The ordinance pleaded by defendant is prospective in its nature and by its terms, and there is not to be gathered from the ordinance any intent that it should be construed retrospectively. Leete v. The State Bank of St. Louis, 115 Mo. 184; State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Ferguson, 62 Mo. 77; Sedgwick Stat. Const. Law, 166, 188, 202; State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Railroad, 79 Mo. 420; State v. Grant, 79 Mo. 113; Cooley's Const. Lim., 362. (4) A construction of the ordinance relied upon by appellant that it is retrospective or retroactive, would destroy the vested right which the respondents had in the cause of action then existing and for which a suit had been brought, and was then pending, and in that respect the ordinance would be in conflict with the bill of rights. Const. 1875, sec. 15, art. 2; Leete v. State Bank of St. Louis, 115 Mo. 185; Ex parte Bethurum, 66 Mo. 545. (5) The vested right which plaintiffs had in this cause of action is for compensatory damages, and which damages are liquidated by the statute. Nor does it differ from any other right to recover damages where damages are fixed by law, and the amount to be recovered is likewise fixed by law. Coover v. Moore et al., 31 Mo. 574; Phillpot v. Railroad, 85 Mo. 164. (6) The undisputed facts in the case show that there is a direct connection between the negligent act and the result, and that such result was naturally to be foreseen. The high speed of defendant's train naturally caused a suction, and the logical consequence of such speed is to produce a result such as was fatal in this case, and this result is not only sustained by the facts in the case, but by the rules of science. Pullman Palace Car Co. v. Lane, 143 Ill. 260; Cooley on Torts, 70-75; McDonald v. Railroad, 22 S.W. 944; Hays v. Railroad, 70 Tex. 602; Strauss v. Railroad, 75 Mo. 185.

Macfarlane, J. Barclay,...

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