98 S.W. 509 (Mo. 1906), Stotler v. Chicago & Alton Railway Co.

Citation:98 S.W. 509, 200 Mo. 107
Opinion Judge:LAMM, J.
Party Name:EUGENIA STOTLER, Minor, by JOHN W. STOTLER, Guardian and Curator, v. CHICAGO & ALTON RAILWAY COMPANY, H. R. WISEMAN and WILLIAM HAINES, Appellants
Attorney:Scarritt, Griffith & Jones for appellants. P. H. Cullen, W. H. Logan and Walter Burch for respondent.
Case Date:December 18, 1906
Court:Supreme Court of Missouri
 
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Page 509

98 S.W. 509 (Mo. 1906)

200 Mo. 107

EUGENIA STOTLER, Minor, by JOHN W. STOTLER, Guardian and Curator,

v.

CHICAGO & ALTON RAILWAY COMPANY, H. R. WISEMAN and WILLIAM HAINES, Appellants

Supreme Court of Missouri

December 18, 1906

Page 510

Appeal from Callaway Circuit Court. -- Hon. Alex. H. Waller, Judge.

Affirmed as to defendants railway company and Haines; reversed as to defendant Wiseman.

Scarritt, Griffith & Jones for appellants.

(1) As no delinquency of the company itself is charged to have concurred with the delinquencies of its agents, there was no joint liability, and this cause was removable by the railway company. Shafer v. Brick Co., 128 F. 97; Helms v. Railroad, 120 F. 389; Hukill v. Railroad, 72 F. 754; Kelly v. Railroad, 122 F. 286; Henry v. Railroad, 132 F. 715; Steinhauser v. Spraul, 127 Mo. 541. (2) The court erred to the great prejudice of defendants in permitting a number of witnesses to testify, over the objection of the defendants, as to the rate of speed at which the train in question was running prior to the collision. Petty v. Railroad, 179 Mo. 666; Campbell v. Railroad, 175 Mo. 161; Helm v. Railroad, 185 Mo. 122. (3) Plaintiff's instruction on the measure of damages is fatally defective. There was no evidence whatever before the jury as a basis upon which they could have computed or determined plaintiff's earning capacity. The jury were left to guess, or to follow a mere whim in this regard. Dunn v. Railroad, 21 Mo.App. 205; Matthews v. Railroad, 26 Mo.App. 86; O'Brien v. Loomis, 43 Mo.App. 40. (4) The demurrers to plaintiff's evidence and the peremptory instructions on behalf of all the defendants at the end of all the evidence should have been given by the trial court, because it clearly appears from the evidence that plaintiff was herself guilty of negligence which contributed to cause her injuries. A person approaching a railroad crossing may not escape the consequences of his or her failure to look and listen because another may have hold of the lines, when the one not driving has as good or better opportunity than the driver to see or hear an approaching train. Aurelius v. Railroad, 19 Ind.App. 584; Miller v. Railroad, 128 Ind. 97; Brickell v. Railroad, 120 N.Y. 290; Bush v. Railroad, 62 Kan. 709; Railroad v. McLeod, 78 Miss. 334.

P. H. Cullen, W. H. Logan and Walter Burch for respondent.

(1) A non-resident railroad company, sued with its resident servant, for injuries caused by the latter's negligence, cannot remove the suit to a Federal court. Railroad v. Dixon, 179 U.S. 131; Powers v. Railroad, 169 U.S. 92; Winston v. Railroad, 55 L. R. A. 603; Charman v. Railroad, 105 F. 449; Railroad v. Carson, 194 U.S. 136; Railroad v. Marten, 178 U.S. 245; Railroad v. Wangelin, 132 U.S. 559; Dougherty v. Railroad, 122 F. 205; Roberts v. Steel Tube Co., 131 F. 729; Miller v. Clifford, 133 F. 821. (2) The servant is personally liable to third persons for injuries suffered by them on account of his failure to exercise care while actively engaged in the performance of his duties as a servant. Harriman v. Stowe, 57 Mo. 93; Lattman v. Barnett, 62 Mo. 159; Buis v. Cook, 60 Mo. 393; Peckham v. Lindell Glass Co., 9 Mo.App. 463; Martin v. Benoist, 20 Mo.App. 270; Steinhauser v. Spraul, 114 Mo. 551, 127 Mo. 541; O'Neil v. Young, 58 Mo.App. 634. On the question of joinder of master and servant, and the rulings as to separable controversy, we ask the court to consider the following additional authorities: Railroad v. Carson, 194 U.S. 136; Davenport v. Railroad, 135 F. 960; Schunpert v. Railroad, 95 Am. St. Rep. 802; Johnson v. Magnuson, 68 Ill.App. 448; Railroad v. Sittasen, 74 N.E. 898; Railroad v. Harris, 38 So. 225; Howe v. Railroad, 60 L. R. A. 949; Hoosier Stone Co. v. McLain, 133 Ind. 231; Gardner v. Railroad, 65 S.C. 341; Yates v. Latta, 117 N.C. 189; Hawkesworth v. Thompson, 98 Mass. 77; Morlin, Adm's, v. Railroad, 95 Ky. 612; Lowlor v. French, 35 N.Y.S. 1077; Fort v. Whipple, 11 Hun 593. (3) Misfeasance is the improper doing of an act which a person might lawfully do, and negligently running a train is misfeasance. Bell v. Jasselyn, 3 Gray (Mass.) 309; Osborne v. Morgan, 130 Mass. 102; Mechem on Agency, secs. 571-572; People v. Auburn, 85 Hun 608; 20 Am. and Eng. Ency. Law (2 Ed.), 802; Ellis v. McNaughton, 76 Mich. 242. The petition in this case clearly charges the agent with misfeasance, not with non-feasance. Warax v. Railroad, 72 F. 637. (4) The code of Missouri, like the codes of Indiana and New York, abolish forms of action, and master and servant may be joined in one action. The Missouri statute, declaring who may be joined as defendants, is very broad. R. S. 1899, secs. 542, 545, 2810; Phelps v. Wait, 30 N.Y. 78; Griffith v. Ess, 126 Mo. 50; 2 Thomp., Neg. (1 Ed.), sec. 11. (5) The prevailing doctrine is that the master and servant may be jointly sued for an injury resulting from the servant's negligence. Cooley on Torts (2 Ed.), p. 164; R. S. 1899, sec. 2870; Comtez v. Parkenson, 50 F. 170; Connell v. Railroad, 13 F. 241; Wright v. Compton, 53 Ind. 337; City of Peoria v. Simpson, 110 Ill. 294; Johnson v. Magruson, 68 Ill.App. 448; Hoye v. Raymond, 25 Can. 665; Phelps v. Wait, 30 N.Y. 78; Hewett v. Swift, 3 Allen 420; Wright v. Wilcox, 19 Wend. 343; Montfort v. Hughes, 3 E. D. Smith 591; Suydam v. Moore, 6 Barb. 358; Wilkins v. Ferrell, 10 Tex. Civ. App. 231; Schaefer v. Osterbrink, 67 Wis. 495; Greenberg v. Lumber Co., 90 Wis. 225; Schearer v. Evans, 89 Ind. 400; Michael v. Alestree, 2 Lev. 172, 1 Vent. 295; Steel v. Dester, 3 C. P. Div. 121; Moreton v. Harden, 4 Barn. & C. 223; Newman v. Fowler, 37 N. J. L. 39. (6) Witnesses who are not experts are competent to give their opinions as to whether a body was moving slow or fast, and are permitted to give their opinions and conclusions as to the speed of trains. Walsh v. Railroad, 102 Mo. 582; Covell v. Railroad, 82 Mo.App. 180; Haworth v. Railroad, 94 Mo.App. 224; Ashton v. Railroad, 105 Mo.App. 231; Railroad v. Steinberg, 17 Mich. 99; Salter v. Railroad, 59 N.Y. 634; Vanhorn v. Burlington, 59 Iowa 33; Railroad v. Hilderbrand, 52 Kan. 284; Railroad v. Ashline, 171 Ill. 318; Robinson v. Railroad, 112 F. 487; Nesbit v. Crosby, 74 Conn. 554; Railroad v. Hunter, 6 App. Cas. (D. C.) 287; Railroad v. Larson (Neb.), 97 N.W. 824; Chipman v. Railroad, 12 Utah 68; Railroad v. Stewart, 128 Ala. 313. (7) In the absence of other evidence the unlawful rate of speed will be presumed to be the cause of the accident. Schlereth v. Railroad, 96 Mo. 515; Keim v. Railroad, 90 Mo. 321; Graney v. Railroad, 140 Mo. 89; Jobin v. Railroad, 18 S.W. 996; Prewett v. Railroad, 134 Mo. 615; State v. Railroad, 15 A. 38. (8) Testimony of witnesses in a position to hear a bell or whistle and who swear they did not hear it, is evidence that the bell was not rung and that the whistle was not sounded. State ex rel. v. Railroad, 79 Mo.App. 634; Murray v. Railroad, 176 Mo. 183; Milligan v. Railroad, 79 Mo.App. 399; Elliott v. Railroad, 105 Mo.App. 523; Fry v. Railroad, 111 Mo.App. 335. (9) No such judicial legislation has been attempted as to lay down the hard and fast rule that the traveler approaching a railway crossing is bound under all circumstances to stop as well as to look and listen for approaching trains; but the courts generally agree that whether he ought to stop, in the exercise of ordinary care and caution, is a question for a jury, depending upon the circumstances in each particular case. Elliott v. Railroad, 105 Mo.App. 523; Frank v. Railroad, 99 Mo.App. 323; Huckshold v. Railroad, 90 Mo. 548; Donohue v. Railroad, 91 Mo. 357; Mayes v. Railroad, 71 Mo.App. 142; Petty v. Railroad, 88 Mo. 318; Johnson v. Railroad, 77 Mo. 546; Russell v. Receivers, 70 Mo.App. 88; Baker v. Railroad, 122 Mo. 544; Kelly v. Railroad, 88 Mo. 534; O'Connor v. Railroad, 94 Mo. 150. Neither the plaintiff nor her mother is guilty of contributory negligence as a matter of law because when they attempted to drive over the crossing the train was so far away they could have crossed in perfect safety had it been run at a lawful rate of speed as required by ordinance. Hutchinson v. Railroad, 161 Mo. 254; Kellny v. Railroad, 101 Mo. 77; Sullivan v. Railroad, 117 Mo. 221; Eswin v. Railroad, 96 Mo. 290; Gratiot v. Railroad, 116 Mo. 464; Murray v. Railroad, 108 Mo.App. 502; Deitring v. Railroad, 109 Mo.App. 525; Langhoff v. Railroad, 19 Wis. 515. (10) The doctrine of imputable negligence does not obtain in this State, hence the negligence, if any, of the mother cannot be imputed to the child. Sluder v. Railroad, 189 Mo. 107; Profit v. Railroad, 91 Mo.App. 369; Marsh v. Railroad, 104 Mo.App. 577; Baxter v. Railroad, 103 Mo.App. 597; Becke v. Railroad, 102 Mo. 544; Munger v. Sedalia, 66 Mo.App. 629; Orourke v. Railroad, 147 Mo. 352; Bailey v. Railroad, 152 Mo. 462; Johnson v. St. Joseph, 96 Mo.App. 671; Keitel v. Railroad, 28 Mo.App. 657; Duvall v. Railroad, 65 L. R. A. 722. In this State the rule is firmly established that the negligence of the parent is not imputable to the child. Boland v. Railroad, 36 Mo. 484; Winters v. Railroad, 99 Mo. 509; Brill v. Eddy, 115 Mo. 596. (11) While the occupant of a vehicle, controlled by another, is not absolved from all care at railway crossings, the law does not impose upon the occupant the same degree of care imposed on the driver. The situation of the occupant is different from the situation of the driver. One is active, the other passive. The occupant has a right to presume that neither the company nor the driver will be negligent, and it is only when the contrary appears that the law imposes upon the occupant active diligence. Howe v. Railroad, 30 L. R. A. 684; Marsh v. Railroad, 104 Mo.App. 587; Railroad v. Eadie, 43 Ohio 91; Gibson v. Railroad, 83 S.W. 854; Railroad v. Gibson, 91 Tex. 52; Dyer v. Railroad, 71 N.Y. 228; Crawford v. Railroad, 22...

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