Stotler v. Chicago & A. Ry. Co.

• Decision Date: 22 November 1906
• Citation: 98 S.W. 509
• Court: Missouri Supreme Court
• Parties: STOTLER v. CHICAGO & A. RY. CO. et al.

98 S.W. 509

STOTLER v. CHICAGO & A. RY. CO. et al.

Supreme Court of Missouri.

November 22, 1906.

1. REMOVAL OF CAUSES—JOINDER OF DEFENDANTS TO PREVENT REMOVAL.

Where, in an action for injuries to plaintiff at a railroad crossing, the petition stated a non-separable cause of action against the railroad and the conductor and engineer of the train by which plaintiff was struck, and the railroad company, whose citizenship was diverse to that of plaintiff, pleaded that the engineer and conductor, who were citizens of the same state as plaintiff, had been fraudulently joined to prevent a removal of the cause to the federal court, but there was no proof of such fraud, the overruling of the railroad's petition to remove and plea in abatement for want of jurisdiction of the state court, on the same ground, was not error.

2. RAILROADS — OPERATION OF TRAINS — SPEED ORDINANCE — NEGLIGENCE.

The violation of a city ordinance, limiting the speed of any locomotive, etc., on any unfenced track within the city, to eight miles an hour, resulting in injuries to a traveler at a

crossing, constituted negligence per se on the part of the railroad company, whether it had accepted such ordinance or not.

3. APPEAL—EVIDENCE—PREJUDICE.

Where, in an action for injuries to a traveler at a railroad crossing, there were many witnesses whose testimony was confined to the train's speed within the city as bearing on the railroad's violation of a city speed ordinance, and the instructions confined the jury to the speed of the train within the city, defendant was not prejudiced by the admission of some evidence showing the speed of the train beyond the city limits.

4. EVIDENCE—OPINION—SPEED OF TRAIN.

Any intelligent person, who has made observations of the running of trains, or who has compared the speed at which different trains run, or whose experience or training was such that it would reasonably entitle his opinion to some value, and who had a fair opportunity to observe the movement of the train in question and to judge the time it covered a known distance, was entitled to give an opinion as to the speed of the train.

5. RAILROADS — CROSSINGS — INJURIES TO TRAVELERS — UNFENCED TRACK.

Where a railroad crossing at which plaintiff was injured was provided with no wing fences closing the track at the cattle guard, the track was unfenced, within a city ordinance limiting the rate of speed of railroad trains within the city to eight miles an hour where the track was unfenced.

6. SAME — SPEED ORDINANCE — VIOLATION — PROXIMATE CAUSE.

Where, in an action for injuries to plaintiff at a railroad crossing, it was reasonably certain that, if the train had been running at a speed not exceeding eight miles an hour, as required by a city ordinance, it would have missed the buggy in which plaintiff was riding and prevented the catastrophe, the proof was sufficient to justify a finding that the railroad's breach of the ordinance was the proximate cause of the accident.

7. SAME — SIGNALS — STATUTES — VIOLATION — PRIMA FACIE CASE.

In an action for injuries to plaintiff in a collision at a railroad crossing, plaintiff established a prima facie case when she proved her injury and a violation of Rev. St. 1899, § 1102, requiring the giving of certain crossing signals, etc.

8. EVIDENCE — WEIGHT AND SUFFICIENCY — NEGATIVE EVIDENCE.

Where, on an issue as to whether a train by which plaintiff was struck gave signals on approaching a crossing, certain witnesses who were in a position to hear the whistle, if blown, and the bell, if rung, and whose attention was drawn to the train, testified that they heard no signals, such evidence constituted some proof that there was a failure to give the signals required.

9. RAILROADS — CROSSING SIGNALS.

Where the whistling post west of a railroad crossing at which plaintiff was injured was outside the city limits, the operatives of a train approaching the crossing from the west were not excused from giving the statutory signals 80 rods before reaching such crossing, because they were not required to sound the whistle within the city limits.

10. TRIAL — INSTRUCTIONS — DEFINITION OF TERM.

Where defendant railroad company was charged with violating an ordinance of L. regulating the speed of trains, an instruction that the railroad company was not required to sound the whistle while running inside of cities was not objectionable for failure to define the word "city" so that it would include L.

11. DAMAGES — PERSONAL INJURIES — MEDICAL TREATMENT — NURSING.

Where plaintiff, an orphan under the guardianship of a curator, was injured by defendant's negligence at a railroad crossing, she was properly permitted to recover all sums paid for medical treatment and nursing, or for which a liability had been contracted on her behalf.

12. SAME — EARNING CAPACITY — LOSS — EVIDENCE.

Where, in an action for injuries to a girl 15 years of age, there was evidence that she was strong and healthy before her injuries and capable of performing labor suitable to her age, and that she was permanently injured, she was entitled to recover damages for her diminished capacity to work in the future, though there was no evidence that she had performed labor prior to her injuries or would be forced by poverty to labor in the future.

13. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

Contributory negligence is an affirmative defense, the burden of proving which is on the defendant.

14. SAME—PRESUMPTIONS.

Where plaintiff, after her injury, was as though dead, and had no knowledge of the affair, she was entitled to the presumption that, in the absence of evidence to the contrary, she was in the exercise of ordinary care.

15. RAILROADS — CROSSING ACCIDENT — CONTRIBUTORY NEGLIGENCE.

Plaintiff, a girl 15 years of age, was riding with her mother in an open buggy in daylight, when they were struck by a railroad train at a crossing. The mother was instantly killed, and plaintiff was so permanently injured that she had no knowledge of the collision. The mother was driving, and must have seen the train, but endeavored and failed to cross the track ahead of it. Held, that plaintiff was not guilty of such contributory negligence as precluded a recovery.

16. APPEAL — DISPOSITION OF CAUSE — JOINT TORT-FEASORS—REVERSAL AS TO ONE.

Where an action for injuries to plaintiff at a railroad crossing was brought jointly against the railroad company and against the engineer and conductor of the train by which plaintiff was struck, and there was no proof of negligence on the part of the conductor, a judgment in favor of plaintiff against all might be reversed as to the conductor and affirmed as to the other defendants, under Rev. St. 1899, § 866, authorizing reversal of a judgment as to one tort-feasor and an affirmance as to the others.

In Banc. Appeal from Circuit Court, Callaway County; Alex. H. Waller, Judge.

Action by Eugenia Stotler, minor, by John W. Stotler, guardian and curator, against the Chicago & Alton Railway Company and others. From a judgment in favor of plaintiff defendants appeal. Reversed as to defendant Wiseman, and affirmed as to the other defendants.

Scarritt, Griffith & Jones, for appellants. P. H. Cullen, W. H. Logan, and Walter Burch, for respondent.

LAMM, J.

Suit for personal injuries at a road crossing. The defendant railway company is incorporated under the laws of Illinois and operates a railroad running from Louisiana, Mo., through the city of Laddonia, in Audrain county, to Kansas City. Defendants Wiseman and Haines are residents of Missouri and servants of their corporate codefendant, acting respectively as conductor and engineer on the train doing the injury. The crossing in question is that of Pine street, a street of the city of Laddonia, a public highway running north and south, and said railroad (running at a tangent, southwest and northeast at that point) within said city of Laddonia. Eugenia Stotler is a young girl aged 15 years and some months on the 22d day of April, 1903. Her father was dead, and she, with her mother, Phoebe, and her brothers, resided on a farm a mile or so from said town, a city of the fourth class, of, say, 1,000 people. Eugenia sued through her guardian and curator, her brother, and at the trial it was admitted he was her guardian and curator, but when he was appointed and qualified does not appear. On the evening of said day in April, while still daylight, to wit, about 6:40 p. m., she was riding with her mother in a one-horse top buggy, with the top down, going north on Pine street. At said crossing, when another instant would have put them over and out of danger, the hind wheel of their buggy was struck by a locomotive pulling a caboose and running east from Slater, Mo., to Roodhouse, in Illinois, to transport soldiers from that point. It was running on no schedule, i. e., was an extra "running wild." The engineer testified he was to get to Roodhouse as quickly as possible. "He was," said he, "going to get there as soon as he could with safety." The collision tore the mother to pieces, and the daughter received hurts for which she recovered a verdict for $15,000 against all the defendants. From a judgment entered on that verdict, they appeal.

The petition counts on the negligent violation of an ordinance of the city of Laddonia, making it unlawful to run any locomotive, car, or train of cars upon any railroad track, tracks, or switches within the corporate limits of said city, where said track, tracks, or switches are unfenced, at a rate of speed to exceed eight miles per hour. It further counts upon defendants' failure to ring a bell or blow a whistle as provided by statute, and seeks to recover on the theory that defendants saw and knew, or by the exercise of due diligence might have seen and known, that plaintiff was in a perilous position, unaware thereof, and unable to escape from impending danger, and thereafter failed to give the usual and ordinary signals in time...