Anderson v. Davis

• Decision Date: 24 May 1926
• Docket Number: 25155
• Parties: WILLIAM K. ANDERSON v. JAMES C. DAVIS, Director General of Railroads, Appellant
• Court: Missouri Supreme Court

284 S.W. 439

314 Mo. 515

WILLIAM K. ANDERSON v. JAMES C. DAVIS, Director General of Railroads, Appellant

No. 25155

Supreme Court of Missouri

May 24, 1926

Transferred from Springfield Court of Appeals.

Affirmed.

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

(1) The petition states no cause of action. Sec. 4217, R. S. 1919; Grier v. Railroad, 228 S.W. 454; Midwest Nat Bank v. Davis, 233 S.W. 412; Lackey v. Rys., 231 S.W. 956; Miller v. Rys., 233 S.W. 1066. No action can be maintained against the Director General of Railroads, under a state penal statute, such as the so-called railroad death statute, there being no provision for such suits made either by act of Congress, or the orders of the Director General. (2) The court erred in admitting over defendant's objection, the evidence as to the position and physical condition of the three occupants of the car after the collision. (3) Such incompetent testimony is presumed to have affected the decision of the jury and it constitutes reversible error. Wojtylak v. Coal Co., 188 Mo. 260; Russo v. Brooks, 214 S.W. 429; State v. Burns, 228 S.W. 769. (4) The court erred in overruling defendant's peremptory instruction in the nature of a demurrer offered at the close of plaintiff's evidence and renewed at the close of all the evidence. Plaintiff as he approached this track had an unobstructed view of the train for a distance of four hundred feet. He could have seen the train anywhere within this distance after he reached a point more than two hundred feet from the crossing. According to his own testimony the last time he looked north in the direction of the train was when he was fifty feet from the track. He further testifies that his automobile was going not to exceed four miles an hour, and he could have stopped it instantly. In fact, it was going so slowly that he had to shift gears in order to keep going. He was guilty of negligence as a matter of law. Tannehill v. Railroad, 279 Mo. 158; Lyter v. Hines, 205 Mo.App. 429; Langley v. Hines, 227 S.W. 877; Underwood v. West, 187 S.W. 84; Burge v. Railroad, 244 Mo. 76; Mockowik v. Railroad, 196 Mo. 550; Sanguinette v. Railroad, 196 Mo. 466; England v. Railroad, 180 S.W. 32. (5) The petition does not state a cause of action under the humanitarian doctrine, for the reason that it is not alleged that plaintiff or his wife was oblivious to the danger and that his or their obliviousness was, or by the exercise of ordinary care could have been, apparent to the servants of defendant. Rulick v. Sandler, 219 S.W. 406; Haines v. Ry., 203 S.W. 632; Kamoss v. Ry., 202 S.W. 436; Knapp v. Dunham, 195 S.W. 1062; Pope v. Ry., 242 Mo. 236; Kinlen v. Ry., 216 Mo. 164; State ex rel. Railroad v. Reynolds, 233 S.W. 219. (6) The evidence was not sufficient to take this case to the jury under the humanitarian doctrine. Plaintiff was approaching the track, according to his testimony, at a constantly reduced speed and this speed was reduced to less than four miles an hour at a point twenty-five feet from the track. Under the circumstances the engineer and fireman were warranted in assuming that plaintiff saw the train, or knew of its approach; and that he would not suddenly and without any manifestation of such intention change his then position of safety into one of danger by shifting his gears and increasing his speed in an effort to cross the track ahead of the train. Alexander v. Ry., 233 S.W. 49; King v. Railroad, 211 Mo. 1; McGee v. Railroad, 214 Mo. 530; Burge v. Railroad, 244 Mo. 76; Guyer v. Railroad, 174 Mo. 344; Dyrez v. Railroad, 238 Mo. 33; Keele v. Railroad, 258 Mo. 78; England v. Railroad, 180 S.W. 32; McMiens v. Railroad, 274 Mo. 331; Armstrong v. Railroad, 203 S.W. 249; Martin v. Railroad, 227 S.W. 129.

Owen & Davis, Norman A. Cox and Hugh Dabbs for respondent.

(1) Respondent's cause of action was grounded on both primary negligence and the humanitarian rule of negligence. Appellant interposed general demurrers to the evidence, not limiting them to either ground of negligence, and these general demurrers were refused by the trial court. Appellant then asked instructions covering both primary negligence and the humanitarian rule of negligence, and by so doing waived its right to urge its general demurrers on appeal. Torrence v. Pryor, 210 S.W. 432; Phillips v. Railway, 226 S.W. 863; Davidson v. Hines, 246 S.W. 295. (2) The question of contributory negligence on the part of respondent was not a question of law, but a question of fact for the jury, and the case was properly submitted to the jury on that question, and the jury found thereon for respondent. Montague v. Railway, 305 Mo. 277; Kibble v. Railroad, 285 Mo. 618; State ex rel. v. Trimble, 254 S.W. 850; Weigman v. Railway, 223 Mo. 719; Hart v. Railway, 264 S.W. 906; Jackson v. Railroad, 171 Mo.App. 452; Monroe v. Railway, 280 Mo. 488; Grier v. Railway, 286 Mo. 532; Johnson v. Railway, L. R. A. 1918 A, 652; Campbell v. Railway, 175 Mo. 172; Donohue v. Railway, 91 Mo. 364; Underwood v. Railway, 190 Mo.App. 413; Woodward v. Railway, 152 Mo.App. 475; Keller v. Railway, 164 Mo. 199; Hinzeman v. Railway, 199 Mo. 593; Ruenzi v. Payne, 231 S.W. 294; Rollins v. Railway, 251 Mo. 538; Kirkpatrick v. Railroad, 211 Mo. 82; R. S. 1919, sec. 4217. (3) The case was properly submitted to the jury under the humanitarian rule of negligence, and the majority opinion of the Court of Appeals to the contrary is in conflict with the ruling decisions of this court on that question. Zumwalt v. Railway, 266 S.W. 724; Montague v. Railway, 305 Mo. 269; Rollins v. Railway, 252 Mo. 538; Tavis v. Bush, 280 Mo. 383; Hale v. Light Co., 287 Mo. 499; Logan v. Railway, 300 Mo. 611; McGinnis v. Railway, 268 Mo. 678; State ex rel. v. Trimble, 260 S.W. 1002; Murell v. Railway, 279 Mo. 111; Preston v. Railway, 292 Mo. 453; Epstein v. Railway, 197 Mo. 720. (a) In considering respondent's right to go to the jury on the humanitarian rule it must be taken as true from the record that in approaching the crossing, appellant did not give the statutory signals as required by the statute. These signals being required, under the statute, for the benefit of the traveller and to prevent him from going into a place of danger, respondent was entitled, to some extent, to assume that appellant's locomotive would be sounding the statutory signals if it were near enough to constitute a source of danger to him in passing over the crossing. Not having heard a signal, because the train was approaching without warning, appellant's failure to sound the signals caused respondent to go into a place of danger. This being true, appellant by its negligence in failing to give the statutory signals, created the dangerous situation which resulted in the death of respondent's wife, and therefore appellant had no right to presume that respondent would stop before reaching the crossing, while it was violating the very statute which is designed to notify the traveller that a train is approaching. Ruenzi v. Payne, 208 Mo.App. 127; Jackson v. Railway, 189 S.W. 383; Campbell v. Railway, 175 Mo. 172.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This is an action brought by plaintiff to recover a sum of not less than $ 2,000 or more than $ 10,000, under and by virtue of Section 4217, Revised Statutes 1919, for the death of his wife, who died by reason of injuries inflicted when the automobile in which she was riding, and which was driven by plaintiff, was struck by a train, consisting of a locomotive, tender and caboose, operated under Federal control by employees of the Director General of Railroads, on a public road crossing near Joplin, Missouri, at or about 4:30 o'clock on the afternoon of February 23, 1920. Verdict and judgment nisi were for plaintiff in the sum of $ 5,000. The cause was appealed to the Springfield Court of Appeals, which court, by majority opinion, reversed outright the judgment below. One of the judges of that court filed a dissenting opinion, and deeming the majority opinion of that court to be in conflict with our own ruling in Campbell v. Railway Co., 175 Mo. 161, asked that the cause be certified to this court for final determination pursuant to Section 6, Amendment of 1884 to Article VI, Constitution of Missouri. The majority and dissenting opinions in the Springfiled Court of Appeals are fully reported in Anderson v. Davis, 251 S.W. 86.

On the day in question, plaintiff, accompanied by his wife and baby was traveling in a Maxwell automobile on a public road from Joplin to Carl Junction. As the automobile was about to clear the railroad track of the St. Louis-San Francisco Railway Company, intersecting said public road, the locomotive of the train struck the rear right wheel of the automobile, throwing the occupants therefrom, and causing injuries to plaintiff's wife, from which she died a short time afterward. The petition upon which the cause was tried charged defendant with negligence in these respects: Failure to keep a reasonable and proper lookout for persons and vehicles approaching and crossing over said crossing; operating said locomotive and train at an excessive and dangerous rate of speed; failure to give the statutory signals, by either whistle or bell; failure to give plaintiff warning of the approach of the train; and "that the agents, servants and employees of defendant in charge of and operating said train at said time and place, saw, or by the exercise of ordinary care could have seen, plaintiff and his said automobile approaching and on said public crossing in a position of peril in time, by the exercise of ordinary care, to have warned plaintiff, by bell or whistle, of the approach of said train, or in time to have checked the speed of said train or to have stopped the same and avoided striking said...