Baker v. Kansas City, Ft. S. & M. R. Co.

• Citation: 48 S.W. 838,147 Mo. 140
• Court: United States State Supreme Court of Missouri
• Decision Date: 13 December 1898
• Parties: BAKER et al. v. KANSAS CITY, FT. S. & M. R. CO.

48 S.W. 838

147 Mo. 140

BAKER et al. v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri.

December 13, 1898.

APPEAL — SECOND TRIAL — LAW OF CASE — RAILROADS — ACCIDENT AT CROSSING — SIGNALS — CONTRIBUTORY NEGLIGENCE.

1. Where the supreme court has reversed and remanded a case, and neither the evidence nor the instructions have been materially changed upon a retrial, the opinion of said court is the law of the case upon another appeal as to all points actually decided, where they have been fairly presented, and no former decision has been overruled inadvertently.

2. Where cars are cut loose from a train, and allowed to cross a highway by their own momentum, at a speed of from five to seven miles per hour, with no engine at either end, so that no bell can be rung or whistle sounded, the railroad company is guilty of negligence, notwithstanding the conductor is on the cars yelling and whistling to one who is crossing the track.

3. If a traveler, when starting to cross a railroad track, had his attention called to approaching cars in time to keep out of their way, he cannot complain that no proper warning was given.

4. Contributory negligence is a matter of defense, unless it appears from the evidence of plaintiff.

5. The evidence tended to show that plaintiff heard the engine coming, and stopped about 100 feet from the crossing until it passed, after which she drove to the crossing, looking at the engine that had passed; that when she got upon the crossing she saw, for the first time, box cars coming upon her which had been detached from the engine, and their speed slackened to run a flying switch; that no signal of their approach had been given; and that she was injured by such cars. Held, that plaintiff's failure to stop, look, and listen was not, under such circumstances, contributory negligence.

6. Where one who was injured by cars at a railway crossing was thrown off his guard by the neglect of the railway company, and was lulled into a sense of security, so that he went upon the crossing, before seeing the approaching cars, all that the law demanded of him was that he then act as a reasonably prudent person would have acted under like circumstances.

7. An instruction that the jury might "consider what influence, if any, the passing of the engine * * * would have upon the mind and conduct of a prudent person placed as plaintiff was," was not objectionable as a comment on the evidence.

8. Where, upon all the testimony, a plaintiff is entitled to recover against a railroad company for an injury received at a crossing, the mere fact that her own testimony is contradictory as to whether she stopped just before she attempted to cross should not bar a recovery, as the most that can be said is that such way of testifying may be due to her confusion which existed at the time of the accident.

Sherwood, Robinson, and Marshall, JJ., dissenting.

In banc. Appeal from circuit court, Henry county; J. H. Lay, Judge.

Action by Martha Baker and husband against Kansas City, Ft. Scott & Memphis Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Plaintiffs' Instructions.

"(1) The court instructs the jury that if from the evidence you believe that the defendant, by its servants or employés, on or about the 9th day of October, 1898, cut a number of its cars loose from the rest of its train, and permitted them to run at a dangerous rate of speed across the public highway, just after the rest of the train had passed where defendant's railroad crosses said public highway, near the city of Rich Hill, in Bates county, Missouri, without a locomotive attached to said cars, and without giving any warning sufficient to notify persons approaching and about to pass over said crossing that said cars were coming, and in such manner as to endanger travelers along said highway, then such conduct constituted negligence on the part of said defendant railroad company. And if you further believe from the evidence that the plaintiff Martha Baker, while passing along said highway, attempted to cross defendant's railroad, and while exercising the care and caution that a prudent person, under like circumstances, would have done, was struck and injured by the said cars of the defendant, run and managed in the manner aforesaid, then your verdict must be for the plaintiff."

No. 2 was as to the damages.

"(3) The court instructs the jury that before you can find that the plaintiff Martha Baker was guilty of contributory negligence it must be shown by the preponderance of all the evidence in the case."

Instructions at the Instance of the Court.

"(1) You are further instructed that the law cast upon Martha Baker the duty, when approaching the railroad crossing, of looking and listening to discover approaching cars or trains, if any, and she was bound to so look and listen to the extent that a prudent person, situated as she then was, would, under the like circumstances, have done; and, if she failed so to do, the plaintiffs cannot recover unless it appears to the satisfaction of the jury from the evidence that her failure, if any, to so look and listen, did not cause or contribute to the injury complained of, but that the accident and injury were caused wholly by negligence upon the part of defendant, as charged in the petition. In determining whether Martha Baker was prudent or careless, cautious or reckless, — that is, whether or not she acted as a prudent person in her situation would have done, — you may consider (if you find there was negligence in cutting the train and passing it in sections over the crossing, and that such negligence caused the injury complained of) what influence or effect, if any, the passing of the engine and attached part of the train in question, as the same passed, would have upon the mind and conduct of a prudent person placed as she then was."

No. 2 was as to credibility of witnesses.

"(3) If the jury believe from the evidence that Mrs. Baker looked up the track west, at a point sufficiently near the main track to see the approaching cars in time to avoid being struck by them, and, having seen the approaching cars, still hurried on in front of the same, in an attempt to beat them over the crossing, and that a person of ordinary prudence would not have done so under similar circumstances, then the defendant is not liable to her for any injuries that may have resulted from the collision, and you will find for the defendant."

The last instruction was No. 17, asked by defendant, with the words, "and that a person of ordinary prudence would not have done so under similar circumstances," inserted by the court.

Defendant's No. 13 (refused): "If the jury believe from the evidence that Mrs. Baker, as she drew near the track on which the box cars were moving, saw them approaching in time to have stopped her team before she drove upon that track, and to avoid being struck, then your verdict must be for defendant."

Wallace Pratt and I. P. Dana, for appellant. Wallace & Wallace and C. C. Dickinson, for respondents.

TICHENOR, Special Judge.

1. It is certain that these parties have had a day in court. There have been two verdicts before different judges, and two appeals have been taken, upon which five arguments have been heard. The opinion on the first appeal is found in 122 Mo. 533, 26 S. W. 20, and argument has been made as to the effect which is now to be given to it. Counsel for appellant say in their last brief: "The rule to be gathered from the decisions of this court on this question seems to us to be substantially this: that, where the rulings on the first appeal are followed at the second trial, this court will not consider itself bound by such rulings, unless a contrary ruling on the second appeal would prejudice the rights of the party following the first decision." They also urge, as another reason for their position, that "no directions were given in remanding the cause," such as are given in equity cases, where the court passes upon the evidence, and in other cases where the facts, or at least a part of them, are admitted. It is true that no statute regulates this subject; that this court is not bound to respect its opinion given upon a first appeal when others are taken; yet I do not think that its decisions sustain the position of counsel. Judge Black, speaking for the court, says in Keith v. Keith, 97 Mo. 224, 10 S. W. 600: "The general rule is that where a case has been decided by this court, and again comes here by appeal or writ of error, only such questions will be noticed as were not determined on the former appeal. * * * These cases show that exceptions have been made to the general rule. The present case however, comes within the general rule, for the question here decided was not considered on the former appeal." In Hickman v. Link, 116 Mo. 123, 22 S. W. 472, Judge Brace says: "On the second trial some new evidence was introduced, cumulative in its character, and in no way changing the complexion of the issues between the parties. It is therefore unnecessary to restate the case. The law of the case was maturely considered, settled, and clearly stated in the opinion of the court rendered by Black, J., and will not be again discussed. * * * If, upon another retrial, which will have to be ordered, the court below will be content to consider the law of the case as definitely settled by our former decision," etc. Judge Macfarlane in Gwin v. Waggoner, 116 Mo. 151, 22 S. W. 711, says: "There can be no doubt of the correctness of the general proposition that, `when a case has been decided in this court and again comes here on appeal or writ of error, only such questions will be noticed as were not determined on the previous decision. Whatever was passed upon will be deemed res adjudicata, and no longer open to dispute or further controversy.' Overall v. Ellis, 38 Mo. 209. For there would be no end to a suit if every litigant could, through repeated...