Boyd v. Missouri Pac. Ry. Co.

• Decision Date: 28 March 1913
• Parties: BOYD v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

155 S.W. 13

249 Mo. 110

BOYD v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 28, 1913.

1. DEATH (§ 86) — DAMAGES — STATUTORY PROVISIONS — PECUNIARY LOSS.

Rev. St. 1899, § 2864, as amended by Laws 1905, p. 135 (Rev. St. 1909, § 5425), providing that, when the death of any person is caused by negligence in running, conducting, or managing any locomotive, car, or train of cars, the employer of the person whose negligence caused the death "shall forfeit and pay as a penalty" not less than $2,000 and not exceeding $10,000, in the discretion of the jury, is penal, so far as it fixes the amount of recovery at not less than $2,000, but is remedial and compensatory as to any recovery in excess of that amount, and hence evidence of the age, condition of health, and earning capacity of the party killed and the consequent loss to the plaintiff thereby is admissible to aid the jury in exercising its discretion as to the amount of the recovery.

2. STATUTES (§ 241) — PENAL STATUTES — DETERMINATION OF CHARACTER.

Whether a statute is penal or compensatory depends on its substance and effect, rather than its form.

3. DEATH (§ 14) — CAUSE OF DEATH — STATUTORY PROVISIONS — "CAR."

A hand car operated on a railroad track is a "car" within Rev. St. 1909, § 5425, giving a right of action for death caused by the negligent operation of any locomotive, car or train of cars, or of any street electric or terminal car, or train of cars; the word "car" not being limited to cars used in transporting passengers.

4. DEATH (§ 14) — LIABILITY — STATUTORY PROVISIONS.

Under Rev. St. 1909, § 5425, providing that when the death of any person is caused by the negligence of any officer, agent, servant, or employé in running any locomotive, car, or train of cars, the employer of such officer, agent, servant, or employé shall be liable therefor, where a section hand through the negligence of the section foreman in operating a hand car was placed in such a perilous position that he could not escape being killed by a freight train, the company was liable, although those in charge of the freight train by which he was killed were not negligent.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Jennie Boyd against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 236 Mo. 64, 139 S. W. 561.

Action for damages. Plaintiff had judgment below for $10,000, and defendant appeals. By her petition plaintiff demands judgment for $10,000 against defendant for the alleged negligent killing of her husband, Charles J. Boyd, on July 29, 1905. Deceased was an employé of defendant, working with an extra gang of track laborers, and at the time of his death was riding on a hand car to his place of work. This is the second appeal in this case. A full copy of plaintiff's petition will be found at page 64 et seq. 236 Mo., at page 561 of 139 S. W. It is unnecessary to restate the substance of said petition here. Defendant pleaded contributory negligence and assumption of risk. It also attacked the constitutionality of section 5425, R. S. 1909, but the constitutional issues tendered have been abandoned.

The evidence shows the plaintiff's husband (Charles J. Boyd) was employed by defendant during a period of three weeks prior to July 29, 1905, working just north of the town of Liberal, Mo., in surfacing the track of defendant's road. Deceased was working under a section foreman by the name of Lee Mead. Mead left Liberal on the morning of July 29, 1905, at about the hour of 7 o'clock, using two hand cars to transfer his crew of men to a point on defendant's road some three miles north of Liberal. While the hand cars were passing through a cut 1¾ miles north of Liberal, they were met by one of defendant's freight trains known as the local freight, and plaintiff's husband was by said train run over and killed. There was a heavy fog at the town of Liberal and along defendant's road on the morning of July 29, 1905. Two witnesses for plaintiff testified that the aforesaid local freight was due to arrive at Liberal from the north just after 7 o'clock. One of them gives the time for the arrival of said train at 7:05 a. m., and another at 7:20 a. m. All of plaintiff's witnesses state that a train came through Liberal from the north over defendant's road between 6 and 7 a. m. on July 29th. Witnesses did not know what train it was, but one of them testified that he suggested to Mead (the foreman) that it was not the local freight, but inferentially Mead seems to have thought it was, though he was not sworn as a witness. Mead did not try to find out what train it was which had passed through just before he and his crew started with their hand cars. There was no telegraph operator at defendant's station at Liberal, and it does not appear how Mead could have ascertained the whereabouts of approaching trains had he tried to do so. He simply proceeded with his crew to his work as had been his custom for three weeks. There was evidence to the effect that Mead had not been stopping and listening, or sending a flagman ahead, to discover if there were trains approaching before running his hand cars through the cut where plaintiff's husband was killed. Witnesses could not remember of any other morning when there was such a heavy fog as prevailed on the morning of July 29, 1905. The defendant in its answer admits the existence of the heavy fog recited in plaintiff's petition and testified to by the witnesses. All the witnesses agree that the fog was so heavy that they could not see a train more than 150 feet. Boyd (plaintiff's husband) was riding on the rear end of the front hand car, and the foreman (Mead) and one Tom Mulligan were on the front of said hand car. When they were approaching the cut where Boyd was killed, Mulligan told the foreman that they ought to have a flagman, that it was a good morning "to get caught." The foreman made no reply, but proceeded with his hand cars and men into the cut. Four witnesses testified to the circumstances attending the killing of Boyd. Their evidence is substantially the same, except that some of them were not looking at Boyd when he got off of the hand car.

The hand car was running about 8 miles an hour when it came in sight of the freight, which latter was running 30 miles an hour. Neither the sectionmen nor the foreman observed the approaching freight train until it was within 120 feet of the front hand car. Upon discovering the approaching train, one man jumped on the brake of the hand car, and two jumped off in front, grabbing the front handles of the car, and making an effort to pull it off the track before it had fully stopped. They succeeded in getting part of the hand car off the track when the freight train struck only the handles of the rear end thereof. A witness who was applying the brake on the rear hand car saw Boyd jump off the rear end of the front car, and make an effort to catch the rear handles thereof. He (Boyd) failed to catch the handles of the car, and fell upon the track. He made an effort to rise, and fell again, at which instant the rear hand car passed partly over his body, and the oncoming freight train collided with this rear hand car, knocking Boyd 60 feet down the track, killing him instantly. One of plaintiff's witnesses testified that Boyd fell upon his back, and another that he fell face downward. It does not appear whether or not he was injured by the rear hand car, nor is that material as the defendant admits in its answer that Boyd was killed by the freight train.

One Harry Cooper testified that he had been a section foreman on defendant's road for five years, and was still working for defendant at the time of the trial. He testified that it was the duty of such foreman, when his men were on the hand car, to keep a lookout for trains; that defendant's agent who employed him (Cooper) directed him to "stop at any hazardous place and listen, and, if necessary, to go around the curve and see and satisfy ourselves that there were no trains coming close enough but what we could come around in safety." This direction seems not to have been given to said witness until after the collision which resulted in Boyd's death. Witness stated that he always considered it his duty in times of fog or when a train was expected to stop his car and ascertain by listening or sending a flagman ahead whether a train was near before starting through a cut.

Plaintiff's husband was 39 years of age, in good health, and earning $1.40 a day when killed. He was living with the plaintiff (his wife) by whom he left five small children, one of them being born a few months after his death. The defendant introduced no evidence and asked no instructions, except a general demurrer at the close of plaintiff's evidence.

For reversal defendant relies upon the following alleged errors: (1) That the court erred in admitting evidence of the age, condition of health, and earning capacity of deceased and the number of his children, and instructing the jury to consider that evidence in making up their verdict. (2) That plaintiff's petition attempts to state a cause of action under both section 5425 and section 5426, R. S. 1909, and therefore plaintiff should have been compelled to elect which one of said sections she would rely upon for recovery. That plaintiff's petition does not state facts sufficient to support a recovery under section 5425, R. S. 1909. (Death from negligent operation of locomotives, cars, etc.) (3) That it was the duty of plaintiff's husband as a section hand to look out for defendant's trains and for his own safety. (4) That there was evidence to sustain defendant's plea of assumption of risk and contributory negligence, and that said defenses should not have been ignored in plaintiff's instructions.

R. T. Railey, of St. Louis, and Scott & Bowker, of Nevada, Mo., for appellant. Edwin L....