Boyd v. Missouri Pac. Ry. Co.

Decision Date01 July 1911
Citation139 S.W. 561,236 Mo. 54
CourtMissouri Supreme Court

Appeal from Barton Circuit Court. -- Hon. J. B. Johnson, Judge.

Reversed and remanded.

Martin L. Clardy with R. T. Railey & Son for appellant.

(1) The alleged acts of negligence as set out in petition are wholly insufficient to constitute a cause of action against this defendant under section 5425, R. S. 1909. They are clearly outside of said statute, and are not comprehended therein. The foregoing section is in derogation of the common law, and should be strictly construed. In other words, it should not be extended to include hand cars, which were not named therein, and which are not public conveyances. Clark v Railroad, 118 S.W. 45; Bates v. Sylvester, 205 Mo. 494; Casey v. Railroad, 205 Mo. 721; Packard v. Railroad, 181 Mo. 421; Barron v. M. L. & Z Co., 172 Mo. 233; Hennessy v. B. B. Co., 145 Mo. 113; Culbertson v. Railroad, 140 Mo. 62; King v. Railroad, 98 Mo. 235; Barker v Railroad, 91 Mo. 94; Crohn v. Tel. Co., 131 Mo.App. 313; Casey v. Railroad, 116 Mo.App. 235; 1 White's Personal Injuries on Railroads, secs. 42 and 321. If the Legislature had intended that hand cars should be classed with locomotives, cars and trains of cars, it would have said so in passing the amendment of 1905. It named other public conveyances, which had not been mentioned before, but in no manner intimates that hand cars used for the company's private business should be included within said section. This court has uniformly held that section 5425 should be construed to apply to public conveyances. It will readily be seen that a hand car, used exclusively by the employees of a railway company in the transaction of its private business, cannot be said to be a public conveyance. Casey v. Railroad, 205 Mo. 723; Higgins v Railroad, 197 Mo. 312; Crohn v. Tel. Co., 131 Mo.App. 313. Even, therefore, if the crews in charge of the hand cars had been guilty of negligence -- which is not true as a matter of fact -- in the management of said cars, the plaintiff could not have maintained an action under the foregoing section, based on said negligence. The petition however, in direct terms, pleads that the freight train mentioned in evidence ran over and killed deceased. As heretofore suggested, it is not charged that any of the train crew were guilty of negligence. (2) The only charge of alleged negligence contained in the petition, is to the effect that defendant was guilty of negligence in failing to learn of the approach of said freight train, and in permitting the section crews to enter said curve, when they were liable to collide with said freight train in so doing. Even if these facts were true, which we deny, still no cause of action can be maintained under section 5425 based on such alleged negligence. Elliott v. Railroad, 67 Mo. 272; Holmes v. Railroad, 69 Mo. 538; Flynn v. Railroad, 78 Mo. 196; Crumpley v. Railroad, 98 Mo. 34; Parsons v. Railroad, 94 Mo. 286; King v. Railroad, 98 Mo. 235; Rapp v. Railroad, 106 Mo. 423; Culbertson v. Railroad, 140 Mo. 37; Anderson v. Railroad, 196 Mo. 464. If the railway company had failed through its foreman, before leaving the town of Liberal, to ascertain when the train was coming which killed deceased, it was an independent act of negligence, if defendant was negligent, and had no connection whatever with the operation of the train and hand cars at the time and place of accident. (3) The deceased, with full knowledge of all the facts, and of the risk which he assumed, and the dangers which he was encountering, passed over or into said curve, without protest or objection, and thereby assumed all risks of injury under the circumstances detailed in this case. The plaintiff is not therefore entitled to recover herein. Jackson v. Railroad, 104 Mo. 448; Thomas v. Railroad, 109 Mo. 187; Ring v. Railroad, 112 Mo. 220; Nugent v. Milling Co., 131 Mo. 241; Halloran v. I. & F. Co., 133 Mo. 470; Roberts v. Tel. Co., 166 Mo. 370; Evans v. Railroad, 178 Mo. 508; Helm v. Railroad, 185 Mo. 212; Mathis v. S. Y. Co., 185 Mo. 434; Clancy v. Railroad, 192 Mo. 615; Chrismer v. Tel. Co., 194 Mo. 189; Brockschmidt v. Railroad, 205 Mo. 435; Lynch v. Railroad, 208 Mo. 32; Sissel v. Railroad, 214 Mo. 515; Welch v. Stone Co., 64 A. 392; E. G. & E. L. Co. v. Raley, 76 N.E. 548; Railroad v. Hemphill, 86 S.W. 350; Kistner v. A. S. F., 84 N.E. 44; Cahill v. Railroad, 205 Mo. 407; Degonia v. Railroad, 224 Mo. 564; 3 Elliott on Railroads (1 Ed.), sec. 1298; Foley v. G. R. G. Co., 87 N.W. 53; Yunkes v. R. S. Co., 115 N.W. 348; Baumler v. N. B. Co., 50 A. 841. As heretofore shown, no other section man of either crew sustained injury except deceased. He was in plain view of the train, with his face looking toward it, when it was a hundred feet off, and remained there on the track until the hand car ran up over him and the engine struck him and the hand car at the same instant. The undisputed testimony shows that he saw the train, knew he was between the rails, when a single step would have removed him to a place of safety, and remained there stumbling around between the rails, without any apparent reason therefor, until run over and killed. If he did not assume the risk in remaining upon the track under such conditions, regardless of any alleged negligence of defendant, then we fail to understand what assumption of risk means under the laws of this State. Helm v. Railroad, 185 Mo. 223; Clancy v. Railroad, 192 Mo. 656; Brockschmidt v. Railroad, 205 Mo. 435; Lynch v. Railroad, 208 Mo. 32; Sissel v. Railroad, 214 Mo. 515. (4) The deceased at the time and place of accident was not only guilty of negligence, but actual recklessness, and by reason thereof lost his life without the fault of this defendant. The court below should therefore have directed a verdict for defendant, and having failed to do so, we ask that the cause be reversed, without remanding, and that judgment be entered here for defendant. Sissel v. Railroad, 214 Mo. 515; Holland v. Railroad, 210 Mo. 338; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 445; McGrath v. Railroad, 197 Mo. 97; Clancy v. Railroad, 192 Mo. 615; Wheat v. Railroad, 179 Mo. 579; Evans v. Railroad, 178 Mo. 514; Loring v. Railroad, 128 Mo. 359. (5) Plaintiff's instruction I. modified and given by the court, is clearly erroneous We know of no rule of law which leaves it to the jury, as does paragraph 2 of this instruction, to determine for itself the duty devolving by law upon defendant's servants, without any guidance from the court. Johnson v. Railroad, 117 Mo App. 310; Ravenscraft v. Railroad, 27 Mo.App. 623; Goodwin v. Railroad, 75 Mo. 75; Gurley v. Railroad, 93 Mo. 450; Magrane v. Railroad, 183 Mo. 132; Baker v. L. & N. Term. Co., 61 S.W. 1031. Paragraph 3 proceeds as an independent proposition, and gives the jury no guide whatever as to what it takes to constitute negligence, nor is it attempted to be limited to the matters complained of in the petition. It authorized the jury to return a verdict for plaintiff, based on any supposed negligence, whether alleged in the petition or not, which existed on the part of foreman Mead in the performance of his alleged duties. It was, therefore, clearly erroneous. Beave v. Railroad, 212 Mo. 351; Davidson v. Railroad, 211 Mo. 361; Kirkpatrick v. Railroad, 211 Mo. 85; Black v. Railroad, 117 S.W. 1142; Roscoe v. Railroad, 202 Mo. 588; McGrath v. Railroad, 197 Mo. 105; Hufft v. Railroad, 121 S.W. 120; Crumpley v. Railroad, 98 Mo. 38; King v. Railroad, 98 Mo. 235; Rapp v. Railroad, 106 Mo. 428; Senn v. Railroad, 135 Mo. 517; Culbertson v. Railroad, 140 Mo. 63; Anderson v. Railroad, 196 Mo. 464. (6) Plaintiff's instruction 2 as given is palpably erroneous. The court below tried the case on the theory that plaintiff was entitled to recover, if at all, not less than two thousand dollars as a penalty, and might allow any amount above that up to ten thousand dollars as a part of the penalty provided for in said section, gauged by the degree of negligence on the part of the defendant that was shown in the testimony. There was no evidence in this entire record which would warrant the court or jury in inflicting upon defendant punitive or exemplary damages. Said section 5425, prior to the amendment of 1905, was so strictly construed, that a plaintiff could not even sue for $ 4,500 under said section, but was compelled to sue for the full amount, to-wit, $ 5000 or go out of court. Casey v. Railroad, 116 Mo.App. 235; 205 Mo. 721; King v. Railroad, 130 Mo.App. 368. Said instruction was clearly erroneous in authorizing the jury to consider the mitigating or aggravating acts of negligence on the part of the defendant. Morgan v. Durfee, 69 Mo. 478; Stoher v. Railroad, 91 Mo. 510; Parsons v. Railroad, 94 Mo. 299; Barth v. Railroad, 142 Mo. 558; R. S. 1899, secs. 594 and 595. (7) Plaintiff sued under Sec. 5425, R. S. 1909, and recovered thereunder a verdict of $ 6000. She produced in court at the commencement of the trial her five minor children, the youngest in her arms. The defendant, through its counsel, before the trial commenced, requested the court to exclude from the court room the children of said plaintiff, for the obvious reason that they were produced for the purpose of creating a sympathy in behalf of plaintiff. This request was overruled and exceptions duly saved. Plaintiff's instructions 1 and 2 and the closing argument of plaintiff's counsel disclose, conclusively, that the sole purpose in having these children before the jury was to create a sympathy in behalf of plaintiff, and to augment the damages in this cause. The plaintiff, in suing under the above statute, would have no legal right to even inquire as to the number or ages of her...

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