Boyd v. Missouri Pacific Railway Co.
| Decision Date | 28 March 1913 |
| Parties | JENNIE BOYD v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Barton Circuit Court. -- Hon. B. G. Thurman, Judge.
Reversed and remanded.
R. T Railey and Scott & Bowker for appellant.
(1) The petition in this case, in one count, attempts to state a cause of action both under Sec. 5425 and 5426, R.S. 1909, and for this reason appellant's demurrer and motion to elect should have been sustained. Casey v. Railroad, 205 Mo. 721; Peters v. Railroad, 150 Mo.App. 721; King v. Railroad, 130 Mo.App. 368. (2) It is the duty of the section men to look out for the approach of trains and for their own safety while on or near the track. Degonia v. Railroad, 224 Mo. 564; Evans v Railroad, 178 Mo. 517; Ring v. Railroad, 112 Mo. 220; Sissel v. Railroad, 214 Mo. 515; Williamson v. Railroad, 139 Mo.App. 481; Van Dyke v. Railroad, 230 Mo. 259; Hitz v Railroad, 152 Mo.App. 687. (3) Where the servant has the same knowledge as the master the servant assumes the risk or is guilty of contributory negligence in working in a dangerous place or with a dangerous instrumentality. Hirsch v. Freund Bros. Co., 150 Mo.App. 162; Jewell v. Bolt & Nut Co., 231 Mo. 176. (4) There was evidence in this case to support the answer in the pleas of assumption of risk and contributory negligence. Jewell v. Bolt & Nut Co., 231 Mo. 176; Sissel v. Railroad, 214 Mo. 515; Degonia v. Railroad, 224 Mo. 564; Maynard v. Railroad, 155 Mo.App. 352; Nivert v. Railroad, 232 Mo. 626; Gunnochio v. Railroad, 155 Mo.App. 163; Evans v. Railroad, 178 Mo. 517. (5) Under Sec. 2864, R.S. 1899, now Sec. 5425, R.S. 1909, the only actionable negligence provided for is negligent acts in the actual operation of a train or cars, etc., therefore plaintiff was not entitled to recover under said section under the facts stated in her pleadings or instructions to the jury. Casey v. Railroad, 205 Mo. 721; Higgins v. Railroad, 197 Mo. 300; Gray v. Railroad, 157 Mo.App. 92; Peters v. Railroad, 150 Mo.App. 721; Anderson v. Railroad, 196 Mo. 465; Cuelsiton v. Railroad, 140 Mo. 63; Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Anderson v. Railroad, 196 Mo. 464. (6) Sec. 5425, R.S. 1909, under which a recovery was held in this case, is a purely penal statute, and the court erred in admitting testimony as to the wages of deceased, the number of his children, his age and expectancy, and in instructing the jury thereon. Young v. Railroad, 227 Mo. 307; Casey v. Transit Co., 205 Mo. 721; Gray v. Railroad, 157 Mo.App. 92; Ervin v. Railroad, 158 Mo.App. 1; King v. Railroad, 130 Mo.App. 368; Casey v. Transit Co., 116 Mo.App. 235; Adams v. Railroad, 67 Vt. 76; Marshall v. Railroad, 46 F. 269; Crohn v. Telephone Co., 131 Mo.App. 313; Nicholas v. Kelly, 159 Mo.App. 20; Moyes v. Railroad, 158 Mo.App. 461; Richmond v. Railroad, 97 Ala. 289; Childress v. Railroad, 141 Mo.App. 667. (7) The court erred in giving instruction 1 in behalf of the plaintiff for the reason it predicated a right of recovery in the plaintiff, without requiring the jury to find the negligence provided for in the instruction was the proximate cause of the injury and death of plaintiff's husband. The jury was permitted by the instruction to return a verdict against the defendant for certain alleged acts of negligence, without finding they caused the death of the decedent. This was error.
Edwin L. Moore, John H. Taylor, and Mathew McBride for respondent.
(1) Plaintiff's petition state a cause of action under Sec. 2864, R.S. 1899, as amended by the Act of 1905, p. 135, now Sec. 5425, R.S. 1909. Boyd v. Railroad, 236 Mo. 54; Peters v. Railroad, 150 Mo.App. 721. (2) The doctrine that it is the duty of section men to look out for the approach of trains and for their own safety while on or near the track does not apply to a section man riding on a hand-car going to and from his work by direction of the foreman. Schroeder v. Railroad, 108 Mo. 322; Honea v. Railroad, 245 Mo. 621; Boyd v. Railroad, 236 Mo. 80. (3) The deceased was not guilty of contributory negligence. Schroeder v. Railroad, 108 Mo. 322; Adams v. Railroad, 74 Mo. 533; Dickson v. Railroad, 124 Mo. 151; Pratt v. Railroad, 139 Mo.App. 502; Clark v. U. I. & F. Co., 234 Mo. 436; Boyd v. Railroad, 236 Mo. 54. (4) The deceased was not guilty of contributory negligence nor did he assume the risk. Schroeder v. Railroad, 108 Mo. 322; Briscow v. Railroad, 130 Mo. 521; Philpot v. Railroad, 196 Mo. 321; Lee v. Railroad, 112 Mo.App. 372; Gibson v. Bridge Co., 112 Mo.App. 597; Pratt v. Railroad, 139 Mo.App. 502; Dickson v. Railroad, 124 Mo. 151; Burkard v. Rope Co., 217 Mo. 466; Dean v. Railroad, 156 Mo.App. 639; Clark v. U. I. & F. Co., 234 Mo. 436; Boyd v. Railroad, 236 Mo. 54; Honea v. Railroad, 245 Mo. 621. (5) A hand-car is a car within the meaning of Sec. 5425, R.S. 1909. Peters v. Railroad, 150 Mo.App. 727; 3 Elliott on Railroads, sec. 1354; Boyd v. Railroad, 236 Mo. 54. (6) Sec. 5425, R.S. 1909, under which recovery was had, is both penal and compensatory and testimony as to the number and ages of his children, the wages he received, his age, and expectancy was properly admitted and the jury instructed thereon. Boyd v. Railroad, 236 Mo. 82; Hartnett v. Railroad, 162 Mo.App. 554; Hegberg v. Railroad, 164 Mo.App. 548. (7) Instruction 1 correctly defines the law of the case. Boyd v. Railroad, 236 Mo. 92; Henry v. Railroad, 76 Mo. 293; Montgomery v. Railroad, 181 Mo. 498. Plaintiff in good faith offered instruction 1 approved by the highest court of this State. Defendant offered no instructions, and cannot now complain. Morgan v. Mulhall, 214 Mo. 462; Schuepbach v. Gas Co., 232 Mo. 611; Sec. 1850, R.S. 1909; Sec. 2082, R.S. 1909; 2 Thompson on Trials, sec. 2341.
OPINION
In Banc.
-- 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 employee 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 in 236 Mo. 54, et seq. It is unnecessary to re-state the substance of said petition here.
Defendant pleaded contributory negligence and assumption of risk. It also attacked the constitutionality of section 5425, Revised Statutes 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, Missouri, in surfacing the track of defendant's road.
He 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 seven 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 one and three-fourths 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 seven 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 six and seven 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 Liberal station, 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...
To continue reading
Request your trial