Burge v. Wabash R. Co.

• Decision Date: 10 June 1912
• Citation: 148 S.W. 925
• Parties: BURGE v. WABASH R. CO.
• Court: Missouri Supreme Court

148 S.W. 925

BURGE v. WABASH R. CO.

Supreme Court of Missouri.

June 10, 1912.

1. STATUTES (§ 141)—AMENDATORY STATUTES — ENACTMENT—CONSTITUTIONAL PROVISIONS.

Acts 1905, p. 135, entitled "An act to amend Rev. St. 1899, c. 17, § 2864, entitled `Damages and contributions in actions of tort,'" which states in its body the enumerated amendments, and which then sets forth the section as amended, complies with Const. art. 4, § 34, providing that amendments to statutes shall not be made by simply striking out or inserting words, but the statute amended shall be set forth in full as amended.

2. STATUTES (§ 117)—TITLE—REQUISITES.

The caption of Acts 1905, p. 135, entitled "damages and contributions in actions of tort," and the title entitled "An act to amend Rev. St. 1899, c. 17, § 2864, entitled `Damages and contributions in actions of tort,'" are sufficient, within Const. art. 4, § 28, providing that no bill shall contain more than one subject which shall be expressed in the title, to contain provisions authorizing a recovery for death by negligence in the management of enumerated vehicles, and defining the persons who may sue for the death, and fixing the limits of the recovery at not less than $2,000 and not more than $10,000 in the discretion of the jury.

3. DEATH (§ 58)—ACTION FOR NEGLIGENCE— PRESUMPTIONS—EVIDENCE.

The presumption that decedent, for whose death an action is brought, exercised due care is one of fact, and may be rebutted by evidence showing what he did at the time of the infliction of the fatal injury.

4. RAILROADS (§ 327)—COLLISIONS AT CROSSINGS —CONTRIBUTORY NEGLIGENCE.

Where a traveler killed by a train at a railroad crossing failed to hear the train, though by listening he would have heard it,

and looked straight ahead toward his horse, and he could have seen the train had be looked, he was guilty of contributory negligence as a matter of law.

5. EVIDENCE (§ 501)—OPINION EVIDENCE— HYPOTHETICAL QUESTIONS.

A former engineer with 22 years experience, but who has not been in active service for the last 14 years, may not give his opinion as to the distance within which a passenger train could be stopped, where the question calling for his opinion does not include the equipment and make-up of the train, the grade and condition of the track, and the effect of suddenly stopping the train on the passengers.

6. RAILROADS (§ 348)—COLLISIONS AT CROSSINGS —HUMANITARIAN DOCTRINE.

A passenger train ran 60 miles an hour when approaching a crossing. A traveler could not be seen owing to a curve in the track until the train was within 900 or 1,000 feet of him while he was approaching the crossing. The engineer testified that he did all he could to stop the train to prevent a collision with the traveler but without success, and he was corroborated. Held, that there could be no recovery under the humanitarian doctrine because of want of ability of the engineer to stop the train by the exercise of proper care.

7. RAILROADS (§ 316)—OPERATION OF TRAINS—CROSSINGS IN COUNTRY—NEGLIGENCE.

Where there was no increased use of a railroad crossing occasioned by the presence of a number of houses in the neighborhood of the crossing, and the travel from a coal mine on the side of the track was not over the crossing, the crossing was an ordinary and usual country crossing, and the operation of a train over it at a high speed was not actionable negligence.

8. RAILROADS (§ 335)—CROSSINGS—OBLIGATION OF TRAVELER.

A traveler approaching a railroad crossing must look and listen before entering on the crossing, and his failure to do so is not excused by the fact that the train was run in excess of the speed fixed by an ordinance.

Kennish, J., dissenting.

Appeal from Circuit Court, Randolph County; A. P. Terrill, Judge.

Action by Mary C. Burge against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. L. Minnis and Robertson & Robertson, for appellant. E. J. Howard, for respondent.

GRAVES, J.

This cause has a checkered career. Going to the Kansas City Court of Appeals from the trial court, it came here upon a constitutional question. Assigned to Division 1 of this court, and there written by one of our learned Commissioners, the judges of that division failed to agree upon an opinion and thus a transfer to this court. The case made runs along these lines: Plaintiff is the widow of T. H. B. Burge, an aged gentleman, who was struck and killed by one of defendant's passenger trains at a public crossing near Huntsville in Randolph county. The negligence charged in the petition is: "That said agents, servants, employés, and officers of defendant, in charge of said locomotive and train of cars, failed to ring the bell on said locomotive at a distance of 80 rods from said crossing and to keep the same ringing until said locomotive had crossed said highway, and that said agents, servants, employés, and officers also failed to sound the steam whistle of said locomotive at the distance of 80 rods from said crossing and to sound said whistle at intervals until said locomotive had crossed said highway. That said locomotive and train of cars, at the time of the killing of her said husband as aforesaid, was being run by defendant's said agents, servants, officers, and employés at a high and dangerous speed which was careless and reckless upon and across said public crossing, which said crossing is and was in a thickly populated neighborhood near the city limits of Huntsville, Mo., and which said public crossing is and was very frequently used by the public traveling between the cities of Huntsville, Mo., and Moberly, Mo., all of which was well known to said officers, agents, servants, and employés of defendant then and there in charge of said locomotive and train of cars, which killed plaintiff's said husband as aforesaid. That said public crossing is a dangerous one, owing to the lay of the ground and the fact that there is a sharp curve in said tracks of defendant a short distance east of said public crossing, from which direction said train was running at the time of the killing of plaintiff's said husband as aforesaid, and, owing to that reason and the further fact that said locomotive and train of cars were being run at such a high and dangerous speed as aforesaid, by said agents, servants, employés, and officers of defendant, upon and across said public highway, in a populous neighborhood, and the fact that said public highway was so frequently used as aforesaid, at the time of said killing of plaintiff's said husband as aforesaid, it was the duty of said agents, servants, employés, and officers of defendant, then and there in charge of said locomotive and train of cars, to give the statutory and other signals and to run said locomotive and train of cars at a reasonable and careful speed and to keep a sharp lookout for travelers upon or near said public crossing, all of which said agents, servants, employés, and officers of defendant negligently failed to do. That said officers, agents, employés, and servants of defendants, in charge of said locomotive and train of cars at the time plaintiff's said husband was killed as aforesaid, saw, or by the exercise of ordinary care could have seen, him in time to avoid killing him. That said train was a regular passenger train running from Moberly to Kansas City, Mo., and was about an hour behind its regular schedule time, which fact was unknown to plaintiff's said husband, and said train was being run by said agents, servants, employés, and officers of defendant, at the time plaintiff's said husband was killed as aforesaid, upon and across said public crossing, at an exceedingly high and dangerous speed, which was unknown to plaintiff's said husband, nor could he have known of said high and dangerous speed by the use of ordinary care, and at the time when the said buggy in which plaintiff's said husband was driving as aforesaid and the horse hitched to same was on the tracks of defendant at the point where said highway crosses said tracks, said train was at a distance of not less than 340 feet from and east of said crossing, from which said direction said locomotive and train of cars was running at the time, and that before plaintiff's said husband could get across said tracks and into a place of safety, although he used every endeavor to do so, owing to the high and dangerous, careless, and reckless speed at which said locomotive and train of cars was being run by the agents, servants, and employés and officers of defendant as aforesaid, her said husband was negligently struck and killed as aforesaid by said locomotive and train of cars."

Answer was (1) a general denial, and (2) some three separate statements of the plea of contributory negligence. Reply general denial. Verdict and judgment for plaintiff in the sum of $2,000, from which defendant appealed as aforesaid. In division we were all of opinion that there was reversible error in the case in the instructions given, but diversity of opinion arose on the question of liability or no liability. We shall discuss but two questions, i. e., the constitutional question, which gives us jurisdiction, and the question of defendant's liability under the admitted facts.

1. Bond, Commissioner, in the divisional opinion, has thoroughly and satisfactorily discussed the constitutional question involved, and we adopt his views. He said:

"Appellant attacks the constitutionality of the act of April 13, 1905 (Session Acts, p. 135), amendatory of section 2864 of the Revised Statutes of 1899, on the ground that `said act contains more than one subject, and the subjects of said act were not clearly expressed in the title thereto, and for that reason said act is contrary to section 28, art. 4, of the Constitution of Missouri.'

"This point was first raised in the supplemental motion for new trial, which also contained a second attack on the constitutionality of the act on the assumption that its...