Carney v. Railway Co., No. 27570.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtLindsay
Citation23 S.W.2d 993
Decision Date30 July 1929
Docket NumberNo. 27570.
23 S.W.2d 993
No. 27570.
Supreme Court of Missouri, Division One.
July 30, 1929.

[23 S.W.2d 994]

Appeal from Clinton Circuit Court.Hon. Guy G. Park, Judge.


Luther Burns and Culver, Phillip & Vorhees for appellants.

(1) The court erred in giving plaintiff's Instruction 4, because: (a) It is predicated on the violation of a void ordinance. The ordinance is void because no penalty is provided for its violation. 1 Dillon on Municipal Corp. (3 Ed.) sec. 336; 43 C.J. 551, sec. 860; State v. Gouldy, 34 Atl. (N.J.) 748; Massinger v. City of Millville, 63 N.J.L. 123; German Am. Fire Ins. Co. v. City of Minden, 71 N.W. (Neb.) 995; Marland Ref. Co. v. City of Hobart, 237 Pac. (Okla.) 857. (b) As the only act of negligence which is claimed to have caused the peril of the two children is the violation of a void ordinance. Mrs. Carney was guilty of contributory negligence as a matter of law in going on the track when she saw the engine so close to her that it struck her before she got across, even though she did so for the purpose of rescuing her children, because the attempt to rescue the children does not absolve her from negligence unless the peril of the children was caused by the negligence of the defendants. 20 R.C.L. 132, sec. 109; Donahoe v. Railroad, 83 Mo. 563; Eversole v. Railroad. 249 Mo. 523; Williams v. Lamp Co., 173 Mo. App. 87; Hill v. Cotton Oil Co., 214 S.W. 421; Wright v. Atl. Railroad Co., 110 Va. 670; Bracy v. Imp. Co., 41 Mont. 338. (c) There is no substantial evidence that Mrs. Carney went upon the track in an attempt to rescue her children. (2) The court erred in giving plaintiff's Instruction 3 and refusing defendants' instructions 7 and 9. (a) Mrs. Carney was not in "imminent peril" within the meaning of the humanitarian doctrine and that doctrine has no application to the facts of this case, unless she went upon the track in an attempt to rescue her children. Clark v. Ry. Co., 6 S.W. (2d) 954; State ex rel. v. Reynolds, 289 Mo. 479; Boyd v. Ry. Co., 105 Mo. 371; Banks v. Morris & Co., 302 Mo. 255; Sullivan v. Ry. Co., 297 S.W. 945; Kinlen v. Railroad, 216 Mo. 145; Karte v. Mfg. Co., 247 S.W. 417; Pope v. Railroad, 242 Mo. 232; Reeves v. Railroad Co., 251 Mo. 169; Knapp v. Dunham, 195 S.W. 1062; Dyrez v. Railroad, 238 Mo. 33; Beal v. Ry. Co., 256 S.W. 733; Conley v. Ry. Co., 284 S.W. 180; Lackey v. United Rys. Co., 288 S.W. 143; Kamoss v. Railroad Co., 202 S.W. 434; Draper v. Dunham, 239 S.W. 883. (b) And, therefore, the court erred in giving plaintiff's Instruction 3 without giving defendants' instructions 7 and 9, as requested. Authorities, supra. (c) Plaintiff's Instruction 3 was erroneous because it told the jury defendants were liable if the train could have been stopped or checked so as to avoid striking Mrs. Carney, if it had been going only fifteen miles per hour. Alexander v. Ry. Co., 4 S.W. (2d) 888; Sullivan v. Ry., 117 Mo. 214; Illinois C. Railroad Co. v. Nelson, 173 Fed. 915; Banks v. Morris & Co., 302 Mo. 255; Haley v. Railroad, 197 Mo. 15; McGee v. Railroad, 214 Mo. 530. (d) And it was also erroneous because it told the jury that Mrs. Carney's contributory negligence was not defense to the action, when the action was based not only on the humanitarian doctrine but also on straight negligence for violation of the speed ordinance. (3) The court erred in refusing the demurrer to the evidence on each count because: (a) There was no substantial evidence that Mrs. Carney went upon the track in an effort to rescue her children. Absent such evidence there could be no recovery on the humanitarian doctrine because it does not apply where the peril does not result from obliviousness, inability to escape or an effort to rescue another in peril. And there could be no recovery for violation of the speed ordinance because the ordinance is void: and even if it is valid, Mrs. Carney was guilty of contributory negligence as a matter of law. (b) And the humanitarian doctrine should not have been submitted, because the plaintiff's testimony shows that the engineer did not have time to avoid striking Mrs. Carney after he saw or should have seen that she did not intend to stop.

Pross T. Cross, R.H. Musser, and Gerald Cross for respondent.

(1) Plaintiff made a case for the jury under each count of his petition, and the demurrers were properly overruled. All the evidence showed that defendant was guilty of a gross violation of the speed ordinance, and that its negligence in that respect was a proximate cause of the deaths. And, under all the evidence, no other conclusion could be drawn than that defendant, in the exercise of that care which the law enacted, could have discovered (and did discover) the peril of the deceased persons, in time to have either stopped or checked the speed of the train and thereby prevent the deaths, in the exercise of ordinary care. Chawkley v. Railway, 297 S.W. 20; Allen v. Railway, 281 S.W. 737; Gann v. Railway, 6 S.W. (2d) 39; Zumwalt v. Railway, 266 S.W. 717; Logan v. Railway, 254 S.W. 705; State ex rel. v. Trimble, 260 S.W. 1000; Chapman v. Railway, 269 S.W. 688; Koontz v. Railway, 253 S.W. 413; Mason v. Railway, 246 S.W. 318; Conley v. Railway, 243 S.W. 426; Abramowitz v. Railway, 214 S.W. 119; Smith v. Railway, 282 S.W. 62; Goben v. Railway, 231 S.W. 294; Goben v. Railway, 226 S.W. 631; Sullivan v. Railway, 117 Mo. 214; Maher v. Railway, 64 Mo. 267; Murrell v. Railway, 105 Mo. App. 88; Williams v. Railway, 249 Mo. App. 489; Chappell v. Railway, 174 Mo. App. 126; Ruenzi v. Railway, 231 S.W. 294; Moore v. Transit Co., 194 Mo. 1; Kelly v. Railway, 95 Mo. 279; Bergman v. Railway, 88 Mo. 678; Dunkman v. Railway, 95 Mo. 232; Moore v. Transit Co., 95 Mo. App. 728; Fiedler v. Railway, 107 Mo. 645; Gunther v. Railway, 95 Mo. 286. (2) The ordinance did carry a penalty for its violation, and the whole ordinance, including the penalty section, was offered and admitted in evidence. It is true that only Section One of general ordinance was actually read to the jury, but this was the only part of the ordinance which was proper for the jury, as the question of legality would be for the court. General Ordinance No. 22, was an ordinance consisting of eight sections. Appellant's attorneys, at the time of the offer, took both the printed and the typewritten copy of the ordinance in their hands and examined them carefully. They saw the penalty section, which was Section 7, but they never made any objection to the validity of the ordinance on the ground that no penalty was provided for its enforcement. Their objection was too vague and general to constitute a valid objection. It did not call the attention of the trial court to anything definite or specific. It is a well-settled rule of evidence that vague and general objections, without the statement of any specific ground of objection, will not be reviewed in the appellate court. Jones on Evidence, Civil Cases (3 Ed.) sec. 893: 38 Cyc. 1378; Jordan v. Tel. Co., 136 Mo. App. 192; Tygard v. Faylor, 163 Mo. 234; Clark v. Conway, 23 Mo. 438; Hutchinson v. Morris, 131 Mo. App. 258; Glenville v. Railroad Co., 51 Mo. App. 629. (3) The validity of the ordinance is not an issue upon this appeal. The ordinance was pleaded in the petition as a ground for recovery. In its answer defendant did not challenge or raise the issue of the invalidity in any manner. Having omitted to attack it by answer, it will not be permitted to do so later by objection to its introduction in evidence. Roper v. Greenspon, 198 S.W. 1107, 272 Mo. 288; Lohmeyer v. Cordage Co., 214 Mo. 685. Appellant complains that there was no evidence that "Mrs. Carney went upon the track in an effort to rescue her children." In answer to this, we will merely state that there is not a sprig of evidence in the whole case that she went upon the track for any other purpose. All the evidence and the presumptions attending, show that the mother was frantically attempting to get to and rescue her children from danger threatened by the approaching train. (4) Plaintiff's Instruction 3 was a clear and concise statement of the law as applied to the humanitarian doctrine and the facts in the case, and it was properly given. This same instruction has been approved in many cases. Clark v. Railway. 6 S.W. (2d) 954. Defendant's Instructions 7 and 9 were properly refused for several reasons. Instructions 7 and 9 improperly placed the burden of proving deceased free from contributory negligence upon the plaintiff. The defense of contributory negligence is an affirmative one, and the burden rests on defendant to prove it. This burden never rests on plaintiff. 29 Cyc. 601; Fulks v. Railway, 111 Mo. 335; Crumpley v. Railroad Co., 111 Mo. 152; Mitchel v. Clinton, 99 Mo. 153; O'Conner v. Railway, 94 Mo. 150; Donovan v. Railroad Co., 89 Mo. 147; Crane v. Railroad Co., 87 Mo. 588; Stepp v. Railroad Co., 85 Mo. 229; Stephens v. Mason, 83 Mo. 345; Swigart v. Railroad Co., 75 Mo. 475; Buesching v. Gaslight Co., 73 Mo. 219; McNown v. Railroad Co., 55 Mo. App. 585; Dolan v. Moberly, 17 Mo. App. 436. (a) Even though the mother was negligent because no situation of peril to the children existed, yet, if the defendant was guilty of negligence in running at an unlawful rate of speed and such negligence on its part concurred with the negligence of the mother to produce the wrongful death of plaintiff's child, the defendant would be liable for the penalty provided by the statute, in this action. (b) Instruction 9, which referred to the right to recover for the death of Mrs. Carney, declared her guilty of negligence as a matter of law, unless she was attempting a rescue. Such is not the law. The petition charged that the death of his wife was caused by the negligence of defendant in running the train at an unlawful and negligent rate of speed.

And under this charge, plaintiff made a case...

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