Carson v. Baldwin, 36677.

• Court: United States State Supreme Court of Missouri
• Citation: 144 S.W.2d 134
• Decision Date: 31 October 1940
• Docket Number: No. 36677.,36677.
• Parties: ORVILLE CARSON, a Minor, v. L.W. BALDWIN and GUY A. THOMPSON, Trustees of the Missouri Pacific Railroad Company, a Corporation, Appellants.

144 S.W.2d 134 ORVILLE CARSON, a Minor,
v.
L.W. BALDWIN and GUY A. THOMPSON, Trustees of the Missouri Pacific Railroad Company, a Corporation, Appellants. No. 36677. Supreme Court of Missouri. Division One, October 31, 1940.

Appeal from Bates Circuit Court. — Hon. C.A. Calvird, Judge.

[144 S.W.2d 135]

REVERSED AND REMANDED.

Thos. J. Cole, H.E. Sheppard, L.J. Bishop and D.C. Chastain for appellants; Patterson, Chastain, Graves & Smith of counsel.

(1) The court erred in admitting the testimony as to the population of Rich Hill. This was admissible only in order to make Section 4830, Revised Statutes 1929, applicable. That section prohibiting the blocking of a crossing for more than five minutes in cities of less than 10,000 is unconstitutional, because: (a) The title of the section is indefinite and does not clearly express the subject matter. Laws 1911, p. 152; Sec. 28, Art. IV, Mo. Const. (b) The act is a special law relating to the maintaining of roads, highways and streets and is prohibited. Sec. 53, Art. IV, Mo. Const. (c) The act is special legislation relating to the affairs of the city and it is local in its character and is arbitrary and special in classifying cities in which it is applicable. Sec. 53, Art. IV, Mo. Const.; Murnane v. St. Louis, 123 Mo. 479, 27 S.W. 711; State ex rel. Garesche v. Roach, 258 Mo. 541, 167 S.W. 1008; Henderson v. Koenig, 168 Mo. 356, 68 S.W. 72; Colley v. Jasper County, 337 Mo. 503, 85 S.W. (2d) 57; State ex rel. Ashby v. Cairo Bridge & T. Co., 340 Mo. 190, 100 S.W. (2d) 441; Wooley v. Mears, 226 Mo. 41, 125 S.W. 1112; State ex inf. Gentry v. Armstrong, 315 Mo. 298, 286 S.W. 705. (2) The court erred in submitting the case to the jury, because: (a) There was no proof of negligence in the alleged violation of Section 4830. (b) There was no evidence that the train had blocked the crossing more than five minutes at the time of the accident. Mo. Pac. Ry. Co. v. Bacon, 91 Fed. (2d) 175. (c) Negligence cannot be based upon the violation of a statute unless the injury was one the statute was designed to prevent. The purpose of Section 4830 was to facilitate travel and not to prevent collisions with standing cars so that negligence cannot be grounded upon its violation. Mansfield v. Wagner Mfg. Co., 294 Mo. 235, 242 S.W. 400; Anderson v. Wells, 220 Mo. App. 19, 273 S.W. 233, certiorari quashed (Mo.), 287 S.W. 603; Degonia v. St. L., I.M. & S. Ry. Co., 224 Mo. 564, 123 S.W. 807; Borack v. Mosler Safe Co., 288 Mo. 83, 231 S.W. 623; Harper v. St. Louis Merchants' Bridge Term. Co., 187 Mo. 575, 86 S.W. 99; Krelitz v. Calcaterra, 33 S.W. (2d) 909; Wecker v. Ice Cream Co., 326 Mo. 451, 31 S.W. (2d) 974; Hudson v. Wabash Western Ry. Co., 101 Mo. 13, 14 S.W. 15; Spain v. St. L. & S.F. Ry. Co., 190 S.W. 358; Cherry v. St. L. & S.F. Ry. Co., 163 Mo. App. 53, 145 S.W. 837; Capelle v. B. & O. Ry. Co., 136 Ohio St. 203, 24 N.E. (2d) 822; Jones v. A., T. & S.F. Ry. Co., 129 Kan. 314, 282 Pac. 593; Denton v. M., K. & T. Ry. Co., 90 Kan. 51, 133 Pac. 558; Killen v. N.Y. Cent. Ry. Co., 232 N.Y. Supp. 76; Irvin v. So. Pac. Ry. Co., 95 Pac. (2d) 62. (d) The length of time the crossing was obstructed prior to the accident was a condition rather than the proximate cause of the accident. Had the cars prior to the accident been obstructing the crossing four minutes instead of over five minutes in violation of Section 4830, the result would have been the same. Orton v. Pa. Ry. Co., 7 Fed. (2d) 36; Hendley v. C. & N.W. Ry. Co., 225 N.W. 205; Gilman v. Cent. Vt. Ry. Co., 107 Atl. 122; Simpson v. Pere Marquette Ry. Co., 268 N.W. 769; Webb v. Ore., Wash. R. & N. Co., 80 Pac. (2d) 409; Cuccia v. Gulf, M. & N. Ry. Co., 180 So. 513; Jones v. I. & P. Ry. Co., 154 So. 768. (e) Nor was there proof of negligence in failing to have a watchman or warning lights. There was no proof of any special hazard requiring special warning. Without such proof the presence of a car on the crossing was sufficient notice of danger. Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W. (2d) 617; Thompson v. Stevens, 106 Fed. (2d) 739; Smith Const. Co. v. Brumley, 88 Fed. (2d) 803; Sisson v. So. Ry. Co., 68 Fed. (2d) 403; N.Y. Cent. Ry. Co. v. Casey, 14 N.W. (2d) 714; Coleman v. C., B. & Q. Ry. Co., 5 N.E. (2d) 103; Sheets v. Baldwin, 146 Kan. 596, 73 Pac. (2d) 37; Phil. & R. Ry. Co. v. Dillon, 114 Atl. 62; Bowers v. Great N. Ry. Co., 259 N.W. 99; Ausen v. M., St. P. & S. Ste. M. Ry. Co., 258 N.W. 511; Diamond v. Term. Railroad Assn., 141 S.W. (2d) 795. There was no evidence that the train crew had notice of any special hazard created by fog or physical conditions. Proof of this by plaintiff was essential to recovery. Williams v. K.C. Term. Co., 288 Mo. 11, 231 S.W. 954; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Howard v. Knutson, 77 S.W. (2d) 158; St. L. & S.F. Ry. Co. v. Guthrie, 114 So. 215; C., C., C. & St. L. Ry. Co. v. Gillespie, 173 N.E. 708. (f) But in any event the sole proximate cause of the accident was the negligence of the driver of plaintiff's car, or the presence of fog. Wood v. Wells, 270 S.W. 332; Megan v. Stevens, 91 Fed. (2d) 419; Thompson v. Stevens, 106 Fed. (2d) 739; Probert v. Chi., I. & L. Ry. Co., 93 Fed. (2d) 259; Pennington v. So. Ry. Co., 61 Fed. (2d) 399; Orton v. Pa. Ry. Co., 7 Fed. (2d) 36; Mabry v. Union Pac. Ry. Co., 5 Fed. Supp. 397; Bledsoe v. M., K. & T. Ry. Co., 149 Kan. 741, 90 Pac. (2d) 9; Inkret v. C.M., St. P. & P. Ry. Co., 86 Pac. (2d) 12; Highton v. Pa. Ry. Co., 1 Atl. (2d) 568; Murray v. Yazoo & M.V. Ry. Co., 183 So. 262; Gilman v. Central Vt. Ry. Co., 107 Atl. 122. (2) The instruction erroneously submitted to the jury a question of law as to the duty of the defendants to maintain a watchman or warning light. Winslow v. M., K. & T. Ry. Co., 192 S.W. 121; Brock v. C., R.I. & P. Ry. Co., 305 Mo. 502, 266 S.W. 691; Macklin v. Fogel Constr. Co., 326 Mo. 38, 31 S.W. (2d) 14.

James A. De Armond and Frank W. Long for respondent.

When a railroad crossing is on account of surrounding circumstances or conditions especially dangerous, the company must exercise care commensurate with the danger. Elliott v. Mo. Pac. Ry. Co., 52 S.W. (2d) 451. There were special circumstances due to weather conditions in this case requiring special care upon the part of defendants, the omission of which were negligence. The blocking of the railroad crossing for an unlawful time, contrary to railroad regulation and established custom, on a foggy night, was a special hazard. There was negligence in failing to have a watchman or warning lights when the crossing was blocked contrary to railroad regulations as well as contrary to law. Contributory negligence under the facts in this case was a question for the jury. Poehler v. Lonsdale, 129 S.W. (2d) 59; Elliott v. Mo. Pac. Ry. Co., 52 S.W. (2d) 448; Roper v. Greenspon, 272 Mo. 288; Ross v. Hoffman, 269 S.W. 679. There was no negligence upon the part of the driver of the automobile.

DOUGLAS, J.

This is an action for damages for personal injuries. The plaintiff was riding at night as a guest in an automobile along a street in Rich Hill. The driver of the automobile suddenly discovering the street was blocked by a flat car in one of defendant's trains turned sharply to avoid a collision and the automobile upset causing plaintiff's injuries. Plaintiff based his petition both on negligence for blocking the street without providing a warning and on the violation of the statute for the unlawful blocking of the street. To support the...