Carter v. Wabash Railroad Co.
| Decision Date | 08 February 1916 |
| Citation | 182 S.W. 1061,193 Mo.App. 223 |
| Parties | GILLIE CARTER, RESPONDENT, v. WABASH RAILROD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
Judgment affirmed.
James L. Minnis and David H. Robertson for appellant.
(1) Section 2864, as amended by the Act of 1905, Laws of Missouri of 1905, pages 135, et seq., allowing a recovery of not less than two, nor more than ten thousand dollars, in the discretion of the jury, as applied by the court in this case is unconstitutional and void, because in conflict with the Fourteenth Amendment to the Federal Constitution, and section 30, article 2, of the Missouri Constitution. Yick Wo v Hopkins, 118 U.S. 356; Gilkeson v. Railroad, 222 Mo. 201-204. (2) The court erred in refusing to instruct a verdict for the defendant at the close of the evidence for the plaintiff, and at the close of all the evidence. The evidence shows that the decedent went upon the track and was struck, when he knew or by the exercise of ordinary care could have known of the train's approach, in time to have prevented the injury. This was such contributory negligence as to bar the plaintiff's recovery. Green v Railroad, 192 Mo. 139; Porter v. Railroad, 199 Mo. 82; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Stotler v. Railroad, 204 Mo. 619; Jones v. Barnard, 63 Mo.App. 501; Kelsay v. Railroad, 129 Mo. 362; Hook v. Railroad, 162 Mo. 569; Dyrcz v. Railroad, 238 Mo. 33; Burge v. Railroad, 244 Mo. 76; Laun v. Railroad, 216 Mo. 563; Schmidt v. Railroad, 191 Mo. 215. The evidence of the fireman, for the defendant, should be considered in connection with the plaintiff's evidence. Osborn v. Railroad, 166 S.W. 1121; Furber v. Bolt & Nut Co., 185 Mo. 311; Link v. Hathaway, 143 Mo.App. 509. The fireman testified that the decedent actually looked at the train and saw it when he was from fifty to seventy feet from the track. As he saw the train, the failure to sound the crossing signals, if such was the fact, is immaterial. Mockowik v. Railroad, 196 Mo. 550, 569-570; Murray v. Transit Co., 176 Mo. 183, 189; McManamee v. Railroad, 135 Mo. 449; Moody v. Railroad, 68 Mo. 474; Heintz v. Transit Co., 115 Mo.App. 671; Fry v. Transit Co., 111 Mo.App. 324, 335; Hutchinson v. Railroad, 195 Mo. 546. Since the decedent either saw, or could by the exercise of ordinary care have seen the train approaching, the rate of speed is immaterial, and furnished no ground for recovery. Stotler v. Railroad, supra. Green v. Railroad, supra. (3) (a) The court erred in giving the instruction on the measure of damages, under the facts of this case, and such action of the court deprived the defendant of property without due process of law, and denied the defendant the equal protection of the laws. See authorities under point 1. (b) Further the instruction was erroneous because there was no evidence upon which the jury could find the value of plaintiff's support upon which to base the instruction. McNeil v. Cape Girardeau, 153 Mo.App. 424; O'Brien v. Loomis, 43 Mo.App. 29; Wallack v. Transit Co., 123 Mo.App. 160; Stiles v. Railroad, 130 Mo.App. 162.
E. S. Gantt, Fry & Rodgers and Fauntleroy, Cullen & Hay for respondent.
(1) (a) Plaintiff's instruction on the measure of damages has been approved in the following cases: Boyd v. Railroad, 249 Mo. 110; Loomis v. Railroad, 188 Mo.App. 205; Kelly v. Higginsville, 185 Mo.App. 55; Baldwin v. Harvey, 177 S.W. 1088. (b) Plaintiff was not required to show that her husband had been earning wages, neither was she required to show in dollars and cents what her husband earned as a farmer, to entitle her to recover for pecuniary loss. It was only necessary for her to show that her husband was engaged in the business of farming, his age, health, habits, and that he left surviving him his widow and minor children. Loomis v. Railroad, 188 Mo.App. 206; Kettlehake v. Car. & Foundry Co., 177 Mo.App. 539; Maier v. Railroad, 176 Mo.App. 36, 37. (c) Appellant cannot now complain of plaintiff's instruction on the measure of damages, for the reason that no point was made or saved by appellant in its motion for a new trial on an excessive verdict. (2) No such judicial legislation has been attempted as to lay down the rule that the traveler approaching a railway crossing is bound, under all circumstances, to stop as well as to look and listen for approaching trains; but the courts generally agree that whether he ought to stop, in the exercise of ordinary care and caution, is a question for a jury, depending upon the circumstances in each particular case. Elliott v. Railroad, 105 Mo.App. 523; Frank v. Transit Co., 99 Mo.App. 323; Huckshold v. Railroad Co., 90 Mo. 548; Donohue v. Railroad Co., 91 Mo. 357; Mayes v. Railroad Co., 71 Mo.App. 142; Petty v. Railroad Co., 88 Mo. 318; Johnson v. Railroad Co., 77 Mo. 546; Russell v. Receivers, 70 Mo.App. 88; Baker v. Railroad Co., 122 Mo. 533, 544; Kelly v. Railroad Co., 88 Mo. 534; O'Connor v. Mo. Pac. Co., 94 Mo. 150. (3) The plaintiff made a prima-facie case under the statute requiring signals to be given when she introduced testimony tending to show that signals were not given as required by the statute. McNulty v. Railroad, 203 Mo. 475; McGee v. Railroad, 214 Mo. 545; Huckshold v. Railroad, 90 Mo. 555; Crumpley v. Railroad, 111 Mo. 157; Green v. Railroad, 192 Mo. 143. (4) Before the court can declare as a matter of law that decedent, in an action against company for the killing of decedent at a crossing, was guilty of negligence contributing directly to the injury, the evidence must be substantially all one way, and not such that reasonable minds might differ with respect thereto. Weller v. Railroad, 164 Mo. 180; Byars v. Railroad, 161 Mo.App. 692; Petty v. Railroad, 88 Mo. 306; Dunn v. Railroad, 21 Mo.App. 200. (5) (a) The court did not err in refusing to instruct a verdict for the defendant at the close of the evidence for plaintiff. Baker v. Railroad, 122 Mo. 533; Kenny v. Railroad, 105 Mo. 270; Petty v. Railroad, 88 Mo. 306; Crawley v. Railroad, 24 Mo.App. 119; Young v. Railroad, 72 Mo.App. 263; Dunwoody v. Railroad, 136 Mo.App. 514, 515; Woodward v. Railroad, 152 Mo.App. 468; Weller v. Railroad, 120 Mo. 645, 646, 647; Bluedorn v. Railroad, 108 Mo. 439; Lang v. Railroad, 115 Mo.App. 498, 499; Smith v. Railroad, 150 Mo.App. 1; Green v. Railroad, 52 Minn. 79; Railroad v. Hogland, 66 Md. 149. (b) Certainly, the court did not err in refusing to instruct a verdict for the defendant at the close of all the evidence. Turner v. Railroad, 134 Mo.App. 397; Mitchell v. Railroad, 122 Mo.App. 59; Culbertson v. Railroad, 178 S.W. 269; Sanguinette v. Railroad, 196 Mo. 493; Cosgrove v. Railroad, 87 N.Y. 88; McCullough v. Railroad, 59 N.W. 618; Mitchell v. Railroad, 97 N.W. 1112; Warn v. Railroad, 126 N.W. 1104; Lonergan v. Railroad, 53 N.W. 236; Sights v. Railroad, 78 S.W. 172; Durham v. Railroad, 108 Ga. 547; Carey v. Railroad, 71 N.E. 244; Schemerhorn v. Railroad, 53 N.Y.S. 279; 33 A.D. 17; Doll v. Railroad, 65 N.Y.S. 454, 52 A.D. 575; Texas & P. Ry. v. Anderson, 2 Wilson Civ. Cases, Ct. App. 203; Railroad v. Byas, 12 Tex. Civ. App. 657, 35 S.W. 22; Norton v. Railroad, 113 Mass. 366; Prescott v. Railroad, 113 Mass. 370; Shaw v. Railroad, 8 Gray, 45; Pollock v. Railroad, 124 Mass. 158; Railroad v. Barnett, 59 Pa. St. 259; Railroad v. Stinger, 78 Pa. St. 218; Hudson v. Railroad, 14 Bush, 303; Lawrence v. Railroad, 87 Ga. 755; Voak v. Railroad, 75 N.Y. 320; Carraher v. Bridge Co., 34 P. 828; Railroad v. Baptist, 73 S.E. 477.
--This is a suit for damages accrued to plaintiff under the wrongful death statute on account of the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
The grounds of negligence relied upon relate to the failure of defendant to sound the bell or whistle attached to its locomotive engine, on approaching a public road crossing at which plaintiff's husband was killed. It appears plaintiff's husband and his neighbor Byars were en route home from Benton City, riding in an ordinary lumber wagon drawn by a team consisting of one horse and a mule. The hour was about noon, and they were driving south in the highway approaching the crossing on defendant's track, when, it appears, decedent's team became frightened and ran upon the track immediately in front of defendant's locomotive and train. Plaintiff's husband was engaged in driving the team. The railroad track runs slightly southeast and northwest through Benton City, a small town, while the highway--that is, Sims street--on which plaintiff's husband was driving, runs north and south.
Sims street is at the eastern border of Benton City and is a much used public highway, on which defendant maintained a railroad crossing. Front street in Benton City parallels the railroad track on the north side, and immediately south of it--that is, between it and the railroad tracks--are a number of residences, outhouses, trees, etc., so as to more or less obstruct the view to the westward of one driving south on Sims street until Short street is reached, where the view is more or less open, but obstructed further west to some extent. Decedent, driving the team came south on Sims street across Short street and south of the latter street, where, upon defendant's right of way, several obstructions to the western view appear. Besides defendant's main line, it maintained two sidetracks north of it. Near, or about four hundred and twenty-five feet west of the Sims street crossing, and forty-four feet to the north of the track, on the right of way, defendant maintained its stock pens. Further west were certain corn cribs...
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