Clark v. A., T. & Santa Fe Railway Co.

• Decision Date: 11 April 1928
• Docket Number: No. 26669.,26669.
• Citation: 6 S.W.2d 954
• Court: Missouri Supreme Court
• Parties: MARY E. CLARK v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY and ST. JOSEPH TERMINAL RAILROAD COMPANY, Appellants.

6 S.W.2d 954

MARY E. CLARK v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY and ST. JOSEPH TERMINAL RAILROAD COMPANY, Appellants.

No. 26669.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Holt Circuit Court. — Hon. Guy B. Park, Judge.

REVERSED AND REMANDED.

Cyrus Crane and Culver, Phillip & Voorhees for appellant, Atchison, Topeka & Santa Fe Railway Company; Brown, Douglas & Brown of counsel.

(1) The court erred in denying the petition of appellant Atchison, Topeka & Santa Fe Railway Company for the removal of this cause to the United States district court. The facts stated in the petition for removal, which must be taken as true, show (a) that there was no joint liability because the defendant Terminal Company is not a railroad company within the meaning of Sec. 9879 or Sec. 9880, R.S. 1919, and (b) that the Terminal Company was fraudulently joined as a defendant to prevent a removal of the cause. Wilson v. Republic Iron Co., 257 U.S. 92; State ex inf. v. Terminal Railroad Assn., 182 Mo. 284; Appeal of Montgomery, 20 Atl. 400. (2) The court erred in granting a change of venue to Holt County and in refusing to hear evidence to show that neither the judge of Division Number 1 nor the judge of Number 3 was disqualified to hear the case. State ex rel. Hansen v. Woodson, 86 Mo. App. 253; Eudaley v. Railroad Co., 186 Mo. 388; Guy v. Railroad, 197 Mo. 174; State ex rel. v. Dabbs. 118 Mo. App. 663; State ex rel. Payne v. Pence, 240 S.W. 443. (3) The petition does not state a cause of action and the court erred in overruling defendants' objection to the introduction of any evidence, because Sec. 4217, R.S. 1919, is violative of Sec. 28, Art. 4, of the Constitution of Missouri. Treadway v. U. Rys. Co., 300 Mo. 176; State v. McEniry, 269 Mo. 228; Williams v. Railroad, 233 Mo. 676. (4) The court erred in giving plaintiff's instruction numbered 2. Banks v. Morris & Co., 257 S.W. 482; 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; Woods v. Railroad, 188 Mo. 229; Reeves v. Railroad, 251 Mo. 169; State ex rel. v. Reynolds, 223 S.W. 219; Boyd v. Wabash, 105 Mo. 371; Knapp v. Dunham, 195 S.W. 1062; Dyrez v. Railroad, 238 Mo. 33; Beal v. Railway Co., 256 S.W. 733; Conley v. Railway Co., 284 S.W. 180; Lackey v. U. Rys. Co., 288 Mo. 143; Kamoss v. Railway Co., 202 S.W. 434; Draper v. Dunham, 239 S.W. 883. (5) The court erred in refusing defendants' Instructions A, C and D. Authorities last above.

Ryan & Zwick, M.P. Murphy, Gerald Cross and Pross T. Cross for respondent.

(1) The case was not removable, and the trial court properly denied the petition for removal. It was conceded by both defendants that the Terminal Railroad was a Missouri corporation. It was conceded by both defendants that the Terminal Railroad, the resident defendant, owned the railroad track upon which the train of the Santa Fe Company was being operated at the time of the killing of the deceased. And it was likewise conceded by both defendants that the Santa Fe Company was so operating its train over the Terminal Company's tracks at the time of the injury and death, under and by virtue of "a lease, license or running agreement" between the two companies. Under this state of facts and the law of this State the Terminal Company became and remained liable in damages for any negligent act of the servants of the Santa Fe Company, its license, in running its trains over the Terminal tracks; and this liability was both a joint and several one, and plaintiff had the right, under the statute, to sue either one or both of them, and either jointly or severally. Secs. 9879, 9880, R.S. 1919; Spaw v. Railroad, 201 S.W. 929; Schaffer v. Railroad, 254 S.W. 257; Fleming v. Railway, 263 Mo. 180; Brown v. Railroad, 256 Mo. 522; Johnson v. Railway, 203 Mo. 381; Dean v. Railway, 199 Mo. 386; Markey v. Railway, 185 Mo. 363; McWhert v. Railway, 187 S.W. 830; Railway v. McWhert, 243 U.S. 422; McAllister v. Railway, 243 U.S. 302; Stotler v. Railroad, 200 Mo. 107; Lanning v. Railroad, 196 Mo. 647. The above-cited sections of the statute expressly create a liability on the part of the leasing company, and specifically names terminal companies. (2) Under Act of 1921, plaintiff was entitled to a change of venue from all the judges. State ex rel. Payne v. Pence, 240 S.W. 443. In this case, the Supreme Court held the applicant was not entitled to a change of venue from Jackson County because its procedure was governed by another provision of the statute than the one under present consideration and the amendment of 1921 consequently had no pertinence thereto. (3) Section 4217 is not unconstitutional and void on the theory that the title to the act is violative of Sec. 28, Art. 4, of the Missouri Constitution. The title is not misleading, and is not violative of the organic law. The constitutional provision should be liberally construed in support of legislative power. State v. Miller, 45 Mo. 495; State v. Laughlin, 75 Mo. 147; Ferguson v. Gentry, 206 Mo. 189; Booth v. Scott, 205 S.W. 633; Burge v. Railroad, 244 Mo. 76. This title shows that the act refers to the subject-matter of "torts" and damages and contribution. The objection that the title uses the word "damages," is unreasonable and strained. The proof of this is found in the fact that the word "damages" includes any and all kinds of damages, and therefore includes punitive damages. Punitive damages, are in no sense compensatory damages, but are allowed and levied as a penalty and to punish. It is in every sense of the word a fine or penalty, just such a penalty as is provided for by the act now under assault. So that when we analyze, we find that "damages," includes punitive damages, and punitive damages are, and mean, a penalty. (4) Plaintiff's Instruction 2 was not error, because it did not require the jury to find that deceased was oblivious of his peril. In many recent cases, it has been clearly decided that the petition need not plead, and the instructions need not submit, obliviousness as a prerequisite to recovery. Obliviousness need be neither pleaded, proven, nor submitted by instruction. Bank v. Morris, 257 S.W. 482; Karte v. Mfg. Co., 247 S.W. 417; Wenzel v. Bush, 259 S.W. 767; Montague v. Railway, 264 S.W. 813; Nabe v. Schnellman, 254 S.W. 731. (5) Instructions A, C and D were properly refused. These were instructions requested on the theory that "obliviousness" was a necessary element, and what we have said in the preceding point fully justifies the refusal of A, C and D.

RAGLAND, J.

This is an action by a surviving wife to recover the penalty prescribed by Section 4217, Revised Statutes 1919, for the death of her husband, which occurred September 13, 1920, and which she alleges was caused by the negligence of defendants.

On the date mentioned defendant St. Joseph Terminal Railroad Company, a Missouri corporation (hereinafter called the Terminal Company), owned and operated terminal railroad tracks in the city of St. Joseph over which the trains of certain trunk lines entering the city reached the Union Depot. Defendant, The Atchison, Topeka & Santa Fe Railway Company, a Kansas corporation (hereinafter called the Railway Company), was operating a line of railroad from St. Joseph, Missouri, to Topeka, Kansas. Through a running arrangement with the Terminal Company its trains after leaving the Union Depot in St. Joseph and in the course of their passage through the city ran over one of the Terminal Company's tracks which crossed Hickory Street. As this crossing was the place where plaintiff's husband lost his life a general description of it will be in order.

At the place in question Hickory Street, which was approximately sixty feet wide, was crossed by quite a number of railroad tracks. We are concerned with only two of them: one used by in-bound trains of the Burlington Railroad Company, and the other, owned by the Terminal Company, for out-going trains of the defendant Railway Company. Hickory Street ran east and west; the railroad tracks, where they crossed the street, extended north and south. The Terminal track just referred to was the track next west of the Burlington track. The distance between the east rail of the Terminal track and the west rail of the Burlington track was ten feet and eight inches. The Burlington track after leaving Hickory Street going south curved sharply to the east. There was a pedestrian walk along the south side of the street where it was crossed by these railroad tracks. A watchman's shanty was located on the east side of the switch yard immediately south of the south side of the street. It was the duty of the watchman stationed there to raise and lower the gates which were provided as barriers to stop the flow of traffic along the street, both vehicular and pedestrian, when the crossing was in use by the railroads. It frequently happened that such use would at a given time be so prolonged that pedestrians would become impatient and go around or crawl under the gates and continue their way along the street and across the tracks.

About 7:30 o'clock in the evening of September 13, 1920, Dr. Clark, the deceased, while standing on or crossing the Terminal track near the south side of Hickory Street, was run over and killed by an out-bound passenger train of the defendant Railway Company. Just preceding that occurrence two passenger trains were approaching the crossing: a Burlington train from the south and another, the one that ran over Clark, from the north. Both were comparatively short trains, each having only three or four coaches, and both were running at moderate rates of speed. The Burlington train reached the crossing first; about the time its rear coach cleared the crossing going north, the engine of the train moving south, the one that struck Dr. Clark, had reached a point thirty or thirty-five feet north of the north side of the crossing. The witnesses are...