Corbett v. Terminal Railroad Assn.

• Decision Date: 17 April 1935
• Docket Number: No. 33241.,33241.
• Citation: 82 S.W.2d 97
• Parties: MARGUERITE CORBETT v. TERMINAL RAILROAD ASSOCIATION, Appellant.
• Court: Missouri Supreme Court

82 S.W.2d 97

MARGUERITE CORBETT v. TERMINAL RAILROAD ASSOCIATION, Appellant.

No. 33241.

Supreme Court of Missouri.

Division One, April 17, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. M.G. Baron, Judge.

JUDGMENT FOR PLAINTIFF (upon condition).

T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.

(1) Instruction 2, given to the jury at the instance and request of plaintiff, is erroneous for the reasons following: (a) Rule 2 of General Order 106 of the Illinois Commerce Commission is quoted and set out in said instruction. Said rule was susceptible of more than one interpretation and the jury were authorized to construe and interpret it. The instruction is too general, it is broader than the pleadings and proof and gives the jury a roving commission. Plank v. Brown Petroleum Co., 61 S.W. (2d) 332. (b) As plaintiff and Brown knew that the gates were not in operation, the failure to have said gates in operation at said time was not the proximate cause of the accident. (c) By Section 806, Revised Statutes 1929, the court takes judicial notice of the laws of Illinois as pleaded. As Rule 2 of General Order 106 of Illinois Commerce Commission, in so far as it related to cities, villages, and incorporated towns, had been repealed by General Order 119 of Illinois Commerce Commission, it is evident that this court cannot take judicial notice of a law or act that was not in force at time of accident. (d) It purports to cover the whole case and authorizes a verdict, but omits essential facts necessary to a recovery, particularly of a failure to warn. McDonald v. Kansas City Gas Co., 59 S.W. (2d) 37. (2) In permitting Dr. McFadden to state to the jury what plaintiff told him as to her condition and complaints at the time said doctor examined her the court erred. (3) The verdict was and is excessive. Christian v. Pomeroy, 168 Atl. 876; C.R.I. & P. Ry. Co. v. Jones, 10 S.W. (2d) 863; Gragnon v. New Orleans, 118 So. 791; Meenan v. Ry. Co., 153 Atl. 881.

Everett Hullverson, Vernell Perry and Mason & Flynn for respondent.

Rule Two of General Order 106, quoted, supra, in our statement, sets out a single duty, to-wit, the duty to maintain and operate the gates for twenty-four hours, when the gates are at a crossing of a track constantly in use by trains. The sole negligence upon which the case was submitted to the jury was the violation of that one duty which is stated in the rule quoted in the instruction. The instruction simply sets out in the language of the rule the one duty thereby enjoined, tells the jury that the violation of that duty would constitute negligence and then proceeds in the same instruction to apply the law to the facts in the case — that is, to set out specifically what facts the jury must find with reference to the violation of that duty in order to find a verdict for the plaintiff. The instruction therefore is not subject to the objection that it is abstract, or too general, or broader than the pleadings, or that it gives the jury a roving commission. Plank v. Brown Petroleum Co., 61 S.W. (2d) 328; Ramey v. Mo. Pacific, 21 S.W. (2d) 873; Leimkuehler v. Wessendorf, 18 S.W. (2d) 454; McGrew v. Mo. Pac. Ry. Co., 109 Mo. 589. Under Section 806, Revised Statutes 1929, courts are required to take judicial notice only of the public statutes and judicial decisions of other states when pleaded. General Order No. 106 of the Illinois Commerce Commission, as well as the statute of the State of Illinois by authority of which it was promulgated, was pleaded in this case, and Rule Two of General Order 106 was offered in evidence; but General Order 119 of the Illinois Commerce Commission was not pleaded, and the record before this court shows that there was not the remotest reference to it — that is, to Order 119 — either in the pleadings, during the trial, in the motion for new trial or in any other way. This court therefore cannot give any effect to General Order 119 as in any way repealing or modifying General Order 106, which was before the trial court. Sec. 806, R.S. 1929; Menard v. Goltra, 40 S.W. (2d) 1053; Ramey v. Railroad Co., 21 S.W. (2d) 873; Cox v. Terminal, 43 S.W. (2d) 571; Cox v. Terminal, 55 S.W. (2d) 686. Only those questions properly presented to and decided by the trial court, and where the action of the trial court is properly preserved in the record, can be considered on appeal. Therefore, inasmuch as the trial court was not asked to pass on the question as to whether or not General Order 106 had been in any way modified by Order 119 or any subsequent order, no such question is before this court. Alexander v. Hayden, 2 Mo. 11; Claflin v. Sylvester, 99 Mo. 276; Holman v. Macon, 155 Mo. App. 398; Wiseburg v. Boatmen's Bank, 217 S.W. 85, 280 Mo. 199.

STURGIS, C.

This is an action for damages for personal injuries received by plaintiff in consequence of a collision at a grade crossing between an automobile in which she was riding and some moving freight cars pushed by defendant's locomotive engine on its railroad track. It is the same case that was before this court in Cox v. Terminal Railroad Association, 331 Mo. 910, 55 S.W. (2d) 685, on certification from the St. Louis Court of Appeals, 43 S.W. (2d) 571. The change in the name of plaintiff is caused by her marriage while the case has been pending. Both the pleadings and the facts are stated in the case mentioned and those wishing to know all about the case should read those opinions, from which we learn that the plaintiff was successful on the first trial in obtaining a verdict and judgment, from which defendant appealed, and both the Court of Appeals and this court concurred in reversing and remanding the case for new trial because of errors committed by the trial court in submitting the case to the jury on the humanitarian rule of negligence as applied in this State but not in Illinois where the accident and injury occurred. After such reversal and remanding the case was again tried in the Circuit Court of the City of St. Louis on the same pleadings and with substantially the same evidence. The plaintiff has again prevailed and defendant has appealed.

The principal question raised on this appeal again relates to the instructions, it not being urged now that a demurrer to the evidence should have been sustained. Both sides concede that as the plaintiff's injury occurred in East St. Louis, Illinois, the substantive law of that state applies and each party set forth in their respective pleadings the laws of that state deemed applicable. At the last trial the plaintiff abandoned all her allegations of defendant's negligence causing her injury at the railroad crossing in question except that numbered 7 in her petition, as follows:

"That crossing gates were installed at the said grade crossing; that a watchman was ordinarily maintained at said place but that at the time of the said collision aforesaid, there was no watchman at the said crossing and that there was no one there to operate a warning bell of the approach of any train or cars, and that defendant provided no one there to operate, to lower or raise the said gates while trains or cars were approaching the said highway or crossing, all in violation of rule 2 of General Order 106 of the Illinois Commerce Commission then and there in full force and effect, providing as follows:

"`Hereafter where crossing gates are installed at a grade crossing where any street or highway is crossed by the tracks of any railroad, such gates shall be maintained and operated for the full period of each twenty-four hours; provided in cases where it is absolutely certain that there will be no traffic on the railroad for a period of at least 6 hours in any twenty-four hour period, the gates in which cases may be left without an attendant, and operated only during such periods in the twenty-four hours, as trains are in operation.'

"Plaintiff states that traffic was operated over said crossing at all hours of the day, and that defendant knew or by the exercise of due care would have known thereof."

On the present trial the plaintiff wisely heeded the frequent admonitions of this court as to the dangers in submitting a case to the jury on a measure of damage instruction only, as was done at the first trial, and asked and the court gave this instruction:

"The Court instructs the jury that at the time of the occurrence in question, the law of the State of Illinois provided as follows:

"`Hereafter where crossing gates are installed at a grade crossing where any street or highway is crossed by the tracks of any railroad, such gates shall be maintained and operated for the full period of each twenty-four hours; provided in cases where it is absolutely certain that there will be no traffic on the railroad for a period of at least six hours in any twenty-four hour period, the gates in which cases may be left without an attendant and operated only during such periods in the twenty-four hours, as trains are in operation.'

"The Court further instructs you that any failure to observe this law would be negligence.

"The Court further instructs you that if you find and believe from the evidence that the plaintiff was being driven across said railroad tracks at the place mentioned in evidence, and that crossing gates were installed there, and that traffic moved on said railroad at all hours of the day, and during the time plaintiff was crossing the said track; it then became defendant's duty to maintain and operate the gates there for the full period of twenty-four hours each day, and if you further find and believe from the evidence that the said gates were not maintained and operated for the full period of each twenty-four hours, and if you further find and believe from the evidence that plaintiff was at the said time exercising ordinary care for her own safety, and that plaintiff's automobile was struck by the cars mentioned in evidence, and plaintiff was injured (if you so find) as a...