Cox v. Terminal Railroad Assn.

• Decision Date: 20 December 1932
• Docket Number: No. 31731.,31731.
• Citation: 55 S.W.2d 685
• Parties: MARGUERITE COX v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.
• Court: Missouri Supreme Court

55 S.W.2d 685

MARGUERITE COX v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.

No. 31731.

Supreme Court of Missouri.

Division One, December 20, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

REVERSED AND REMANDED.

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

(1) As the collision and injuries occurred in Illinois, the responsibility of defendant is to be measured according to the law of Illinois. Woodward v. Bush, 282 Mo. 163, 220 S.W. 839; Sing v. Railroad, 30 S.W. (2d) 37. (2) Plaintiff's petition contains an assignment of negligence based on the Missouri humanitarian doctrine, which doctrine authorizes a recovery by plaintiff if defendant was guilty of simple negligence in failing to stop after it saw, or ought to have seen, the plaintiff in imminent peril and oblivious or unable to extricate herself. The basic principle is that there must be imminent danger or impending peril which can be averted by defendant by the exercise of ordinary care. State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014. (3) However, the Missouri humanitarian doctrine is not applicable or involved, and the cause must be determined according to the Illinois decisions. Sing v. Railroad, 30 S.W. (2d) 37. (4) According to the Illinois decisions, plaintiff, if she was negligent, was barred from recovering under any circumstances, unless, thereafter, defendant was guilty of a willful, wanton or intentional neglect of duty. Carson, Pirie S. & Co. v. Railroad, 309 Ill. 352, 141 N.E. 172; Chicago, etc., Coal Co. v. Moran, 210 Ill. 17, 71 N.E. 38. (5) The humanitarian doctrine, based on simple negligence, and the Illinois rule, based on a willful, wanton or intentional neglect of duty, are not in the same class and do not involve the same or similar facts or the theory of recovery. Robbins v. Illinois P. & L. Corp., 255 Ill. App. 106. (6) The trial court erred in refusing to give to the jury defendant's withdrawal Instruction 1, as the Missouri humanitarian doctrine was not involved. Under the Illinois doctrine the plaintiff must plead willfulness and wantonness. Plaintiff's petition is grounded on the humanitarian doctrine, which is not here involved, and, consequently, as she has not pleaded that defendant was guilty of a willful, wanton or intentional neglect of duty subsequent to her negligence, the court erred in refusing to give to the jury said withdrawal instruction. Brown v. Illinois Term. Co., 319 Ill. 329; Heidewreich v. Bremmer, 260 Ill. 439. (7) As noted, the humanitarian doctrine is based on ordinary or simple negligence, and that is not the equivalent of wantonness or willfulness, which comprehends culpable negligence, and may be defined as an intentional wrong, or conduct of such a reckless character as shows that the person guilty of such misconduct was at the time acting in such manner that he had utter disregard for the safety and lives of other persons. Illinois Cent. Railroad Co. v. Leiner, 202 Ill. 624; State v. Baublits, 27 S.W. (2d) 21; State v. Millin, 318 Mo. 553, 300 S.W. 697. (8) Plaintiff went to the jury on a measure-of-damages instruction only. Thus, each and every assignment of negligence in the petition, not specifically withdrawn from the jury by instruction, was the subject of a finding in favor of plaintiff by the jury. Willis v. Applebaum, 26 S.W. (2d) 825; Crossno v. Term. Railroad. 41 S.W. (2d) 796.

Everett J. Hullverson and Allen, Moser & Marsalck for respondent.

(1) Our statutes relative to pleading provide that the petition shall contain a plain and concise statement of the facts constituting the cause of action, and that no allegation shall be made in a pleading which the law does not require to be proved. Secs. 764, 783, R.S. 1929; Alexander v. Campbell, 74 Mo. 142; Stillwell v. Ham, 97 Mo. 579. (a) The acts charged against the appellant, by the fifth assignment of negligence in respondent's petition, were legally equivalent to willfulness and wantonness on the appellant's part. Bobos v. Krey Packing Co., 317 Mo. 117; Everett v. Railroad, 214 Mo. 94; Moore v. Transit Co., 194 Mo. 13; McNamara v. Met. St. Ry. Co., 133 Mo. App. 645; Cole v. Met. St. Ry. Co., 121 Mo. App. 611; Brown v. Illinois Term. Ry. Co., 319 Ill. 326, 150 N.E. 242; Heidenriech v. Bremner, 260 Ill. 439, 103 N.E. 275; Lake Shore & M.S. Railroad Co. v. Bodemer, 139 Ill. 596, 29 N.E. 692; Sneddon v. Ill. Cen. Railroad Co., 234 Ill. App. 234; LaForest v. C. & E.I. Ry. Co., 245 Ill. App. 325; McConkley v. Penn. Railroad Co., 251 Ill. App. 299. (2) Without doubt, under this evidence, the jury were entitled to find that appellant, by the exercise of ordinary care, could have averted the accident after the automobile entered a position of danger, by stopping or slowing down the train, or by giving warning of its approach. Ellis v. Met. St. Ry. Co., 234 Mo. 657; Lyons v. Met. St. Ry. Co., 253 Mo. 143; Anderson v. Davis, 314 Mo. 515; Gould v. Railroad Co., 315 Mo. 723; C. & N.W. Railroad Co. v. Smedley, 65 Ill. App. 647; Pendleton v. Chicago City Ry. Co., 120 Ill. App. 407; Bozinich v. Chicago Ry. Co., 187 Ill. App. 8; Lund v. Osborne, 200 Ill. App. 457; Wabash Railroad Co. v. Speer, 156 Ill. 251; Jeneary v. C. & I. Trace. Co., 306 Ill. 392. (3) Instructions given for defendant, making contributory negligence of plaintiff an absolute defense to the action, are in direct conflict with and exclude a recovery on the humanitarian doctrine. Spindler v. Wells, 276 S.W. 387; Schulz v. Smercina, 1 S.W. (2d) 120; Ellis v. Met. St. Ry. Co., 234 Mo. 681; Yakoboski v. Wells, 253 S.W. 72. (a) The refusal of a requested instruction is not error, if the theory incorporated therein is covered by other instructions given at the request of the same party. Raith v. Tober, 8 S.W. (2d) 611; Cytron v. Transit Co., 205 Mo. 718; Penney v. Stockyards Co., 212 Mo. 330; Benton v. St. Louis, 248 Mo. 112; Rutledge v. Swinney, 261 Mo. 146; Myers v. C.B. & Q. Railroad Co., 296 Mo. 271; Melican v. Whitlow Const. Co., 278 S.W. 367.

GANTT, J.

Action for damages for personal injuries. An automobile in which plaintiff was riding collided with moving cars of defendant at a public crossing in Illinois. The petition alleged personal injuries to plaintiff and charged that the collision and said injuries were caused by eleven specific acts of negligence on the part of defendant.

The answer denied generally the allegations of the petition, charged plaintiff with contributory negligence, and alleged that under pleaded decisions of the Supreme Court of Illinois, a person guilty of contributory negligence could not recover for injuries caused by the negligence of a defendant. It further alleged that an ordinance, a violation of which was relied upon by plaintiff, was void under pleaded decisions of said court.

The reply was a general denial. It then pleaded decisions of the courts of Illinois which involved collisions between automobiles or other vehicles and a train, cars or locomotive at, near or on a public railroad crossing.

Defendant requested instructions withdrawing from the jury each of the eleven assignments of negligence. The court gave three of the withdrawal instructions. Plaintiff only requested an instruction on the measure of damages, which was given. The other assignments of negligence were submitted as grounds for recovery without instructions advising the jury of plaintiff's theory of the case. Judgment was for plaintiff. Defendant appealed. The St. Louis Court of Appeals reversed the judgment and remanded the cause on the ground that the trial court erred in refusing defendant's instruction withdrawing from the jury the assignment of negligence under our humanitarian rule. It held that plaintiff could not recover under said assignment of negligence for an injury sustained in Illinois. On the dissent of a judge of said court the case was certified to this court. [Cox v. Railroad, 43 S.W. (2d) 571.] It is here for review on all assignment of error. However, the statement of the case by the Court of Appeals and its rulings on other assignments of error are not challenged in this court. Even so, we have examined the record and briefs and hold that the Court of Appeals correctly stated the facts and correctly ruled the other assignments of error. Therefore, we adopt, as the opinion of this court, the statement of facts made by said court and its rulings on said assignments of error. [1] It follows that the only assignment of error for consideration by this court is the assignment on the refusal to withdraw from the jury the specification of negligence under our humanitarian rule. Of course, the question must be determined under the law of Illinois. In doing so we have stated our duty as follows:

"Again, this is an action strictly on the laws of the State of Kansas for damages for death by a wrongful act, which statutes, under our own liberal laws, are enforceable in this State on the foot of comity. [R.S. 1899, sec. 547; Laws 1905, p. 95; Lee v. Railroad, 195 Mo. 400; McGinnis v. Foundry Co., 174 Mo. 225; Root v. Railroad, 195 Mo. 348.] In this connection we observe: Our statutes (Sec. 547, Laws of 1905, p. 95, supra), opening the doors of our courts to causes of action accruing under laws of our sister States, are legislative declarations of comity. Comity, in a legal sense, is complaisance, courtesy, the granting of a privilege, not of right but of good will. [Black's L. Dict. — tit. `Comity'.] Now, in reason, courtesy in that behalf has its useful limitations — it may not run riot, it goes circumspectly. It must be courtesy in fact as well as name. Some such limitations are: (1) No case under the lex loci, then no case under the lex fori; and the supplement, viz.: a case under the lex loci then one under the lex fori (possibly barring actions on status strictly penal); (2) in administering the substantive laws of a sister State we administer them, not our own; and ...