DeRousse v. West
| Decision Date | 26 January 1918 |
| Citation | 200 S.W. 783,198 Mo.App. 293 |
| Parties | WILLIAM DeROUSSE, Respondent, v. THOMAS H. WEST, W. C. NIXON, and W. B. BIDDLE, as Receivers of the ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Perry County.--Hon. Peter H. Huck Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans and W. J. Orr, for appellants; T. B. Whitledge of counsel.
(1) The two sections of the ordinance read in evidence on the part of plaintiff are unreasonable and oppressive and constitute a burden upon interstate commerce, and deprive defendants of the equal protection of the law, and especially the section requiring a watchman to be stationed on the advancing end of a locomotive of all moving trains. 2 Dillon on Municipal Corporations (5 Ed.), sections 589-592, and the many cases cited from this and other States; St. Louis v. Theatre Company, 202 Mo. 690, 118 U.S. 356. The court judicially knows that defendants' line from St. Louis to Memphis via St. Marys is an interstate line. State v. Railroad, 212 Mo. 658, 111 S.W. 500; McIntosh v. Railroad, 168 S.W. 821; 15 Ruling Case Law sec. 48. (2) The error committed in admitting these sections of the ordinance in evidence was emphasized by the court refusing to withdraw them from the consideration of the jury after plaintiff elected to submit the case on the humanitarian doctrine alone. Haley v Railroad, 197 Mo. 25; Grout v. Railroad, 125 Mo.App. 552; Laun v. Railroad, 216 Mo. 563. (3) The court erred in refusing to direct a verdict for the defendants at the close of all of the evidence on part of plaintiff, and again at the close of all of the evidence because, it clearly appears as a matter of law that plaintiff's own negligence was the proximate cause of the accident. Matz v. Railroad, 217 Mo. 275; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 228; Laun v. Railroad, 216 Mo. 563; Holland v. Railroad, 210 Mo. 338; Statler v. Railroad, 204 Mo. 619; McGhee v. Railroad, 214 Mo. 530; Burge v. Railroad, 244 Mo. 76; Sanguinette v. Railroad, 196 Mo. 466; Huggart v. Railroad, 134 Mo. 673. (4) Instruction No. 1 given on behalf of plaintiff is clearly erroneous and prejudicial for many reasons, which we will endeavor to point out in our argument. First, it invades the province of the jury; second, it tells the jury defendants were negligent; and, third, that the evidence shows the accident was so caused. (5) Instruction No. 2 on the part of the plaintiff is erroneous and prejudicial in that it directs a verdict for the plaintiff on the facts hypothecated therein and submits the speed of the train as an element of the humanitarian doctrine. Laun v. Railroad, 216 Mo. 563; Haley v. Railroad, 197 Mo. 15; Grout v. Railroad, 125 Mo.App. 552; Schmidt v. Railroad, 191 Mo. 228; Green v. Railroad, 192 Mo. 131. (6) The plaintiff having testified as a witness in his own behalf, and failing to testify that he assumed that the train would be operated as required by the ordinance, or that he relied upon its observance, the ordinance should not have been submitted to the jury for any purpose. Mackowik v. Railroad, 196 Mo. 570, 94 S.W. 262, and cases cited. (7) Plaintiff admitted that he could not see the train until his mules were on the main line, because of obstructions, and having admitted that he did not stop before going on the track, to enable him to hear, he was guilty of contributory negligence as a matter of law. Underwood v. Railroad, 182 Mo.App. 252, 168 S.W. 803; Masterson v. Railroad, 58 Mo.App. 572; Campbell v. Railroad, 175 Mo. 161, 75 S.W. 86; Hook v. Railroad, 162 Mo. 569, 63 S.W. 360; Kelly v. Railroad, 88 Mo. 534; Dey v. St. Ry. Co., 120 S.W. 134. (8) And plaintiff, having elected to submit his case to the jury on the humanitarian doctrine, admits his own contributory negligence. Matz v. Railroad, 217 Mo. 275, 117 S.W. 591; Boyd v. Railroad, 105 Mo. 371, 16 S.W. 909; Watson v. St. Ry. Co., 133 Mo. 246, 34 S.W. 574; Weller v. Railroad, 120 Mo. 653, 23 S.W. 1061; Nivert v. Railroad, 222 Mo. 626, 135 S.W. 33; Krehmeyer v. Railroad, 220 Mo. 639, 120 S.W. 78; Keele v. Railroad, 258 Mo. 62, 167 S.W. 433; Walker v. Railroad, 193 Mo. 483, 92 S.W. 83; Bennett v. Railroad, 242 Mo. 125, 145 S.W. 433; Burge v. Railroad, 244 Mo. 76, 148 S.W. 925. (9) The violation of the speed ordinance is not an element to be submitted under the humanitarian doctrine, and instruction No. 2 given for plaintiff is erroneous and prejudicial. Haley v. Railroad, 197 Mo. 15, 93 S.W. 1123; Laun v. Railroad, 216 Mo. 563, 116 S.W. 553; Grout v. Railroad, 125 Mo.App. 552, 102 S.W. 1026; Green v. Railroad, 192 Mo. 131, 90 S.W. 805; Schmidt v. Railroad, 191 Mo. 228, 90 S.W. 136.
P. B. Hood for respondent.
(1) Presumptively, the ordinance is valid and reasonable, and such presumption continues until overthrown by the evidence which clearly shows the contrary; and the burden of proof on the party assailing the ordinance. St. Louis v. Theater Co., 202 Mo. 690; Hisslop v. Joplin, 250 Mo 588; St. Louis v. Liessing, 190 Mo. 464; 2 Dillon on Municipal Corporations (5 Ed.), sec. 649. An ordinance prohibiting trains from running at a greater rate of speed than six miles per hour, in cities of the fourth class, and in busy parts thereof, has been upheld so many times by the court of Missouri, that it is scarcely necessary to cite cases. Robertson v. Wabash, St. Louis & P. Railroad Co., 84 Mo. 119. The ordinance is not invalid as against interstate commerce. Smith v. Alabama, 124 U.S. 465, 473; 5 Opinions of Attorney General, 554. However, the question of its validity as against interstate commerce, cannot be raised in this case, there being no evidence that it was an interstate train or was carrying interstate matters; and the provision of the ordinance requiring a watchman on the advancing end of the train, was not material in this case (which point will be noticed in the argument) and even if that portion should be void, it does not affect the remainder of the ordinance. (2) If appellant's Point No. 2 stated the correct principle of law, which we do not concede, it would still be inapplicable in this case for the reason that this case was not submitted to the jury on the humanitarian doctrine alone. This will be more fully discussed under Point No. 3 and the argument. (3) Appellant under Point No. 3, cites ten cases to prove respondent was guilty of contributory negligence as a matter of law. There is a great difference shown by the courts of Missouri, as to what constitutes contributory negligence in the following three cases: (a) In a pedestrian approaching a crossing; (b) a person in a vehicle, with unobstructed view, approaching a crossing; and (c) a person in a vehicle, with obstructed view, approaching a crossing. This case is one under the last class, that is, a vehicle approaching a crossing, with an obstructed view. Not a single case cited by appellant, under his Point No. 3, is that of a vehicle approaching a crossing with an obstructed view. Six out of ten of his cases cited, are pedestrians approaching a crossing, and the other four are vehicles with unobstructed views. The difference in the rules applicable to the three classes of cases is well stated in Jackson v. Railroad, 171 Mo.App. 451, 452; Farris v. Railroad, 151 S.W. 979, 33 Cyc. 1012. The following cases are all applicable to this case in which a vehicle, with obstructed view, approaching a crossing, as our case. Weigman v. Railroad Co., 223 Mo. 699; Donahue v. Railroad Co., 91 Mo. 357; Petty v. Railroad Co., 88 Mo. 306; Johnson v. Railroad Co., 77 Mo. 546; Campbell v. Railroad Co., 175 Mo. 172, 173; Underwood v. Railroad Co., 190 Mo.App. 407; Jackson v. Railroad Co., 171 Mo.App. 451, 453. (4) This case was not submitted to the jury on the humanitarian doctrine alone. Taylor v. Metropolitan St. Ry., 256 Mo. 210, 211; Clark v. Railroad, 242 Mo. 570 and cases cited under No. 3 (see argument). (5) There is no merit to appellant's Point No. 7. Out of the six cases cited by appellant to uphold his Point No. 7, four are not applicable to the case, because they are vehicles with an unobstructed view. And in the two cases of vehicles with obstructed view, to-wit: Kelly v. Railroad Co., the train was making much noise and could have easily been heard by listening. And in Underwood v. Railroad, the doctrine laid out in No. 7 is absolutely contradicted and it is there held not to be contributory negligence as a matter of law, but that it was a question for the jury under the circumstances, quoting: "As to whether plaintiff was negligent in not stopping to look and listen, is a question for the jury." Underwood v. Railroad, 162 Mo.App. 252. Holding to the same doctrine in cases of vehicles with obstructed view, are the following: Weigman v. Railroad Co., 223 Mo. 699 (cases reviewed); Russell v. Railroad Co., 70 Mo.App. 88; Frank v. Transit Co., 99 Mo.App. 324; Weller v. Railroad Co., 120 Mo. 635; Deshner v. Railroad Co., 200 Mo. 327; Johnson v. Railroad Co., 77 Mo. 546; Kennayde v. Railroad Co., 45 Mo. 255. (6) Plaintiff has a right to plead common-law negligence, statutory negligence and negligence under the humanitarian doctrine, all in one count and if the evidence is such that the court is not justified in declaring the plaintiff guilty of contributory negligence as a matter of law, the plaintiff, in appropriate instructions, may submit the humanitarian doctrine in one instruction, and any other theory of the case plead and proved in another instruction, just so these instructions and theories are not inconsistent. Taylor v. Metropolitan St. Ry., 256 Mo. 210, 211; Clark v. Railroad, 242 Mo. 578. The last case above cited criticises Krehmeyer v. Railroad and Nivert v. Railroad (the only two case...
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