Evans v. Illinois Central Railroad Company
| Decision Date | 22 July 1921 |
| Citation | 233 S.W. 397,289 Mo. 493 |
| Parties | ELIZABETH EVANS v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.
Reversed.
Watts Gentry & Lee for appellant; John G. Drennan of counsel.
(1) Defendant's demurrer to the evidence should have been sustained. A plaintiff must prove the cause of action on which he sues. He may not allege one cause of action, wholly fail to prove it, recover upon an entirely different one, and uphold his judgment. Henry Co. v. Citizens Bank, 208 Mo. 209; Canaday v. U. Rys. Co., 134 Mo.App. 282; Marr v. Zeidler, 145 Mo.App. 199. (a) Plaintiff did not base her claim on negligence. She alleged "willful wanton, reckless and conscious disregard of the life and bodily safety of deceased." She offered no evidence tending to prove such allegations, and proved nothing but a high rate of speed and failure to ring the bell. (b) Both of such acts constitute mere negligence. Lambs v. Mo. Pac. Ry. Co., 147 Mo. 171, 181; Weller v. Railroad, 120 Mo. 635, 653; Laun v. Railroad, 216 Mo. 563, 579; McGee v. Railroad, 214 Mo. 530; Holland v. Railroad, 210 Mo. 338; Eugenia Stotler v. Ry. Co., 200 Mo. 107; Geo. Stotler v. Railroad, 204 Mo. 619; Schmidt v. Railroad, 191 Mo. 215; Prewett v. Eddy, 115 Mo. 283; Payne v. Railroad, 136 Mo. 562; Tanner v. Mo. Pac. Ry. Co., 161 Mo. 497. (c) If an act is negligent it cannot be willful or wanton. Raming v. Met. St. Ry. Co., 157 Mo. 508; Christy v. Butcher, 153 Mo.App. 397; O'Brien v. Transit Co., 212 Mo. 59. (2) Instructions numbered 1 and 2, respectively, were erroneous in that they permitted the jury to find that the rate of speed and the failure to give warning constituted "willful, wanton, reckless and conscious disregard of the life and bodily safety of the deceased," when there was no evidence on which to base such finding.
Glendy B. Arnold for respondent.
(1) The judgment of the lower court ought to be affirmed. Lake Shore Ry. Co. v. Bodemer, 139 Ill. 596; East St. Louis Ry. Co. v. O'Hara, 150 Ill. 580, 585. (2) When the basic facts are admitted to be true, and different intelligent minds may, according to the common experience of mankind, draw different conclusions from them, the case is one for the jury. Baird v. Ry. Co., 146 Mo. 265. The facts are few and simple. (3) Every engineer operating trains over this crossing knows that there are many circumstances under which the driver of a team or an auto truck or a passenger automobile, might drive onto this crossing, in front of a moving train, unconscious of its approach, if no warning is given, without being guilty of contributory negligence. Of course he knows that careless drivers and sometimes even the most careful drivers have momentary mental lapses, are likely to drive onto the tracks oblivious of the approach of a rapidly moving train. When this happens it means almost certain death if the engineer has lost control of his train or fails to give warning signals of its approach. These facts merely accentuate the inherent danger of this crossing. It is used by large numbers of people and some use it cautiously and others carelessly, but whether the one or the other the engineer must look out for all of them. Illinois Central Ry. Co. v. Hutchinson, 47 Ill. 408. The rights of the railroad and the traveling public over this crossing were mutual and reciprocal. Stillson v. Railroad, 67 Mo. 671. Neither had a superior right to the other and neither could require the other to make way for him, and each was required to so use the crossing as to avoid collision. Baker v. Railroad, 140 Mo. 140; Frick v. Railway, 75 Mo. 595. The humanitarian principle imposed a greater amount of caution upon the engineer than upon the ordinary traveler, because a railroad train is the most dangerous vehicle that uses our public highways. Frick v. Railway, 75 Mo. 595. (4) It is now and long has been the settled law in this State that when the motorman of a street car and the engineer of a train, running a car or train over the public streets of a densely populated city, by reason of darkness or other cause, are unable to discover the presence of vehicles or pedestrians on the tracks at places where it is their duty to anticipate their presence, ordinary care requires them to approach such places with the car or train well under control and to give timely and frequent warnings of its approach. Zander v. Transit Co., 206 Mo. 445; Grout v. Electric Ry. Co., 125 Mo.App. 552. This rule has also applied to drivers of automobiles along public streets. Solomon v. Duncan, 194 Mo.App. 517. They are chargeable by law with knowledge of the presence of persons on or approaching the tracks, at such places, whether or not they actually see or know of their presence there. Frick v. Railway, 75 Mo. 595. In law, constructive knowledge is equivalent to actual knowledge. (5) When approaching a public crossing, in a densely populated section of the city, the necessity for vigilance and caution naturally increases commensurately with the increase in the danger to others lawfully using the crossing. Holmes v. Railway, 207 Mo. 149, 163. Under these rules it was the duty of this engineer to approach this crossing with his train under such control as would enable him to avoid a collision at the crossing by stopping his train, if necessary, or by slackening its speed, or by giving a timely signal of the train's approach. Holden v. Railroad, 177 Mo. 475. (6) The omission of all care for the safety of others at times and places when and where the probability of injury or the loss of human life is remote, is mere negligence, but when the loss of life is the natural or probable result of the omission of due care, it is wantonness and willfulness. I. C. Ry. Co. v. Leiner, 202 Ill. 624. (7) A conscious disregard of human life cannot be inferred from high speed and failure to warn, yet those facts were held by this court amply sufficient to sustain a conviction of manslaughter. State v. Watson, 216 Mo. 420, 435. (8) It may be argued that there is a difference between culpable negligence in the criminal law and wantonness in the law of torts. There is, but the distinction in name only. The facts that establish the one prove the other. Culpable negligence is more than negligence in the law of torts. State v. Horner, 266 Mo. 109; State v. Emery, 78 Mo. 77; Elgin Ry. Co. v. Duffy, 191 Ill. 489, 492.
OPINION
In Banc.
Appeal from the Circuit Court of the City of St. Louis. The verdict and judgment there were for respondent in the sum of $ 10,000.
On April 19, 1916, respondent's husband, Harry Evans, was fatally injured and almost immediately died as the result of a collision between a Ford automobile moving westward and driven by him and a train of appellant, consisting of a locomotive and passengers cars moving northward at the crossing of the terminal railroad tracks over Brooklyn Street in the City of St. Louis. Said Brooklyn Street at this point is a much used public street. The accident occurred in the forenoon. Foster Robbins was riding in the automobile with said Evans as it approached the railroad tracks. The uncontradicted evidence shows that the train was moving at a rate of forty or forty-five miles per hour and that no bell was rung or whistle blown to give warning of its approach. A train could be seen for a distance of several hundred feet south of Brooklyn Street from a point fifteen feet east of the railroad tracks. As soon as Robbins saw the train, which was at that instant almost upon the crossing, he jumped out of the automobile and escaped injury. The automobile was carried on the pilot of the engine about five hundred feet north of the crossing, at which point the train was brought to a standstill. Evans was thrown off a little over three hundred feet north of the crossing.
St Louis Terminal Railway Company and St. Louis Merchants Bridge Terminal Railway Company were joined as parties defendant. Said defendants filed demurrers to the evidence at the close of plaintiff's case, which were given by the court. Defendant Illinois Central Railroad Company also offered a demurrer to the evidence at the close of plaintiff's case. This was refused and said defendant stood on its demurrer.
The amended petition on which the case was tried was in the form usually drawn in such cases, except that it did not charge that the acts of defendant were negligent. Said petition contained the following allegation:
"Plaintiff further states that the death of her husband, Harry Evans, as aforesaid, was caused by defendants' wilful, wanton, reckless and conscious disregard of the life and bodily safety of the deceased in this, to-wit, that with knowledge that the crossing of said tracks with said Brooklyn Street was much used for travel and was dangerous to travelers using the same, the defendants ran said train to and over said Brooklyn Street and onto and against the deceased at a speed of from forty to forty-five miles per hour, without giving the deceased any warning of the approach of said train."
Appellant filed an answer containing a general denial and an allegation as follows:
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