Fleming v. Louisiana & Missouri River Railroad Company

• Citation: 172 S.W. 355,263 Mo. 180
• Parties: JEROME B. FLEMING v. LOUISIANA & MISSOURI RIVER RAILROAD COMPANY and CHICAGO & ALTON RAILROAD COMPANY, Appellants
• Decision Date: 31 December 1914
• Court: Missouri Supreme Court

172 S.W. 355

263 Mo. 180

JEROME B. FLEMING v. LOUISIANA & MISSOURI RIVER RAILROAD COMPANY and CHICAGO & ALTON RAILROAD COMPANY, Appellants

Supreme Court of Missouri, First Division

December 31, 1914

Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.

Reversed and remanded.

Scarritt Scarritt, Jones & Miller for appellants.

(1) To hold that section 3078 is applicable to defendant would be contrary to section 15 of article 2 of the Constitution of Missouri and contrary to section 10 of article 2 of the Constitution of the United States, which forbid the passage of acts retroactive in operation or which impair the obligations of contracts. Section 43 of said defendant's amended charter of 1870 (Laws 1870, p. 93) gave to said railroad company the right to lease its road upon such terms as it saw fit, and without any restriction or condition that it as lessor company should be or remain liable for any acts of the lessee company in the operation of said railroad; that such charter constituted a contract between said railroad company and the State and that section 3078, enacted after said amended charter was enacted, altered and impaired such charter, cannot be gainsaid. Said section 3078 cannot, we submit, be sustained as a valid amendment to said defendant's charter for several reasons. (a) Since the adoption of the Constitution of 1865 which provides that "the act or part of act amended shall be set forth and published at length, as if it were an original act or provision," it has not been permissible to amend a legislative act by implication. State ex inf. v. Trust Co. 144 Mo. 595. (b) At the time of the granting of said defendant's amended charter and at the time of the enactment of said section 3078, there was in effect applicable to this railroad, which was originally chartered in 1859, no constitutional or legislative enactment which gave to the Legislature the right to amend its charter at will and without its consent and without notice to it. On the contrary, there was in force and effect at that time a legislative enactment, to-wit, R. S. 1865, chap. 62, sec. 21, p. 330, which expressly forbade that the charter of any corporation should be altered by the Legislature "unless proof be made satisfactory to the Legislature that notice of such proposed alteration, suspension or repeal has been given to the president and secretary of such corporation for at least one month before the time at which such alteration, suspension or repeal will be proposed." There can be no pretense that such statute was complied with in this instance. We therefore submit that plaintiff did not and could not make any case against said defendant Louisiana & Missouri River Railroad Company, and that the trial court erred in not certifying this case up to the Federal court and in asserting jurisdiction of the case after the filing of such petition and bond for removal. (2) Defendant's demurrers to the evidence should have been sustained. (a) The trial court erred in submitting this case to the jury upon the humanitarian or last chance doctrine as was done by plaintiff's instruction No. 1. This instruction was not justified either by the allegations of the petition or by the proof adduced. In the petition plaintiff does not charge directly or indirectly that those in charge of the train in question could have stopped the same after they saw or might have seen plaintiff in a position of peril. The only allegations of negligence in plaintiff's petition are that defendants did not give plaintiff any warning or alarm and that defendants did not have a brakeman or any agent or servant or employee on the rear of said train while backing. The further allegation of the petition is that said injuries to plaintiff were caused wholly on account of the negligence . . . in running its said train as aforesaid." Plaintiff must recover, if at all, upon the specific acts of negligence charged in the petition. McGrath v. Transit Co., 197 Mo. 105. (b) There was no evidence whatever as to the speed of the train or as to the distance in which it could have been stopped. There is no evidence as to what was done or not done toward stopping it. That plaintiff could not recover upon the humanitarian doctrine without proof of these essential things is too obvious to make it necessary to cite authorities. (3) Instructions cannot and will not be considered by the court unless they appear in appellant's abstract of the record herein, or respondent has included them in an additional abstract of record.

BLAIR, C. Brown, C., concurs.

OPINION

BLAIR, C. --

The Louisiana & Missouri River Railroad Company (a Missouri corporation) owns a railway line passing through Mexico, Missouri, which the Chicago & Alton Railroad Company (an Illinois corporation) operates as lessee. Respondent having been injured by a train of the latter company, recovered judgment for $ 1000 against both companies, and both appealed.

In the circuit court the Chicago & Alton Railroad Company in due time filed its petition and bond for removal of the cause to the Federal court. The circuit court approved the bond but refused to order the cause removed, and appellants answered.

In each answer it is averred that the cause had been removed and the court had no jurisdiction; this is followed by a general denial and a plea that respondent's injury, if any, was due to his "own fault and negligence directly contributing thereto in whole or in part," and each answer avers that the other answering defendant is improperly joined and that there is a misjoinder of parties defendant. In addition, the answer of the Louisiana & Missouri River Railroad Company avers that by its charter it was authorized to lease and did lease its road in such manner that it was relieved of any liability for damages resulting from the negligence of its lessee; that its charter gave it the power so to do, and that to construe section 1060, Revised Statutes 1899 (now 3078, R. S. 1909) to be applicable to it would impair its charter contract with the State and violate section 15 of article 2 of the Constitution of Missouri and section 10 of article 2 of the Constitution of the United States.

The petition alleges that the respondent was injured while walking along the track at a place where persons were accustomed to walk thereon and "which by common consent had been so used by pedestrians as a public thoroughfare for many years;" that while respondent was walking on and along the tracks in a westerly direction the Chicago & Alton Railroad Company's servants and agents caused a train in their charge to be backed upon and over respondent, seriously injuring him; that defendants failed to warn plaintiff "and did not have a brakeman or any agent or servant or employee on the rear of said train while backing, although it was their duty to do so; and that said injuries to plaintiff were caused wholly on account of the negligence, willfulness and carelessness of defendant, The Chicago & Alton Railroad Company, its agents, employees and servants, in running its said train as aforesaid. Plaintiff further states that the defendant, the Chicago & Alton Railroad Company, its agents, employees and servants, were negligent in the running of the said train and in failing to give plaintiff warning and alarm and in failing to have a 'lookout' on said train to warn pedestrians on said track, as it was their duty to do. By reason whereof they ran plaintiff down, struck and injured him as aforesaid, by their carelessness and negligence and in violation of the law."

There was evidence that respondent about 1:30 p. m. on a clear day on leaving a mill adjoining the right of way, looked east and saw no train; then started west beside the track and then got upon the track and walked along it, without looking back, until struck by an Alton train backing in from the east and which had come upon the track upon which respondent was walking by means of a switch several hundred feet east of the point at which respondent was struck. The distance respondent walked upon the track is not definitely fixed but may...