Graney v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 08 June 1897
• Citation: 41 S.W. 246,140 Mo. 89
• Parties: Graney et ux. v. St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

41 S.W. 246

140 Mo. 89

Graney et ux. v. St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

June 8, 1897

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Reversed and remanded.

Martin L. Clardy and Henry G. Herbel for appellant.

(1) The court erred in admitting as evidence the opinions of James E Lavin, and Edwin C. Carlin, as to the effect of the draft caused by a rapidly moving train. They were not experts, nor is it shown that they possessed any special knowledge of the laws of physics. Their experience was only such as comes to every individual. Lawson on Expert Evidence, 195, 196; Naughton v. Stagg, 4 Mo.App. 275; 1 Greenleaf on Evidence, 578; Rogers on Expert Evidence, pp. 23, 33, 64; Ferguson v. Hubbel, 97 N.Y. 507; Riley v. Sparks Bros., 52 Mo.App. 572; Lockridge v. Fesler et al., 37 S.E. 65; Dickenson v. Fitchbury, 13 Gray, 546; Benjamin v. Railroad, 50 Mo.App. 602; Railroad v. Kellogg, 94 U.S. 472; Brown v. Road Co., 89 Mo. 155; Eubank v. City, 88 Mo. 655; Hurt v. Railroad, 94 Mo. 260; Gutridge v Railroad, 94 Mo. 472; Senn v. Railroad, 108 Mo. 142; State v. Watson, 65 Me. 70. (2) The speed of the train was violative of the ordinance in force at the time of the accident, but was not in violation of the one in effect at the time of the trial. Coe v. Ritter, 86 Mo. 282; City of St. Louis v. O'Eters, 36 Mo. 456; Edmonson v. Ferguson, 11 Mo. 346; Billion v. Walsh, 46 Mo. 492; State ex rel. v. Hager, 91 Mo. 456; Cooley's Const. Lim., pp. 471 and 343; Watson v. Mercer, 8 Peter, 88; Yeaton v. United States, 5 Cranch, 281; Drehman v. Stifel, 41 Mo. 184; South Carolina v. Gaillard, 101 U.S. 433; City of Kansas v. Clark, 68 Mo. 588; Mayor v. Swink, 35 S.W. 554. (3) Where a statute is penal it should be strictly construed, and so as not to enlarge the liability it imposes nor allow a recovery unless the party seeking it brings his case within the terms or conditions authorizing it. Hoag v. Railroad, 85 Pa. St. 293; Breen v. St. L. Coop. Co., 50 Mo.App. 212; Bell v. Railroad, 72 Mo. 58; Railway Accident Law (Patterson), sec. 160; Railroad v. Feathers, 15 Am. and Eng. R. R. Cases, 446; Johnson v. Railroad, 13 Am. and Eng. R. R. Cases, 623; Hodges v. Railroad, 71 Mo. 50; Bauer v. Railroad, 69 Mo. 219. (4) The court is not bound to adopt plaintiff's theory of the cause of the accident, but will take judicial notice of the scientific facts involved to determine whether the theory advanced can be sustained. Terhune v. Phillips, 99 U.S. 592; King v. Gallan, 109 U.S. 99; Underhill on Evidence, 366 and 371; Gas Light Co. v. Ins. Co., 33 Mo.App. 348; 1 Greenleaf on Evidence [15 Ed.], sec. 5. (5) The contributory negligence of deceased precludes a recovery in this case. He has no right to put himself in a place of danger in order to experiment with the effects of a passing train. Yarnall v. Railroad, 75 Mo. 583; Guenther v. Railroad, 108 Mo. 18; Prewitt v. Eddy et al., 115 Mo. 283; Dlauhi v. Railroad, 105 Mo. 645; Ridenhour v. Railroad, 102 Mo. 270; Payne v. Railroad, 129 Mo. 421; Spillane v. Railroad, 37 S.W. 198.

W. B. Thompson for respondents.

(1) This violation of the statute and of the ordinances of the city of St. Louis constitutes negligence per se. Dahlstrom v. Railroad, 108 Mo. 525; Keim v. Railroad, 90 Mo. 314; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 330; Kellny v. Railroad, 101 Mo. 67; Murray v. Railroad, 101 Mo. 236. (2) The deceased, James Graney, had the right to assume that the train of defendant moving along and upon a public traveled street would be operated in obedience to the commands of the ordinance, and that he could stand at a sufficient distance to protect himself from any danger or accident if the train was moving over the street in obedience to the said ordinance. Railroad v. Then, 42 N.E. 971; Railroad v. Harrington, 49 Am. and Eng. R. R. Cases, 355; Gratiot v. Railroad, 116 Mo. 450; Sullivan v. Railroad, 117 Mo. 214. (3) The ordinance pleaded by defendant is prospective in its nature and by its terms, and there is not to be gathered from the ordinance any intent that it should be construed retrospectively. Leete v. The State Bank of St. Louis, 115 Mo. 184; State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Ferguson, 62 Mo. 77; Sedgwick Stat. Const. Law, 166, 188, 202; State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Railroad, 79 Mo. 420; State v. Grant, 79 Mo. 113; Cooley's Const. Lim., 362. (4) A construction of the ordinance relied upon by appellant that it is retrospective or retroactive, would destroy the vested right which the respondents had in the cause of action then existing and for which a suit had been brought, and was then pending, and in that respect the ordinance would be in conflict with the bill of rights. Const. 1875, sec. 15, art. 2; Leete v. State Bank of St. Louis, 115 Mo. 185; Ex parte Bethurum, 66 Mo. 545. (5) The vested right which plaintiffs had in this cause of action is for compensatory damages, and which damages are liquidated by the statute. Nor does it differ from any other right to recover damages where damages are fixed by law, and the amount to be recovered is likewise fixed by law. Coover v. Moore et al., 31 Mo. 574; Phillpot v. Railroad, 85 Mo. 164. (6) The undisputed facts in the case show that there is a direct connection between the negligent act and the result, and that such result was naturally to be foreseen. The high speed of defendant's train naturally caused a suction, and the logical consequence of such speed is to produce a result such as was fatal in this case, and this result is not only sustained by the facts in the case, but by the rules of science. Pullman Palace Car Co. v. Lane, 143 Ill. 260; Cooley on Torts, 70-75; McDonald v. Railroad, 22 S.W. 944; Hays v. Railroad, 70 Tex. 602; Strauss v. Railroad, 75 Mo. 185.

Macfarlane, J. Barclay, C. J., and Gantt and Brace, JJ., concur. Sherwood, Burgess and Robinson, JJ., dissent.

OPINION

In Banc.

Macfarlane J.

-- This is an action by plaintiffs, who are husband and wife, to recover the statutory damages of $ 5,000 for the death of their minor son James Graney, caused, as alleged, by the negligence of the employees of defendant in running one of its freight trains in the city of St. Louis.

The petition charges, in substance, that on the eighteenth day of January, 1891, there were in force three valid ordinances in the city of St. Louis, one prohibiting any car or cars, or locomotive propelled by steam power to be run at a rate of speed exceeding six miles per hour; another requiring such locomotive to ring a bell constantly, while running within the city limits; and the third imposing a penalty for violation of either of the other two.

The petition then charges the circumstances under which the son of plaintiffs was killed substantially as follows:

"The said James, the infant son of plaintiffs, was, on the 18th day of January, 1891, standing upon the crossing of Dorcas street in the city of St. Louis alongside the track of defendant's railway, and at a sufficient and proper distance away from said track, and away from the locomotive and cars operated by defendant, when the servants of defendant, without warning, recklessly, negligently and at a speed prohibited by an ordinance of said city, ran a train of freight cars over said track, by reason of which their son fell and was sucked under the wheels of the cars and was thereby killed." The only negligence charged is the violation of these ordinances.

Defendant answered by a general denial, and a plea of contributory negligence. It also averred that said ordinances, regulating the speed of trains, had been repealed since the death of James Graney, by an ordinance limiting the rate of speed to twenty miles per hour.

On the trial the ordinances pleaded were read in evidence. It was admitted that James Graney was killed on the eighteenth of January, 1891, by being run over by a train of freight cars operated by defendant and that he was the minor son of plaintiffs. It was shown that on the date mentioned defendant controlled and operated a railroad, a portion of which was located in the city of St. Louis. It has two tracks, running north and south, which cross Dorcas street at right angles. This street runs east and west through the city. On Sunday afternoon, January 18, 1891, James Graney, then eleven years and nine months old, and four other boys, who were from one to two years older, came down Dorcas street from the west intending to cross the railroad of defendant. When close to the track a train of twenty-three freight cars drawn by an engine came onto the crossing from the south in front of them. The engine bell was not ringing, and the train was running twenty or twenty-five miles per hour. The boys stopped at various distances from the track to await the passage of the train. James Graney stood between the two tracks two or three feet from the west rail of the east track upon which the train was passing. When about half or two thirds of the train had passed, he was seen to whirl around and fall upon the ground and roll over. In rolling, his legs got upon the rail and the cars passed over them. From this injury he died on the next day.

These are substantially the facts proved on the trial. There was no material conflict except as to the speed of the train and giving the signals. No witness gives the speed of the train at less than six miles per hour. The other boys who were with deceased testified to a speed of over twenty miles per hour. At the close of all the evidence defendant's counsel asked the court to give an instruction in the nature of a demurrer to the evidence, which was refused.

The court gave each party...