Grier v. Kansas City, C. C. & St. J. Ry. Co.

• Decision Date: 18 February 1921
• Docket Number: No. 21100.,21100.
• Citation: 228 S.W. 454,286 Mo. 523
• Court: Missouri Supreme Court
• Parties: GRIER v. KANSAS CITY, C. C. & ST. J. RY. CO.

228 S.W. 454

286 Mo. 523

GRIER v. KANSAS CITY, C. C. & ST. J. RY. CO.

No. 21100.

Supreme Court of Missouri, in Banc.

February 18, 1921.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

Action by George S. Grier, administrator of the estate of Ralph W. Grier, deceased, against the Kansas City, Clay County & St. Joseph Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John E. Dolman and Sam Wilcox, both of St. Joseph, for appellant.

Culver, Phillip & Voorhees, of St. Joseph, for respondent.

RAGLAND, C.

This suit was instituted in the Buchanan county circuit court to recover the penalty provided by section 5425, R. S. 1909, for causing death. The plaintiff had judgment, and the defendant appeals. We adopt with some slight modifications respondent's statement of the case. As so modified it is as follows:

Ralph W. Grier, of St. Joseph, 38 years of age, a graduate of the Missouri University, a lawyer with a lucrative practice, was injured in a wreck on appellant's railroad, while a passenger thereon, early Thanksgiving morning in 1917, and died the following day in consequence of those injuries. He was unmarried and with no dependent relatives. His administrator filed this suit for $10,000 damages, and a jury awarded the full amount.

Appellant operates an electric interurban line from St. Joseph to Kansas City and Excelsior Springs. Ralph W. Grier was a passenger on the last train which left St. Joseph Thanksgiving eve for Kansas City. The train, which consisted of two cars, was running about 30 minutes late. It left' the track at a switch point in North Kansas City while traveling from 20 to 25 miles per hour and the front car, in which Grier was riding, toppled over on its side after running about 130 feet over a street pavement.

Grier's legs were thrust through a window and caught between the side of the car and the pavement as the car turned over. The wreck occurred about 1:30 o'clock a. m. at a point about four blocks from the appellant's general shops. When the car first fell on Grier, it crushed one leg just above the ankle, and pulled the foot 6 or 8 inches from that ankle, so that his foot was held on the leg by the extended tendons and mangled flesh. The other ankle was dislocated, but not badly crushed.

After working about 45 minutes to lift the car off of Grier, appellant's wrecking crew succeeded in raising the car 6 or 8 inches by means of jacks, when it fell back upon Grier, catching his leg 8 or 10 inches higher up, and mashing off practically all of the flesh on that leg almost to the knee. Finally, after Grier had lain under the car about two hours, a surgeon released him by cutting off the mangled foot, and the injured man was taken to a hospital in Kansas City. A second amputation was performed the following forenoon, but Grier died a few hours later as a result of shock.

The train on which Grier was a passenger traveled south to a point about three-fourths of a mile north of North Kansas City. Then it traveled around a very short, sharp curve and ran east for two blocks at a right angle with the course it had been following. Then, rounding another sharp curve, the train headed approximately due south and traveled a straight line of track about three-fourths of a mile to the place where the wreck occurred. This was at the intersection of Swift avenue and Armour boulevard, where are located a bank, a drug store, a restaurant—in fact, the entire business district of North Kansas City. Armour boulevard extends east and west. Swift avenue extends north and south. There was a set of double tracks extending east and west in Armour boulevard. Cars from St. Joseph traveled south along Swift avenue to Armour boulevard, and there made a very short, sharp turn into Armour boulevard and traveled thence west on the north track. The south track in Armour boulevard was used by east-bound cars traveling from Kansas City to St. Joseph and to Excelsior Springs. At the point where the line from St. Joseph began to curve around the corner to the west into Armour boulevard was a tongue switch. That was where the train left the track. The printed rules of appellant required its motormen to reduce speed to 2 miles per hour at this switch. The train on which Grier was riding did not reduce its speed at this switch point and curve, and was running 20 or 25 miles per hour at that time; and the Inevitable happened. When the motorman rounded the two sharp curves just before he entered North Kansas City, he knew he was within three-fourths of a mile of this tongue switch.

Although it was a foggy night, passengers on the train could see the buildings of North Kansas City, and one of them remarked a moment before the wreck occurred, "We are right here in North Kansas City now, close to the switch." A witness heard the racket the train was making before it left the track. Then she heard the crash of the wreck. She looked out of the window of her apartment, and, despite the fog, could see the trucks of the overturned car 100 feet away. After leaving the track, the front car ran about 130 feet, crossing over three of the east and west rails in Armour boulevard, breaking off a big telephone pole and toppling over on the south rail of the south track. These rails projected 3 or 4 inches above the pavement.

It was against the rules of appellant for any person except certain specified officials to ride in the vestibule with the motorman. A person was riding in the vestibule with the motorman when the wreck occurred. The train crew and the person who was riding with the motorman were in the courtroom at the trial, but appellant put none of them on the witness stand.

The part of the petition charging the negligence on which the action is grounded and the prayer are as follows:

"That while said Ralph W. Grier was so riding upon said car of defendant as a passenger, and when said car had arrived at or near the station of North Kansas City, in said Clay county, upon said' line of railroad, the defendant, its agents and servants in charge of and operating said car so recklessly, carelessly, and negligently ran and operated said car as to cause and permit said car to leave the rails and track upon which it was running and to turn over on its side and be wrecked; that as a result of said negligence and carelessness upon the part of defendant, its agents and servants, said Ralph W. Grier at said time and place received injuries on or about said 28th day of November, 1917, which said injuries so received resulted in his death on or about the 30th day of November, 1917.

"Plaintiff says that by reason of said reckless, careless, and negligent acts and conduct on the part of the defendant, its servants, agents, and employés, which caused and resulted in the death of said Ralph W. Grier, a cause of action for $10,000 has accrued to plaintiff and against the defendant

"Whereupon, wherefore, plaintiff prays judgment against defendant for $10,000, together with his costs."

The answer, so far as material here, is a general denial.

For the plaintiff the court instructed the jury that—

"In determining the amount you will award the plaintiff you may take into consideration the facts constituting the negligence, if any, on the part of the defendant causing the death of the said Ralph W. Grier, including the aggravating circumstances, if any, attending such negligence as is shown by the evidence."

At the instance of both plaintiff and defendant, the court further instructed the jury that in determining such amount they could not take into consideration whether or not deceased's beneficiaries would suffer any pecuniary loss by reason of his death. The defendant asked and the court refused an instruction that plaintiff was not entitled to recover a sum in excess of $2,000. The appellant complained in its motion for a new trial, and in its formal assignment of error here, of the refusal of the trial court to give other instructions requested by it. But, as appellant's counsel do not mention those instructions or the court's action in regard to them in either their brief or argument, their complaint in this respect will be treated as abandoned.

It is appellant's contention that the statute provides for both a penalty and compensatory damages, that the sum of $2,000 is the penalty, and the remainder up to the $10,000 limit is compensatory, and that the penalty is inflexibly fixed at $2,000—it can be neither more nor less. If that contention be sound, the court was in error in instructing the jury that they could assess against defendant as a penalty a sum not less than $2,000 nor more than $10,000, in their discretion, and that in so doing they could take into consideration "the facts constituting the negligence, if any, * * * including the aggravating circumstances, if any." On the contrary, as it was conceded that there was no pecuniary loss for which compensatory damages could have been assessed, the jury should have been directed to bring in a verdict for the specific sum of $2,000 in the event they found for plaintiff. The trial court, however, evidently held that the statute did not limit the penalty to $2,000, but that it authorized the jury, in its discretion, where the facts warranted it, to assess as a penalty any sum not less than $2,000 nor more than $10,000.

This is not the first time that this statute has been before this court for interpretation but it is the first instance in which its construction has been in question here from the precise angle of this case. On that account and because some confusion has arisen as to what has really been decided in former expositions, it will not be amiss to reexamine the statute for the purpose of determining the legislative intent as therein expressed.

1. It. Is sometimes advantageous to recur to elementary principles. We deem it so now. The primary rule for the interpretation of statutes is that...