Hinzeman v. Missouri Pacific Railway Co.
| Decision Date | 19 October 1906 |
| Citation | 94 S.W. 973,199 Mo. 56 |
| Parties | CORDELIA E. HINZEMAN, now MILLS, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court. -- Hon. C. A. Denton, Judge.
Affirmed.
R. T Railey with Martin L. Clardy for appellant.
(1) The deceased, as shown by the undisputed facts, was not only guilty of negligence directly contributing to his own death but was guilty of inexcusable recklessness. He had been an old, experienced section man. He had a time card, which informed him that the Joplin passenger train was due to leave the Union Station at 8:10 a. m. and was due to arrive at Southwest Junction at 8:25. This train passed by every morning at the same hour. It was on time the morning of accident. Deceased had a watch and was required to keep correct time. It was his duty to keep himself informed as to the running of trains on schedule time, and to obstruct said trains as little as possible. The train in controversy was compelled to, and did, whistle for the semaphore about one quarter of a mile west of where deceased was killed. The bell was usually rung from Union Station to Southwest Junction. The undisputed facts disclose that on the morning of accident the bell was ringing continuously from the time the train passed over Milwaukee crossing, until deceased was killed. The track from Milwaukee crossing up to scene of accident was practically straight and comparatively level. It was a clear day and the two tracks where deceased had been walking were nine feet apart. If the testimony of Wilson be true, that deceased was standing with his face toward the track, and the train coming at right angles to him, with his body outside of the rails, then how could it be possible for him to have been injured under such conditions, if he had had even the slightest regard for his own safety? The court below should have directed a verdict in favor of defendant upon the admitted facts in regard to deceased's contributory negligence. Schmidt v. Railroad, 90 S.W. 136; Hinzeman v. Railroad, 182 Mo. 620; Ries v Railroad, 179 Mo. 7; Evans v. Railroad, 178 Mo. 508; Koons v. Railroad, 178 Mo. 591; Moore v. Railroad, 176 Mo. 528; Zumault v. Railroad, 175 Mo. 288; Van Bach v. Railroad, 171 Mo. 338; Roberts v. Tel. Co., 166 Mo. 370; Hook v. Railroad, 162 Mo. 569; Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Davies v. Railroad, 159 Mo. 9; Holwerson v. Railroad, 157 Mo. 223; Peterson v. Railroad, 156 Mo. 555; Coatney v. Railroad, 151 Mo. 48; Culbertson v. Railroad, 140 Mo. 64; Vogg v. Railroad, 138 Mo. 180; Sinclair v. Railroad, 133 Mo. 245; Watson v. Railroad, 133 Mo. 246; Lane v. Railroad, 132 Mo. 4; Loring v. Railroad, 128 Mo. 360; Maxey v. Railroad, 113 Mo. 1; Ring v. Railroad, 112 Mo. 229; Boyd v. Railroad, 105 Mo. 371; Barker v. Railroad, 98 Mo. 53; Powell v. Railroad, 76 Mo. 80; Purl v. Railroad, 72 Mo. 168. (2) The undisputed facts fail to show that defendant's servants were guilty of wanton, willful or reckless conduct, and by reason thereof the cause should be reversed, without remanding. Schmidt v. Railroad, 90 S.W. 136; Markowitz v. Railroad, 186 Mo. 359; Evans v. Railroad, 178 Mo. 508; Koons v. Railroad, 178 Mo. 591; Moore v. Railroad, 176 Mo. 528; Carrier v. Railroad, 175 Mo. 470; Guyer v. Railroad, 174 Mo. 344; Van Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Sharp v. Railroad, 161 Mo. 214; Davies v. Railroad, 159 Mo. 9; Holwerson v. Railroad, 157 Mo. 223; Coatney v. Railroad, 151 Mo. 48. It was his duty to know of its approach, and whatever a person can learn in the exercise of ordinary care, it is in law the same as though they had actual knowledge of the facts. Taaffe v. Kelly, 110 Mo. 137; Jackson v. Railroad, 104 Mo. 459; Mason v. Black, 87 Mo. 342; Johnson v. Ashland W. Co., 77 Wis. 54; Muldowney v. Railroad, 39 Iowa 620; Ring v. Railroad, 112 Mo. 220; Loring v. Railroad, 128 Mo. 359; Sharp v. Railroad, 161 Mo. 235. (3) Plaintiff's instruction 1 is radically wrong in several respects: (a) It authorized the jury to return a verdict for the plaintiff if the whistle was not sounded before deceased was killed, although the latter knew the train was coming before he was struck. The only purpose in sounding the whistle is to inform the person on or close to the track that the train is approaching. The instruction authorized a recovery if the whistle was not sounded, although deceased may have known of its approach, and that, too, regardless of his negligence and recklessness in failing to remove to a place of safety. This was clearly erroneous. Hutchinson v. Railroad, 161 Mo. 253; Murray v. Railroad, 176 Mo. 188. (b) The petition herein is not based upon any statute, but is purely a common law action. What right had the court to arbitrarily tell the jury -- as in this case -- that the whistle should have been sounded although the bell was being rung at the time; and although deceased knew the train was coming, in time to have moved into a place of safety? What statute required even the bell to be rung, much less a whistle sounded? It is our understanding of the law that an instruction based upon common law negligence could only go to the extent of informing the jury that it was defendant's duty in operating its train at time and place of accident to exercise ordinary care, or such care as an ordinarily careful and prudent railroad man would have exercised under the same circumstances. Vandewater v. Railroad, 135 N.Y. 583; Austin v. Railroad, 14 N.Y.S. 924; Railroad v. Greer, 69 S.W. 422; Railroad v. Pugh, 32 S.W. 312; Swift v. Railroad, 123 N.Y. 649; Byrne v. Railroad, 104 N.Y. 368; Railroad v. Talbot, 67 N.W. 601; Rowen v. Railroad, 21 A. 1074; Artz v. Railroad, 34 Ia. 153; Brown v. Railroad, 22 Minn. 171; Stoneman v. Railroad, 58 Mo. 505; Holman v. Railroad, 62 Mo. 563; Maxey v. Railroad, 113 Mo. 1; Barron v. L. & Zinc Co., 172 Mo. 234; Warner v. Railroad, 178 Mo. 133; Ayers v. Railroad, 88 S.W. 610; Theobald v. Railroad, 90 S.W. 366. Even under the statute, at public crossings the defendant is not required to both blow the whistle and ring the bell. Sec. 1102, R. S. 1899. The uncontradicted evidence discloses that the bell was rung from Milwaukee crossing continuously up to the time of accident.
O. L. Houts and Charles E. Morrow for respondent.
(1) The failure to exercise ordinary care is actionable negligence. The act need not be either willful, wanton or reckless. Hinzeman v. Railroad, 182 Mo. 611. This same proposition on the same record was decided against appellant in this case when it was here before, and no reason appears why the rule of law then announced should be discarded now. It is the law of this case. It is res adjudicata. Overall v. Ellis, 38 Mo. 209; Chapman v. Railroad, 146 Mo. 481; Baker v. Railroad, 147 Mo. 140; Bealey v. Smith, 158 Mo. 515; Carey v. West, 165 Mo. 452; Butler County v. Boatmen's Bank, 165 Mo. 456; Taussig v. Railroad, 186 Mo. 269. (2) The demurrer to the evidence was properly overruled. The plaintiff made a case. This court on the same record so held on a former appeal. Hinzeman v. Railroad, 182 Mo. 611. This is also res adjudicata. (3) Instruction 1 given for plaintiff properly declared the law. It was taken from the books and has been often approved. Reyburn v. Railroad, 187 Mo. 565; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 262; Baird v. Railroad, 146 Mo. 265; Reardon v. Railroad, 114 Mo. 384; Chamberlain v. Railroad, 133 Mo. 587; Guenther v. Railroad, 108 Mo. 18; Kellny v. Railroad, 101 Mo. 67. The law of this instruction was passed upon by the court when this case was here before, and is the law of this case. Hinzeman v. Railroad, 182 Mo. 611. The contributory negligence of the deceased is no defense to the humanitarian rule or last chance doctrine. The doctrine itself presupposes the negligence of the deceased. Klockenbrink v. Railroad, 172 Mo. 678; Kellny v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 262; Jett v. Railroad, 178 Mo. 673; Reyburn v. Railroad, 187 Mo. 565. This question was also decided by this court in this case, and is res adjudicata. Hinzeman v. Railroad, 182 Mo. 611. Of course, there can be no such thing as contributory negligence to the last negligence, which is the proximate cause of the injury. Defendant adopted this theory at the trial and cannot complain. (4) The court did not err in admitting the statement of the deceased, "What hit me?" Hinzeman v. Railroad, 182 Mo. 621; Leahy v. Railroad, 97 Mo. 165; State v. Hudspeth, 150 Mo. 27; State v. Lockett, 168 Mo. 486; State v. Hudspeth, 159 Mo. 178; Chapman v. Railroad, 146 Mo. 481; Railroad v. Burk, 116 Ind. 566; Redmond v. Railroad, 185 Mo. 11; Adams v. Railroad, 74 Mo. 556.
LAMM, J. Graves, J., had been of counsel below.
This is an action to recover $ 5,000 for the death of plaintiff's husband, Joseph Hinzeman, on the 2nd day of October, 1900, he being defendant's section foreman, having in charge a section near Kansas City, and killed while in the line of duty. He and his gang of men were at work reconstructing defendant's roadbed, i. e., removing bad ties and replacing them with sound ones. Hinzeman, it seems, assumed the service of going ahead of his men and marking defective ties with a pick, and was engaged in marking a tie when he was struck and killed by an east-bound locomotive pulling a passenger train and running on schedule time at, say, twenty-five miles an hour in day-light on an unobstructed level track and clear day. He had good eyes, good ears and was a trackman of experience. His widow, Cordelia E. Hinzeman, brought suit, and was cast on trial to a jury.
The cause was here once before on defendant's appeal from an order granting plaintiff a new trial. At...
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