Huckleberry v. Missouri Pac. R. Co.
| Decision Date | 02 April 1930 |
| Docket Number | 28139 |
| Citation | 26 S.W.2d 980,324 Mo. 1025 |
| Parties | Anna Huckleberry, Appellant, v. Missouri Pacific Railroad Company |
| Court | Missouri Supreme Court |
Motion to Transfer to Banc Overruled April 2, 1930, Reported at 26 S.W.2d 980 at 987.
Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.
Reversed and remanded.
Kelly Buchholz & O'Donnell for appellant.
(1) The amended answer and the evidence tended to show that deceased was in a position of imminent peril, enveloped in a mass of inflammable and explosive gasoline vapor beside the railroad track, and that defendant had actual knowledge of his position and the imminent peril thereof, and that thereafter said defendant recklessly brought its engines and the fire therein into the midst of said vapor and thereafter operated said engines and brought the fire therein in contact with the said vapor and set the same on fire and thereby burned and killed the deceased, and therefore, the court erred in giving the defendant's requested peremptory instruction to the jury and compelling the plaintiff to take an involuntary nonsuit. Banks v. Morris & Co., 302 Mo. 266; Hall v. Ry. Co., 219 Mo. 589; Bobos v. Packing Co., 317 Mo. 108; Hornbuckle v. McCarty, 295 Mo. 191; Schulz v. Smercina, 1 S.W.2d 113; Schroeder v. Wells, 310 Mo. 654; Kame v. Ry Co., 254 Mo. 175. (2) The amended answer and the evidence established that deceased was in a position of peril beside defendant's track; that all persons in the vicinity of the gasoline vapor fumes were in imminent peril; that the common law and the regulations of the Interstate Commerce Commission imposed the duty upon the defendant to keep all persons at a safe distance before operating its engines in the vicinity of the spilled gasoline and vapor therefrom; that defendant neglected this imposed duty, and therefore whether the said defendant actually knew of the presence of the deceased or not at the particular place where he was, yet defendant was charged with actual knowledge of the presence of deceased at the said time and place, and therefore the court erred in failing to submit the case to the jury upon the ground that the defendant breached its humanitarian duty to the deceased. Kame v. Ry. Co., 254 Mo. 175; Schroeder v. Wells, 310 Mo. 654. (3) The presence of deceased beside the defendant's track was merely a condition and not a proximate cause of his injury, while the many acts of negligence and wrong-doing shown by the evidence on the part of the defendant proximately caused the injury and death of the deceased and therefore the trial court erred in compelling plaintiff to take the involuntary nonsuit. Reed v. Ry. Co., 50 Mo.App. 504; Phelan v. Paving Co., 227 Mo. 666; Stack v. Baking Co., 283 Mo. 415; Sutton v. Wauwatosa, 29 Wis. 21. (4) The acts of defendant in failing to comply with the regulations of the Interstate Commerce Commission in evidence were crimes of the grade of felony, which proximately occasioned the death of deceased, and defendant therefore could not avail itself of the defense of contributory negligence, assumption of risk, or that deceased was a trespasser, and in any event whether these defenses were available or not, the court erred in failing to submit the issues of fact to the jury for determination. Sec. 4240, R. S. 1919; Secs. 383, 385, 386, Title 18, Code of Laws of the United States 1926; Secs. 1946, 1951 to 1958, Regulations Interstate Commerce Com., for Transportation of Explosives and other Dangerous Articles by Freight and Express; National Petroleum Assn. v. Ry. Co., 38 I. C. C. 65. Violation of the regulations has been held to be evidence of negligence and negligence per se. Davis v. Gossett & Sons, 30 Ga.App. 576, 118 S.E. 773, affirmed 124 S.E. 529, 158 Ga. 886; Southern Ry. Co. v. Eichelberger, 126 S.E. 912; Southern Ry. Co. v. Powell, 126 S.E. 913; Howell v. Ry. Co., 94 N. J. L. 213; N. J. Fidelity Plate Glass Ins. Co. v. Ry. Co., 92 N. J. L. 467. (5) The defendant having negligently permitted its train carrying the inflammable liquid to be wrecked and the said inflammable liquid to be spilled from the tank cars in the way described in the evidence and having failed to take any precaution from 2:30 until nearly 7 P. M., when the fire and explosion occurred, to minimize the danger to the public and to all who might come within the sphere of danger, but on the contrary having violated every rule prescribed by law (both common and statutory) for its guidance under the circumstances, the defendant was guilty of causing, maintaining and suffering a public and private nuisance on its premises, which nuisance later occasioned damage to the adjacent property and death to persons on the scene, and therefore the trial court erred in failing to submit the case to the jury. Scalpino v. Smith, 154 Mo.App. 533; Schnitzer v. Powder Mfg. Co., 160 S.W. 282; Liggett v. Powder Mfg. Co., 274 Mo. 115; Buchholz v. Oil Co., 211 Mo.App. 397; St. Mary's Mill Co. v. Oil Co., 254 S.W. 735.
Thomas J. Cole, Hackney & Welch and Grover & Graves for respondent.
(1) Under the pleadings and evidence defendant's peremptory instruction at the close of plaintiff's evidence was properly given. (a) Deceased at the time of his injury was a trespasser on defendant's right of way, and defendant owed to him no duty except not to wilfully or wantonly injure him. In order to go to the jury the plaintiff must show affirmatively: (a) That deceased was in a position of imminent peril; and (b) that defendant had actual knowledge of his peril. Kelly v. Benas, 217 Mo. 1; Glaser v. Rothschild, 221 Mo. 180; Fox v. Joplin, 297 S.W. 449. (b) Deceased at the time of his injury was not in imminent peril within the meaning of that rule. State ex rel. v. Trimble, 253 S.W. 1014; Banks v. Morris, 257 S.W. 483; Stewart v. Mo. Pac., 272 S.W. 694; Eversole v. Railroad, 249 Mo. 542; Degonia v. Railroad, 224 Mo. 595. (c) If deceased was at the time of his injury in a position of imminent peril, the evidence is insufficient to show that the defendant had knowledge thereof. Rine v. Railroad, 88 Mo. 392; Hall v. Railroad, 219 Mo. 553; Stewart v. Mo. Pac., 272 S.W. 694; Degonia v. Railroad, 224 Mo. 595. (2) The purported regulations of the Interstate Commerce Commission introduced in evidence were not legally or lawfully in effect at the time deceased was injured, and if they were, they did not give plaintiff a right of civil action, as deceased was a trespasser to whom the defendant owed no duty except not to wilfully or wantonly injure. Criminal Code, Sec. 233, Act March 4, 1909; Sec. 10403, U.S. Compiled Statutes 1916, as amended, Act March 4, 1921, Secs. 383, 385, 386, Title 18, Code of Laws of the United States 1926; Sec. 10403, U.S. Compiled Statutes 1916, vol. 4, 1923 Supplement; Cases cited under Point 1, a; Barnay v. Smith, 65 P. 309; Watson v. Railroad, 169 F. 951; Kerr v. Bush, 198 Mo.App. 607; Whitesides v. Railroad, 186 Mo.App. 608. (3) Defendant did not create nor maintain a nuisance. If so, the maintenance of a nuisance does not give a cause of action to a trespasser, as was the deceased. 45 C. J. 747; United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 66 L.Ed. 516; West v. Shaw, 112 P. 243; Forsythe v. Gro. Co., 283 Mo. 49.
Claud Huckleberry and Anna Huckleberry commenced an action in the Circuit Court of Lafayette County, Missouri, against the Missouri Pacific Railroad Company, for the alleged wrongful death of their unmarried minor son, John C. Huckleberry. Upon change of venue and stipulation filed the case was transferred to the Circuit Court of Jackson County, Missouri, at Kansas City. Claud Huckleberry died and the action was further prosecuted by the other plaintiff, Anna Huckleberry. At the trial plaintiff suffered an involuntary nonsuit with leave to move to set aside. Her motion to set aside this order and judgment was overruled, and she has appealed.
John C Huckleberry died of injuries caused by contact with burning vapor from gasoline spilled along defendant's right of way near Dodson, Missouri, July 20, 1921. Plaintiff went to trial on her amended petition alleging that on said date defendant was operating a freight train in an interstate movement over its track about one-half mile southwest of Dodson; that through its carelessness and negligence said train was then and there derailed and wrecked, so that tank cars filled with gasoline were overturned and broken open and their highly explosive and inflammable contents were negligently allowed to saturate and cover the ground and flow along defendant's right of way and become ignited and burn the deceased; that in violation of the terms and provisions of certain regulations prescribed by the Interstate Commerce Commission pursuant to the Act of Congress of March 4, 1909, and Section 15 of the Act to Regulate Commerce, and amendments thereto, it negligently failed to cover said spilled gasoline with dry earth or with any other substance before using its engines in the vicinity thereof, or to have said gasoline collected in available vessels or drained into a hole or depression at a safe distance from the track, and negligently permitted, authorized and encouraged the deceased and other persons to go upon the ground where said gasoline was spilled and carry the same away while its engine and steam derrick were working in the vicinity, and negligently brought its said engines and the fire, sparks and flames in and from the same near said leaking and partially empty gasoline tanks and engaged with said steam derrick and locomotive and chain slings and other appliances in hooking and lifting a box car in the vicinity of the said tracks, thereby causing sudden shocks, jars and friction producing sparks. The petition also alleged that said gasoline threw off...
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