Hudson v. Southwest Missouri R. Co.

• Decision Date: 18 July 1913
• Citation: 173 Mo. App. 611,159 S.W. 9
• Parties: HUDSON v. SOUTHWEST MISSOURI R. CO.
• Court: Missouri Court of Appeals

159 S.W. 9

173 Mo. App. 611

HUDSON v. SOUTHWEST MISSOURI R. CO.

Springfield Court of Appeals. Missouri.

July 18, 1913.

On Motion to Modify Judgment, August 8, 1913.

1. RAILROADS (§ 307)—ACCIDENTS AT CROSSINGS —SIGNALS FROM CARS.

At common law, it is actionable negligence for an electric car to approach or pass over a public crossing at a dangerous rate of speed, without giving sufficient and timely warning commensurate with the danger.

2. RAILROADS (§ 350)—ACCIDENTS AT CROSSINGS —QUESTIONS FOR JURY—NEGLIGENCE OF RAILROAD.

Whether a railroad of any kind is negligent in failing to give proper signals in operating a car or train across a public highway, is a question of fact, unless the facts are such that only one inference can be drawn therefrom.

3. RAILROADS (§ 224)—STATUTES—SIGNALS AT CROSSINGS—"LOCOMOTIVE ENGINE."

Rev. St. 1909, § 3140, requiring a bell or steam whistle on each locomotive engine to be sounded at least 80 rods from a highway crossing, does not apply to an ordinary single trolley car propelled by electricity, since a "locomotive engine," in the ordinary meaning, is one that is operated by steam in drawing or propelling cars.

4. RAILROADS (§ 224)—STATUTES—CONSTRUCTION —SIGNALS.

While the common law may adapt itself to new conditions and new instrumentalities, the statute governing locomotive signals is an arbitrary enactment, designed to apply to specific conditions and instrumentalities.

5. RAILROADS (§ 224)—STATUTES—SIGNALS AT CROSSING—TROLLEY CARS.

It is immaterial that the trolley car was operated over a railroad originally built for steam propelled trains, or that the company was incorporated under the general railroad act, even though the act as originally adopted (Rev. St. 1855, p. 426, § 29) provided for cars propelled by steam, or by animals, or by any mechanical power.

On motion to Modify Judgment.

6. PLEADING (§ 229)—AMENDMENT—RIGHT TO AMEND.

Amendments to pleadings under the Code are allowed with great liberality, when they do not substantially change the claim or defense.

7. PLEADING (§ 248)—AMENDMENT OF PETITION —NEW CAUSE OF ACTION—ACCIDENT AT RAILROAD CROSSING.

Where a petition was based upon the failure of an electric car to give the statutory signals on approaching a highway crossing, an amendment so as to allege negligence for failing to give sufficient warning is not a change of the cause of action, since negligence is in each case the gist of the cause of action.

8. PLEADING (§ 248)—AMENDMENT OF PETITION —NEW CAUSE OF ACTION.

The mere fact that allegations of new facts essential to a cause of action, and necessitating new evidence to support them, are introduced into a petition does not necessarily change the cause of action.

9. APPEAL AND ERROR (§ 1201)—REVERSAL— AMENDMENT OF PETITION—NEW TRIAL.

The same rules do not apply to the allowance of amendments to a petition before a new trial, after reversal, as to the allowance of amendments during trial, or after verdict.

Robertson, P. J., dissenting.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Evan Hudson against the Southwest Missouri Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

McReynolds & Halliburton, of Carthage, for appellant. W. R. Shuck, of Webb City, and R. M. Sheppard, of Joplin, for respondent.

STURGIS, J.

The plaintiff recovered $150 in the circuit court for damages caused by one of defendant's interurban electric cars colliding with his horse and buggy at a public crossing between Joplin and Carthage. The cause was commenced in a justice of the peace court, where plaintiff stated his cause of action as follows: "Plaintiff states that defendant is and was at all times hereinafter mentioned a corporation organized under the laws of the state of Missouri, and liable to be sued as such in the courts of this state, and is in the possession of and operating a line of railway from Joplin in the state of Missouri to Carthage in said state. Plaintiff further states that the tracks of defendant are laid across a certain highway in said county, being known as the Carterville and Carthage road, leading from Carterville to Carthage; that on the 1st day of September, 1912, while plaintiff was driving in a buggy along and upon said highway at a point of a crossing of defendant's track known as Black's crossing, between Carterville and Lakeside on defendant's railroad, outside of any city, a certain motor car, propelled by electricity, was driven along and upon defendant's railroad, upon and across said public highway, and at the said crossing thereof, and the agents and servants of defendant in charge of said motor car wholly failed to ring the bell, and wholly failed to sound the whistle at a distance of 80 rods from said crossing, and to sound said bell and whistle at intervals until said car had crossed said highway, by means and in consequence of which default and neglect of defendant's said servants and agents said car ran and struck with great force and violence the said buggy and horse of plaintiff, throwing plaintiff violently upon the ground, totally destroying the buggy, tearing the harness and killing plaintiff's horse; that the injuries to the buggy and harness was $40; that the fall bruised and injured plaintiff; that the horse so killed was worth $150. Wherefore plaintiff says that by reason of the premises he has been damaged in the sum of $300, for which he asks judgment."

The evidence showed that plaintiff's horse and buggy was injured in the manner and to the extent stated. It also appears that the car colliding with plaintiff's horse was an ordinary trolley car or street car, propelled by electricity; that it was equipped with a "gong" rather than a bell, which was sounded by pressing or kicking a button with the foot, but there is no evidence of its being equipped with any kind of a whistle. The collision took place at a country road crossing. It is claimed by defendant that the gong was sounded vigorously at a distance of 250 to 300 feet before reaching the crossing, but it is conceded that the defendant did not ring any bell, even if the gong is a bell, at a distance of 80 rods from the crossing, and continue to ring the same until the crossing was passed. It will be seen that the sole ground of negligence charged is a failure to comply with the provisions of section 3140, art. 2, c. 33, R. S. 1909, entitled "Railroad Companies," which is as follows: "Sec. 3140. Bell and Whistle at Crossing—Penalty. A bell shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, and be kept ringing until it shall have crossed such road or street, or a steam whistle shall be attached to such engine and be sounded at least eighty rods from the place where the railroad shall cross any such road or street, except in cities, and be sounded at intervals until it shall have crossed such road or street, under a penalty of twenty dollars for every neglect of the provisions of this section to be paid by the corporation owning the railroad, to be sued for by the prosecuting or circuit attorney of the proper circuit, within ten days after such penalty was incurred, one-half thereof to go to the informer, and the other half to the county; and said corporation shall also be liable for all damages which any person may hereafter sustain at such crossing when such bell shall not be rung or such whistle sounded as required by this section: Provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause of such injury."

The cause was submitted to the jury by an instruction for plaintiff stating that if "a certain car propelled by electricity, was driven along and upon defendant's railroad, and upon and across said public highway at said crossing, and that the agents and servants of defendant in charge of said motor car wholly failed to ring the bell at a distance of 80 rods from said crossing and to sound said bell at intervals until said car had crossed said highway, and that by reason thereof, and in consequence of the defendant, its agents and servants failing to so ring said bell, if they did fail, and without any fault or neglect on the part of plaintiff, said car ran against and struck with great force and violence plaintiff's horse and buggy, thereby killing plaintiff's horse and injuring his said buggy, you will find the issues in favor of the plaintiff." This instruction predicates negligence solely on the failure to ring the bell at the distance provided by the statute, and not on failure to sound the whistle in the alternative, as is usual and proper in cases falling under the statute, presumably for the reason that, as defendant's car was not equipped with any whistle, it was useless to submit the question of its being sounded at 80 rods from the crossing or otherwise.

The question presented for our decision is whether or not defendant, in operating single trolley cars propelled by electricity on its road passing through the country, is guilty of negligence in failing to comply with the provisions of section 3140, supra. That section provides for specific kinds of instrumentalities for giving warnings, to wit, a bell and steam whistle, to be attached to a specific kind of motor vehicle, to wit, a locomotive engine, and to be sounded at a specific distance from each road crossing. Does such statute apply to the ordinary electric cars?

The question is not, as respondent suggests, as to whether such electric cars are to be run without regard to the rights of the public at road crossings. The common law, in the absence of any statutes, makes it actionable negligence for any car to approach or pass over a public crossing at a rapid or dangerous rate of speed, without giving sufficient...