Hutchison v. St. Louis-San Francisco Ry. Co.

• Decision Date: 17 May 1934
• Docket Number: 31624
• Citation: 72 S.W.2d 87,335 Mo. 82
• Parties: E. W. Hutchison v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

72 S.W.2d 87

335 Mo. 82

E. W. Hutchison v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 31624

Supreme Court of Missouri

May 17, 1934

Motion for Rehearing Overruled May 17, 1934.

Appeal from Newton Circuit Court; Hon. Emery E. Smith Judge; Opinion filed at September Term, 1933, February 23 1934; motion for rehearing filed; motion overruled May 17 1934; motion to modify opinion filed; motion overruled at May Term, May 17, 1934.

Reversed and remanded.

E. T. Miller, Mann, Mann & Miller and Leo H. Johnson for appellant.

(1) Section 6, Article 23, of the Constitution of Oklahoma, providing that the defense of contributory negligence shall, in all cases, be a question of fact for the jury, is not binding upon the courts of Missouri in this case. It is no part of the substantive law giving the cause of action. It affects the remedy only, and, therefore, has no extraterritorial effect. 5 R. C. L., sec. 134, p. 1043; Menard v. Goltra, 40 S.W.2d 1058; Buchholz v. Standard Oil Co., 211 Mo.App. 397, 244 S.W. 973; State of Kansas v. United States F. & G. Co., 14 S.W.2d 581; Rastede v. Railroad, 212 N.W. 751; Jones v. Railroad, 80 Minn. 488, 83 N.W. 446; Lewis v. Bush, 30 Minn. 244, 15 N.W. 133; Jones v. Railroad, 243 S.W. 979; Johnson v. Railroad, 91 Iowa 248, 59 N.W. 66; Smith v. Railroad, 141 Ind. 92, 40 N.E. 270; Heaton v. Eldridge, 46 N.E. 638; Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.W. 421; Stock v. Detour Lbr. & Cedar Co., 151 Mich. 21, 114 N.W. 876; Geoghegan v. Atlas S. S. Co., 22 N.Y.S. 749; Railroad Co. v. Mitchell, 92 Ga. 77, 18 S.E. 290; Railroad Co. v. Harris, 247 U.S. 371, 62 L.Ed. 1167; Pennsylvania v. McCann, 54 Ohio St. 10, 42 N.E. 768; Hilton v. Railroad, 97 Ala. 275, 12 So. 276; 41 Harvard Law Review, 254; 29 Mich. Law Review, 1080; 10 Tex. Law Review, 103; 12 Minnesota Law Review, 263. An identical statute of New Jersey was held procedural and no part of the substantive law and, therefore, would not be enforced by the courts of New York in a suit there pending on a cause of action accruing in New Jersey. Colucci v. Railroad Co., 202 N.Y.S. 717. (a) The Supreme Court of Oklahoma has construed this constitutional provision to be procedural and not substantive law. Independent Cotton Oil Co. v. Beecham, 120 P. 971; Muskogee V.B. Co. v. Napier, 126 P. 792; Coats v. Riley, 7 P.2d 650; In re Smith's Estate, 269 P. 261; St. L.-S. F. Ry. Co. v. Rushing, 120 P. 975; Railroad Co. v. Dawson, 124 P. 10; Railroad Co. v. Larson, 138 P. 177. (b) The construction put upon a constitutional or statutory provision by the courts of the State of its enactment becomes in effect a part and parcel thereof and is binding upon the courts of this State. Mosely v. Empire G. & F. Co., 313 Mo. 225, 821 S.W. 763; Ramey v. Railroad Co., 21 S.W.2d 873; Hiatt v. Railroad Co., 308 Mo. 77, 271 S.W. 811. (c) The doctrine of comity "in a legal sense is complaisance, courtesy, the granting of a privilege, not of right but of good will." This doctrine does not require the courts to follow or apply a foreign statute which is in direct conflict with the policy of the law of the forum. Carey v. Schmeltz, 221 Mo. 136; Woodard v. Bush, 282 Mo. 163, 220 S.W. 839; Hudson v. Von Hamm, 259 P. 477. (d) If this constitutional provision is held to be substantive law becoming a part of the right and not merely effecting the remedy, the courts of this State will nevertheless refuse to enforce or apply it for the reason that it is contrary to the public policy of this State. To permit it to be invoked here is to deny and take from the courts of Missouri an inherent judicial power, namely, the right of the court to pass upon whether a given state of facts presents a question for the jury. It is a right which our own Legislature could not deny to our courts. In re Richards, 63 S.W.2d 672; State ex rel. Columbia Tel. Co. v. Atkinson, 271 Mo. 28, 195 S.W. 745; O'Donnell v. Wells, 21 S.W.2d 766; State ex inf. Crow v. Ballins, 140 Mo. 529; State ex rel. York v. Locker, 266 Mo. 384; State ex inf. Crow v. Shepherd, 177 Mo. 238; State ex rel. Haughey v. Ryan, 182 Mo. 356; Railroad Co. v. Gildersleeve, 219 Mo. 170; State v. Hopper, 71 Mo. 432; Ex parte LeMond, 295 Mo. 586; Thoe v. Railroad Co., 181 Wis. 456, 195 N.W. 407; Bielecki v. United T.S., Inc., 226 N.W. 676; People v. McMurchy, 228 N.W. 727; Harker v. Bushouse, 236 N.W. 224; Steinfeld v. Neilsen, 139 P. 897; Andrade v. Andrade, 128 P. 815. (2) Plaintiff was guilty of contributory negligence as a matter of law and defendant's demurrer to the evidence should, for that reason, have been sustained. (a) The Supreme Court of Oklahoma has consistently held that it is the duty of the driver of an automobile "to keep his faculties in active exercise and not permit his attention to be diverted from the danger before him" and that "persons crossing railroad tracks must stop, look and listen before driving on the track." They must know that trains are liable to be passing at any time, and it is a reckless disregard of their duty to drive on the railroad track without using the precautions to stop, look and listen;" and that they are bound by what they see or hear or could have seen or heard by the exercise of ordinary care. Hines, Director General, v. Dean, 220 P. 862; Railroad Co. v. Tyler, 232 P. 418; Railroad Co. v. Merritt, 230 P. 514; Railroad Co. v. Barkett, 118 P. 350; Railroad Co. v. Diab, 118 P. 351; Thrasher v. Railroad Co., 206 P. 212; Railroad Co. v. Bratcher, 225 P. 943. (b) This court has consistently held in cases involving similar facts that the driver of the automobile was guilty of negligence as a matter of law, where he had an unobstructed view of fifteen feet. Plaintiff in this case had an unobstructed view materially in excess of that distance. State ex rel. Hines v. Bland, 237 S.W. 1020; Monroe v. Railroad Co., 297 Mo. 633, 249 S.W. 650; Evans v. Railroad Co., 289 Mo. 493, 233 S.W. 399; Chawkley v. Railroad Co., 317 Mo. 782, 297 S.W. 20. (c) Where to look is to see, plaintiff will not be permitted to say he did look but did not see the train. Dyrcz v. Railroad Co., 238 Mo. 47; Monroe v. Railroad Co., 297 Mo. 493, 249 S.W. 647; Huggart v. Railroad Co., 134 Mo. 679; Kelsay v. Railroad Co., 129 Mo. 374. (3) The court erred in refusing to give defendant's requested Instruction C, declaring plaintiff guilty of contributory negligence as a matter of law. See cases cited under Points 1 and 2. (4) An instruction which assumes the existence of a fact necessary to plaintiff's recovery and the burden of proving which is on him is error. Zini v. Railroad Co., 235 S.W. 86; Connell v. A. Haase & S. F. Co., 302 Mo. 48, 257 S.W. 772; State ex rel. Hartford I. Co. v. Trimble, 298 Mo. 418, 250 S.W. 396; Reel v. Consolidated I. Co., 236 S.W. 47; Boland v. Railroad Co., 284 S.W. 144. Since this instruction attempts to cover the entire case and directs a verdict on the facts stated, it is not aided, nor is the error therein cured by any other instruction given in the case. Dameron v. Hamilton, 264 Mo. 116; Patterson v. Evans, 254 Mo. 303; Sheperd v. Transit Co., 189 Mo. 373; Rouden v. Heisler's Estate, 219 S.W. 692. (5) If the defendant rang the bell on its locomotive or sounded its whistle at frequent intervals, it complied with every duty, the breach of which is charged as negligence in this case, except excessive speed, and whether such signals proved a sufficient warning to plaintiff is immaterial. Defendant is not an insurer of his safety. Winslow v. Railroad Co., 192 S.W. 125.

F. P. Sizer and H. A. Gardner for respondent.

(1) Section 6 of Article 23, Oklahoma Constitution is substantive and not adjective law. Jackson v. Railroad, 31 S.W.2d 250; Herron v. Southern Pac., 283 U.S. 96, 75 L.Ed. 858; Caine v. Ry. Co., 95 So. 876, 32 A. L. R 793; Railroad v. Spencer, 20 F.2d 714. This section was held constitutional in Railroad v. Code, 64 L.Ed. 133. The Legislature as well as the courts of Oklahoma are forbidden by this section to hold or declare that any act or omission constitutes contributory negligence. Railroad v. Thompson, 281 P. 565; Railroad v. Stanton, 189 P. 754; Dean v. Railroad, 220 P. 862; Railroad v. Wheeler, 235 P. 498; Railroad v. Hart, 146 P. 439; Railroad v. Russell, 266 P. 766. The law of a place where an injury is received determines whether a right of action exists and the substantive law inheres in and is a part of the cause of action and right to sue. Levy v. Steiger, 124 N.E. 477; Hiatt v. Railroad, 308 Mo. 77; Railroad v. Thurman, 32 S.W. 863; Railroad v. Babcock, 154 U.S. 190, 38 L.Ed. 958; Slater v. Railroad, 194 U.S. 120, 48 L.Ed. 900; Morisette v. Railroad, 56 A. 1102; Railroad v. Whitlow, 43 S.W. 711, 41 L. R. A. 614; Railroad v. Read, 62 N.E. 488; Railroad v. Harmon, 64 S.W. 642; Long v. Railroad, 238 F. 921; Commonwealth Fuel Co. v. McNeil, 130 A. 801; Keane Wonder Mining Co. v. Cunningham, 222 F. 825; Gersman v. Railroad, 229 S.W. 167; Riley v. Railroad, 256 Mo. 600; Woodard v. Bush, 282 S.W. 173; Morris v. Railroad, 251 S.W. 766. (a) The Supreme Court of Oklahoma has never directly decided whether Section 6 is substantive law or procedural but where they have had occasion to mention it, they seem to hold that it is substantive law. Railroad v. Robinson, 225 P. 987; Adams v. Iten Biscuit Co., 162 P. 943. (b) It is not against the public policy of Missouri to enforce or give effect to this constitutional amendment in Missouri, but on the contrary it is the duty of this court to enforce here the substantive law of a foreign State. Maurizi v. Western Coal & Mining Co., 11 S.W.2d 272; Wajtylak v. Coal Co., 188 Mo. 295, 87 S.W. 506; Austin v. Hough, 10 S.W.2d 659; Lowry v. Phoenix-Fidelity Fire Ins. Co., 272 S.W. 83. (2) Both the trial court and this court are forbidden by ...