Jackson v. St. Louis-San Francisco Ry. Co.
| Decision Date | 25 August 1930 |
| Parties | JANIE JACKSON, ADMINISTRATRIX OF ESTATE OF J. C. JACKSON, DECEASED, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILROAD COMPANY, APPELLANT |
| Court | Missouri Court of Appeals |
Appeal from Newton County Circuit Court.--Hon. Chas. L. Henson Judge.
AFFIRMED.
Judgment affirmed.
E. T Miller and Mann & Mann for appellant.
Sizer & Gardner and Johnson & Jones for respondent.
This is an action for damages for the death of plaintiff's husband and intestate, instituted by her as administratrix for the benefit of the lawful heirs of deceased, consisting of herself and a number of minor children. The accident occurred on October 7, 1926, near Milfay, Oklahoma, and the remedy is governed by the laws of that State, duly pleaded in this action. The death of plaintiff's husband, J. C. Jackson, was occasioned when his automobile, which he was driving at the time, was struck by one of defendant's locomotives on a public railroad crossing. The negligence pleaded and relied on for recovery was in three particulars, i. e., (1) high, reckless and excessive rate of speed; (2) construction and maintenance of a dump or embankment over defendant's tracks too narrow for vehicles to meet each other and pass thereon with reasonable safety; (3) and failure to ring the bell or sound the whistle on said locomotive as it approached said crossing. The answer contained a general denial and, as an affirmative defense, alleged that deceased was guilty of negligence which directly contributed to his death in that he did not stop his truck before going upon the track, as required by the statutes of Oklahoma, and in that he failed to look and listen for approaching trains before entering upon the track or, if he did look or listen, that he failed to heed what he could have seen or heard by the exercise of ordinary care. The Oklahoma laws pleaded in both the petition and answer will be referred to in more detail hereinafter. Upon the issues thus outlined the cause was submitted to a jury and resulted in a judgment and verdict for plaintiff in the sum of $ 6000, from which judgment defendant has appealed.
This suit was first before this court at the March term, 1929, and an opinion was rendered reversing the judgment. Thereafter, at the October term, 1930, a motion for re-hearing was sustained, after which the cause was re-argued at the January, 1930, called term, of this court.
Under the assignment of errors the first question to be considered is whether or not the court erred in overruling defendant's instruction in the nature of a demurrer to the evidence. It is urged that deceased was guilty of contributory negligence as a matter of law. It was on this theory we decided to reverse the judgment in our former opinion and our view of the evidence has not changed. But, touching on this proposition, plaintiff pleaded section 6 of the constitution of the State of Oklahoma by the provisions of which the defense of contributory negligence, in all cases, is a question of fact and at all times to be left to the jury. On defendant's motion that portion of plaintiff's petition pleading this constitutional provision was stricken out upon the theory that said provision had to do with the remedy and not the right, and that in the trial of cases in Missouri matters of procedure are to be governed by the laws of this State.
In our former opinion this point was not discussed because we deemed it waived by plaintiff in her brief. Both plaintiff and defendant have filed briefs covering this question since the motion for re-hearing was sustained. Defendant first asserts that plaintiff may not now urge this question because she failed to save exceptions to the action of the trial court in striking out that part of her petition in which she pleaded the constitutional provision aforesaid and because the matter was not presented to the trial court for review by motion for new trial or otherwise, citing Caldwell v. Travelers Insurance Company, 305 Mo. 619, 267 S.W. 907. That case is not in point here. If it be true that the constitutional provision in question is part of the substantive law of Oklahoma and inheres in plaintiff's cause of action, it remained in the case because most of the Oklahoma cases pleaded by both plaintiff and defendant recited this constitutional provision and the decisions were based upon that proposition. It is conceded this case must be decided, except as to procedure, by the law of Oklahoma. To the law of that State, as evidenced by the pleaded statutes and decisions of its highest tribunal, we must look, in order to determine just what plaintiff's rights were.
The constitutional provision in question reads as follows:
"The defense of contributory negligence or assumption of risks shall, in all cases whatsoever, be a question of fact, and shall at all times be left to the jury. " [Art. 23, sec. 6, Okla. Const.]
If defendant's contention that this constitutional provision is purely a matter of procedure is correct, then of course the courts of this State are not required, by comity, to follow the Oklahoma procedure. The provision above quoted is clear and couched in the strongest language. The Supreme Court of Oklahoma, in its decisions, has uniformly adhered to this provision in its strictest sense. By its plain terms, neither the courts nor the Legislature of Oklahoma may define contributory negligence as a matter of law. A discussion of the rule here involved is contained in the case of Missouri, K. & T. Ry. Co. v. Stanton, 189 P. 753, a crossing case where two boys were killed while driving a team of mules across defendant's tracks. There was evidence that they did not stop, look and listen for the train. The trial court refused an instruction for defendant covering that phase of the case. The Supreme Court of Oklahoma, in passing on the question thus presented, uses language, as follows: "The defendant complains that the court erred in refusing to give the instructions requested by the defendant to the effect that, if the conditions surrounding the crossing and the passage of a train thereon were such as to require a traveler in the exercise of reasonable care to stop in addition to looking and listening upon approaching the crossing, then a failure of deceased to stop constituted negligence on his part. We do not understand that it is a matter of law in this State that a person in approaching a railroad crossing must stop in addition to looking and listening. Before the plaintiff was entitled to recover, the burden of proof was upon him to show by a fair preponderance of the evidence that the boys at the time they were killed were in the exercise of due care for their own safety, and were killed as the direct and proximate result of the negligence of the defendant company. The deceased and the company both had the right to use the crossing where the accident occurred. The law imposed upon both the duty of using reasonable and ordinary care to avoid accident and danger. If the deceased boys failed to exercise reasonable and ordinary care and precaution to avoid the accident, that is, such care and caution as reasonably prudent boys of their age, maturity, intelligence, and experience would be reasonably expected to exercise under the circumstances, then plaintiff was not entitled to recover, and if the defendant failed to use reasonable and ordinary care to avoid accident and danger on the occasion, then the defendant would be guilty of negligence. It is not the province of the court to particularize what acts shall constitute negligence, or what acts shall constitute ordinary care. This is a question solely for the jury. It is for the jury to say from all the facts, the circumstances, and the surroundings at the time whether or not ordinary care and caution were used. It is true the statute requires a specific duty on the part of the railroad company as to the blowing of a whistle or ringing of the bell, but otherwise the court is positively prohibited from saying to the jury what acts shall constitute negligence in a given case.
It was the duty of the defendant company, as well as the deceased, to exercise care commensurate with the surroundings to avoid the accident, and if the circumstances were such as to require the deceased to stop, that is, if the evidence showed or disclosed that they knew the train was coming, or that they heard the train, and that they wantonly disregarded these warnings, then, in that event, the jury would, no doubt, have drawn the conclusion that it was their duty to stop. But this cannot be a question of law for the court; probably under those conditions no jury would have found that they were in the exercise of ordinary care and caution. [2 l. c. 754, 755.]
In another Oklahoma crossing case the Supreme Court said: "The defendant next complains of the refusal of the trial court to give the following instruction: 'You are instructed therefore that it is the duty of a person about to cross a railroad track to make a vigilant use of his senses in order to ascertain if a train is approaching, and it was the duty of the plaintiff, on approaching the tracks of the defendant to look and listen for approaching trains before attempting to cross said track and it was her duty to keep her faculties in active exercise and not permit her attention to be diverted from the danger before her, and this duty rested upon her with respect to the track which she was attempting to cross at the time she was struck by one of the defendant's trains.'
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