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

• Citation: 211 S.W.2d 931,357 Mo. 998
• Decision Date: 27 May 1948
• Docket Number: 40577
• Parties: Juanita Jackson v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

211 S.W.2d 931

357 Mo. 998

Juanita Jackson v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 40577

Supreme Court of Missouri

May 27, 1948

Motion for Rehearing or to Transfer to Banc Overruled June 14, 1948.

Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

M G. Roberts, Frank C. Mann, C. W. Walter and Mann & Mann for appellant.

(1) Before any duty arises to maintain a crossing flagman, it must be established that the crossing is an unusually dangerous and hazardous one. Homan v. Mo. Pac. R Co., 334 Mo. 61, 64 S.W.2d 617; Toeneboehn v. St. Louis-S.F.R. Co., 317 Mo. 1096, 298 S.W. 795. The facts here do not so show and the motion for directed verdict as to the second count should have been sustained. (2) The slick and slippery condition of the street causing the automobile to skid forward onto the track when otherwise deceased would have stopped it before reaching the track was the intervening proximate cause of the injury. Wood v. Wells, 270 S.W. 332; DeMoss v. Kansas City R. Co., 296 Mo. 526, 246 S.W. 566; Borack v. Mosler Safe Co., 288 Mo. 83, 231 S.W. 623. (3) Not only does plaintiff's evidence show that had the street not been slick the automobile would have stopped in 4 feet, but this court has held it will take judicial knowledge that at 8 or 10 miles per hour the automobile could have been stopped well within 25 feet. Hutchison v. Thompson, 175 S.W.2d 903; State ex rel. Sirkin & Needles M. Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; Evans v. Illinois Cent. R. Co., 289 Mo. 493, 233 S.W. 397. (4) Deceased was contributorily negligent as a matter of law. Borrson v. Missouri-K.T. R Co., 351 Mo. 229, 172 S.W.2d 835; State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46; Evans v. Illinois Central R. Co., 289 Mo. 493, 233 S.W. 397; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13; State ex rel. Kansas City S.R. Co. v. Shain, 340 Mo. 1195. 105 S.W.2d 915; Fitzpatrick v. Kansas City S.R. Co., 347 Mo. 57, 146 S.W.2d 560; Monroe v. Chicago & A.R. Co., 297 Mo. 633, 249 S.W. 644. (5) The death of Jesse Jackson gave rise to but one cause of action for which there can be but one recovery under our wrongful death statute. Plaintiff was not entitled to recover under both the penal section (Sec. 3652) and the compensatory sections (Secs. 3653 and 3654, R.S. 1939). Brownell v. The Pacific R. Co., 47 Mo. 239; Jordan v. St. Louis Transit Co., 202 Mo. 418; Borrson v. Missouri-K.-T. R. Co., 161 S.W.2d 227; Borrson v. Missouri-K.-T. R. Co., 351 Mo. 214, 172 S.W.2d 826; Cooper v. Kansas City P.S. Co., 202 S.W.2d 42; Strode v. St. Louis Transit Co., 197 Mo. 616; State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51; Loudenslager v. Gorum, 195 S.W.2d 498; Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 920, 66 S.W.2d 920; Magnolia Pet. Co. v. Hunt, 320 U.S. 430, 88 L.Ed. 149; Chicago, R.I. & P.R. Co. v. Schendel, 270 U.S. 611, 70 L.Ed. 757; Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 71 L.Ed. 1069. (6) The penalty under Section 3652 is given plaintiff "in lieu and in stead of any and all compensation for pecuniary loss." Therefore, the judgment under the first count was in that sense compensatory. McDaniel v. Hines, 292 Mo. 401, 239 S.W. 471; Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 920, 66 S.W.2d 920.

Gardner & Gardner for respondent.

(1) Defendant's duty to maintain a flagman at the crossing on the occasion in question is a jury question. Homan v. Missouri Pacific R.R. Co., 334 Mo. 61, 64 S.W.2d 617; Dimond v. Terminal Railroad Assn., 346 Mo. 333, 141 S.W.2d 789; Elliott v. Missouri Pacific R. Co., 227 Mo.App. 225, 52 S.W.2d 448; Carson v. Baldwin, 346 Mo. 984, 144 S.W.2d 134. (2) The proximate cause of the death of plaintiff's husband is a jury question. Leavell v. Thompson, 176 S.W.2d 854, 238 Mo.App. 130; Williams v. Thompson, 166 S.W.2d 785; Sisk v. Chicago, B. & Q.R. Co., 67 S.W.2d 830; State ex rel. Hauck Bakery Co. v. Haid, 62 S.W.2d 400; Setzer v. Ulrich, 90 S.W.2d 154. (3) Deceased was not contributorily negligent as a matter of law. His negligence, if any, was a question for the jury. Leavell v. Thompson, supra; Williams v. Thompson, supra. (4) Plaintiff is authorized to recover under both the compensatory and penalty death statutes. Secs. 3652, 3653, 3654, R.S. 1939; Cooper v. Kansas City Pub. Serv. Co., 202 S.W.2d 42; Wallace v. Woods, 340 Mo. 452, 102 S.W.2d 91.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

Jesse Jackson was killed on the 1st day of March 1947 when the car he was driving was struck by a passenger train at the Hutchinson Street crossing west of the City of Springfield. His wife, Juanita Jackson, "prosecutes this action for, and on behalf of herself and (their five) minor children" under both the penal and the compensatory sections of the wrongful death statute. Mo. R.S.A., Secs. 3652, 3653, 3654. The suit is in two counts, the first of which was submitted upon the allegation of negligent failure to sound the whistle and ring the bell and the second of which was submitted upon the negligent failure to maintain a flagman or watchman at a hazardous crossing. The prayer of the first count was for $ 10,000 and the prayer of the second count was for $ 15,000. The jury were instructed, if they found for the plaintiff on the first count, to "assess a penalty against defendant of not less than Two Thousand Dollars ($ 2,000.00) and not more than Ten Thousand Dollars ($ 10,000.00), in your discretion." They were instructed, if they found for the plaintiff on the second count, to "award her such sum, not exceeding Fifteen Thousand Dollars ($ 15,000.00), as you find from the evidence will fairly and justly compensate her for all pecuniary loss, if any, you may find from the evidence she has sustained or will sustain as a necessary result of the death of her husband, Jesse Jackson." In addition they were instructed that "You are at liberty to return a verdict in favor of the defendant on either or both counts of the petition. You are also at liberty to return a verdict for the plaintiff on either or both counts of the petition." Separate forms of verdicts for the two counts were given the jury, and the jury returned separate verdicts of $ 5,000 on the first count and $ 10,000 on the second count. The preliminary and essentially meritorious question upon this appeal by the railroad is whether the plaintiff may recover under both the penal and the compensatory sections of the wrongful death statute.

One method of approaching and developing the question is to analyze the contrasting positions of the parties. It may be said in the beginning, as the analysis will reveal, that none of the arguments or cases relied upon are conclusive one way or the other. But the analysis does produce certain compelling implications and distinctions which lead to certain conclusions and bear upon the solution of the problem.

One of the principal arguments of the railroad is that Jackson's death "gave rise to but one cause of action for which there can be but one recovery." On the other hand the plaintiff argues that the general assembly, in enacting the compensatory section which "embraces wrongful death from any cause" and in addition in enacting the penalty section which was for the purpose of deterring and penalizing negligent death by certain persons, intended to and did create two separate and distinct causes of action. It is our conclusion that neither of these categorical statements are absolute truths, under the statute, when applied to the question presented by this cause. And yet in some senses they are both true, and it is in the distinctions and differences that significant implications are to be found. It may be admitted, at the outset, as the plaintiff says, that in neither the penalty nor the compensatory section, or elsewhere in the statute for that matter, is there an express prohibition against recovery under both sections or a statement that recovery may be had under one section only. On the other hand, as the railroad says, there is no express authorization in the statute for recovery under both sections. Consequently, it can only be said that the statute is silent on the subject.

At the outset, in connection with its argument that there is but a single cause of action, the railroad says that in Section 3652 we have enacted the penal provision of Lord Campbell's Act and in Sections 3653 and 3654 we have enacted the compensatory provisions of that act. But, in Lord Campbell's Act there is no provision whatever for a penalty, certainly not one in any wise comparable to the penalty of Section 3652. On the other hand, Lord Campbell's Act contains this provision (not found in our statute): "Provided, always, . . . that not more than one action shall lie for and in respect of the same subject-matter of complaint; . . ." 9 & 10 Vict. c. 93, Sec. 3 (1846). So the plaintiff, in arguing that there are two causes of action under our statute, says, since there is no penalty in Lord Campbell's Act, that the legislature in including a penalty in our adaptation of the English act and in omitting the limitation to one action plainly indicated that there were to be two separate and distinct causes of action.

It would unduly prolong this opinion to review in detail the English courts' interpretation of Lord Campbell's Act. Not only is there no penalty provision in that act but in addition the emphasis, so far as the sums recoverable are concerned, is entirely and emphatically upon compensation and pecuniary loss, particularly pecuniary loss to the plaintiffs. Under the limitation of one action in Section 3 the English courts have been faced with the same questions and problems we have had without the...