Keele v. Atchison, Topeka & Santa Fe Railway Company

• Decision Date: 20 May 1914
• Parties: ROSETTA KEELE v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

167 S.W. 433

258 Mo. 62

ROSETTA KEELE v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

Supreme Court of Missouri

May 20, 1914

Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.

Reversed.

Thomas R. Morrow, Cyrus Crane, James P. Gilmore, John H. Lathrop and George J. Mersereau for appellant.

(1) The accident and death resulting therefrom, having occurred in the State of Kansas, the laws of that State determine whether or not any cause of action existed for and on account of such death. Yost v. Railroad, 149 S.W. 577; Newlin v Railroad, 222 Mo. 375; Root v. Railroad, 195 Mo. 345; McGinnis v. Car & Foundry Co., 174 Mo. 227; Fogarty v. Transfer Co., 180 Mo. 490; Chandler v. Railroad, 127 Mo.App. 34; Benedict v Railroad, 104 Mo.App. 218; Williams v Railroad, 106 Mo.App. 661. (2) Upon the entire record, under the decision of the Supreme Court of Kansas, the deceased was guilty of such negligence, or contributory negligence, that no recovery can be sustained in this case. Dyerson v. Railroad, 74 Kan. 528; Coleman v. Railroad, 123 P. 756; Dunlap v. Railroad, 123 P. 754; Marple v. Railroad, 85 Kan. 699; Beech v. Railroad, 85 Kan. 90; Jones v. Railroad, 85 Kan. 313; Railroad v. Townsend, 39 Kan. 115; Railroad v. Adams, 33 Kan. 427; Railroad v. Fisher, 49 Kan. 460; Railroad v. Priest, 50 Kan. 16; Young v. Railroad, 57 Kan. 144; Bush v. Railroad, 62 Kan. 709; Railroad v. Wheelbarger, 75 Kan. 811; Roach v. Railroad, 55 Kan. 654; Railroad v. Holland, 60 Kan. 209; Limb v. Railroad, 73 Kan. 220; Railroad v. Trahern, 77 Kan. 803; Railroad v. Hutchinson, 39 Kan. 485; Railroad v. Schwindt, 67 Kan. 8; Railroad v. McMinn, 72 Kan. 681; Zirkle v. Railroad, 67 Kan. 77; Railroad v. Bussye, 66 Kan. 735; Railroad v. Wheeler, 80 Kan. 187; Carey v. Railroad, 84 Kan. 274; Railroad v. Entsminger, 76 Kan. 746; O'Brien v. Loomis, 43 Mo.App. 29; Railroad v. Baker, 104 S.W. 1182; Greathouse v. Croan, 76 S.W. 273; Hollerson v. Railroad, 157 Mo. 216. (3) Also, upon the entire record, under the decisions of the Supreme Court and of the Courts of Appeals of Missouri, deceased was guilty of such negligence, or contributory negligence, that no recovery can be had in this case, irrespective of anything that is, or might be pleaded, and, while the decisions of the Supreme Court of Kansas fully deny a recovery, the opinion in this case on the former appeal ought to be overruled, and the law declared as it is and always has been, with the exception of such former erroneous opinion. Dycez v. Railroad, 238 Mo. 33; Laun v. Railroad, 216 Mo. 563; McGee v. Railroad, 214 Mo. 530; Stotler v. Railroad, 204 Mo. 619; Ries v. Transit Co., 179 Mo. 1; Petty v. Railroad, 179 Mo. 666; Lennon v. Railroad, 198 Mo. 514; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Markowitz v. Railroad, 186 Mo. 350; Mockowik v. Railroad, 196 Mo. 550; Wasmer v. Railroad, 148 S.W. 155; White v. Railroad, 159 Mo.App. 508; Haffey v. Railroad, 154 Mo.App. 493; Reardon v. Railroad, 114 Mo. 384; Caldwell v. Railroad, 58 Mo.App. 453; Sites v. Knott, 197 Mo. 684; Yancey v. Railroad, 93 Mo. 433; Boyd v. Railroad, 105 Mo. 371; Moore v. Railroad, 176 Mo. 528; Kelley v. Railroad, 75 Mo. 138; Harlan v. Railroad, 64 Mo. 480; Harlan v. Railroad, 65 Mo. 22; Reno v. Railroad, 180 Mo. 470; McCreery v. Railroad, 221 Mo. 18; Van Bach v. Railroad, 171 Mo. 338; Guyer v. Railroad, 174 Mo. 344; Butts v. Railroad, 98 Mo. 272; Watson v. Railroad, 133 Mo. 246; Penell v. Railroad, 153 Mo.App. 566; Hamilton v. Marks, 63 Mo. 172; Rutledge v. Railroad, 123 Mo. 121; Schaub v. Railroad, 133 Mo.App. 444; Duncan v. Railroad, 46 Mo.App. 199; Lien v. Railroad, 79 Mo.App. 475; Jones v. Railroad, 63 Mo.App. 501; Drake v. Railroad, 51 Mo.App. 562; Boring v. Railroad, 194 Mo. 541; Giardina v. Railroad, 185 Mo. 330; McGauley v. Transit Co., 179 Mo. 583; Peterson v. Railroad, 156 Mo. 552; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 365; Lane v. Railroad, 132 Mo. 4; Sanguinette v. Railroad, 196 Mo. 466; Moody v. Railroad, 68 Mo. 670; Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 567; Walker v. Railroad, 193 Mo. 453; Zimmerman v. Railroad, 71 Mo. 636; Henze v. Railroad, 71 Mo. 636; Purl v. Railroad, 72 Mo. 168; Turner v. Railroad, 74 Mo. 802; Hixon v. Railroad, 80 Mo. 335; Fox v. Railroad, 85 Mo. 679; Huggart v. Railroad, 134 Mo. 673; Porter v. Railroad, 199 Mo. 82; Higgins v. Railroad, 197 Mo. 300; Fletcher v. Railroad, 64 Mo. 484; Lenix v. Railroad, 76 Mo. 86; Stepp v. Railroad, 85 Mo. 229; Matz v. Railroad, 217 Mo. 275; McGrath v. Transit Co., 197 Mo. 97; Clancy v. Transit Co., 192 Mo. 615; Evans v. Railroad, 178 Mo. 504; Davis v. Railroad, 159 Mo. 1; Degonia v. Railroad, 224 Mo. 564; Hawkins v. Railroad, 135 Mo.App. 524; Tanner v. Railroad, 161 Mo. 497; King v. Railroad, 211 Mo. 1. (4) The doctrine of stare decisis or of res judicata will not apply in this case, as the testimony in the record is entirely different from that on the former appeal. Fuchs v. City, 167 Mo. 620; Kelly v. Thuey, 143 Mo. 422; Mfg. Co. v. Troll, 77 Mo.App. 339.

Charles A. Stratton and Bird & Pope for respondent.

(1) On this, the second appeal of this case, the law laid down in the first appeal governs on this, the second appeal. Palmer v. Reeves, 142 S.W. (K. C. Court App.) 1080; Parker-Washington Co. v. Transit Co., 147 S.W. (St. L. Court App.) 189. It has never been held that a ruling upon one state of facts is a conclusive adjudication of the law applicable to a state of facts essentially different from the former. Parker-Washington Co. v. Transit Co., 147 S.W. (St. L. Court App.) 189. But the second appeal in this case presents no such difference in the state of acts. (2) While the plaintiff pleaded the statutes of Kansas, and introduced them in evidence in support of her cause, the appellant now contends that the plaintiff is debarred of her recovery by the decision in the Dyerson case, 74 Kan. 524. This contention of the defendant is without merit, and is unsupported by either the Kansas or Missouri cases. Met. St. Ry. v. Arnold, 67 Kan. 260; Coasting Co. v. Tolson, 139 U.S. 551; Railroad v. Ives, 144 U.S. 408; Hurdle v. Railroad, 73 Kan. 769; Railroad v. Baker, 79 Kan. 183, 21 L.R.A. (N.S.) 247. Under the decisions of the Kansas court Dyerson could not recover unless he was in unconscious or helpless peril. Smith v. Railroad, 114 N.C. 728. And such is the law in this State. Shanks v. Traction Co., 101 Mo.App. 702; Kinlen v. Met. St. Ry. Co., 216 Mo. 145; Smith v. Railroad, 129 Mo.App. 413. This case was reversed by the Kansas City Court of Appeals solely because the trial court did not, by its instructions, require the jury to find, as a condition for a recovery, that the employees of the defendant should have seen Pearl Keele "was oblivious of her danger, and if not warned would place herself in the way of the train." But, even if it is necessary to show "wantonness" by the evidence, the facts disclosed by the record show wanton conduct on the part of the engineer and fireman. McNamara v. Met. St. Ry. Co., 133 Mo.App. 645; Zalotuchin v. Met. St. Ry. Co., 127 Mo.App. 572; Kellny v. Railroad, 101 Mo. 67; White v. Railroad, 202 Mo. 539; Johnson v. Railroad, 203 Mo. 381; Brown v. Knapp & Co., 213 Mo. 694. (3) There is no essential difference in the testimony.

LAMM, C. J. Woodson, Graves, Walker and Faris, JJ., concur; Brown, J., concurs in the result; Bond, J., dissents.

OPINION

In Banc

LAMM C. J. --

The parents of Pearl E. Keele, a minor, sued the corporate defendant in the Jackson Circuit Court for her negligent death where a county road crossed defendant's track in Kansas. Presently the father dying, plaintiff, the mother, filed an amended petition and (over the answer of defendant taking issue thereon) was allowed to prosecute the action to a judgment in her sole name. She had a verdict for $ 5000. From a judgment following, defendant appealed to the Kansas City Court of Appeals. That court, being of opinion constitutional questions were involved, sent the case here, and (as we overruled a motion to retransfer it) here it is.

Questions are raised on constitutional law, on pleadings, on practice, on evidence, on instructions given for the plaintiff and refused to defendant. One of the latter hinges, on the sufficiency of the evidence to make a case, either under the law of negligence as administered in Kansas or in this State. That contention seeks the fact and trial issues thereon. If, under the grounds of recovery (relied on pro) and the defense of contributory negligence (relied on con) there is no case on the facts, then the case breaks at that point and all other questions become unimportant. If there be a case on the facts, then other questions remain to be reached and disposed of in their order. Attend to the matter from the viewpoint of case or no case.

We omit pleadings. Let it be assumed that plaintiff's principal instruction was within the averments of the petition. It suggests the gravaman of the action, indicates the trial theory and reads in part, and so far as material, thus:

"The court instructs the jury that Pearl E. Keele, deceased, was negligent in approaching and going upon the track of the defendant upon which she was struck by a train of the defendant; still, if you further believe and find from the evidence that said Pearl E. Keele was approaching and going upon the track of the defendant upon which she was struck and into a position of peril of being struck by said train, and that she was unaware of and oblivious to such danger, and if you further believe and find from the evidence, that the engineer or fireman of said train, by keeping a vigilant lookout ahead of him, could, by the exercise of ordinary care, have discovered that said Pearl E. Keele, deceased, was...