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

• Decision Date: 25 March 1931
• Docket Number: 28595
• Citation: 37 S.W.2d 569,327 Mo. 166
• Parties: Owen Kirkdoffer, Administrator of Estate of Charles Kirkdoffer, v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 569

327 Mo. 166

Owen Kirkdoffer, Administrator of Estate of Charles Kirkdoffer, v. St. Louis-San Francisco Railway Company, Appellant

No. 28595

Supreme Court of Missouri

March 25, 1931

Appeal from Butler Circuit Court; Hon. Charles L. Ferguson Judge.

Reversed and remanded.

E. T Miller and Ward & Reeves for appellant.

(1) Under the undisputed evidence the Lookout Statute was complied with by the engineer on the train as the same approached and went upon the crossing; but aside from this no case was made under the Lookout Statute and the court erred in submitting this theory of the case to the jury. Allnutt v. Railroad, 8 F.2d 604; Gray v. Railroad, 23 F.2d 190; Jemel v. Railroad (Ark.), 11 S.W.2d 449; St. Louis-San Francisco Ry. Co. v. McClinton (Ark.), 9 S.W.2d 1060; Blytheville Co. v. Gessell, 158 Ark. 569, 250 S.W. 881; Kelly v. Railroad, 174 Ark. 1000, 298 S.W. 347; St. L. I. M. & So. Ry. v. Gibson, 113 Ark. 417, 168 S.W. 1129; St. L. I. M. & So. Ry. v. Gibson, 107 Ark. 431, 155 S.W. 510. (2) The court erred in submitting the case on the theory of comparative negligence as provided in the Arkansas statute, for the reason the undisputed evidence and the necessary inferences therefrom show as a matter of law that the deceased's negligence was equal to or greater than that of the defendant. Bradley v. Railroad, 288 F. 484; Allnutt v. Railroad, 8 F.2d 604; Ray v. Railroad, 23 F.2d 190; Baltimore, etc., v. Goodman, 275 U.S. 66, 72 L.Ed. 167; Gersman v. Railroad, 229 S.W. 167; St. Louis-San Francisco Ry. Co. v. Horn, 168 Ark. 191, 269 S.W. 576; St. Louis-San Francisco Ry. Co. v. McClinton (Ark.), 9 S.W.2d 1060; Jemell v. Railroad (Ark.), 11 S.W.2d 449. (3) It is not the law that the mere fact deceased was killed on a public road crossing by one of defendant's trains makes a prima-facie case of negligence against the defendant and entitles plaintiff to recover unless the defendant proves by the greater weight of the evidence that it was not guilty of any negligence that directly contributed to the death of deceased. Mo. Pac. Ry. Co. v. Foresee (Ark.), 26 S.W.2d 108; St. Louis-San Francisco Ry. Co. v. Cole (Ark.), 27 S.W.2d 992. (4) The court erred in admitting in evidence Rule 561. The rule had no application to public crossings, but applied only to the crossing of one railroad with another.

John H. Bradley, C. O. Inman and W. H. Douglass for respondent.

(1) Under the statute of Arkansas, where a person is injured or killed by a train at a public crossing, a prima-facie case of negligence is made against the railroad; that is, the injury is presumed to have been caused by the negligence of the railroad company, and the burden is on the railroad company to show that the injury was not caused by its negligence. Hiatt v. Railroad, 308 Mo. 77; Mo. Pac. Ry. Co. v. Robertson, 169 Ark. 957; Mo. Pac. Ry. Co. v. Greene, 6 S.W.2d 26; Davis v. Hareford, 156 Ark. 67; Huff v. Railroad, 170 Ark. 665; Railroad v. Haynes, 177 Ark. 104; Railroad v. Horn, 168 Ark. 191; Railroad v. Bode, 168 Ark. 157; Gregory v. Railroad, 168 Ark. 469; Ramey v. Mo. Pac., 21 S.W.2d 873. (2) Plaintiff's Instruction No. 1 correctly declares the law in this case as construed by the Arkansas Supreme Court under the Presumptive Negligence Statute. This instruction tells the jury: (a) That as decedent was killed by a train at a public crossing, then it is presumed that the injury or death was caused by the negligence of the defendant, and this is a correct statement of the law. Citations under Point 1. (b) This instruction then tells the jury that in order to free itself from negligence, the railroad company must prove by a preponderance of the evidence that it was not guilty of any negligence, and this is a correct statement of the law. Hiatt v. Railroad, 308 Mo. 101; Davis Agent v. Hareford, 156 Ark. 74; Railroad v. Whitley, 139 Ark. 255; Nelson v. Railroad, 160 Ark. 568; Railroad v. Bain, 170 Ark. 594; Railroad v. Alexander, 2 S.W.2d 49; Railroad v. Griffin, 141 Ark. 625. (c) This instruction also tells the jury that the defendant may relieve itself from liability by showing that the decedent was guilty of contributory negligence equal to or greater than the defendant's negligence, and this is the law. Railroad v. Horn, 168 Ark. 191. (3) Plaintiff's Instruction No. 4 was given to cover the duty of the defendant after it had come forward with its evidence to rebut the presumption of negligence, or prima-facie case made by plaintiff, after proof by plaintiff that decedent was killed at a public crossing by a train. This instruction tells the jury: (a) What the law in this case required of the defendant with reference to giving signals at crossings, and in keeping a constant lookout, and in avoiding injury on the first appearance of peril. It then tells the jury that the burden is on the defendant to prove by a preponderance of the evidence that it performed these duties. This is the law as declared by the Arkansas courts in many cases. Davis v. Hareford, 156 Ark. 67; Railroad v. Bain, 170 Ark. 594; Nelson v. Railroad, 160 Ark. 568; Railroad v. Whitley, 139 Ark. 255; Hiatt v. Railroad, 308 Mo. 101; Railroad v. Alexander, 2 S.W.2d 49; Railroad v. Griffin, 141 Ark. 625; Railroad v. Sloan, 2 S.W.2d 15. (b) After this instruction had told the jury that the burden was on the defendant to prove by a preponderance of the evidence it performed the above statutory duties, it then told the jury that the defendant must show that it was not guilty. The ultimate fact for defendant to establish in such a case in order to free itself is that it was guilty of no negligence that contributed to cause the death of decedent. Cases cited under subdivision (a). (c) The instruction also told the jury that defendant could free itself from liability (not negligence) by showing that decedent was guilty of contributory negligence equal to or greater than the negligence of the defendant. This is a correct statement of the law. Railroad v. Horn, 168 Ark. 191. (4) Plaintiff's Instruction No. 2 submits the case on the Lookout Statute if that statute is declaratory of the common law humanitarian doctrine, with the increased duty on the part of the engineer to keep a constant lookout in order to avoid injury on the first appearance of peril. If the statute is not declaratory of the Humanitarian doctrine, then this instruction submits the humanitarian doctrine, but enjoins on the engineer that degree of care required of the defendant or its engineer in running trains in Arkansas. In submitting the humanitarian doctrine it is proper to require this higher degree of care as has been decided by this court. The Automobile Statute of Missouri requires a highest degree of care. Bruce v. Packing Co., 6 S.W.2d 987; Burke v. Papas, 293 S.W. 142; Hultz v. Miller, 299 S.W. 85. Also under the Vigilant Watch Ordinance of St. Louis, where that Ordinance is in evidence, and injury is sustained by a street car. Schroeder v. Wells, 310 Mo. 642; Toomey v. Wells, 310 Mo. 696. The statute properly declares the humanitarian doctrine, as it excludes contributory negligence as a defense. Railroad v. Horn, 168 Ark. 191; Railroad v. Robertson, 169 Ark. 959. (5) The plaintiff's prima-facie case was not overcome by the defendant's evidence that it gave the statutory signals and kept a lookout, for this evidence was contradicted by plaintiff's rebuttal testimony, and by the circumstances in the case. "It was for the jury to say whether or not the testimony of the fireman, to the effect that he kept a lookout, was reasonable, self-consistent, and uncontradicted." Railroad v. Robertson, 169 Ark. 959; Railroad v. Alexander, 2 S.W.2d 49; Railroad v. Bain, 170 Ark. 594; Railroad v. Pearson, 170 Ark. 842; Railroad v. Robertson, 169 Ark. 959; Hiatt v. Railroad, 308 Mo. 77; Railroad v. Avant, 172 Ark. 584; Huff v. Railroad, 170 Ark. 665; Railroad v. Horn, 168 Ark. 191; Smith v. Railroad, 138 Ark. 594; Railroad v. Bode, 168 Ark. 157; Railroad v. Haynes, 177 Ark. 104. The railroad company is required to keep some employee in a position where seeing will be effective. Kelley v. DeQueen, 174 Ark. 1000. (6) Defendant's Rule 561 was admissible in evidence though not pleaded, for it was not relied on by plaintiff to recover. It was offered in evidence as an evidentiary fact that defendant had not freed itself from negligence by showing it gave signals and kept a lookout. Kinney v. Railroad Co., 261 Mo. 113; Bond v. Railroad, 288 S.W. 777; Whitlow v. Railroad, 282 S.W. 525; Railroad v. Hilgartner, 149 S.W. 1091; Railroad v. Ward, 20 N.E. 520; Stevens v. Railway Co., 69 N.E. 338; Hunt v. Railroad, 529 S.W. 481.

OPINION

White, J.

Action for damages on account of the death of Charles Kirkdoffer, which occurred on or about September 16, 1926, near the town of Manila, in Craighead County, Arkansas.

Suit was brought in the Circuit Court of Butler County, Missouri, by the administrator of Charles Kirkdoffer, under a statute of Arkansas providing that where the death of a person shall be caused by the wrongful act, etc., of another, where if death had not ensued the party injured would be entitled to recover in an action for damages, the person or corporation causing the death would be liable in an action notwithstanding the death. Another section of the Arkansas statute provided that the action might be brought by the personal representative of the person killed, and for the benefit of the widow and next of kin of the deceased.

Charles Kirkdoffer left surviving him his widow and two minor children, and suit for their benefit was brought by his son, Owen Kirkdoffer, administrator. Several statutes of Arkansas are set out in the petition and upon them this suit is predicated.

At the point where the accident occurred, Highway No. 18, with a...