Marsh v. Kansas City Southern Railway Company

• Decision Date: 04 January 1904
• Parties: GRACE E. MARSH, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

78 S.W. 284

104 Mo.App. 577

GRACE E. MARSH, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 4, 1904

Appeal from Vernon Circuit Court.--Hon. H. C. Timmonds, Judge.

Judgment affirmed.

Lathrop Morrow, Fox & Moore, Cyrus Crane, O. H. Hoss for appellant.

(1) The demurrer to the evidence should have been sustained (a) because the alleged failure to give the signals was not the cause of the accident; (b) deceased's own negligence precluded a recovery. Harlan v. Railway, 64 Mo. 480; Fletcher v. Railway, 64 Mo. 484; Harlan v Railway, 65 Mo. 22; Zimmerman v. Railway, 71 Mo. 490; Heinz v. Railway, 71 Mo. 636; Purl v Railway, 72 Mo. 168; Turner v. Railway, 74 Mo. 602-606; Hixson v. Railway, 80 Mo. 335-340; Fox v. Railway, 85 Mo. 679; Kelly v. Railway, 88 Mo. 534-548; Stepp v. Railway, 85 Mo. 229-234; Baker v. Railway, 122 Mo. 533-543; Hayden v. Railway, 124 Mo. 566-573; Weller v. Railway, 120 Mo. 635-653; Kelsay v. Railway, 129 Mo. 362; Loring v. Railway, 128 Mo. 349-359; Huggart v. Railway, 134 Mo. 673-679; Lane v Railway, 132 Mo. 4; Payne v. Railway, 136 Mo. 562; Hook v. Railway, 162 Mo. 569; Tanner v. Railway, 161 Mo. 572. (2) The rules laid down in the foregoing cases are not relaxed because Marsh was not driving the team. Beach on Contributory Negligence (3 Ed. ), sec. 115a; Elliot on Railroads, vol. 3, sec. 1174; Dean v. Railway, 6 L. R. A. (Pa.) 143; Township v. Anderson, 114 Pa. St. 643; S. C., 8 A. 379; Brickell v. Railroad, 120 N.Y. 290; Smith v. Railroad, 32 A. 967 (Maine) ; Miller v. Railroad, 27 N. E. (Ind.) 339; Smith v. Railroad, 38 Hun 33; Aurelius v. Railroad, 49 N. E. (Ind.) 857; Griffith v. Railway, 44 F. 574-580; Railroad v. Boyts, 45 N. E. (Ind.) 812.

J. I. Shepherd and Scott & Bowker for respondent.

(1) The court did not err in refusing to sustain appellant's demurrer to respondent's evidence, for under the testimony it was a case for the jury. Weller v. Railroad, 164 Mo. 180; Donahue v. Railroad, 91 Mo. 357; Huxhold v. Railroad, 90 Mo. 548; Kelley v. Railroad, 88 Mo. 534; Johnson v. Railroad, 77 Mo. 546. (2) The presumption of due care always obtains in favor of plaintiff in an action to recover damages for an injury sustained by him through the alleged negligence of another. Weller v. Railroad, 164 Mo. 180; Crumpley v. Railroad, 111 Mo. 152; Bluedorn v. Railroad, 108 Mo. 439; Petty v. Railroad, 88 Mo. 306; Busching v. Gas Light Co., 73 Mo. 219. (3) Deceased had a right under the law to assume that the railway company would perform its duty in regard to giving the statutory signals as it approached the crossing in question. Weller v. Railroad, 164 Mo. 180; Jennings v. Railroad, 112 Mo. 490; Crumpley v. Railroad, 111 Mo. 152. (4) Before the court can declare as a matter of law that the deceased was guilty of contributory negligence the evidence must be substantially one way and not such that reasonable minds might differ with respect thereto. Weller v. Railroad, 164 Mo. 180. (3) Although the driver of the vehicle in which the deceased was riding should be held to be guilty of negligence in approaching the crossing in question as he did, his negligence could not be imputed to the deceased, unless said driver was the agent of or under the control of the deceased. Proffit v. Railroad, 91 Mo.App. 369; Dickson v. Railroad, 104 Mo. 491; Beck v. Railroad, 102 Mo. 544; Munger v. Sedalia, 66 Mo.App. 629; Lapsley v. Railroad, 16 L. R. A. 800; Howe v. Railroad, 30 L. R. A. 684.

OPINION

ELLISON, J.

Plaintiff is the widow of G. W. Marsh who was killed by one of defendant's trains in the village of Hume. She recovered judgment for forty-five hundred dollars and defendant appealed to this court.

The deceased with Willis Harrold and two others, all in Harrold's wagon, had driven into the town to do some shopping. In returning, Harrold and one of the others were on the front seat, Harrold driving, while the deceased and the other man were sitting in the rear on the bottom of the wagon bed. The evidence tended to show that defendant's road runs from north to south through the town and that in approaching the track along the street from the direction these parties were travelling neither the track to the south nor trains thereon could be seen, on account of buildings and other obstructions, at but one place between the business portion of the town and a point between six and twenty feet from the track. That point was two blocks away and then the view was of only a small part of the track. The street along which they drove was smooth so that the wagon did not make sufficient noise to prevent them hearing any signal which an approaching train might make. From the point where they had a view of the track to the south they drove slowly down to within a few feet of the track where they intended to stop and again look for a train. But just as they arrived at that place a fast moving train came from behind the buildings which frightened the horses so that they leaped forward across the track, throwing the deceased out where he was immediately struck and killed by the engine, the team and other occupants of the wagon escaping.

1. An important point is raised by the defendant as to the jurisdiction of this court to entertain the appeal. The point is based on the statute (Revised Statutes 1899, sec. 2864), fixing the sum of $ 5,000 as the liability which a defendant must forfeit and pay in a case of this kind. That that being the fixed sum in such case, and that being a sum in excess of our jurisdiction, the appellate jurisdiction is with the Supreme Court.

As has been stated, the amount sued for and recovered was $ 4,500 and the trial court instructed the jury that if they found for the plaintiff they must find that sum. The same point was made by motion in this court to transfer to the Supreme Court, and with a view of having the question finally determined, we sustained that motion. When the case was received in the Supreme Court plaintiff filed her motion to transfer back to this court, on the ground that this and not that court had jurisdiction. That motion was sustained and the case returned to us. Unfortunately that court did not express its views in an opinion, but we must accept its action on plaintiff's motion as a determination that it had no jurisdiction of the case. Indeed, it is clear that that court could not have determined otherwise. That court has jurisdiction of money demands only "where the amount in dispute, exclusive of costs, exceeds the sum" of forty-five hundred dollars. In sums of forty-five hundred dollars or less the jurisdiction is with this court. The "amount in dispute" in this case is $ 4,500. For that is the sum plaintiff asserts she has been damaged and which she claims defendant is liable for and for which she asks judgment; and that is the sum for which defendant denies a liability. Plainly, the only "dispute" between the parties as to amount is over the sum of $ 4,500. Defendant contends that if plaintiff has any right to a judgment it can only be for the stated sum of $ 5,000 named in the statute, and that therefore the amount in dispute must be $ 5,000. But this contention involves the remarkable necessity of forcing plaintiff into a "dispute" which she specially disclaims.

In our view the point which defendant seeks to make has nothing to do with the intention of jurisdiction. The point simply involves the right of plaintiff to recover at all on a statute naming a fixed sum as the amount to which she is entitled, when she asks a recovery for a less sum. That is, can a plaintiff seeking a judgment under a statute which creates the cause of action and names a fixed sum as the liability, ask for and recover a less sum? Defendant claims that the sum fixed is a penalty and that in suits on penal statutes the petition must be based on the statute as it reads and that the recovery must either be for the sum fixed (no more, no less) or not at all.

In civil actions for what is known as strictly a penalty and based on a strictly penal statute that is the rule. Duffy v. Averitt, 5 Ired. Law 455; Dowd v. Seawell, 3 Dev. (N. C. Law) 185. In the case last cited it was held that the precise penalty must be demanded. The court states in the decision in Cunningham v. Bennett (1 Geo. 1 C. B.) "that a penal action could not be for less than the penalty given by the statute; and though the plaintiff had a verdict, judgment was arrested. I conclude, therefore, that wherever a statute gives a certain sum in numero, that exact sum must be demanded; else it can not be taken to be the penalty given by that statute." Such penalties are those which are forfeited to the State in whole or in part and are collected in the name of the State, or an informer authorized by the State.

But the statute on which this action is based is not strictly a penal statute. It is undoubtedly remedial and compensatory, as well as penal. It subserves a double purpose: "first, compensation and, second, as a penalty to protect the public against repetition of like wrongs." King v. Railway, 98 Mo. 235; Philpott v. Railway, 85 Mo. 164. And when it is not strictly a penal statute, it is not absolutely necessary that the individual who falls under the relief of its provisions should demand the whole sum allowed him. He must, it is true, found his petition on the statute, but he is not compelled to demand all the statute enables him to seek if he is willing to receive less.

It is true that it was remarked in Proctor v. Railway, 64 Mo. 112, 122, that the damages to be recovered under the statute in question were $ 5,000, "no more and no less." But manifestly the court, in using that language was merely meaning to say that the sum recoverable was a fixed and definite sum,...