McNulty v. St. Louis & San Francisco Railroad Company

• Decision Date: 05 December 1911
• Citation: 148 S.W. 973,166 Mo.App. 439
• Parties: SARAH McNULTY, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent
• Court: Missouri Court of Appeals

148 S.W. 973

166 Mo.App. 439

SARAH McNULTY, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

December 5, 1911

October 9, 1911, Submitted on Briefs

Motion for Rehearing Sustained. Cause Argued and Submitted June 3 1912. Opinion Filed July 2, 1912.

Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.

AFFIRMED.

Judgment affirmed.

A. R Taylor for appellant.

(1) It is no longer an open question in this state, that it is a duty incumbent upon the operators of a steam railroad, whenever prudence requires them to keep a watch for persons approaching or on the track and in danger, such watch must be kept, even for trespassers and licensees, as well as for persons who may lawfully be near or on the track. Isabel v. Railroad, 60 Mo. 481; Werner v. Railroad, 81 Mo. 374; Fieler v. Railroad, 107 Mo. 651; Ahnefeld v. Railroad, 212 Mo. 301; Murphy v. Railroad, 228 Mo. 79. (2) To watch out, as we have shown above, was to see this child as she ran toward the track. The fireman of 141 could see her. When he saw her or could, by the exercise of ordinary care have seen her, she was twenty-five to thirty feet away of the track. It was then the duty of the operators of the engine to have either stopped or slowed down the engine to save her life. Livingston v. Railroad, 170 Mo. 470; Cytron v. Railroad, 205 Mo. 719; Ahnfeld v. Railroad, 212 Mo. Mo. 301; Morgan v. Railroad, 228 Mo. 84; Ellis v. Railroad, 234 Mo. 679. (3) The evidence of Mr. Moore tends to show that this engine stopped when ten feet past the child. The engineer testified that the first intimation he had that anything happened some one hallooed just as we passed over the crossing. Then he brought his engine to a standstill. Here is evidence tending to prove that if the fireman had given him warning when the child started to run to the track, and when the engine was fifty feet away, he not only could have slowed up the engine and saved the child, but could have stopped the engine before he reached the place where the child was struck. The fact that the train was stopped in fifteen to thirty feet is proof conclusive that it could be so stopped. In the presence of physical facts, opinion evidence is not needed. Beier v. Transit Co., 197 Mo. 231; Latson v. Transit Co., 192 Mo. 466; Ellis v. Railroad, 234 Mo. 685; Moon v. Railroad, 237 Mo. 432. (4) The instruction given for defendant, numbered 9, was material and prejudicial error, because it deprived the plaintiff of a substantial ground of recovery pleaded in the petition and supported by evidence. It was a declaration of law that this ground of recovery could not be considered by the jury. When there is evidence to support a valid ground of recovery pleaded, it is prejudicial error to give such instruction. Meily v. Railroad, 215 Mo. 567; Kienlen v. Railroad, 216 Mo. 145; Luehrmann v. Gas Co., 127 Mo.App. 127; Lloyd v. Railroad, 128 Mo. 595; Rene v. Kansas City, 204 Mo. 269; Hack v. Railroad, 208 Mo. 581; Koerner v. Gas Co., 209 Mo. 144; Merritt v. Matchott, 135 Mo.App. 176. (5) Instruction number 10, was prejudicial error, in that it deprived the plaintiff of the legal presumption that the failure to ring the bell eighty rods from the crossing was the cause of the killing. Stotler v. Railroad, 200 Mo. 107; McNulty v. Railroad, 203 Mo. 475; McGee v. Railroad, 214 Mo. 530; Atterberry v. Railroad, 110 Mo.App. 608; Day v. Railroad, 132 Mo.App. 707. (6) Instruction number 11 was erroneous because it predicates the duty to ring the bell eighty rods from the crossing and until reaching the crossing, but does not require the ringing of the bell constantly until the engine passed the crossing as required by statute. Sec. 314 R. S. 1909; Bell v. Railroad, 72 Mo. 50; Spiller v. Railroad, 112 Mo.App. 491; Herring v. Railroad, 80 Mo.App. 562; Elliott v. Railroad, 105 Mo.App. 523; Ried v. Railroad, 107 Mo.App. 238.

W. F. Evans and Jones, Jones, Hocker & Davis for respondent.

(1) Where the petition charges negligence on part of the defendant on different theories, and there is no evidence to support one of his charges, he cannot go to the jury on that theory. Boland v. Railroad, 36 Mo. 484; Storage & Moving Co. v. St. Louis Transfer Company, 120 Mo.App. 410; Houck v. Cook, 116 Mo. 559; Heinzie v. Ry., 182 Mo. 528; Keown v. Railroad, 141 Mo. 86; Davis v. Thompson, 209 Mo. 192; Milliken v. Commission Co., 202 Mo. 637. (2) Where one of the charges of negligence in plaintiff's petition fails to show by the evidence that such negligence was the proximate cause of the injury he cannot go to the jury on that charge. Theobold v. Transit Co., 191 Mo. 433; Warner v. St. Louis, 178 Mo. 125; Winter v. Railroad, 99 Mo. 518; Meeker v. Railroad, 178 Mo. 173; Byerly v. Light & Power Co., 130 Mo.App. 593; Jackson v. Elevator Co., 209 Mo. 506.

REYNOLDS, P. J. Nortoni, and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

This action was originally brought in the circuit court of the city of St. Louis, by the father and mother, under the provisions of section 2864, Revised Statutes 1899, to recover $ 5000, the penalty given by the section, for the death of their infant daughter. The case was taken on change of venue to the circuit court of St. Louis county. The father died pending the action and it has since been prosecuted by the mother. The accident and the death occurred on the morning of the 15th of May, 1900.

It appears that this was the second trial of this case in the circuit court, there being a verdict for defendant on the former trial, which the trial court set aside for error in instructions given for defendant. Defendant appealed from that to the Supreme Court where the action of the trial court was affirmed and the cause remanded. [See McNulty v. St. Louis & S. F. R. Co., 203 Mo. 475, 101 S.W. 1082.]

This second trial was before the court and a jury and there was a verdict in favor of defendant. Judgment followed from which plaintiff appealed to the Supreme Court, the amount involved at that time exceeding the jurisdiction of this court. Pending the submission of the cause to the Supreme Court the jurisdictional amount of this court was changed from $ 4500 to $ 7500 under Act of the General Assembly, June 12, 1909, page 397, now section 3937, Revised Statutes 1909, and the cause was transferred by the Supreme Court to this court. It was first submitted to us on printed briefs and argument by respondent and taken as submitted on briefs by appellant. Holding that the trial court erred in giving the ninth instruction, we reversed the judgment and remanded the cause. Counsel for defendant, filing a motion for rehearing and that being sustained, the cause has again been submitted orally and on printed briefs and arguments.

At the instance of plaintiff the court gave seven instructions which appear to be all that were asked by plaintiff.

At the request of defendant the court gave five instructions, numbered from eight to thirteen. The errors assigned are to those numbered nine, ten and eleven. The correctness of instruction No. 9 is the principal point of controversy on this rehearing. We, however, reproduce the three instructions on which error is assigned.

The ninth instruction told the jury that under the pleadings and evidence plaintiff could not recover on the charge that defendant's servants failed to look ahead of the engine and tender to see if the movement endangered persons on the crossing and failed to stop or slow up the engine and tender before it struck the child.

The tenth instruction told the jury that before plaintiff could recover in this action "she must establish the fact that defendant was negligent in the respect or respects stated in other instructions, by the proper or greater weight of the testimony."

The eleventh instruction told the jury that even though they might find from the greater weight of the evidence that the bell of the engine which struck the child was not constantly sounded for eighty rods before reaching Theresa avenue crossing, yet if they also found from the evidence that such failure to ring the bell was not a direct and immediate cause producing or contributing to cause the injury and death of plaintiff's child, their finding should be for defendant on that issue.

Taking up these instructions in inverse order we say:

First: The criticism of the eleventh instruction is that it recognizes the duty of ringing the bell eighty rods from the crossing and until reaching the crossing but does not require the ringing of the bell constantly until the engine passed the crossing, as required by statute, now section 3140, Revised Statutes 1909.

In Pope v. Wabash Railroad Co., 242 Mo. 232, 146 S.W. 790, it is said: "The object of a signal is to give warning and if those on the track knew of the train's approach without the signal, in time to escape from danger, then failure to give the signal is of no legal importance." Several cases are cited in support of this, among others McManamee v. Missouri Pac. Ry. Co., 135 Mo. 440, 449, 37 S.W. 119. See, also, Illinois Central R. Co. v. Dupree, 138 Ky. 459, 462, 128 S.W. 334. Here the failure to keep the bell ringing while crossing the street was wholly immaterial, for the child was struck before the engine had passed over the street. Moreover, one of plaintiff's own instructions cover this, for it distinctly told the jury that to exempt defendant, it must, among other things, appear from the evidence "that at the time said engine and tender ran upon said crossing the bell on said engine was rung eighty rods from said crossing and kept ringing until such engine crossed said street."

Second: The argument in support of the error assigned to the tenth instruction is...