Moyer v. Chicago & A. R. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Walker
• Citation: Moyer v. Chicago & A. R. Co., 198 S.W. 839 (Mo. 1917)
• Decision Date: 17 November 1917
• Docket Number: No. 17080.,17080.
• Parties: MOYER v. CHICAGO & A. R. CO.

198 S.W. 839

MOYER v. CHICAGO & A. R. CO.

No. 17080.

Supreme Court of Missouri. In Banc.

November 17, 1917.

On Motion for Rehearing, December 1, 1917.

Appeal from Circuit Court, Cooper County; Jno. M. Williams, Judge.

Action by James N. Moyer against the Chicago & Alton Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Scarritt, Scarritt, Jones & Miller, of Kansas City, for appellant. O. S. Barton, of Carthage, Sam C. Major, of Fayette, and W. M. Williams, of Boonville, for respondent.

WALKER, J.

This is an action for personal injuries. From a judgment in favor of the plaintiff, the defendant appeals.

On February 10, 1909, plaintiff was driving a team of mules hitched to a farm wagon up the approach to a highway crossing of defendant's railroad within the eastern limits of the city of Glasgow at what is known as Schnell crossing, on the highway leading from Fayette to Glasgow. The highway at this point crosses the railroad track at an angle of about 45 degrees. The plaintiff at the time of the accident was approaching the railroad track from the southeast, and was going in a northwesterly direction. The track at the crossing was upon an embankment or fill 7 or 8 feet higher than the natural surface of the ground. Plaintiff stopped at a bridge about 100 yards from the crossing, and neither saw nor heard any indications of an approaching train until he got within about 30 feet of the track, when a freight train coming from the east passed in front of the mules, and they were frightened at its sudden appearance, when they turned and ran abruptly down the southwest bank of the approach before the plaintiff could secure control of them, and took the wagon down with them for a distance of about 6 feet, when it turned over, and the bed of same slipped off, and plaintiff's leg was broken, and he received other injuries. The mules were gentle, and as soon as the wagon turned over they stopped and did not attempt to run further. The road at the time was full of ruts, and had been frozen over and it was necessary for the plaintiff to watch it in driving. There was a sharp conflict in the testimony about the giving of signals. Plaintiff testified that no signals were given by the engineer; that the whistle was not sounded nor the bell rung. Defendant's witnesses testified that the whistle was sounded two long and two short blasts at the whistling post; but there was no testimony that it was sounded and the bell rung at intervals until the train passed over the crossing. Plaintiff's evidence tended to show that the approach to the crossing, instead of being 24 feet wide, would average but from 10 to 14 feet in width, measuring from the extremes or outer edges of the fill on either side, and that the approach extended back 70 feet before it reached the highway proper.

Plaintiff's petition alleged that the defendant failed to construct and maintain the approach to the crossing 24 feet wide, as required by the statute, but that said approach was so narrow as not to be reasonably safe; that, as plaintiff was driving up the approach on the day stated, one of the defendant's trains, without sounding the whistle, ringing the bell, or giving any other notice or warning of its approach, suddenly passed over said crossing in front of plaintiff's team, then only a short distance from the track; that the mules became frightened at said train, and in consequence of defendant's carelessness and negligence aforesaid said mules went over the side of the embankment, and plaintiff was thrown out of the wagon and injured.

The answer denies the allegations of defendant's negligence, pleads contributory negligence on plaintiff's part, and alleges that sections 3141 and 10626, R. S. 1909, specifying the character of crossings and approaches a railroad is required to construct, are invalid, because they contain more than one subject, and that their titles fail to conform to the constitutional requirement.

The reply was a general denial. The court refused to sustain a demurrer to plaintiff's evidence, gave two instructions for the plaintiff, seven for the defendant, one of which was modified by the court, and refused six others asked by the defendant.

The first instruction asked by plaintiff was to the effect that, if the jury believed from all of the evidence that plaintiff's mules became frightened at defendant's train, as it passed in front of them over the crossing, and that they pulled the wagon over the bank or side of the approach, and plaintiff was thereby injured, and if the jury should further believe from the evidence that the defendant had failed and neglected to construct a sufficient approach to the crossing, at least 24 feet in width, or that defendant's servants and agents in charge of said freight train failed and neglected to ring the bell on the locomotive engine 80 rods from said crossing and to keep the same ringing until the crossing was passed or to sound a whistle at least 80 rods from said crossing and to sound the same at intervals until the train passed over said crossing, and that plaintiff's said injuries were caused by and resulted from the failure of the defendant to construct and maintain a sufficient approach to said crossing at least 24 feet in width, or by reason of the carelessness and negligence of defendant's servants in failing to ring the bell or sound the whistle as aforesaid, or from both of said causes, then the jury should find for the plaintiff, provided they should further find that he was exercising such care as an ordinarily prudent person would have exercised under like circumstances. The second instruction simply pertained to the measure of damages.

On behalf of the defendant the court instructed the jury: (1) That, if they believed, under the circumstances shown in evidence, that the team would have run over the embankment, even if the approach had been 24 feet wide, then they could not find that the width of the approach was a direct and proximate cause of the injury to plaintiff; (2) that it was the duty of the plaintiff to look and listen for a train and to keep his team under control, and that, if plaintiff, when approaching the crossing, could have seen or heard the train while his team was at a place of safety and failed to stop, then he was guilty of contributory negligence, and could not recover, even though no signals were given or the approach to the track was not as wide as the law requires; (3) that the defendant was not required to erect or maintain a railing or banister on the west side of said approach; (4) that the case should be tried without regard to the fact that it was a suit between an individual and a corporation; (5) that the burden of the proof was upon the plaintiff; (6) that it was the duty of the plaintiff to use his eyes and ears in approaching the crossing, and if he failed to do so when he could have stopped in a place of safety before reaching the crossing, he was guilty of contributory negligence; (7) defining plaintiff's duty and the care he was required to use in driving his team, which the court modified and gave.

The other instructions asked by the defendant and refused were either in effect demurrers to the evidence, or were upon points covered by the instructions given.

The jury found the issues for the plaintiff, and assessed his damages at $2,000. After an unsuccessful motion for a new trial, the defendant appealed.

I. Validity of Statutes. — The validity of sections 3141 and 10626, R. S. 1909, is assailed on account of the alleged insufficiency of their titles as originally enacted. The first as originally enacted is found in Laws 1885, p. 87, and the second in Laws 1905, p. 106. Each is a repeal of a prior section and the enactment of a new section in lieu thereof. The title of each, in addition to declaring the act to be a repeal and the enactment of a new section of a certain chapter and article of the general statutes then in force, designates each of such chapters and articles as they are entitled in the statutes.

The provisions of each of these sections relate to the same general subject-matter, viz. the construction and maintenance of railroad crossings and to matters having a natural connection therewith and incidental thereto or provide means for the accomplishment of the purpose for which the respective sections were enacted. The titles here in question are indicative of the purpose of the respective acts. This is all that is required. The constitutional provision (article 4, § 28, Const. Mo.) here alleged to have been violated has never been given a narrow or technical construction. Whenever the provisions of an act fairly relate to a single subject, as they do here, and the terms of the title are not misleading, we have refused to declare the act invalid. So numerous and uniform have been our rulings on this subject that this opinion need not be burdened by references to same except the most recent cases. These hold that to conform to the constitutional requirement it is only necessary that the title to a bill fairly indicate its general contents (State ex rel. Garesche v. Roach, 258 Mo. 541, 167 S. W. 1008; State ex rel. Garesche v. Drabelle, 258 Mo. 568, 167 S. W. 1016); or, if the title comprehensively refers to the subject-matter of the act, it need not have reference to subordinate matters connected therewith or reasonably within the purview of the statute (State v. Hurley, 258 Mo. 275, 167 S. W. 965).

II. The Pleading. — Defendant contends that the petition did not predicate negligence upon its failure to ring the bell and sound the whistle as required by the statute (section 3140, R. S. 1909). The language of the petition, after pleading defendant's failure to provide such an approach or crossing as is prescribed in sections 3141 and 10626, R. S. 1909, is as follows:

"And in failing to ring the bell and sound the whistle or give any other warning of the approach of the train."

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