Murphy v. Wabash R. Co.

• Decision Date: 13 May 1910
• Citation: 228 Mo. 56,128 S.W. 481
• Parties: MURPHY v. WABASH R. CO.
• Court: Missouri Supreme Court

128 S.W. 481

228 Mo. 56

MURPHY v. WABASH R. CO.

Supreme Court of Missouri.

May 13, 1910.

1. PLEADING (§ 412) — REPLY — FAILURE TO FILE — WAIVER.

If the trial is continued as if new matter in the answer was put in issue by reply, a reply will be considered as having been filed, though none was in fact filed.

2. NEGLIGENCE (§ 97) — COMPARATIVE NEGLIGENCE.

The doctrine of comparative negligence is not recognized in Missouri.

3. NEGLIGENCE (§ 100) — CONTRIBUTORY NEGLIGENCE — WANTON INJURIES.

Contributory negligence is not a defense to an action for inflicting a willful or wanton injury.

4. NEGLIGENCE (§ 83) — "HUMANITARIAN DOCTRINE" — NATURE OF DOCTRINE.

The "humanitarian doctrine," or last clear chance doctrine, is somewhat of an exception to the general rule of law, by which an injury caused by the joint negligence of the wrongdoer and the person injured is not actionable.

5. COMMON LAW (§ 1) — MAXIMS.

Exceptions to a rule of law only declare and confirm the rule itself.

6. RAILROADS (§ 390) — INJURIES TO PERSON ON TRACK — CONTRIBUTORY NEGLIGENCE — DRUNKENNESS.

Drunkenness does not excuse a negligent injury of the intoxicated person, so that trainmen who see, or ought to see, an intoxicated person on the track are negligent if they do not make all prudent effort to prevent injuring him.

7. RAILROADS (§ 369) — INJURIES TO PERSON ON TRACK — DUTY OF COMPANY — DUTY TO TRESPASSERS.

A railroad company is bound to look out for persons on the track at places where by common custom, known to it, there is such a general use of the track by pedestrians as to cause the company naturally to expect to find them there; Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), providing that if one not an employé shall walk upon a railroad track, except at a public crossing, and be injured, he shall be deemed to have committed a trespass in an action brought against the company for such injury, not relieving the company of such duty.

8. JUDGMENT (§ 41) — CONFESSION.

A judgment may be rendered on confession, as well as on a verdict.

9. APPEAL AND ERROR (§ 1172) — DISPOSITION — REVERSAL IN PART.

Where an action for damages for intestate's death was joined with a count for wages due him from defendant, and defendant confessed that plaintiff was entitled to recover on the latter count, but no verdict was rendered thereon, and the court added the amount confessed to the amount recovered for death, and entered a general judgment thereon, the Supreme Court might eliminate the amount confessed from the judgment, and leave it stand on the verdict alone.

10. APPEAL AND ERROR (§§ 238, 301) — RESERVATION OF QUESTIONS BELOW.

Where defendant did not, either in its motion for a new trial or in arrest, call the trial court's attention to the irregularity in the judgment, in including an amount confessed as due plaintiff as wages, to which intestate was entitled, for which no verdict was rendered, with the amount of the verdict for intestate's death, the objection may not be considered in the Supreme Court.

11. STATUTES (§ 184) — CONSTRUCTION.

Ordinarily the words of a statute should not be so loosely construed as to divert the law from its prescribed statutory channel, nor construed so strictly as to take the life out of the law.

12. STATUTES (§ 174) — CONSTRUCTION.

The construction of a statute becomes a part of it.

13. TRIAL (§ 256) — INSTRUCTIONS — REQUESTS — NECESSITY.

Where, in an action against a railroad company for intestate's death upon the track, the charge on the measure of damages was in the general language of Damage Act (Laws 1905, p. 135 [Ann. St. 1906, p. 1637]), amending Rev. St. 1899, § 2864, defendant cannot complain that the verdict was excessive, on the ground that there was no evidence tending to show the value of intestate's life, so that he could only recover the minimum amount of the statutory penalty, where defendant did not request that the instruction be made more specific on the amount recoverable, not being entitled to complain for mere failure to instruct.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by S. A. D. Murphy, administrator of Luke Fletcher, deceased, against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. L. Minnis and Jones, Jones, Hocker & Davis, for appellant. F. H. McCullough, C. E. Murrell, and Campbell & Ellison, for respondent

LAMM, J.

Luke Fletcher was 50 years old. On the 6th day of July, 1905, he was defendant's servant as section foreman in Iowa. On that day he was struck on defendant's track by one of defendant's locomotive engines pulling a light passenger train within the corporate limits of Kirksville, in Adair county, Mo., and was so hurt that presently he died. Though once married, he was unmarried at his death, leaving no minor children, "natural or adopted," but leaving one son, who had reached his majority, surviving him. Presently Mr. Murphy was appointed administrator of his estate, took on himself the burthen of that trust by qualifying, and sues defendant in two counts: The first, to recover $10,000 for Fletcher's wrongful and negligent death; the second, to recover a small remnant of wages due decedent as section foreman. At the trial defendant confessed in open court the allegations of the second count to be true, and that the administrator was entitled to recover the amount sued for, to wit, $59.30. The trial progressing only on the first count, the second needs no further consideration. The first count of the petition is a full and elaborate pleading, and may be characterized as predicated on the right to recover for the wrongful and negligent death of Mr. Fletcher on the humanitarian theory. To that end, it charges that he was on defendant's main track in the city of Kirksville, at a place where from long and common use by footmen in going north and south in said city, with knowledge and acquiescence of defendant, it had no right to expect a clear track; that such condition raised a duty to keep a lookout for persons so using the track and exposed to danger; that defendant negligently ran its locomotive and train against decedent, and fatally injured him; that its servants and agents in charge of said locomotive and train saw, or by the use of ordinary care might have seen, him in peril in time to have stopped the engine and saved his life, but negligently failed to keep a watchful lookout for persons who might be in peril ahead of the engine on the track, or negligently failed to stop said engine after they knew, or should have known, of defendant's danger, when by the exercise of ordinary care they could have discovered it in time to have saved him. There is another theory of the petition upon which a right to recover is predicated, viz., that, place and time considered, the train should have been run at such low rate of speed that it would be under control and could be quickly stopped; that, in breach of that duty, the train killing Fletcher was negligently and carelessly run at 25 miles an hour, and not under control. But, as the case was not put to the jury on this theory, it is afield. The answer was a general denial, coupled with a plea of specified contributory negligence, in that decedent was negligently lying down upon defendant's track, and remained there without looking or listening for the approach of trains, when by looking he could see, or by listening he could hear, their approach in time to have saved himself, and without exercising any care whatever for his own safety; that his death was solely the result of his own negligence in lying down upon the railway track of defendant, not at the crossing of any public highway, in open and express violation of section 1105 of the Revised Statutes of Missouri. No reply was filed; but, as we have uniformly held that if a trial proceeds as if the new matter in the answer was put in issue by denial in a reply, one would be taken as filed, this phase of the case may be put aside. The facts will appear in the opinion.

Defendant called no witnesses and put in no evidence. The plaintiff, among other witnesses, called the conductor of the train, but his testimony was of no probative force one way or the other. Neither the engineer nor the fireman was on the witness stand.

The case was put to the jury on behalf of plaintiff in four instructions, only two of which are material on appeal, viz.:

"(1) In behalf of the plaintiff the court instructs the jury that, if you find and believe from the evidence that on the 6th day of July, 1905, the defendant operated a railroad, running through the corporate limits of the city of Kirksville, Adair county, Mo., and that said railroad crosses from south to north at about right angles, among others the following named streets in said city of Kirksville, and in the following order, to wit: Michigan, Wilson, Dodson, Water, Fillmore, Scott, Pierce, and Jefferson — and that on said 6th day of July 1905, and continuously for several years prior thereto, defendant's said railroad track, from the place where it crosses said Jefferson street to a point 2,000 feet south of said crossing, with the knowledge of the defendant, was used and treated as a thoroughfare by a large number of persons, not employés of defendant, who were in the habit of walking to and fro thereon, in the same manner and with the same freedom as if said railroad track had constituted a highway of said city, and that upon the 6th day of July, 1905, Luke Fletcher was upon defendant's said railroad track, at a point between said Scott and Fillmore streets, and was in a dangerous and perilous position, and in imminent peril of being struck by defendant's train, and defendant's employés in charge of said train became aware of his perilous position in time to have enabled them, by the exercise of ordinary care, to have stopped said train, and to have averted injury to said Luke Fletcher, or if...