Murrell v. Kansas City, St. L. & C. R. Co.

Decision Date03 June 1919
Docket NumberNo. 20215.,20215.
Citation213 S.W. 964
CourtMissouri Supreme Court
PartiesMURRELL v. KANSAS CITY, ST. L. & C. R. CO.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by Hulda J. Murrell against the Kansas City, St. Louis & Chicago Railroad Company. From judgment for plaintiff, defendant appealed to the Court of Appeals, which certified the case to the Supreme Court. Judgment affirmed.

This action was commenced by plaintiff in the circuit court of Lafayette county, Mo., on September 17, 1913, as the widow of John D. Murrell, who was killed in the city of Higginsville, county and state aforesaid, by an east-bound, fast passenger train operated at the time by the Chicago & Alton Railroad Company by virtue of a lease from defendant, a Missouri corporation, in 1879, which was the owner of the right of way, roadbed, tracks, etc., where deceased was killed. On defendant's application the venue was changed to Saline county, Mo., and there tried upon plaintiff's second amended petition, which, among other things, in substance, alleges the following grounds of negligence: (1) That the statutory signals were not given for the crossing where deceased was killed; (2) that the train in question was being operated through the city limits of Higginsville, Mo., in violation of its 6-mile speed ordinance, and while traveling at a highly dangerous rate of speed, to wit, 25 to 35 miles per hour; (3) failure on the part of the servants operating the train to be at their posts of duty, to slow down the train and have the same under control as it approached and passed over the crossing, when they knew, and saw, or by the exercise of ordinary care could have known and seen, deceased in peril on the crossing in time, by the exercise of ordinary care, to have slowed down the locomotive and train, given emergency signals, or stopped the train and averted the killing, which they carelessly and negligently failed to do.

The answer to second amended petition contains: (1) A general denial; (2) a plea of negligence on the part of deceased; (3) an averment that the statutes under which it is sought to hold defendant are unconstitutional; (4) that the 6-mile speed ordinance of Higginsville is unreasonable, void, unconstitutional, and an unlawful interference with interstate commerce.

At the time of his death deceased was 67 years of age. His health was good, but he was a cripple. His right leg had been broken. He wore a stirrup on this leg; it was shorter than the other. He used a crutch under his left arm and a cane in his right hand. Deceased lived about three blocks southeast of where he was killed, and walked very slowly.

It is conceded that at the time of said killing defendant was the lessor of the railroad right of way, roadbed, and tracks over which the Chicago & Alton Railroad Company was operating the train which killed deceased. It is likewise conceded that at the time of said killing the Chicago & Alton Railroad Company was operating defendant's road by virtue of the lease aforesaid, and that it was at the time an interstate common carrier, etc.

Plaintiff's evidence tends to show that the public crossing where Murrell was killed is situate in the heart of Higginsville, a city of the fourth class, with about 2,700 inhabitants, the business portion of the city being north and about half of the residence population south of the railroad tracks, about midway between the depot and the western limits of the city, or about a quarter of a mile east of the western limits of the city and about 1,200 feet west of the depot in said city. Two other public crossings intervened between the one on which Murrell was killed and the depot. There were two other public crossings between the depot and the eastern limits of the city. Murrell was killed at the intersection of Brand street and the railroad tracks. Brand street, after passing over the railroad tracks, continues on north to other portions of the city. The railroad tracks ran in the general direction of east and west where the killing occurred, and Brand street, with the other crossings mentioned, ran practically north and south. Brand street was a regular traveled public road or street, and used by many residents going to and from their places of business. North and south of this crossing where the killing occurred and west thereof, except the railroad right of way, were many and numerous residences extending to and beyond the city limits on the west. The crossing with five tracks covered a space of about 50 feet, over which there was constructed a plank walk about 4 feet wide on the west side of Brand street over the railroad tracks, and there was a regular north and south wagon crossing east of the sidewalk. The roadbed at this crossing was elevated above the ground on each side, the tracks being constructed on a fill some 4 feet or more deep, extending west for about 1,200 feet, and ending at the cut mentioned in evidence. The approach to the crossing from the south was up this incline to the roadbed and south switch track, parallel and connected with four other tracks, and connected with the next track north about 100 feet or more west of the crossing. The second track, traveling north, extended west from the crossing, from 800 to 900 feet, where it connected with the next track north. The third track from the south, called in the evidence a "passing track," and at times used as the main track, continued west from the crossing some 1,200 feet, where it connected with the next north track, called in the evidence "the main track," which continued west from the crossing to Kansas City, Mo. The north or switch track extended west about 200 or 300 feet, and connected with the main track. Plaintiff's evidence tends to show that the tracks at the crossing were about 4 feet 8 inches wide between rails, and the space between the main track and passing track was 13 feet 2 inches. The entire distance from outside of north rail to outside of south rail was about 50 feet.

Plaintiff contends that a man on the crossing looking west along the tracks could see from 500 to 600 feet. Defendant contends that a man anywhere on the crossing could see an engine approaching from the west for at least 1,000 feet. Substantial testimony was offered in support of each contention.

The deceased came upon the board walk across the tracks from the south with his crutch and cane, and must have traveled north toward the main track where he was killed. The train was due at 11:35 a. m. and arrived at 11:40 a. m. on day of accident. Plaintiff's evidence tends to show that Murrell was crossing over the north rail of main track when struck mud killed, as his headless body, his brains, pieces of his skull, broken crutch, hat, and clothing were found immediately after the train passed north of north rail of main track, between the latter and north switch track, and some portion of same was attached to slivers on the north rail of main track, commencing about 10 feet east of the plank walk, and continuing for some distance.

Such other facts and circumstances shown by the record as far as necessary will be considered later in connection with the instructions given and refused.

At the conclusion of plaintiff's evidence the defendant interposed a demurrer thereto, which was overruled, and an exception saved. At the conclusion of all the evidence defendant again asked the court to direct a verdict in its behalf, which request was refused, and an exception saved to the ruling of the court.

The jury returned a verdict in favor of plaintiff for "$2,000, and judgment was entered accordingly. Defendant in due time filed its motion for a new trial, which was overruled, and the cause duly appealed by it to the Kansas City Court of Appeals, and certified to this court on account of the constitutional questions raised in the case.

Charles M. Miller, of Kansas City, for appellant.

Duggins & Duggins, of Marshall, for respondent.

RAILEY, C. (after stating the facts as above).

I. The lease under which appellant was operating its trains over the property of defendant was executed in 1879. In its assignment of errors defendant attacks the constitutionality of section 2 of the Acts the General Assembly for 1870, at pages 90 and 91, approved March 24, 1870, and now known as section 3078, R. S. 1909, as follows:

"Section 3078, Revised Statutes of Missouri 1909 is unconstitutional for the reason that the bill when enacted contained more than one subject which was not clearly expressed in the title as provided by section 28, art. 4, of the Constitution of Missouri."

The above charge is more specifically stated at page 10 of appellant's brief as follows:

"By reference to the title of the act, it will be observed that at no place in the title is any reference made to holding the railroad leasing its line of railroad liable, the same as though operating it."

The title to the act of 1870 (page 89) reads as follows:

"An act to amend chapter sixty-three of the General Statutes, entitled `of railroad companies,' so as to authorize the consolidation, leasing and extension of railroads." ("Italics ours.)

We had occasion to fully consider this subject in the recent case of Woodward Hardware Co. v. Fisher, 269 Mo. loc. cit. 276-279, 190 S. W. loc. cit. 578, where many recent authorities are collated, including some of those cited by appellant. We have no fault to find with the above cases, nor those cited by appellant, considered in connection with the general principles of law announced therein. In our opinion, they do not sustain appellant's contention when applied to the facts before us.

In the act of 1870, supra, the Legislature had under consideration the subject as to what aid railroad companies might furnish each other by way of extension, lease, or consolidation. The state, acting through its legislative agencies, had the undoubted right in the granting of railroad...

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