Murrell v. Kansas City, St. Louis & Chicago Railroad Company

• Citation: 213 S.W. 964,279 Mo. 92
• Parties: HULDA J. MURRELL v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant
• Decision Date: 05 July 1919
• Court: United States State Supreme Court of Missouri

213 S.W. 964

279 Mo. 92

HULDA J. MURRELL v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 5, 1919

Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

Joshua Barbee and Scarritt, Scarritt, Jones & Miller for appellant.

(1) Sec. 3078, R. S. 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, Article 4, Constitution of Missouri. Williams v. Railroad, 233 Mo. 666; Witzmann v. Railroad, 131 Mo. 612; St. Louis v. Bray, 213 Mo. 131; Shively v. Lankford, 174 Mo. 545; State v Coffey Company, 171 Mo. 634; Gulf Ry. Co. v Stokes, 91 S.W. 328. (2) The speed ordinance of six miles an hour of Higginsville is unreasonable unconstitutional and an attempt to interfere with and regulate interstate commerce, contrary to Section 8 of Article 1 of the Constitution of the United States. Lusk v Town of Dora, 224 F. 630; Zumault v. Railroad, 71 Mo.App. 670; White v. Railroad, 44 Mo.App. 540; Plattsburg v. Hagenbush, 98 Mo.App. 669; Murphy v. Railroad, 153 Mo. 252; Byington v. Railroad, 147 Mo. 673. (3) The trial court erred in refusing defendant's requested peremptory instructions at the close of plaintiff's evidence, and at the close of all the evidence, for the reasons, (a) the negligence of deceased Murrell barred recovery, and (b) no actionable negligence was shown against defendant. Reeve's Admr. v. Railroad, 251 Mo. 169; Keele v. Railroad, 258 Mo. 78; Laun v. Railroad, 216 Mo. 563; Pope v. Railroad, 242 Mo. 232; Moore v. Lindell Railway, 176 Mo. 538, 546; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Schmidt v. Railroad, 191 Mo. 215; Dyrcz v. Railroad, 238 Mo. 33; Lane v. Railroad Co., 132 Mo. 4; Kelsey v. Railroad, 129 Mo. 362; Walker v. Railroad, 193 Mo. 453; Burge v. Railroad, 244 Mo. 76; Farris v. Railroad, 167 Mo.App. 392; Green v. Railroad, 192 Mo. 131. (4) The court erred in submitting the case to the jury on the last-chance theory. Reeve's Admr. v. Railroad, 251 Mo. 169; Pope v. Railroad, 244 Mo. 76; Degonia v. Railroad, 224 Mo. 595; Hawkins v. Railroad, 135 Mo.App. 534; Schmidt v. Railroad, 191 Mo. 234; Boyd v. Railroad, 105 Mo. 382; Moore v. Railroad, 176 Mo. 546; McGee v. Railroad, 214 Mo. 542; Burge v. Railroad, 244 Mo. 96; Ruschenberg v. Railroad, 161 Mo. 81; Culbertson v. Railroad, 140 Mo. 59; Mammerberg v. St. Ry. Co., 62 Mo.App. 563.

Duggins & Duggins and Aull & Aull for respondent.

(1) The demurrer to the evidence offered at the close of the plaintiff's testimony and at the close of all the testimony in the case was properly overruled. (a) The servants in charge of the locomotive and train that struck and killed Murrell on the crossing, failed and neglected to ring the bell on the engine as required by statute when approaching and passing over the crossing which was negligence per se. Lloyd v. Railroad, 128 Mo. 595; Sullivan v. Railroad, 117 Mo. 245; Gratiot v Railroad, 116 Mo. 450; Murray v. Railroad 101 Mo. 242, Reyburn v. Railroad, 187 Mo. 565; Dickson v. Railroad, 104 Mo. 501; Hanlan v. Railroad, 104 Mo. 387; Karle v. Railroad 55 Mo. 476; McNulty v. Railroad, 203 Mo. 477; Weigman v. Railroad, 223 Mo. 699. (b) Carelessly and negligently ran said locomotive and train of cars within and through the corporate limits of the city and to and over said public crossing therein, in violation of the ordinance prohibiting the running of locomotives and trains within such limits at a rate of speed exceeding six miles an hour. This was negligence per se and a direct cause of Murrell's death. Miller v. Engle, 185 Mo.App. 563; Lueders v. Railroad, 253 Mo. 97; Gratiot v. Railroad, 116 Mo. 463; Jackson v. Railroad, 157 Mo. 643; Johnson v. Railroad, 259 Mo. 535; Weller v. Railroad 120 Mo. 654 Schlerth v. Railroad, 115 Mo. 88 104; Dahlstrom v. Railroad, 108 Mo. 525; Murray v. Railroad, 101 Mo. 236; Bluedorn v. Railroad, 108 Mo. 439; Graney v. Railroad, 140 Mo. 89; Keim v. Railroad, 90 Mo. 321; Schlerth v. Ry. Co., 96 Mo. 515. If the train had been running as prescribed by ordinance every reasonable inference is that deceased would have cleared the track. Lueders v. Railroad, 253 Mo. 116; Murrell v. Railroad, 105 Mo.App. 94; Johnson v. Railroad, 259 Mo. 550; Schlerth v. Railroad 96 Mo. 515; Keim v. Railroad, 90 Mo. 324; Prewitt v. Railroad, 134 Mo. 615; Graney v. Railroad, 140 Mo. 189. (2) Violation of speed ordinance, and violation of statute, both negligence per se, and causal connection between negligence and injury, sustained a verdict (barring contributory negligence as matter of law). Hunt v. Railroad, 262 Mo. 275; McNulty v. Railroad, 203 Mo. 477; McNulty v. Railroad, 166 Mo.App. 459; Stotler v. Railroad, 200 Mo. 121. (3) Contributory negligence as matter of law does not arise in this case. Dudley v. Railroad, 167 Mo.App. 665; Baker v. Railroad, 122 Mo. 544; McNulty v. Railroad, 203 Mo. 475; Weigman v. Railroad, 223 Mo. 699; Petty v. Railroad, 88 Mo. 306; Williams v. Railroad, 257 Mo. 115; Donohue v. Railroad, 91 Mo. 365; Kleiber v. Railroad, 107 Mo. 247. In no case has a pedestrian been charged with contributory negligence as matter of law where, from the very incipiency of the danger, and where from his very surroundings, he could first know of the approach of the train after he had lawfully and in the exercise of ordinary care placed himself in a position of peril. Harshaw v. Railroad, 173 Mo.App. 483. Where there are flagrant violations of the law resulting in injury, contributory negligence must be clearly made out. Yonkers v. Railroad, 182 Mo.App. 558; Weighman v. Railroad, 223 Mo. 719; Bluedorn v. Railroad, 108 Mo. 449; Kennayde v. Railroad, 45 Mo. 255; Dutcher v. Railroad, 91 Mo. 363; Petty v. Railroad, 88 Mo. 306; Baker v. Railroad, 147 Mo. 166; Jennings v. Railroad, 112 Mo. 268; Lueders v. Railroad, 253 Mo. 116; Sexton v. Railroad, 245 Mo. 254; Lyons v. Railroad, 253 Mo. 166; Weller v. Railroad, 164 Mo. 180. Where the laws are flagrantly violated contributory negligence should be submitted to the jury. Petty v. Railroad, 88 Mo. 306; Baker v. Railroad, 147 Mo. 166; Bluedorn v. Railroad, 121 Mo. 268, 108 Mo. 449. (4) If the evidence tends to, or if inferences therefrom, regardless of conter inferences, can be reasonably drawn, tending to uphold the action of the trial court; if after every inference which the trial jury might with any degree of propriety have made; if there is conflict in the evidence; if the truthfulness of a witness is in question; if there is reason for difference of opinion among practical men from all walks of life whether care or caution on part of deceased; or servants acted as ordinarily prudent servants under the facts and circumstances; whether they did, or had time to warn or to stop; if there is any uncertainty, the case should have been submitted to the jury and the trial court should be upheld. Miller v. Engle, 185 Mo.App. 363; Maginnis v. Railroad, 180 Mo.App. 694; Holmes v. Railroad, 207 Mo. 163; Buesching v. Gaslight Co., 73 Mo. 219; Weigman v. Railroad, 223 Mo. 722; Hunt v. Railroad, 262 Mo. 181; Troll v. Railroad, 254 Mo. 722; Stauffer v. Railroad, 243 Mo. 316-17; Weller v. Railroad, 164 Mo. 199; Murphy v. Railroad, 228 Mo. 76; Fritz v. Railroad, 243 Mo. 62; Church v. Railway, 119 Mo. 215; Williams v. Railroad, 257 Mo. 87; Dudley v. Railroad, 167 Mo.App. 647; Rollison v. Railroad, 252 Mo. 538; Johnson v. Railroad, 259 Mo. 550; Franklin v. Railroad, 188 Mo. 542; Power v. Railroad, 244 Mo. 1; Petty v. Railroad, 88 Mo. 318; Keim v. Railway, 90 Mo. 314; Lamb v. Railroad, 147 Mo. 186; Hegberg v. Railroad, 164 Mo.App. 514. Negative testimony takes the case to the jury. Murray v. Railroad, 176 Mo. 183; Moore v. Railroad, 137 Mo.App. 53; Buckry-Ellis v. Railroad, 158 Mo.App. 506; Stotler v. Railroad, 200 Mo. 107; Murray v. Railroad, 101 Mo. 242; Isaacs v. Skrainka, 95 Mo. 517. Upon a demurrer to the evidence the right doctrine to go by is: Defendant's testimony where contradicted is false; plaintiff's testimony, whether contradicted or not, is true; discrepancies, contradictions between witnesses or self contradictions by witnesses, and the weight due their testimony, are for the jury, not the court. Plaintiff is entitled to the grace of having allowed in his favor every inference springing reasonably from the proof. Fritz v. Railroad, 243 Mo. 79. (5) Deceased was in the exercise of due care. (a) He could not, when he went upon the crossing and tracks, by looking or listening have seen or heard an approaching train. No train was within sight or hearing. He could not tell upon what track a train was approaching, whether freight or passenger, nor in what direction to proceed to avoid it, even if he had knowledge of its approach. Harshaw v. Railroad, 173 Mo.App. 483; Dunn v. Railroad, 192 Mo.App. 260; Campbell v. Railroad, 175 Mo. 676; Gratiot v. Railroad 116 Mo. 450; Weigman v. Railroad, 223 Mo. 717; Weller v. Railroad, 120 Mo. 635; Williams v. Railroad, 257 Mo. 115. (b) The old man was not a trespasser nor did his right to pass over the crossing depend upon the permission of the railroad. Lueders v. Railroad, 253 Mo. 97. (c) When the evidence is silent, on the question as to whether the traveler, before crossing the track, looked and listened for the train, the presumption is that he did both, where there was such obstruction that had he looked he could not have seen, and had he listened it would have been difficult, if not impossible, to hear. Johnson v. Railroad 259 Mo. 547; Weigman v. Railroad, 223 Mo. 717. (d) If in and on the danger zone when the train approached, in the exercise of ordinary care, he was only required to exercise care commensurate...