Oxford v. Railway Company, 29772.

• Decision Date: 03 September 1932
• Docket Number: No. 29772.,29772.
• Citation: 52 S.W.2d 983
• Parties: FLORENCE OXFORD and WAYNE L. OXFORD v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

52 S.W.2d 983

FLORENCE OXFORD and WAYNE L. OXFORD v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 29772.

Supreme Court of Missouri, Division 1.

September 3, 1932.

Appeal from Dunklin Circuit Court. — Hon. W.S.C. Walker, Judge.

REVERSED AND REMANDED.

E.T. Miller and Ward & Reeves for appellant.

(1) The courts of this State will take judicial notice of a foreign statute when pleaded, as in this case, and the decisions of such foreign states on such statute. Sec. 806, R.S. 1919; Bank v. Gordon, 6 S.W. (2d) 60; Kirkdoffer v. Railroad, 37 S.W. (2d) 569. (2) The statutes of Arkansas pleaded and in question in this case, as construed by the older decisions of Arkansas, must give way to the interpretation of such statute under the recent decisions of the Supreme Court of Arkansas as influenced by and in conformity with the decisions of the Supreme Court of the United States, and by which latter interpretation the statutes are constitutional, and in giving this interpretation this court is not bound by the older decisions of Arkansas, nor of the case of Hiatt v. Frisco, 308 Mo. 77; Kirkdoffer v. Railroad, 37 S.W. (2d) 571. (3) The court erred in failing to give defendant's demurrer on the lookout statute. We contend in this case that under the undisputed evidence the lookout statute was complied with by the trainmen operating the train in question as the same approached and went upon the crossing in question; but aside from this, our contention further is that no case made under the "lookout statute of Arkansas," and that the court erred in submitting this theory of the case to the jury on the plaintiffs' Instruction 2 and in refusing to give defendant's Instructions D and G in the nature of demurrers to the evidence on this theory of the case; because there was no evidence that if the lookout statute had been complied with the perilous position of deceased would have been discovered in time to have prevented the collision. The evidence all shows that when the peril was discoverable the time and distance were too short in which to act and prevent the accident. Kirkdoffer v. Railroad, 37 S.W. (2d) 573; Allnutt v. Railroad, 8 Fed. (2d) 604; Gray v. Railroad, 23 Fed. (2d) 190; Jemel v. Railroad, 11 S.W. (2d) 449; St. Louis-San Francisco Ry. Co. v. McClintock, 9 S.W. (2d) 1060; Blytheville Co. v. Gessel, 158 Ark. 569, 250 S.W. 881; Kelly v. Railroad, 174 Ark. 1000, 298 S.W. 347; St. L.I.M. & So. Ry. v. Gibson, 113 Ark. 417, 168 S.W. 1129; St. L.I.M. & So. Ry. v. Gibson, 107 Ark. 431, 155 S.W. 510; St. Louis-San Francisco Ry. Co. v. Cole, 27 S.W. (2d) 992. (4) The court erred in submitting this case to the jury upon the theory of the failure to give statutory signals of ringing the bell or blowing the whistle. Under the Arkansas statute, when plaintiff shows that deceased was killed by a train the presumption is that it was the result of negligence, but upon the question of ringing the bell and blowing the whistle, when the defendant shows that the signals were given, then this presumption or inference goes out of the case and plaintiffs will be cast upon a demurrer unless they come forward with some testimony to the contrary. "The presumption or inference arising from the accident vanished when defendant introduced the evidence; and unless there was testimony on the part of plaintiff to make an issuable fact, they shall be cast upon demurrer." Kirkdoffer v. Railroad, 37 S.W. (2d) 574; St. L. & San Francisco Ry. Co. v. Cole, 27 S.W. (2d) 992. Plaintiffs, to make out their case, offered no proof whatever as to statutory signals, but merely showed that the deceased was killed by the defendant's train at a railroad crossing. Plaintiffs thereupon relied entirely upon a presumption created by the statute. But when defendant produces uncontradicted evidence that the signals were given, then the presumption passes out of the case and plaintiffs must then produce evidence or be cast on demurrer, because any other construction of the statute would make it unconstitutional. St. Louis-S.F. Ry. v. Cole, 181 Ark. 780, 27 S.W. (2d) 992; St. Louis-S.F. Ry. v. Williams, 21 S.W. (2d) 611; Western A. Railroad v. Henderson, 279 U.S. 639; Kirkdoffer v. Frisco, 37 S.W. (2d) 571; St. L.-San F. Railway Co. v. Cole, 27 S.W. (2d) 992. Plaintiffs failed to produce any witness to contradict eight witnesses on the part of defendant testifying that the signals were given. They produced Terry Jillon, who says he did not hear the signals, but shows that he was paying no attention; later he says what he meant was if the signals were given he did not hear them. The testimony of defendant's witness, Pillow, is to the same effect. McGrath v. Transit Co., 197 Mo. 105; Underwood v. Railroad, 182 Mo. App. 265; Armstrong v. Railroad, 195 Mo. App. 83. "On the question of contributory negligence and demurrer to the evidence, the courts hold that plaintiff saw and heard what others nearby saw and heard as to the train and signals." Wolf v. Railroad, 212 Mo. App. 43; Laun v. Railroad, 216 Mo. 580; Osborn v. Railroad, 179 Mo. App. 259; Underwood v. Railroad, 182 Mo. App. 265; Burge v. Railroad, 244 Mo. 94; Higgins v. Railroad, 197 Mo. 318; Sanguinette v. Railroad, 196 Mo. 493; Kirkdoffer v. Railroad, 37 S.W. (2d) 573. (5) The demurrer should have been sustained on the Comparative Negligence Statute of Arkansas. Bradley v. Railroad, 288 Fed. 484; Allnutt v. Railroad, 8 Fed. (2d) 604; Ray v. Railroad, 23 Fed. (2d) 190; Baltimore, etc. v. Goodman, 275 U.S. 66, 72 L. Ed. 167; Gersman v. Railroad, 229 S.W. 167; St. Louis-San F. Ry. Co. v. Horn, 168 Ark. 191, 269 S.W. 576; St. Louis-San F. Ry. Co. v. McClintock (Ark.), 9 S.W. (2d) 1060; Jemel v. Railroad, 11 S.W. (2d) 449; St. Louis-San F. Ry. Co. v. Cole, 27 S.W. (2d) 992; St. Louis-San F. Ry. Co. v. Williams, 21 S.W. (2d) 611. (6) The deceased was guilty of contributory negligence as matter of law. Mo. Pac. Ry. Co. v. Bode, 168 Ark. 157; St. L.-S.F. Ry. Co. v. Haynes, 177 Ark. 104; St. L.-S.F. Ry. Co. v. Horn, 168 Ark. 191, 269 S.W. 576; Huff v. Railroad, 280 S.W. 648; Gersman v. Railroad, 229 S.W. 167; Baltimore, etc. v. Goodman, 275 U.S. 66, 72 L. Ed. 167. (7) The court erred in giving Instruction 2 for plaintiffs. Sec. 8568, Crawford & Moses Digest of the Statutes of Arkansas; Kirkdoffer v. Frisco, 37 S.W. (2d) 573. (8) The court erred in giving Instruction 3 on behalf of plaintiffs. Kirkdoffer v. Railroad, 37 S.W. (2d) 571; St. L.-S.F. Ry. Co. v. Cole, 181 Ark. 780, 27 S.W. (2d) 992. (9) Instruction 5 for plaintiffs is reversible error. This is an instruction on comparative negligence and under the testimony in this case and under the recent holdings of the Supreme Court of Arkansas, the negligence of the deceased was greater than the negligence, if any, on the part of the railroad employees. St. L.-S.F. Ry. Co. v. Cole, 27 S.W. (2d) 992, 181 Ark. 780; St. L.-S.F. Ry. Co. v. Williams, 21 S.W. (2d) 693; Jemel v. Railroad, 11 S.W. (2d) 449; Bradley v. Railroad, 288 Fed. 484; Allnutt v. Railroad, 8 Fed. (2d) 604. Said instruction is further erroneous in that it permits the plaintiffs to recover if the jury finds "that the defendant was guilty of negligence in any respect" without limiting it to the negligence pleaded in plaintiffs' petition. This same kind of instruction has been held to be error by this court. Kirkdoffer v. Railroad, 37 S.W. (2d) 571.

Hal H. McHaney and Harrison, Smith & Taylor for respondents.

(1) This case should be controlled by the case of Hiatt v. Frisco, 308 Mo. 77. We respectfully contend that this court erred in interpreting the opinion of the Supreme Court of Arkansas in the case of St. Louis-San Francisco Railway Company v. Cole, 27 S.W. (2d) 992. The construction of the statutes of Arkansas pleaded and in question in this case given by the Supreme Court of Arkansas in the cases reviewed in Hiatt v. Frisco supra, was not overruled by the Supreme Court of Arkansas in the case of St. Louis-San Francisco Railway Co. v. Cole, supra. The Supreme Court of Arkansas, subsequent to the Cole case, supra, has expressly held that it did not change the rule announced in the cases reviewed in the case of Hiatt v. Frisco, supra, and expressly reaffirmed its prior rulings. Railway Co. v. Foltz, 182 Ark. 941; Railway Co. v. Sandifur, 183 Ark. 196. (2) Defendant's demurrer to the testimony was properly overruled. Railroad Co. v. Bode, 168 Ark. 158, 269 S.W. 361; Railroad Co. v. Robertson, 169 Ark. 960, 278 S.W. 357; Bond v. Railway Co., 288 S.W. 777; Brown v. Railroad, 256 Mo. 522, 165 S.W. 1060; Railway Co. v. Horn, 168 Ark. 194, 269 S.W. 576; Railroad Co. v. Trotter, 46 L.R. 641; Railway Co. v. Vernon, 162 Ark. 229, 258 S.W. 126; Huff v. Mo. Pac. Railroad Co., 170 Ark. 667, 280 S.W. 648. (3) It was proper to submit the question of comparative negligence. Of course, under the facts in this case it was proper to submit to the jury the question of comparative negligence. Under the laws of the State of Arkansas, contributory negligence is no bar to a recovery, but it is for the jury to compare the negligence of the two parties, if both are negligent, and determine whether or not the negligence of the deceased was equal to or greater than that of the defendant. Moreover, the defendant is in no position to complain of the giving of this instruction. The question of comparative negligence was submitted to the court upon the request of the defendant. Hinds v. Betts, 146 Ark. 555, 226 S.W. 165. (4) The giving of Instruction 2 was not error before it could find for plaintiffs in this respect. The defendant requested two instructions, Nos. "K" and "N," upon this phase of the case and if there was any error in the giving of plaintiffs' instruction it was corrected and supplemented by these two instructions given for the defendant upon the same subject. Neither of the plaintiffs' instructions undertook to cover the whole case and was, therefore, correctable and supplementable by other...