Plant v. Thompson

• Decision Date: 13 June 1949
• Docket Number: No. 41111.,41111.
• Citation: 221 S.W.2d 834
• Parties: ANNA LAURA PLANT, Respondent, v. GUY A. THOMPSON, Trustee, MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

221 S.W.2d 834

ANNA LAURA PLANT, Respondent, v. GUY A. THOMPSON, Trustee, MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 41111.

Supreme Court of Missouri.

Division One, June 13, 1949.

Motion for Rehearing or to Transfer to Banc Overruled, July 11, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. F.E. Williams, Judge.

REVERSED.

Thomas J. Cole, Oliver L. Salter, Ragland, Otto, Potter & Embry and Leon P. Embry for appellant.

(1) This is a suit for damages for personal injuries alleged to have been sustained by respondent while traveling on an interstate journey on a free interstate pass which provided that she assumed all risk of accident and injury to person. Therefore, while appellant might be liable for any injuries resulting from willful and wanton misconduct. New York Central Ry. Co. v. Mohney, 252 U.S. 152, 40 S. Ct. 287, 64 L. Ed. 502. (2) Appellant would not be liable for any injuries resulting from negligence or from anything other than willful and wanton misconduct. Francis v. Southern Pac. Co., 68 S. Ct. 611; Kansas City Southern R. Co. v. Van Zant, 260 U.S. 459, 43 S. Ct. 176, 67 L. Ed. 348; Northern Pac. R. Co. v. Adams, 192 U.S. 440, 24 S. Ct. 408, 48 L. Ed. 513; Boering v. Chesapeake Beach Ry. Co., 193 U.S. 442, 24 S. Ct. 515, 48 L. Ed. 742; Charleston & Western Carolina Ry. Co. v. Thompson, 234 U.S. 576, 34 S. Ct. 964, 58 L. Ed. 1476; Pinnell v. St. L.-S.F. Ry. Co., 263 S.W. 182, certiorari denied 266 U.S. 623, 45 S. Ct. 123, 69 L. Ed. 473; Dunn v. Alton R. Co., 88 S.W. (2d) 224. (3) Therefore, no degree of negligence — but only proof of willful and wanton misconduct — would make a submissible case, because degrees of negligence are not recognized by the Federal courts. Westre v. C.M. & St. P. Ry. Co., 2 Fed. (2d) 227; Milwaukee & St. P.R. Co. v. Arms, 91 U.S. 489, 23 L. Ed. 374; (4) or, for that matter, by the Missouri Courts. Reed v. Western Union Tel. Co., 135 Mo. 661, 37 S.W. 904; Ramel v. K.C. Pub. Serv. Co., 187 S.W. (2d) 492; Murray v. DeLuxe Motor Stages of Ill., 133 S.W. (2d) 1074. (5) But independent of all of the foregoing, respondent submitted her case only on the theory of willful and wanton misconduct, and, therefore, the sufficiency of the evidence to make a submissible case should be determined by its sufficiency to make a submissible case of willful and wanton misconduct. Yuronis v. Wells, 322 Mo. 1039, 17 S.W. (2d) 518; Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W. (2d) 593. (6) There was not sufficient evidence to make a submissible jury issue or jury question on willful and wanton misconduct. Nichols v. Bresnahan, 212 S.W. (2d) 570; Evans v. Ill. Cent. R. Co., 289 Mo. 493, 233 S.W. 397; Donnelly v. So. Pac. Co., 118 Pac. (2d) 465; 2 Restatement, Torts, sec. 500, pp. 1293, 1294; 38 Am. Jur. 692; 693, sec. 48; Robins v. Pitcairn, 124 Fed. (2d) 734.

Everett Hullverson and Tudor Gairdner for respondent; Joseph Nessenfeld of counsel.

(1) There was substantial evidence from which the jury could find wanton and willful misconduct. The assumption of risk condition contained in the pass is a defense to ordinary negligence only. It is void as against public policy where the proof shows wanton misconduct. New York Central R. Co. v. Mohney, 252 U.S. 152, 40 S. Ct. 287, 64 L. Ed. 502; McCree v. Davis, 280 Fed. 959; Francis v. Southern Pac. Co., 333 U.S. 445, 68 S. Ct. 611. (2) The enginemen on the passenger train were guilty of willful and wanton misconduct. Their conduct in operating the train crowded with passengers toward the obstruction in plain view for several minutes and failing to take any action to avert the collision, although they could easily have done so, authorized the jury to find that they willfully and recklessly failed to keep the lookout required by appellant's rules or any lookout at all. Their conduct evinced an utter indifference to consequences and a reckless disregard for the safety of the passengers committed to their care. A case for the jury was made. McCree v. Davis, 280 Fed. 959; Davis v. McCree, 299 Fed. 142, certiorari denied, 266 U.S. 610, 45 S. Ct. 94; Evans v. Texas Pacific-Mo. Pac. Terminal R. of New Orleans, 134 F. (2d) 275, certiorari denied, 63 S. Ct. 1175; Rohrer v. Denton, 306 Ill. App. 317, 28 N.E. (2d) 573; Virginia Beach Bus Line v. Campbell, 73 F. (2d) 97. (3) The conduct on the part of the freight engine crew, submitted in Instruction 2, and supported by substantial evidence, made a submissible case on the issue of willful and wanton misconduct. Cases cited under Point (2); Lacey v. Louisville & N.R. Co., 152 F. (2d) 134; Annas v. Milwaukee & M.R. Co., 67 Wis. 46, 30 N.W. 282; Walther v. Southern Pac. Co., 159 Cal. 769, 116 Pac. 51; Illinois C.R. Co. v. Read, 37 Ill. 485; Kniffen v. Hercules Powder Co., 28 CCH Auto Cases 1029. (4) Compare conduct held willful and wanton as authorizing award of punitive damages. McKenzie v. Randolph, 257 S.W. 126; Reel v. Consolidated Inv. Co., 236 S.W. 43. (5) Compare conduct held culpable negligence and criminal. State v. Studebaker, 334 Mo. 471, 66 S.W. (2d) 877; State v. Bolle, 201 S.W. (2d) 158; State v. Simler, 350 Mo. 646, 167 S.W. (2d) 376. (6) Compare wanton and willful conduct under the humanitarian doctrine. Cox v. Terminal R. Assn., 331 Mo. 910, 55 S.W. (2d) 685; Kellney v. Missouri Pac. Ry. Co., 101 Mo. 67, 13 S.W. 806. (7) Compare conduct held wanton, in wrongful death actions. Spalding v. Robertson, 206 S.W. (2d) 517; Grier v. K.C., C.C. & St. J. Ry. Co., 286 Mo. 523, 228 S.W. 454; Williamson v. Excavating & Foundation Co., 230 Mo. App. 973, 93 S.W. (2d) 123; Treadway v. United Rys. Co., 282 S.W. 441; Calcaterra v. Iovaldi, 123 Mo. App. 347, 100 S.W. 675.

BRADLEY, C.

Action to recover actual and punitive damages for personal injuries received by plaintiff when a passenger on defendant's train. The jury returned a verdict for $20,000 actual damages, but found no punitive damages. Defendant's motion for a new trial was overruled and this appeal followed.

Appellant's defense was based on an assumption of risk provision in the pass on which respondent was riding. She lived with her family in Los Angeles, California; her husband was an employee, motorman, of the Pacific Electric Railway. Her mother, at Corning, Arkansas, was sick and respondent's husband secured a pass for his wife and 10 year old daughter from appellant and other railroads for the wife and daughter to visit the sick mother and grandmother at Corning. The pass, issued by appellant, was dated June 24, 1946, and expired September 24th thereafter; it provided for the transportation of respondent and her daughter from Kansas City to Corning and return. July 10, 1946, respondent and her daughter were on their return trip; they occupied an upper berth on a Pullman in defendant's passenger train from St. Louis to Kansas City. About 1:10 a.m. on that date and 6848 feet west of the station house in Washington, Missouri, the passenger train engine sideswiped or struck appellant's freight engine tender on a switch track; the passenger engine turned over; some coaches in the passenger train were derailed and respondent received the injuries of which she complains.

[1] The pass on which respondent was riding, on its face, provided: "This pass accepted by me subject to the conditions on back." Under this provision respondent had signed her name. On the back the pass provided: "The person accepting and using this pass thereby assumes all risk of accident and injury to person and loss of or damage to property, and also certifies that he or she is not prohibited by law from receiving this pass and that it will be lawfully used." Respondent's trip and the pass were interstate; her cause is therefore governed by federal law, and appellant is not liable unless it was guilty of willful and wanton negligence. Kansas City Southern Ry. Co. v. Van Zant, 260 U.S. 459, 43 S. Ct. 176, 67 L. Ed. 348; Francis et al. v. Southern Pac. Co., 333 U.S. 445, 68 S. Ct. 611, 92 L. Ed. 798; Pinnell v. St. Louis-San Francisco Ry. Co. (Mo. Sup.), 263 S.W. 182. We might say that the Francis case was the occasion for an article in the April issue of the Missouri Law Review (14 Mo. Law Rev. 191). Respondent says that the facts pleaded and proved were sufficient to constitute wilful and wanton negligence, or wilful and wanton misconduct, to be more exact. Appellant admits that respondent's injuries resulted from his negligence, but denies that such negligence was wilful and wanton.

Appellant assigns error on the overruling of his motion at the close of the case for a directed verdict. Other assignments are made, but as we view it the assignment on the motion for a directed verdict is decisive and it will not be necessary to consider others.

The engineer on the passenger train was killed when the engine turned over, and the fireman on that train and the fireman on the freight train died of natural causes before the trial. Respondent called as her witnesses the conductor, the two brakemen of the freight train, and the conductor and brakeman of the passenger train. The facts are as follows: At Washington, appellant's tracks are double; the south track is for eastbound trains and the north track for westbound trains. West of the station and between these tracks is what is termed an auxiliary track. At each end of the auxiliary track two tracks (switch tracks) lead off, one to the north mainline track and one to the south mainline track. Shortly before respondent's injury, appellant's eastbound freight train of 82 cars stopped on the south track, alongside the auxiliary track, to set out a car that had a hot box. To do this the freight engine and tender were uncoupled from the train and backed onto the auxiliary track at the east end; it then backed west on the auxiliary track, the purpose being to couple to the rear of the freight train and make the necessary movements to set out the car with the hot box.

The conductor of the...