Pryor v. Payne

• Decision Date: 03 July 1924
• Docket Number: 23621
• Citation: Pryor v. Payne, 304 Mo. 560, 263 S.W. 982 (Mo. 1924)
• Parties: PRUDY A. PRYOR v. JOHN BARTON PAYNE, Agent of United States Railroad Administration, Appellant
• Court: Missouri Supreme Court

263 S.W. 982

304 Mo. 560

PRUDY A. PRYOR v. JOHN BARTON PAYNE, Agent of United States Railroad Administration, Appellant

No. 23621

Supreme Court of Missouri

July 3, 1924

Rehearing Denied July 3, 1924.

Appeal from McDonald Circuit Court; Hon. Charles L. Henson Judge.

Affirmed.

W F. Evans, O. R. Puckett and Mann & Mann for appellant.

(1) The petition states no cause of action. Sec. 4217, R. S. 1919, under which this action is brought, is entirely penal and not compensatory in any amount. Grier v. Railroad, 228 S.W. 454. No action can be maintained against the Director General of Railroads or the United States Railroad Administration under a state penal statute. Mo. Pac. Ry. Co. v. Ault, 65 L.Ed. 647. (2) The court erred in overruling defendant's demurrer offered at the close of plaintiff's evidence and renewed at the close of all the evidence in the case. (a) Deceased's statements must be taken as a whole in determining whether they were a part of the res gestae; they cannot be separated and a part thereof held to be of the res gestae and the remainder not. What he said following the accident came after time for deliberation, and circumstances surrounding the scene of the accident had changed; his statements were mere historical narratives of a past event and not such spontaneous utterances as to characterize them as verbal acts. State v. Reeves, 195 S.W. 1027; Redmon v. Railway, 185 Mo. 1, 11; State v. Hendricks, 172 Mo. 654, 672; Barker v. Railway, 126 Mo. 143, 147; Grant v. Railway, 172 Mo.App. 334, 341; Ruschenberg v. Railway, 161 Mo. 70, 79; Dunlap v. Railway, 145 Mo.App. 215, 221; Leahy v. Railway, 97 Mo. 165, 172. (b) Excluding the statements of the deceased as hearsay and not of the res gestae there remains no evidence to support the allegations of negligence. A recovery cannot be had by building inference upon inference, but every inference must be a rational deduction from a fact, or facts, in evidence. Cases infra. (c) If the declarations of deceased were properly admitted in evidence, defendant's demurrer should have been sustained because the evidence is wholly insufficient to make a prima-facie case under the pleadings. The testimony does not support the contention that deceased was lying upon the track when struck. His statement was that he was struck by the pilot beam. This was a physical impossibility, unless he was standing when struck. Justice v. Frisco, 224 S.W. 79; Hamilton v. Railway, 250 Mo. 714; Baecker v. Railway, 240 Mo. 507; Rashall v. Railway, 249 Mo. 522; Burge v. Railway, 244 Mo. 94; Carlson v. Railway, 187 S.W. 842; Grear v. Harvey, 177 S.W. 780; McGee v. Railway, 214 Mo. 530.

Leo H. Johnson, J. A. Sturges and John T. Sturgis for respondent.

(1) The petition states a cause of action. Sec. 4217, R. S. 1919, is the only statute under which this plaintiff, or any other plaintiff similiarly situated, could recover damages from the defendant for injuries sustained by her husband, resulting in his death. While the statute expressly uses the words "shall forfeit and pay as a penalty," still this is not such a penalty as was contemplated by the court in the Federal case cited by appellant. This statute, classified as a purely penal statute by the court in the case of Grier v. Railroad Co., 228 S.W. 454, is, viewed under the Federal law, absolutely compensatory, even though providing for a minimum recovery of two thousand dollars. In reality this provision of the statute could quite properly be termed a liquidated damage statute and operates as a minimum valuation upon human life, fixed by the Legislature, in cases where wrongfully and negligently taken. (2) The court properly overruled the demurrer filed by defendant. Where reasonable minds might differ on plaintiff's right of recovery, when the evidence is viewed in the most favorable light to plaintiff, a demurrer should never be sustained. Brown v. Quercus Lbr. Co., 209 S.W. 314; Beckerman v. Kort-Kamp Jly. Co., 175 Mo.App. 279; Steffens v. Fisher, 143 S.W. 1101. (a) The court properly admitted statements by the deceased made immediately, i. e., within four or five minutes, after the accident, to Reber and Alburty, who first approached him, while lying in the ditch, along the right-of-way, in the position and condition where thrown by the train. These statements are of such nature as to preclude the possibility of premeditation and design, or intent to fabricate or formulate statements of fact upon which the deceased might recover damages. Instead they are spontaneous and explanatory of the cause and constitute a part (verbal acts) of the litigated act itself, and explain clearly the true and vitally important causal facts which could in no other way be brought before the court. Leahey v. Cas Ave. & Fair Grounds Ry. Co., 97 Mo. 165; Jewell v. Mfg. Co., 166 Mo.App. 555, 559; Vaughan v. Railroad Co., 177 Mo.App. 155, 174; Enithwhistle v. Feighner, 60 Mo. 214; Harriman v. Stowe, 57 Mo. 93, 95; Brownell v. Pacific Ry. Co., 47 Mo. 239, 244; Stoeckman v. Terre Haute Ry. Co., 15 Mo.App. 514; Giles v. Railroad Co., 169 Mo.App. 24, 34; Greenlee v. Casualty Co., 192 Mo.App. 303, 308; State v. Martin, 124 Mo. 514, 524; State v. Gabriel, 88 Mo. 631, 639; Hooper v. Insurance Co., 166 Mo.App. 209, 212. (b) If the statements of the deceased are excluded as not constituting a part of the res gestae, then this case should be reversed and remanded so as to permit the plaintiff to go to the jury upon the circumstantial evidence. The record shows that the employees of the defendant operating the train in question, approached and passed over the public crossing where the deceased was struck and injured, without giving the statutory or any signals and without keeping a lookout ahead down the track at such crossing. This makes a prima-facie case. The presumption of reasonable care on the part of plaintiff's husband attends him until overcome by positive proof to the contrary, and apparently defendant is unable to overcome this presumption. McGee v. Railroad, 214 Mo. 530, 544; Stotler v. Railroad, 200 Mo. 107, 137, 146; Green v. Railroad, 192 Mo. 131, 143. Excluding deceased's statement as to the circumstances of his injury, and there being no eye witnesses, the presumption obtains that he exercised due care and was not negligent, until and unless this presumption is overcome by evidence to the contrary, and there is here no evidence of contributory negligence. Petty v. Railroad, 88 Mo. 306, 320; Stotler v. Railroad, 200 Mo. 107, 146; Weller v. Railroad, 164 Mo. 180, 198; Crumpley v. Railroad, 111 Mo. 152; Buesching v. Gas Light Co., 73 Mo. 219.

Small, C. Lindsay, C., concurs.

OPINION

SMALL

Suit for damages for the death of husband. Plaintiff's husband, W. A. Pryor, was struck by a freight train on the St. Louis-San Francisco Railway, while being operated by Walker D. Hines, Director General, on the 23rd day of November, 1919, about two o'clock in the afternoon. He died from his injuries two days afterwards. The accident occurred at the crossing of said railroad with a public highway about a mile east of the town of Ritchie in Newton County.

The petition states, in effect, that when the train was about one hundred and sixty rods distant, and the deceased had just stepped on the railroad track at said crossing, his legs gave way beneath him, becoming numb and useless, leaving him helpless on the railroad track, in imminent peril from the approaching train; that defendant's servants operated said train in a careless manner, approaching and passing over said crossing at a speed of twenty or twenty-five miles per hour, without maintaining a lookout ahead, and without giving any signals to travelers on or approaching the crossing, as required by law; that said servants saw, or by the exercise of reasonable care could have seen, the deceased on said crossing in such helpless condition in sufficient time by the exercise of ordinary care to have slowed down and stopped the train without striking him; but that said servants in charge of said locomotive and train negligently, with undiminished speed, ran said train against the deceased, so wounding him that he died on the 25th day of November, 1919. Plaintiff prays judgment for the sum of $ 10,000 damages and costs.

The answer was filed by John Barton Payne, Agent of United States Railway Administration, and contained a general denial and a plea of contributory negligence on the part of the deceased.

The plaintiff's evidence tended to show: The deceased at the time of his death was past seventy-two years of age. On November 23, 1919, he left the home of his step-son, W. H Alburty, about two o'clock P. M. with Alburty, accompanied by Ed Reber, a neighbor, and Alburty's little son, seven or eight years of age, to see some cattle which Alburty owned and kept in a pasture about a half mile south of his home. Alburty's home was on the public highway, which ran north and south over the crossing in question, and about a quarter of a mile north of this crossing. When they got about 207 feet south of the crossing, the deceased stopped in the road and said, "You men go on, I have had all the walking I care about." Reber and Alburty and his little son then went on south down the road about 336 feet, and then east about 534 feet, to where the cattle were in the pasture, stayed there a couple of minutes, and then returned west. After they had proceeded west seventy-five or one hundred feet, they saw the freight train coming from the west, and the engine was then about 200 or 250 feet east of the crossing. They continued to walk in an ordinary leisurely way west to the public road, and then turned north and walked to the point where they had left Pryor. They saw nothing of him. They then proceeded north to the railroad crossing....