Ramey v. Missouri Pac. R. Co.

• Citation: 21 S.W.2d 873,323 Mo. 662
• Decision Date: 06 August 1929
• Docket Number: 27762
• Parties: D. O. Ramey v. Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

21 S.W.2d 873

323 Mo. 662

D. O. Ramey v. Missouri Pacific Railroad Company, Appellant

No. 27762

Supreme Court of Missouri

August 6, 1929

Rehearing Denied October 8, 1929.

Appeal from Butler Circuit Court; Hon. Charles L. Ferguson Judge.

Affirmed.

Thomas J. Cole, Arnot L. Sheppard and J. C. Sheppard for appellant.

(1) (a) The court erred in giving to the jury plaintiff's Instruction 1 telling them, in effect, that if the train struck and injured the plaintiff, this was prima-facie evidence of negligence on the part of the defendant, for the reason that negligence cannot be presumed except from facts proved showing negligence, and that the mere striking and injuring the plaintiff alone is no evidence of negligence. Harlan v. Railroad, 65 Mo. 22; Stepp v Railroad, 85 Mo. 223; Ryan v. McCully, 123 Mo. 636; Warner v. Railroad, 178 Mo. 125; Jackson v. Butler, 249 Mo. 366. (b) If there is any law in the State of Arkansas making the running of a train and injuring the plaintiff prima-facie evidence of negligence, then it has not been pleaded, and to be available to the plaintiff it must be pleaded and proved. Lee v. Railroad Co., 195 Mo. 400; Greary v. Investment Co., 285 S.W. 461. (2) The court erred in giving to the jury plaintiff's instructions numbered 2 and 4, for the reason that they are merely abstract propositions of law. Bergeman v. Ry. Co., 104 Mo. 77; Strickland's Heirs v. McCormack's Heirs, 14 Mo. 166; Young v. Railroad Co., 79 Mo. 336. (3) The court erred in giving to the jury plaintiff's Instruction 7 on the measure of damages, for the reason that it is in conflict with plaintiff's Instruction 5, and for the further reason that it does not permit the jury to find for the defendant if the plaintiff's contributory negligence was equal to or greater than the negligence of the defendant, but requires them to reduce the amount of the plaintiff's damages in the proportion that they may find that the contributory negligence of the plaintiff bore to the negligence of the defendant in any event. In other words, this instruction tells the jury that they may diminish the amount of damages in such proportion as plaintiff's contributory negligence bears to the negligence of the defendant, regardless of the degree of the negligence of each. Spilane v. Railroad Co., 11 Mo. 555; Stevenson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 509; Henschen v. O'Bannon, 56 Mo. 289; Willmott v. Railroad, 106 Mo. 535; Bank v. Hatch, 98 Mo. 377. (4) The court erred in refusing to give to the jury defendant's instructions in the nature of demurrers to the evidence at the close of the plaintiff's case and at the close of the whole case, for the reason that the evidence shows, as a matter of law, that the plaintiff's negligence was not of less degree than the negligence of the defendant. Allnut v. Railroad Co., 8 F.2d 604; Bradley v. Railroad Co., 288 F. 484. In Missouri there are no degrees of negligence, nor in Arkansas so far as we are informed. McPheeters v. Railroad, 45 Mo. 22; Reed v. Western Union Tel. Co., 135 Mo. 66; Magrane v. Sub. Ry. Co., 183 Mo. 119. (5) The court erred in refusing to grant the defendant a new trial on the ground that the verdict was excessive and the result of passion and prejudice. Trowbridge v. Payne, 269 S.W. 610; Brock v. Railroad Co., 305 Mo. 502; Boyer v. Mo. Pac., 293 S.W. 386. (6) Secs. 8562 and 8575 of Crawford & Moses Digest of the Statute of Arkansas, pleaded by the plaintiff in his petition, and the construction by the Arkansas courts placed upon said statutes which has not been pleaded, are each rules of practice and evidence and are governed by the laws of the forum and not by the laws of the state where the accident occurred. Prentice v. Ins. Co., 225 S.W. 695; Mitchell v. Smelting & Refining Co., 202 Mo.App. 251; Jones v. Ry. Co., 49 L. R. A. 640; Downer v. Chesborough, 36 Conn. 39; Scudder v. National Bank, 91 U.S. 406; Lewis v. Bush, 30 Minn. 244; Johnson v. Railroad, 91 Iowa 248; Husted v. Railroad, 143 Mo.App. 623.

Abington, Abington & Freer, Tom W. Campbell and John E. Miller for respondent.

(1) (a) If the court erred in giving to the jury plaintiff's instruction 1, telling them, in effect, that if the defendant's running train struck and injured the plaintiff, that this was prima-facie evidence of negligence on the part of the defendant, the error was not against the appellant and did not adversely affect the substantial rights of appellant; and "the judgment cannot be reversed or affected by reason of such error or defect," for the reason that Section 8562 of the Statutes of Arkansas, in force at the time of the injury, pleaded in plaintiff's petition and admitted in defendant's answer, by its terms "makes the railroads of Arkansas insurers of persons and property as against all mishaps occurring through the running of their trains," being similar to the Missouri fire statute. Secs. 1276, 1513, R. S. 1919; Stanberry v. McDowell (Mo. App.), 186 S.W. 757; Citizens Bank of Clovis v. Cowart (Mo. App.), 255 S.W. 931; Mann v. Doerr, 222 Mo. 1; King v. King, 155 Mo. 406; Barkley v. Cemetery Assn., 153 Mo. 300; Hiatt v. Ry. Co., 308 Mo. 77; Sec. 8562, Crawford & Moses Digest of Statutes of Arkansas for the year 1921. (b) The decisions of the Supreme Court of Arkansas, construing Section 8562 were not pleaded or proved by either plaintiff or defendant. This statute was pleaded in plaintiff's petition and admitted in defendant's answer. This leaves the statute to be given its full literal meaning by this court and when thus literally construed it not only justified the trial court instructing the jury that if the plaintiff was injured by the running of the defendant's train, that would be prima-facie evidence of negligence on the part of defendant, but would have justified an instruction that it was conclusive evidence of negligence on the part of defendant. Mathews v. Ry. Co., 121 Mo. 309, 25 L. R. A. 161; Campbell v. Ry. Co., 121 Mo. 340, 25 L. R. A. 125, 42 Am. St. 530. (2) The court did not err in giving to the jury plaintiff's instructions numbered 2 and 4, and said instructions are not merely abstract propositions of law, for the reason that Instruction 2 is based upon Section 8568A, and instruction 4 is based upon Section 8575 of the Statutes of Arkansas, and both sections were pleaded by plaintiff, the former as the basis of his cause of action, and the latter in partial bar of the defense of contributory negligence, which defense was pleaded by the defendant in this case. There was positive testimony in the case covering the subject-matter of each of these instructions. (3) The court did not err in giving to the jury plaintiff's Instruction 7 on the measure of damages, and said instruction is not in conflict with plaintiff's Instruction 5, for the reason that Instruction 5 deals only with the question of liability, while Instruction 7 does not deal with the question of liability at all, but shows on its face that it is not to be considered by the jury unless they first find for the plaintiff on the question of liability; and in that event only Instruction 7 was to guide them in their consideration of the evidence on the question of the amount of damages to be awarded. (4) The court did not err in refusing to give to the jury defendant's instructions in the nature of demurrers to the evidence at the close of plaintiff's case, or at the close of the whole case, for the reason that the evidence does not show, as a matter of law, that the plaintiff's negligence was not of a less degree than the negligence of the defendant, and for the further reason that the evidence does not show, as a matter of law, that plaintiff was negligent at all. Hiatt v. Ry. Co., 308 Mo. 77. The enactment of Section 8575 of the Statutes of Arkansas, "introduced the doctrine of comparative negligence in that State." Hiatt v. Ry. Co., 308 Mo. 77. (5) The verdict was not excessive and was not the result of passion or prejudice. Pulliam v. Wheelock (Mo.), 3 S.W.2d 374; Hughes v. Railway Co., 309 Mo. 586; Meeker v. Electric Light & Power Co., 279 Mo. 605; Myers v. Railroad Co., 296 Mo. 239.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Plaintiff recovered judgment in the Circuit Court of Butler County for $ 25,000 for personal injuries caused by his being struck by defendant's train, and defendant appeals.

Plaintiff was struck and badly injured by a northbound passenger train of defendant at about eleven A. M., on Sunday, August 10 1924. The accident occurred upon a public crossing at Russell, Arkansas, a village of about 200 population. Defendant's railroad at that point is spoken of as running north and south, but the direction is in fact slightly northeast and southwest. One witness said that at the crossing where plaintiff was struck the railroad runs about fifteen degrees east of north. Some 300 feet south of the depot the track curves a little to the west. It is crossed in the village by two eastand-west public roads or streets, one north and the other south of defendant's depot, which stands on the west side of its track and about equi-distant from the two east-and-west roads. Plaintiff was driving eastward, alone, in a Ford automobile, on the road which crosses the railroad north of the depot. Plaintiff's witnesses estimate that crossing to be about 300 to 325 feet north of the north end of the depot, as located at the time of the accident. Measurements proved by defendant show the distance to be 380 feet. The crossing was then somewhat north of the line of the highway, due to the fact that at one time defendant's depot stood across this road and the traveled roadway west of the railroad "angled" to the north to pass around the north end of the depot. The angle or "elbow" in the roadway as then...