Rollinson v. Lusk
| Decision Date | 06 January 1920 |
| Parties | SUSIE ROLLINSON, Respondent, v. JAMES W. LUSK and W. B. BIDDLE, Receivers of St. Louis and San Francisco Railroad, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, Judge.
AFFIRMED (Conditionally).
W. F Evans, E. T. Miller and A. P. Stewart, for appellants.
(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendants at the close of the whole case should have been given. (a) No negligence in the running of the train was shown. In the absence of statutory or ordinance regulation fixing a speed limit, no rate of speed over a public crossing is negligence per se. Maher v. Railroad, 64 Mo. 267, 275; Burge v Railroad, 244 Mo. 76, 103. The evidence fails to show that the necessary prerequisites to set in motion the ordinance relied on, and make it applicable to the Knox avenue crossing had been complied with. There was, therefore no proof of a speed limit fixed by law over this crossing. (b) Under all the evidence deceased was guilty of contributory negligence as a matter of law. Schmidt v. Railway, 191 Mo. 215, 228, 229; Stotler v. Railway, 204 Mo. 619; Green v. Railway, 192 Mo. 131, 139; Laun v. Railroad, 216 Mo. 563, 580, 581; Mockowik v. Railroad, 196 Mo. 550, 570; Keele v. Railway, 258 Mo. 62, 76-78; Carlson v. Railway, 187 S.W. 842, 844, 845; Burnett v. Railway, 172 Mo.App. 51, 58; Gumm v. Railway, 141 Mo.App. 306, 314; Farris v. Railroad, 167 Mo.App. 392, 398; Landrum v. Railway, 178 S.W. 273, 275; Blain v. Railway, 184 S.W. 1142; Southern Railway v. Jones, 88 S.E. 178; Coyle v. Railroad, 94 A. 509; Penn. Railroad v. Pfuelb, 37 A. 1100; Romeo v. Railroad, 33 A. 24; Ellis v. Railroad, 48 N.E. 839; Cadwallader v. Railway, 128 Ind. 518; White v. Railway, 78 N.W. 585; (2) The court erred in admitting evidence that the crossing gate was open. The cause of action alleged in the petition was not predicated on negligence in permitting the gate to be open. (3) The court erred in admitting in evidence sections 2367 and 2371 of the Revised Ordinances of the city of St. Louis 1912. No proper foundation had been laid for the introduction of said ordinances in evidence, and the evidence fails to show that the conditions precedent necessary to render said ordinances applicable to the Knox avenue crossing had been complied with. (4) Notwithstanding the open gate may have been an invitation to deceased to cross the track and an assurance that the track could be crossed in safety, yet this did not absolve her from the duty to use her senses of sight and hearing to avoid a possible collision; and if, under the circumstances, the question of her contributory negligence was properly one for the jury, then instructions Nos. 1 and 3, requested by defendants, should have been given, and the court erred in refusing to give said instructions and each of them. Delaware, etc., R. Co. v. Welshman, 229 F. 82, 85; Rangeley v. Railway, 30 S.E. 386; Schnackenberg v. Railway, 93 A. 701, 702; 3 Elliott on Railroads, sec. 1157. (5) The court erred in giving of its own motion instruction No. 5, and in refusing to give instruction No. 5 requested by defendants. Said instruction of the court's own motion is clearly a comment on the evidence, while defendants' requested instruction withdrew from the consideration of the jury the evidence respecting the raised crossing gate. (6) The court erred in giving instruction No. 3 for plaintiff and in refusing to give instruction No. 6 requested by defendant's on the measure of damages. (a) There was neither allegation nor proof of pecuniary loss. Boyd v. Railway,, 249 Mo. 110; Johnson v. Railway, 270 Mo. 418; State ex rel. v. Ellison, 213 S.W. 459; Smelser v. Railway, 262 Mo. 25, 41, 42; Dunn v. Railway, 21 Mo.App. 188, 202-207. (b) Said instruction No. 3 is further erroneous in that it does not limit the recovery of compensatory damages to the period of deceased's minority. Calcaterra v. Iovaldi, 123 Mo.App. 347, 354; Howard v. Scarritt Est., 161 Mo.App. 552, 562. (7) The verdict is so excessive as to indicate that it is the result of passion and prejudice. It is grossly excessive in respect of compensatory damages. Furthermore, it is not supported by the evidence, since there was no evidence whatever to support a finding of compensatory damages. Hickman v. Railway, 22 Mo.App. 344, 352; Calcaterra v. Iovaldi, 123 Mo.App. 347, 354; Kelly v. Higginsville, 185 Mo.App. 55, 64; Leahy v. Davis, 121 Mo. 227, 233.
T. Percy Carr for respondent.
(1) The violation of a reasonable municipal ordinance regulating speed at crossings is negligence per se. Johnson v. Railroad, 259 Mo. 534; Edwards v. Railroad, 94 Mo.App. 36; Schlerth v. Railroad, 96 Mo. 509; Eswin v. Railroad, 96 Mo. 290; Klein v. Railroad, 90 Mo. 314; Karle v. Railroad, 55 Mo. 476; Hunt v. Railroad, 262 Mo. 271; Jackson v. Railroad, 157 Mo. 621; Sluder v. Transit Co., 189 Mo. 107; Stotler v. Railroad, 200 Mo. 107; Chappell v. United Railways Co., 174 Mo.App. 126; Otto v. Pryor et al., 193 S.W. 28 (2) The question of contributory negligence was properly submitted to the jury under the facts of this case. Otto v. Pryor et al., 193 S.W. 28; Edwards v. Railroad, 94 Mo.App. 42-50; O'Keefe v. Railroad, 108 Mo.App. 184; Gratiot v. Railroad, 116 Mo. 466; Wilkins v. Railroad, 101 Mo. 106; Dickson v. Railroad, 104 Mo. 504 Montgomery v. Railroad, 181 Mo. 500; Reid v. Schaff, Receiver, etc., 210 S.W. 86-87; Kenney v. Railroad, 105 Mo. 270; Russell v. Receivers, etc., 70 Mo.App. 88-90; Killingsworth v. Railroad, 209 S.W. 301.
Plaintiff instituted her suit in the circuit court of the city of St. Louis against the receivers of the defendant railroad company to recover damages for the death of her minor daughter, Dorothy Rollinson, the petition alleging that said daughter had been negligently killed at the railroad crossing of Knox avenue, a street in the city of St. Louis, on August 25, 1916, by a train operated by defendants.
Of the pleadings it is sufficient to state that the petition as one for simple negligence in the alleged violation of a speed ordinance of the city of St. Louis, which limits the running of steam railroad engines and trains within the limits of said city, over, along or across any crossing or intersecting improved street, avenue or road, to a rate of twenty miles per hour. The answer was a general denial and a plea of contributory negligence on the part of the deceased. The reply was a general denial. It will be noted that under the pleadings the case proceeds as one for simple negligence and that the humanitarian doctrine is not involved in the case.
It appears that Dorothy Rollinson, on the day in question, lacked five days being eighteen years of age; was in good health, and had no trouble whatever with her eye sight or hearing, and was a girl of intelligence. She lived but a block or two from what is known as the Knox avenue crossing of the defendants' railroad, Knox avenue being a street running north and south. At this point three separate set of tracks, running parallel with each other, cross Knox avenue. They run on a gradual curve from the northeast to the southwest. The south track is the eastbound main track, the middle track is the westbound main track, and the north track is a switch track. On the west side of Knox avenue and south of the said tracks there was a store building from the corner of which a board fence ran north parallel with the street for a short distance and then turned west in the general direction of that of the railroad tracks. There was a concrete sidewalk on the west side of Knox avenue in front of the said store building, running almost to the railroad tracks. Crossing gates were maintained by the defendants at this crossing, one of such gates being situated north of the tracks, and the other south thereof. The base or support of the south crossing gate was distant about twelve feet from the south rail of the eastbound main track. On the morning in question the south crossing gate was out of order and was standing in a raised position.
Dorothy Rollinson, her sister and their mother, a widow, lived within a block or so of the Knox avenue crossing. On this particular morning Dorothy left the house shortly before eight o'clock and proceeded north along the sidewalk on the west side of Knox avenue to the crossing of the Frisco tracks. At this time a freight train, or drag, consisting of some fourteen or fifteen cars, was moving on the westbound main track, and either while Dorothy was crossing the eastbound main track or just after she had crossed over the north rail of said track and stood waiting for the freight train to pass, an eastbound passenger train, known as the fast mail or Meteor, consisting of a locomotive and eight or nine heavy steel coaches, approached on the south track and struck and injured her so she died in a few hours. It appears that a person walking north on the west side of Knox avenue, just after passing the fence corner above referred to, would have a view to the west along the railroad tracks of from three to six hundred feet, and that the range of view along the tracks to the west would be increased as one approached nearer the track.
The case was tried to a jury who returned a verdict in favor of the plaintiff and against the defendants in the sum of $ 6750, and from a judgment rendered thereon the defendants in due course appeal.
Let us first determine whether the case should have been submitted to the jury.
The measure of precaution to be observed by one about to cross a railroad track depends upon the circumstances and surroundings. [...
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