Saba v. Illinois Cent. R. Co.

• Decision Date: 09 July 1935
• Citation: 85 S.W.2d 429,337 Mo. 105
• Parties: Jean Saba, by His Next Friend, John Saba, v. Illinois Central Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

85 S.W.2d 429

337 Mo. 105

Jean Saba, by His Next Friend, John Saba, v. Illinois Central Railroad Company, a Corporation, Appellant

Supreme Court of Missouri

July 9, 1935

Motion for Rehearing Overruled July 9, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge; Opinion filed at September Term, 1934 April 17, 1935; motion for rehearing filed; motion overruled at May Term, July 9, 1935.

Reversed.

Watts & Gentry for appellant; E. C. Craig and Chas. A. Helsell of counsel.

(1) The trial court erred in overruling appellant's demurrer to the evidence offered at the close of all of the evidence introduced. (a) The respondent was injured in Illinois. Appellant pleaded the law of Illinois in its answer. Respondent failed to plead any law of Illinois either in his petition or his reply, therefore the question of appellant's liability must be determined by the law of Illinois as pleaded by appellant. Lugar v. Railroad Co., 283 S.W. 740; Cox v. Terminal Railroad Assn., 55 S.W.2d 686; Teitsort v. Railroad Co., 15 S.W.2d 779. (b) Respondent's failure to plead the law of Illinois, either in his petition or reply, limits him as well as appellant to the law of Illinois as pleaded in appellant's answer. In other words, this court must determine the question at issue upon a consideration of the cases from the courts of Illinois which are pleaded in appellant's answer, and no others. Galland v. Shubert Theatrical Co., 172 N.Y.S. 779; Warren v. A. C. & F Co., 38 S.W.2d 721; Span v. Jackson, Walker Coal & Mining Co., 16 S.W.2d 198; Teitsort v. Railroad Co., 15 S.W.2d 783. (c) This is true even though Section 806, Revised Statutes 1929, provides that under certain pleadings the courts of Missouri will take judicial notice of the statutes of a foreign state and the decisions construing them. Menard v. Goltra, 40 S.W.2d 1057. (d) Under the law of Illinois as determined exclusively by the decisions of the courts of that State, which are pleaded in appellant's answer and are hereinafter set out for convenience, respondent, at the time of his injury, was a trespasser, or, at most, a mere licensee upon appellant's tracks. For that reason appellant owed him no duty except to refrain from wantonly or willfully injuring him after actually seeing him in a position of peril. The evidence wholly fails to show that any of appellant's servants in charge of its train ever actually saw respondent in such position, but, on the contrary, the uncontradicted evidence shows that they at no time saw him in a position of peril. I. C. Railroad Co. v. Hetherington, 83 Ill. 517; I. C. Railroad Co. v. Eicher, 202 Ill. 575; Blanchard v. Ry. Co., 126 Ill. 426; I. C Railroad Co. v. Godfrey, 71 Ill. 510; Morgan v. Railroad Co., 327 Ill. 339; I. C. Railroad Co. v. O'Connor, 189 Ill. 567; Thompson v. Ry. Co., 226 Ill. 546; Cunningham v. Railroad Co., 260 Ill. 599; Joy v. Railroad Co., 263 Ill. 470; Ingram v. Jackson, 206 Ill.App. 477; A. T. & S. F. Railroad Co. v. Parsons, 42 Ill.App. 97; Carroll, Admr., v. Ry. Co., 142 Ill.App. 198; Teitsort v. Railroad Co., 15 S.W.2d 783; Cox v. Terminal Railroad Assn., 55 S.W.2d 687; Boneau v. Swift & Co., 66 S.W.2d 175. (2) The verdict in this cause is excessive, and so excessive as to indicate that it was the result of passion and prejudice on the part of the jury against appellant. Cole v. Ry. Co., 61 S.W.2d 344; Hiatt v. Ry. Co., 69 S.W.2d 633; Harlan v. Ry. Co., 73 S.W.2d 759.

Green, Henry & Remmers for respondent.

(1) The trial court did not err in overruling the appellant's demurrers to the evidence offered at both the close of the plaintiff's case and at the close of all the evidence. (a) Even if the rulings on the demurrers are determined exclusively by the decisions of the courts of the State of Illinois which are pleaded in appellant's answer, the demurrers to the evidence were properly overruled and respondent made a case entitling him to the submission of same to the jury. Joy v. Railroad Co., 263 Ill. 470; Teitsort v. Railroad Co., 15 S.W.2d 783; Boneau v. Swift & Co., 66 S.W.2d 176; Cox v. Terminal Railroad Assn., 55 S.W.2d 686. (b) However under Section 806, Revised Statutes 1929, the courts of Missouri will take judicial notice of all decisions of the courts of the State of Illinois pertaining to appellant's duty in the premises, whether pleaded or not. Sec. 806, R. S. 1929; Menard v. Goltra, 40 S.W.2d 1057; Lugar v. Railroad Co., 283 S.W. 740. (c) Under all of the decisions of the courts of the State of Illinois, whether pleaded or not, the demurrers to the evidence were properly overruled, as there was proof of such gross negligence on the part of the appellant as is the equivalent of willfulness or wantonness. Cox v. Terminal Railroad Assn., 55 S.W.2d 687; Span v. Jackson, Walker Coal & Mining Co., 16 S.W.2d 198; Teitsort v. Railroad Co., 15 S.W.2d 784; Joy v. Railroad Co., 263 Ill. 465, 105 N.E. 330; Boneau v. Swift & Co., 66 S.W.2d 176; Crossno v. Terminal Railroad Assn., 66 S.W.2d 1092; Frye v. Ry. Co., 200 Mo. 377, 98 S.W. 566, 8 L. R. A. (N. S.) 1069. (2) The damages awarded by the jury in the case were not excessive and the verdict of fifteen thousand dollars ($ 15,000) damages in favor of plaintiff should not be disturbed. Hurst v. Ry. Co., 280 Mo. 573.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for personal injuries, sustained when plaintiff was run over by a train on defendant's railroad in the State of Illinois. Plaintiff obtained a verdict for $ 15,000, and from the judgment entered thereon defendant has appealed.

Plaintiff, in this petition, alleged a long public user as a footpath of the portion of defendant's track, where he was walking when injured. He charged primary negligence against defendant for failure to ring the bell, sound the whistle or give any warning of the approach of its train; for failure to have a headlight burning; and for running at an excessive speed. He further charged the failure to stop or slow down the train or to warn plaintiff, when defendant's crew "saw or by the exercise of ordinary care on their part could have seen, the plaintiff in a position of imminent peril of being struck by said locomotive and train of cars, in time thereafter, by the exercise of ordinary care on the part of said agents and servants in charge of the operation of said locomotive and train of cars, to have stopped said locomotive and train of cars, checked the speed thereof, sounded the whistle thereon, flashed the headlights of said locomotive thereon, or given warning of the approach of said locomotive and train of cars, and thereby have avoided striking and injuring the plaintiff." Defendant's answer stated the law of Illinois and alleged that defendant owed plaintiff no duty thereunder.

Plaintiff at the time of his injury on Sunday, November 2, 1930, was sixteen years old. With a companion, Paul Rametta, then seventeen years old, he had been gathering hickory nuts about a mile south of Marion, Illinois, where he lived. Plaintiff, corroborated by Rametta, gave the following account of the accident. They returned toward Marion on the concrete highway, until they reached a switch track of the Missouri Pacific, which crossed the highway and connected with defendant's tracks on the east. They left the highway at this point and walked along the Missouri Pacific switch to defendant's tracks. South of this point, where they reached defendant's right of way, there were three switch tracks. Defendant's engine, coupled to six coal cars and a caboose, was standing there. It had picked up two of the coal cars on one of these switch tracks. Rametta stopped to tie his shoe and plaintiff walked on down the track carrying the sack of nuts. Both boys said that the engine headlight had not been turned on then, but that they saw one of the trainmen carrying a lantern. It was between five and six o'clock, P. M. After he tied his shoe, Rametta got on the first car back of the engine, and rode the train toward Marion when it started up. Plaintiff walked about 200 feet down the track, after he passed the engine. He heard no bell or whistle nor any sound of the train, but the headlight was suddenly flashed on behind him and almost simultaneously the train struck him. Rametta got off the train, because he thought it was going too fast, at the point where plaintiff was lying at the side of the track, and almost fell over him. He got help, and plaintiff was taken to a hospital where his leg was amputated six or seven inches below the knee.

Defendant's evidence was that the headlight had been turned on for some time before they reached the switch; that it was on all the time they were switching; that the automatic bell ringer was turned on and the bell was ringing all the time the engine was moving; and that they blew the whistle when they started up toward Marion. Defendant's theory was that plaintiff fell under the train, in attempting to get on while it was in motion. The testimony of the engine crew tended to show that plaintiff never was on the track ahead of the train, but was instead, at the side of the engine when it started up. Defendant's right of way had fences on both sides, from the Missouri Pacific switch up to or near the point where plaintiff claimed to have been struck, as shown by the pictures in evidence. It was about a quarter of a mile along defendant's track, from its junction with the Missouri Pacific switch, to the point where the track crossed the main street in Marion. Defendant's track, from its switch tracks north into Marion, as the pictures in evidence show, was an almost straight single main line track, with open fields on each side of this track until it reached the houses in the south part of town. Both passenger and freight...