Shaffer ex rel. Shaffer v. Chicago, Rock Island & Pacific Railway Company, Chicago

Decision Date15 August 1923
Citation254 S.W. 257,300 Mo. 477
PartiesGWENDEN SHAFFER, By Her Guardian and Curator and Next Friend, JULIA SHAFFER, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and THOMAS TORPEY, Appellants
CourtMissouri Supreme Court

Appeal from Clinton Circuit Court. -- Hon. A. M. Tibbels, Judge.

Affirmed.

John E Dolman for appellants.

(1) The court erred in refusing to instruct the jury to find for the defendants upon the first and second counts of plaintiff's petition, for the reason that under the undisputed evidence plaintiff's intestates drove upon the crossing at a rate of speed of ten or fifteen miles an hour without slackening the speed of their car, and when defendants' train was in plain view when the automobile reached a point at least thirty feet from the crossing. In thus failing to look or listen and in approaching the crossing without having their automobile under such control and run at such speed that it could have readily been stopped upon the first appearance of danger, plaintiff's intestates were guilty of negligence as a matter of law. State ex rel. Hines v. Bland, 237 S.W. 1018; Freie v. Railroad, 241 S.W. 671; Evans v. Ill Cent. Ry., 233 S.W. 399; Kelsay v. Railroad, 129 Mo. 372; Hayden v. Railroad, 124 Mo. 566; Alexander v. Railroad, 233 S.W. 44; Spanhurst v United Rys., 238 S.W. 397; Neosho Grocery Co. v. Railway, 238 S.W. 514; Gersman v. Railway, 229 S.W. 167; Hall v. Railway, 240 S.W. 176; Stotler v. Railroad, 204 Mo. 619; England v. Ry. Co., 180 S.W. 32; Dey v. United Rys. Co., 140 Mo.App. 461. (2) The court erred in refusing to instruct the jury to find for the defendants under the second count of her petition, for the reason that plaintiff's intestates, Paul Shaffer and Goldie Shaffer, and George Yountsey and his wife, were engaged in a common and mutual enterprise of business and pleasure, in taking a camping-out trip to Colorado at the time the accident occurred. Under this state of facts there existed a mutual responsibility. Shultz v. Old Colony Street Ry. Co., 193 Mass. 309, 8 L. R. A. (N. S.) 597; Moon v. Transit Co., 237 Mo. 435; Koplitz v. St. Paul, 86 Minn. 373, 58 L. R. A. 74; Teal v. St. Paul Ry., 96 Minn. 379; Omaha Ry. Co. v. Talbot, 48 Neb. 627; Tannehill v. Ry. Co., 213 S.W. 818; Knightstown v. Musgrove, 116 Ind. 121; Brommer v. Pa. Ry. Co., 179 Fed. (C. C. A.) 581, 29 L. R. A. (N. S.) 924, 223 U.S. 628; Hall v. Ry. Co., 244 Fed. (C. C. A.) 104. When a husband and wife riding in a vehicle driven by the husband were engaged in a joint enterprise (in this case a fishing trip) the negligence of either is chargeable to the other. Del. & Hudson Ry. v. Borden, 269 Fed. (C. C. A.) 881; Phila. & Reading Ry. v. LeBarr, 265 Fed. (C. C. A.) 129; Davis v. Ry. Co., 159 Fed. (C. C. A.) 19; Noakes v. N. Y. Cent. Ry., 106 N.Y.S. 522; Read v. N. Y. Cent. Ry., 107 N.Y.S. 1067. (3) The court erred in overruling defendants' demurrer and motion to elect upon which cause of action stated in the first, second and third counts of her petition she would proceed to trial. Plaintiff seeks to recover damages for injuries to her person under the third count of her petition, under the third class of causes of action which may be united in the same petition under Section 1221, R. S. 1919, and in the same petition seeks to recover in a representative capacity for a penalty under the first and second counts of her petition, which is imposed by operation of law, under the seventh class of causes of action, which may be united in the same petition. The causes of action thus united not belonging to the same class, it was error to overrule defendants' demurrer and motion to elect. Sec. 1221, R. S. 1919; Hodgson Davis Grain Co. v. Hickey, 200 S.W. 438; Southworth Co. v. Lamb, 82 Mo. 242; Scott v. Taylor, 231 Mo. 670; Jordan v. Transit Co., 202 Mo. 418. (4) The court erred in refusing to instruct the jury to find for the defendants and erred in overruling defendants' motion in arrest of judgment, for the reason that Section 4217, Revised Statutes 1919, under which this action is prosecuted, as construed by this court in its last controlling decision, is in conflict with the Fourteenth Amendment to the Constitution of the United States. The last controlling decision of this court construing said statute is that of Grier v. Ry. Co., 228 S.W. 454, holding that the recovery therein provided for was strictly and primarily penal and "that the addition of the words 'as penalty' show beyond all question that the Legislature intended that the entire forfeiture provided by the statute as amended is to be enforced in all cases as a punishment, and that the amount thereof is not limited or controlled by the rules of law that govern the assessment of compensatory damages." In other words, the Legislature has selected public carriers and their servants as an object of punishment for death caused by an ordinary act of negligence, when other classes of corporations and individuals similarly situated and guilty of a like delinquency are not punished. A., T. & S. F. Ry. Co. v. Matthews, 174 U.S. 95; Gulf C. & S. Ry. Co. v. Ellis, 165 U.S. 159; Connolly v. Union Pipe Line, 184 U.S. 540; A. T. & S. F. Ry. Co. v. Vosburg, 238 U.S. 56; Barbier v. Connolly, 113 U.S. 27; United States v. Armstrong, 265 F. 691; Hines v. Clarendon Levee Dist., 264 F. 127; United States v. Yount, 267 F. 861; VanDeman & Lewis Co. v. Rast, 214 F. 827; Little v. Tanner, 208 F. 605. "The differences which will support class legislation must be such as in the nature of things furnish a reasonable basis for separate laws and regulations." State ex rel. v. Kimmel, 256 Mo. 641; State v. Wilson, 232 S.W. 145; State ex rel. v. Railroad, 246 Mo. 514; McClung v. Pulitzer Pub. Co., 214 S.W. 197. (5) Those who are attempted to be subjected to the penal provisions of the Statute are determined by arbitrary selection wholly without regard to any difference between their delinquency or culpability and that of others whom the statute leaves untouched. This is such a denial of the equal protection of the laws as renders the statute invalid and unenforceable. Amer. Sugar Co. v. McFarland, 229 F. 287; Watson v. Maryland, 218 U.S. 173; Truax v. Corrigan, 42 S.Ct. 132. A mere arbitrary act, although exercised under the police power, cannot be sustained. Lawton v. Steel, 152 U.S. 133; Dobbins v. Los Angeles, 195 U.S. 223; Mo. Pac. Rd. v. Nebraska, 217 U.S. 196; Chicago Ry. v. Wisconsin, 238 U.S. 501. In order to satisfy the Fourteenth Amendment the State law must be impartially administered and in the ordinary mode prescribed by law. Eldridge v. Trezevant, 160 U.S. 469; Hagar v. Reclamation Dist., 111 U.S. 701; Ochoa v. Hernandez, 230 U.S. 139. (6) The court erred in refusing to instruct the jury to find for defendant and erred in overruling defendants' motion in arrest of judgment, for the reason that Section 4217, Revised Statutes 1919, as construed by this court in its last controlling decision is in conflict with Section 8 of Article XI of the State Constitution, which provides that "the clear proceeds of all penalties and forfeitures . . . shall belong to and be securely invested and sacredly preserved in the several counties as a county public school fund." State v. Ry. Co., 253 Mo. 657; Skinner v. Railroad, 254 Mo. 492; State v. Clifford, 124 Mo. 498; State ex rel. v. Warner, 197 Mo. 658; State ex rel. v. Railroad, 89 Mo. 570.

L. B. Gillihan, R. H. Musser, Platt Hubbell and George H. Hubbell for respondent.

(1) The appellants were negligent. The deceased persons were in the exercise of ordinary care. The sole cause of the deaths and injury was the negligence of the appellants. Beckham v Hines, 279 F. 241; Hines v. Hoover, 271 F. 645; Begart v. Payne, 274 F. 784; Payne v. Haubert, 277 F. 646; McGhee v. White, 66 F. 502; Flannelly v. Delaware & Hudson Co., 56 L.Ed. 1221; Baltimore & O. Railroad Co. v. Griffith, 40 L.Ed. 277; Richmond & Danville Railroad Co. v. Powers, 37 L.Ed. 642; Cont. Imp. Co. v. Stead, 24 L.Ed. 403; Ry. Co. v. Cunningham, 168 S.W. 431; Grafton v. Delano, 154 N.W. 1009; Railroad Co. v. McNary, 17 L. R. A. (N. S.) 226. At the time of the killing, the witness Claude Holland saw the Ford automobile, but he could not see the persons who were riding in the Ford automobile. And no one else saw the persons in the Ford automobile at the time of the killing. In this posture of affairs, the law presumes that the deceased persons were in the exercise of reasonable and ordinary care. Riska v. Railroad, 180 Mo. 189; O. C. v. Reed, 33 L. R. A. (N. S.) 1115; Hovey v. Sanders, 174 S.W. 1029. (2) The three causes of action are properly united in the petition. R. S. 1919, sec. 1221; Phoenix Ins. Co. v. McEvony, 72 N.W. 957, 52 Neb. 566; Mayberry v. Ry. Co., 10 Am. & Eng. Ann. Cas. 754, 12 L. R. A. (N. S.) 675; 1 C. J. 1086; Kansas City Ry. Co. v. Spencer, 72 Miss. 491; Coy v. Railroad, 186 Mo.App. 412; Binicker v. Ry. Co., 83 Mo. 660; Savings Bank v. Tracey, 141 Mo. 258; Birmingham Ry. Co. v. Lintner, 109 Am. St. 40; 1 Ency. Pl. and Pr. 180; Coles v. Ill. Cent., 120 Ky. 686; Mobile & Ohio v. Matthews, 115 Tenn. 172. Besides, appellants waived all questions of pleading by answering over and going to trial. White v. Railroad, 202 Mo. 561; Hof v. Transit Co., 213 Mo. 465. (3) Section 4217, Revised Statutes 1919, is constitutional. Art. 14, Amd. U. S. Constitution; R. S. 1855, sec. 2, p. 647; R. S. 1865, sec. 2, p. 601; R. S. 1879, sec. 2121, p. 349; Laws 1885, pp. 153, 154; R. S. 1889, sec. 4425; R. S. 1899, sec. 2864; Laws 1905, pp. 135, 137; R. S. 1909, sec. 5425; Carroll v. Mo. Pac. Ry. Co., 88 Mo. 239, 57 Am. Rep. 382; Tiffany on Death by Wrongful Act (2 Ed.) sec. 31, pp. 35, 36; Boston Railroad Co. v. State, 32 N.H. 215; Schoolcraft...

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