Shaffer v. Chicago R. I. & P. R. Co.

• Decision Date: 31 July 1923
• Docket Number: No. 23447,23447
• Citation: 300 Mo. 477,254 S.W. 257
• Parties: SHAFFER v. CHICHGO, R. I. & P.R. CO. et al.
• Court: Missouri Supreme Court

254 S.W. 257

300 Mo. 477

SHAFFER v. CHICHGO, R. I. & P.R. CO. et al.

No. 23447

Supreme Court of Missouri, Division No. 1

July 31, 1923.

Motion to Rehearing Overruled August, 15, 1923.

Motion to Transfer to Court in Banc Overruled August, 15, 1923.

Appeal from Circuit Court, Clinton County; A. M. Tibbels, Judge.

Action by Gwenden Shaffer, by her guardian, curator, and next friend, Julia Shaffer, against the Chicago, Rock Island & Pacific Railroad Company and others. From judgment for plaintiff certain defendants appeal. Affirmed.

John E. Dolman, of St. Joseph, for appellant Chicago, R. I. & P. R. Co. and another.

H. J. Nelson, of St. Joseph, W. S. Herndon, of Plattsburgh, and J. G. Trimble, of St. Joseph, for appellant Chicago, B. & Q. R. Co.

L. B. Gillihan, of Gallatin, R. H. Musser of Plattsburgh, and Platt Hubbell and Geo. Hubbell, both of Trenton, for respondent.

LINDSAY, C.

The plaintiff is an infant 5 years of age. Her father, Paul Shaffer, and her mother, Goldie Shaffer, were killed, and the plaintiff herself was injured, on the 10th day of August, 1921, when a Ford automobile in which they were riding was struck at the Fifth street crossing in the town of Turney, In Clinton county, by a passenger train owned and operated by the defendant Chicago, Rock Island & Pacific Railway Company, but running upon tracks leased from defendant Chicago, Burlington & Quincy Railroad Company. The collision occurred at about 2 o'clock in the afternoon. The suit was brought in the circuit court of Daviess county and transferred to Clinton county. The plaintiff had a verdict for $10,000 upon the first count of her petition, for the death of her father; a like verdict upon the second count for the death of her mother; and a verdict for $2,000 upon the third count, for injuries sustained by plaintiff to her person. Judgment was entered accordingly, against both the companies, and against the defendant Thomas Torpey, who was the engineer of the train which struck the automobile. For brevity, the two companies will be referred to respectively as the Rock Island Company, and the Burlington Company.

Plaintiff's petition is long, but the three counts are alike in their allegations of facts and charges of negligence, severally or concurrently committed by the defendants. They differ only in the particulars appropriate to the capacity in which plaintiff sued in each of the respective counts. Several of the issues tendered by the pleadings were eliminated in the submission of the case to the jury. An outline of the physical surroundings and circumstances is given preliminary to a statement of the issues brought here upon appeal.

Turney is an incorporated town of about 200 inhabitants. Fifth street is near the southern limits, and extends east and west, and is 60 feet wide. It is a much traveled highway. It strikes the, main line tracks of the Burlington Company on which the collision occurred at a point about 400 feet east of Sherman street, which is a street running north and south. Between Sherman street and the main line track there is an ascent of 13 feet and inches. There were three tracks at the crossing. The math line track Is on the east and the two passing tracks to the, west are parallel with the main track. At the time the automobile was driven upon the crossing there was a freight train of the Burlington Company standing upon the west passing track upon the north side of the crossing. The caboose of this train was two or three car lengths north of the crossing. On the middle track there was a freight train of the Rock Island Company. This latter train a little while before had stood upon the crossing, but had been moved northward, leaving the crossing open so that the caboose at the time of the collision was a short distance north of the crossing. The train which struck the automobile was moving southward on the east or main line track. It was a fast train, which did not stop at Turney. On this occasion it was late, and was running at a speed of about 50 miles an hour. Plaintiff's father owned the automobile. The party in the automobile consisted of the plaintiff and her father and mother, and a Mr. George Yountsey and his wife, and a son of the Yountsey's—a boy of 7. The two men occupied the front seat, with the boy between them, and the two women and plaintiff occupied the rear seat. They all lived in Daviess county and were at the time making a trip to Colorado in the automobile. They were unacquainted with this crossing. The evidence does not show which one of the men was driving the automobile at the time it was struck. The automobile driven south on Sherman street, turned east at Fifth street, and proceeding along Fifth street, crossing the two passing tracks, was struck by the south-bound passenger train on the east or main line track. Further details as to the movements of the automobile and of the trains, and more particular description of the crossing and its surroundings will be necessary in considering the issues upon the first and second assignments of error.

The petition set forth the relation between the two companies, ownership and operation of the property and lines at Turney by the Burlington Company, and the existence of a lease or contract between the two companies whereby the Rock Island Company also operated its trains over said tracks between Cameron and Kansas City, Mo. It set out an ordinance of the town of Turney regulating the running of engines and cars, and prescribing the rules for the prevention of accidents at crossings, and pleaded a violation thereof by both defendant companies, and alleged a failure by both companies to cut the grass and weeds on the west side of the right of way whereby the view of persons approaching the crossing from the west was partially obscured. It described the physical conditions at and near the crossing and the position of the two freight trains of the respective companies on the passing tracks north of the crossing, as obscuring the view of the main track from persons approaching from the west, and alleged that the two freight trains upon the passing tracks were awaiting the coming of the passenger train upon the main track; that the action contemplated was that the train of the Rock island Company upon the middle track should move northward as soon as the passenger train entered the Turney yards. It alleged that the respective conductors of the two freight trains, knowing this, permitted their trains to obstruct the view from the crossing of the coming passenger train, and that both companies and said conductors negligently failed to place any flagman or person at the crossing to warn travelers of the approach of the passenger train, and other contemplated train movements. The conductors of said two freight trains were made codefendants. Further material allegations were that the passenger train was being run at an excessive and dangerous rate of speed, and that there was a failure either to sound the whistle or to ring the bell upon approaching the Fifth street crossing. These last-mentioned acts of alleged negligence were coupled with charges of the joint and concurrent acts of negligence heretofore indicated—that is, failure to install an electric bell or signal at the crossing as provided by the ordinance; failure to cut the weeds and grass north and west of the crossing; permitting the two freight trains to stand on the passing tracks close to the crossing and the movement of the freight train of the Rock Island Company from a point over the crossing, northward, leaving the crossing open; and failure of the defendants and the conductors of the freight. trains to give any warning of the approach of the passenger train,

Demurrers were filed by the Burlington Company and its codefendant, the conductor of its freight train, upon the grounds that plaintiff had not legal capacity to sue; that several causes of action were improperly united; that there was a misjoinder of parties defendant; and that the petition failed to state facts sufficient to constitute a cause of action. These were overruled. The answer of defendant Rock Island Company and its codefendant employees was a plea of contributory negligence on the part of plaintiff's father and mother, followed by an averment that section 4217, Revised Statutes 1919, as applicable to the first and second counts of the petition, in permitting the recovery of a penalty, contravenes the Fourteenth Amendment to the Constitution of the United States, in that it deprives defendants of their property without due process of law, and an averment that said section is in conflict with section 8 of article of the Constitution of Missouri, in that it permits the recovery of a penalty by an individual. There was a like answer by the Burlington Company and its codefendant employee, with the further averment that there was a misjoinder of parties defendant, and that they were neither necessary nor proper Parties. Each answer contained a general denial.

The defendant Burlington Company and its codefendant employee filed a motion to strike out of each count of the petition all allegations concerning the ordinance of the town of Turney, the failure to install an electric bell, the failure to cut the grass and vegetation, and the failure to warn of the approaching passenger train, and certain other matters relating to the movement of the freight trains. These motions were overruled, but these matters were eliminated upon the submission of the cause to the jury, and the case was dismissed as to defendant Deardorff, conductor of the Burlington freight train, and as to defendant Guile, conductor of the Rock Island freight train. There were also motions to require plaintiff to elect upon which of the three counts she would go to trial, which were overruled. At the close of the evidence motions requiring an election were again asked and refused, and peremptory instructions were asked and refused as to all three...