Simpson v. St. Louis-San Francisco Ry. Co.

• Decision Date: 19 April 1934
• Citation: 70 S.W.2d 904,334 Mo. 1126
• Parties: Mamie Simpson, Administratrix of G. T. Simpson, v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

70 S.W.2d 904

334 Mo. 1126

Mamie Simpson, Administratrix of G. T. Simpson, v. St. Louis-San Francisco Railway Company, Appellant

Supreme Court of Missouri

April 19, 1934

Appeal from Newton Circuit Court; Hon. Emery E. Smith Judge.

Affirmed.

E T. Miller and Mann, Mann & Miller for appellant.

(1) Section 6, Article 23 of the Constitution of Oklahoma providing that the defense of contributory negligence shall, in all cases, be a question of fact for the jury, is not binding upon the courts of Missouri in this case. It is no part of the substantive law giving the cause of action. It affects the remedy only, and, therefore, has no extra-territorial effect. 5 R. C. L., sec. 134, p. 1043; Menard v. Goltra, 40 S.W.2d 1058; Buchholz v. Standard Oil Co., 211 Mo.App. 397, 244 S.W. 973; Kansas v. U.S. F. & G. Co., 14 S.W.2d 581; Rastede v. Railroad, 212 N.W. 751; Jones v. Railroad, 80 Minn. 488, 83 N.W. 446; Lewis v. Bush, 30 Minn. 244, 15 N.W. 133; Jones v. Railroad, 243 S.W. 979; Johnson v. Railroad, 91 Iowa 248, 59 N.W. 66; Smith v. Railroad, 141 Ind. 92, 40 N.E. 270; Heaton v. Eldridge, 46 N.E. 638; Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.W. 421; Stock v. Detour Lbr. & Cedar Co., 151 Mich. 21, 114 N.W. 876; Geoghegan v. Atlas S. S. Co., 22 N.Y.S. 749; Railroad Co. v. Mitchell, 92 Ga. 77, 18 S.E. 290; Railroad Co. v. Harris, 247 U.S. 371, 62 L.Ed. 1167; Pennsylvania v. McCann, 54 Ohio St. 10, 42 N.E. 768; Helton v. Railroad, 97 Ala. 275, 12 So. 276. An identical statute of New Jersey was held remedial and no part of the substantive law, and not, therefore, binding in an action brought in New York on a cause of action accruing in New Jersey. Colucci v. Railroad Co., 202 N.Y.S. 717. (2) The deceased, G. T. Simpson, was guilty of contributory negligence, as a matter of law, and defendant's demurrer to the evidence should, for that reason, have been sustained. Hines, Director General, v. Dean, 220 P. 862; Railroad Co. v. Tyler, 232 P. 417; Railroad Co. v. Merritt, 230 P. 514; Railroad Co. v. Barkett, 118 P. 350; Railroad Co. v. Diab, 118 P. 351; Thrasher v. Railroad Co., 206 P. 212; Railroad Co. v. Bratcher, 225 P. 943. (a) Considering the testimony most favorable to plaintiff, the deceased had an unobstructed view of the approaching train when at least thirty-five feet from the track. The automobile, at the speed it was being operated, could have been stopped in ten feet. Deceased was approaching a known danger. The Supreme Court of Oklahoma has consistently held that it is the duty of the driver of an automobile "to keep his faculties in active exercise and not permit his attention to be diverted from the danger before him," and that "persons crossing railroad tracks must stop, look and listen before driving on the track. They must know that trains are liable to be passing at all times, and it is a reckless disregard of their duty to drive on the railroad tracks without using the precautions to stop, look and listen." See cases last above cited. (b) This court has consistently held, in cases involving similar facts, that the driver of the automobile was guilty of negligence, as a matter of law, if he had an unobstructed view of fifteen feet. In this case it was at least thirty-five feet. State ex rel. Hines v. Bland, 237 S.W. 1020; Monroe v. Railroad Co., 297 Mo. 633, 249 S.W. 650; Evans v. Railroad Co., 289 Mo. 493, 233 S.W. 399. (3) The reference in this instruction to the operation of the train "at a greater rate of speed than twelve miles an hour" was erroneous. This instruction directed the jury, in the event it found the issues for the plaintiff, to assess her damages "in such a sum as you may find from the evidence she is justly entitled to." The measure of plaintiff's damage is the pecuniary loss sustained as a result of the death. This instruction did not limit the jury to proper measure of her damages, but permitted, and, in fact, invited, the jury to consider in determining the amount plaintiff was "justly entitled to," not only elements of pecuniary loss, but sorrow, mental suffering, loss of companionship and other facts which have consistently been held may not be considered in fixing or determining the damages to be awarded. New v. McMillan, 79 Okla. 70, 191 P. 166; Railroad Co. v. Lee, 73 Okla. 165, 175 P. 367; Connell v. A. C. L. Haase & S. F. Co., 302 Mo. 85, 257 S.W. 772; Smith v. Ozark W. M. Co., 215 Mo.App. 129, 238 S.W. 575; Stookey v. Railroad Co., 209 Mo.App. 33, 236 S.W. 426. (4) The court erred in giving plaintiff's Instruction 4. (a) This instruction imposed an absolute duty on the part of the defendant with respect to the operation of defendant's trains in approaching a street crossing and made of defendant an insurer of the safety of those upon the street using the crossing. Such was not the measure of defendant's duty. Railroad Co. v. Prince, 291 P. 980; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 75; Goramson v. Ritter-Conley M. Co., 186 Mo. 306; Ward v. Poplar Bluff S. & F. Co., 264 S.W. 81; Pruett v. Campbell L. Co., 188 Mo.App. 347, 174 S.W. 164; Jaquith v. Fayette R. Plumb, Inc., 254 S.W. 94. (b) The instruction advised the jury that the running of its train at high speed over the crossing without giving reasonable notice or warning of the approach by bell or whistle "would subject the defendant to liability to the plaintiff" if plaintiff was exercising ordinary care for his own safety without regard to whether such rate of speed and failure to give signals was the proximate cause of the injury. The Oklahoma statute requiring the giving of signals does not, as does the Missouri statute, supply prima facie the element of proximate cause. Before any act of the defendant will subject it "to liability to the plaintiff," such act must be found by the jury to be a negligent act and that such negligence was the proximate cause of the injury. Railroad Co. v. Ford, 281 P. 249; Railroad Co. v. Barton, 59 Okla. 109, 159 P. 251; Larkey v. Church, 192 P. 571; Hoyt v. Railroad Co., 4 P.2d 751; Railroad Co. v. Perino, 118 Okla. 138, 247 P. 42. (5) The court erred in giving plaintiff's Instruction 6 on the measure of damages. This instruction told the jury to take into consideration the age of the deceased and his probable expectancy in life, entirely ignoring the expectancy of plaintiff. McCord v. Schaff, 216 S.W. 322; Lofty v. Lynch-McDonald Co., 256 S.W. 90; Stevens v. Kansas City L. & P. Co., 208 S.W. 631; Mayberry v. Iron Mt. Co., 211 Mo.App. 610, 249 S.W. 164; Morton v. Southwestern T. & T. Co., 280 Mo. 360, 217 S.W. 835. The instruction is further subject to the same complaint made of plaintiff's Instruction 1, in that it authorized the jury to allow plaintiff "such a sum as you may find and believe from the evidence she is justly entitled to." Connell v. A. C. L. Haase & S. F. Co., 302 Mo. 85, 257 S.W. 772; Smith v. Ozark W. M. Co., 215 Mo.App. 129, 238 S.W. 575; Stookey v. Railroad Co., 209 Mo.App. 33, 236 S.W. 426; New v. McWilliams, 79 Okla. 70, 190 P. 166; Railroad Co. v. Lee, 73 Okla. 165, 175 P. 367.

Commons & Chandler, Frank Nesbitt and A. R. Dunn for respondent.

(1) The appellant's first contention is that the court erred in overruling its motion to strike from respondent's petition that portion of said petition in which Section 6 Article 23 of the Constitution of Oklahoma, providing that the defense of contributory negligence shall, in all cases, be a question of fact for the jury. This contention has been decided adversely to the appellant in both this State and the State of Oklahoma. Jackson v. Railroad Co., 31 S.W.2d 250; Hiatt v. Railroad Co., 308 Mo. 77, 271 S.W. 806; Railroad Co. v. Rundell, 235 P. 491; Caine v. Railroad Co., 209 Ala. 181; Missouri, K. & T. Co. v. Stanton, 78 Okla. 167, 189 P. 753; Railroad Co. v. Cole, 251 U.S. 54; Railroad Co. v. Russell, 130 Okla. 237, 266 P. 763; Railroad Co. v. Ford, 139 Okla. 64, 281 P. 248; Railroad Co. v. Thompson, 139 Okla. 142, 281 P. 565. (2) The court did not err in refusing to sustain defendant's demurrer to the evidence. The deceased, G. T. Simpson, was not shown to be guilty of contributory negligence as a matter of fact. He could not be guilty of negligence as a matter of law. Jackson v. Railroad Co., 31 S.W.2d 250; Railroad Co. v. Rundall, 235 P. 491; Railroad Co. v. Robinson, 225 P. 896. (3) The defendant was guilty of negligence in operating its train at an excessive and dangerous rate of speed, and in violation of Ordinance No. 1351 limiting the speed of trains to twelve miles an hour. The above ordinance was both pleaded and proven. Irwin v. Railroad Co., 30 S.W.2d 56; Miller v. Engle, 185 Mo.App. 558; Jackson v. Ry. Co., 157 Mo. 621; Dickinson v. Cole, 177 P. 571; Prewitt v. Railroad Co., 134 Mo. 615; Ry. Co. v. Adams, 159 P. 250; Covell v. Railroad Co., 82 Mo.App. 180; Keim v. Union R. & Transit Co., 90 Mo. 472; Sluder v. Transit Co., 189 Mo. 107; Murrell v. Railroad Co., 279 Mo. 92, 213 S.W. 964; Thrasher v. Railroad Co., 206 P. 215; Mitchell v. Railroad, 122 Mo.App. 50. (4) The defendant was negligent in failing to give the statutory signals, and to give such order signals as were reasonably necessary to warn the deceased of the approach of the train, as the circumstances and conditions surrounding that crossing might require. The statutory requirements in this regard were only intended as the minimum requirement. Railroad Co. v. Groves, 196 P. 617; Railroad Co. v. Rundall, 235 P. 491; Railroad Co. v. Schuester, 4 A. L. R. 1344; Mo. Pac. Ry. Co. v. Moffatt, 56 Kan. 667, 44 P. 607. The evidence on the part of the plaintiff does not show that even the statutory requirements relative to signals were complied with in this case. Railroad Co. v. Russell, 266 P. 765; M. K. & T. Ry. Co. v. Stanton, 189 P. 753. (5) The court did not...