State ex rel. Kurn v. Hughes

• Decision Date: 02 July 1941
• Docket Number: 37540
• Citation: 153 S.W.2d 46,348 Mo. 177
• Parties: State of Missouri at the relation of James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, a Corporation, Relators, v. William C. Hughes, William J. McCullen and Lyon Anderson, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

153 S.W.2d 46

348 Mo. 177

State of Missouri at the relation of James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, a Corporation, Relators, v. William C. Hughes, William J. McCullen and Lyon Anderson, Judges of the St. Louis Court of Appeals

No. 37540

Supreme Court of Missouri

July 2, 1941

Opinion of Court of Appeals quashed.

M G. Roberts, A. P. Stewart and C. H. Skinker Jr., for relators.

The ruling of the Court of Appeals that the acts and omissions of relators with reference to the protection of the grade crossing in question constituted proper grounds for assessing punitive damages against relators contravenes the rulings of this court in the following cases: Evans v. Ill. Cent Railroad Co., 289 Mo. 493, 233 S.W. 397; Kennedy v. North Mo. Ry. Co., 36 Mo. 352; Dimond v. Terminal Railroad Assn. of St. Louis, 141 S.W.2d 789.

William R. Schneider for respondents.

The opinion of the Court of Appeals properly awarded punitive damages. Reel v. Consolidated Inv. Co., 236 S.W. 43; Thompson v. Seaboard Air Line Ry., 62 S.E. 396; Louisville & N. Railroad Co. v. Roth, 114 S.W. 264; Curlee v. Southern Ry. Co., 115 S.E. 628; DeSolme v. Union Elec. L. & P. Co., 102 S.W.2d 779; Eliott v. Mo. Pac. Ry. Co., 52 S.W.2d 448; Evans v. Erie Railroad Co., 213 F. 129.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an original proceeding in certiorari to review for alleged conflict the opinion of respondents in the case of Mason v. Kurn et al. (Mo. App.), 145 S.W.2d 465. The plaintiff recovered a judgment for $ 2500 actual damages and $ 1500 punitive damages on account of injuries sustained when a truck owned and driven by him was struck by defendants' train at a public crossing in Franklin County. Defendants appealed. The sole issue presented by the appeal was whether the evidence was sufficient to warrant an award of punitive damages and, therefore, whether the giving of instructions authorizing the jury to award punitive damages was proper. Respondents held the evidence to be sufficient and affirmed the judgment.

Respondents stated the facts as follows: "The collision whereby plaintiff sustained the injuries for which he sues occurred on February 22, 1938, between two and three o'clock in the afternoon. It was a damp, rainy day.

"In going from Robertsville to the crossing plaintiff traveled along a county road which ran in an easterly and westerly direction, paralleling the railroad track. He was operating his truck in a westerly direction until he reached a point about twenty-five feet from the crossing, where the road made a sharp turn to the left, or south, and crossed the railroad track. About six or seven hundred feet east of the point where the county road turns to go up over the crossing the road passes over a high hill or bluff, and at this location the railroad track, which parallels the county road on the south, passes through a deep cut. Proceeding in a westerly direction from the crest of this hill toward the point where the county road turns sharply to the left, or south, to go over the crossing, the road descends sharply to a point ten feet lower than the railroad track, and continues at that relative level below the track to the point where the road turns south to go up over the crossing. Adjacent to this low stretch of roadway and between it and the railroad track there was at the time of the accident an embankment. The top of this embankment was ten feet above the level of the track, and the roadway parallel with the track was ten feet below the level of the track, so that the top of the embankment was twenty feet above the level of the roadway. There was a steep incline from this level of the roadway to the crossing. This embankment was such as to obstruct a train, approaching the crossing from the east, from the motorist's line of vision as he approached the crossing from the north, and he would have to look almost completely backward to see the train approaching, and then could not see it until starting up the steep incline to the crossing, and could see it only a distance of 150 feet from the crossing.

"Plaintiff testified that when he reached a point twenty or twenty-five feet north of the crossing, he stopped and put his truck in double low; that he looked to the east and could see no train approaching; that he heard no bell or whistle; that he then proceeded toward the crossing; that when the front wheels of the truck were at the first rail of the track, or possibly barely over the first rail, he saw the approaching train for the first time; that it was right on him and traveling at a very high rate of speed, possibly fifty or sixty miles an hour; that he threw open the left door of the truck and started to jump when the collision occurred, and that that was the last thing he remembered until two men lifted him up and had him standing on his feet, holding onto him to steady him.

"The testimony shows that this was an unusually dangerous crossing; that the view to the east of a traveler approaching the crossing from the north was badly obstructed by the embankment between the railroad track and the county road and also by the cut through which the railroad passed some six or seven hundred feet east of the crossing and the southward curve in the track east of the crossing; and that there had been a number of accidents and near accidents at this crossing prior to the accident in question here."

Respondents further stated that defendants had been notified by a petition of local citizens that the crossing was a most dangerous one; that a request had been made for a re-location of the crossing; and that after plaintiff was injured, the embankment between the railroad track and the county road was graded down.

From the above facts the respondents found that "the evidence shows that the crossing was an unusually dangerous crossing. No steps were taken to remedy its dangerous condition until four months after the plaintiff was injured. No precautions were taken to protect the traveling public against the danger. Defendants knew of the dangerous condition of the crossing, and knew that their failure to remedy its dangerous condition, or to take any precautions to protect the traveling public against the danger, would naturally and probably result in injury to persons traveling over the crossing. Their failure in this regard was willful. It could not have been the result of mere inadvertance. It was clearly the result of a reckless indifference to the rights of those whose lives and limbs were thereby imperiled."

The instructions "authorizing the jury to award punitive damages" are referred to in the opinion. Instruction No. 4 advised the jury "that an act or omission which, though properly characterized as negligent, may manifest such reckless indifference to the rights, physical welfare or safety of others that the law will imply that the injury resulting from such act or omission, if any, was intentionally inflicted, and the term 'malice' or 'malicious' as here used means that the act is willful or intentional or done with a reckless indifference to the rights, safety or welfare of others, and . . . if, under the evidence and the other instructions . . . you find in favor of plaintiff . . . and . . ., if you find from the evidence that the defendant railroad company knew that its said railroad crossing . . . was so maintained as to be dangerous to motorists using said highway while exercising the highest degree of care for their own safety, and that the defendants, by the exercise of ordinary care could have made the said crossing reasonably safe for such motorists, . . . by installing at said crossing, automatic electric bell signal, or danger lights, or remove an embankment east of the crossing and north of the tracks on defendants' right of way, and thus and thereby have made the crossing reasonably safe and . . . they failed to do so, though they had ample time to do so, if you so find, before plaintiff was injured, and if . . . the defendants knew, or by the exercise of ordinary care could have known of the likely consequences to the plaintiff and other motorists of their failure to do so, and if you further find . . . that said failure, . . . manifested, if it did, a willful or reckless indifference to the rights, safety or physical welfare of the plaintiff, . . . then the jury may allow such further damages, known in law as exemplary or punitive damages, as will be a punishment to the defendant railroad company, and those in charge of it, and a wholesome warning to others, . . ."

Instruction 5 advised the jury "that if under the next previous instruction . . . you should find that the defendants' acts or omissions, if any, relative to the maintenance of the crossing described in the evidence manifested, if they did, a malicious, willful, intentional or reckless indifference to the rights, safety or physical welfare of the plaintiff, Mason, relative to the injuries, if any, sustained by him . . . then and in such event the contributory negligence, if any, of the plaintiff, Mason, at the said time and place would be no defense to this case, even though the other instructions given you require you to find that the plaintiff, Mason, was at the said time and place in the exercise of the highest degree of care before he is entitled to a verdict in his favor in this action."

On certiorari we review an opinion to determine whether such opinion conflicts with the decisions of this court and "this court will not quash an opinion of a Court of Appeals upon certiorari unless that opinion declares some general principle of law contrary to a controlling announcement of this court upon the same principle, or, on a given state of facts makes some ruling...