Stookey v. St. Louis-San Francisco Railway Company

• Decision Date: 16 March 1923
• Parties: WILBUR STOOKEY, a Minor, by his Next Friend, CARRIE M. STOOKEY, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

249 S.W. 141

215 Mo.App. 411

WILBUR STOOKEY, a Minor, by his Next Friend, CARRIE M. STOOKEY, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Springfield

March 16, 1923

Appeal from the Circuit Court of Pulaski County.--Hon. L. B Woodside, Judge.

AFFIRMED ON CONDITION, AND FEDERAL AGENT JAMES C. DAVIS SUBSTITUTED AS DEFENDANT.

W. F Evans, E. T. Miller, Mann & Mann, and Frank H. Farris for appellant.

(1) Judgment against railroad was void, as under federal proclamation, suit must be brought directly against the Director General of the railroads, and courts must take judicial notice of this fact. Kersten v. Hines, 283 Mo. 641, 642; Preston v. Union Pacific Ry. Co., 239 S.W. 1085, 1086; Taylor v. Western Union, 231 S.W 79. (2) Court erred in submitting to jury the issue of defendant's negligence in maintaining defective crossing and predicating liability on such negligence. The only theory on which defendant could be liable was under the "last chance" doctrine. Keil v. Railroad, 258 Mo. 77; Hall v. Railway, 240 S.W. 175; Alexander v. Railway, 233 S.W. 49. (3) Plaintiff's Instruction No 1, which required crossing to be so constructed that deceased could cross over it without hindrance and with safety, was erroneous as the law requires railroad to maintain only a "good and sufficient crossing." Sec. 9944, R. S. 1919; Crane v. Railway, 203 S.W. 642; Lee v. Railway, 150 Mo.App. 183. (4) The damages are excessive. Moore v. Lusk, 186 S.W. 1163; Stark v. Lusk, 187 S.W. 589; Smith v. Pryor, 190 S.W. 72. (5) Case should be reversed because jury wanted further information about matters extraneous to the suit, showing prejudice 38 Cyc, 1823; O'Hara v. Construction Co., 197 S.W. 163; Gibney v. Transit Co., 204 Mo. 704.

Lorts & Breuer, J. J. Crites and R. J. W. Bloom for respondent.

(1) The court properly overruled defendant's demurrer and plea in abatement. R. S. 1919, sec. 4217; Greier v. Kansas City Ry. Co., 228 S.W. 454; Johnson v. McAdoo, 257 F. 757. (2) The instructions were proper. Ashbill v. Joplin, 140 Mo.App. 259, Batton v. M. W. A., 111 S.W. 513; Hays v. Hogan, 180 Mo.App. 251. (3) The damages were not excessive. Hays v. Hogan, supra; Parsons v. Railway, 94 Mo. 296.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

This case is here on second appeal. The former case is reported in 236 S.W. 426, in which opinion we made a statement of the case, to which statement we now refer as to the facts covering the collision in this case. On the first appeal we reversed the judgment because of an erroneous instruction on the measure of damages. That error was corrected in this trial. The plaintiff again recovered judgment in the sum of $ 5000. From this judgment the defendant appeals, assigning numerous errors.

Appellant on this appeal renews its attack on the case made by plaintiff's evidence, and again urges this court to hold that the father of plaintiff was guilty of such contributory negligence as would in law bar a recovery. We discussed that feature in the former opinion and are not disposed to make any change in the ruling thereon. As we view it, it is a question for a jury to determine whether under the circumstances of this case the father of plaintiff was in fact guilty of contributory negligence, and they having decided that in plaintiff's favor puts an end to it so far as this appeal is concerned.

This case was brought under the compensatory death statute, and the negligence charged and submitted was that the defendant had negligently maintained a railroad crossing, and the evidence is overwhelmingly convincing that the defendant was negligent in the way this crossing was maintained, and that it was such negligence that was the proximate cause of this injury.

One of the contentions made by appellant is that the instruction asked by the plaintiff contained error in that it placed a greater duty upon defendant in regard to railroad crossings than is required by the statute, the section of the statute referred to being 9944, Revised Statutes 1919, which requires that there shall be constructed and maintained good and sufficient crossings, which requirement is then followed by a description of the manner of building such crossings. The instruction complained of fixed the standard of crossings as one which could be crossed over without "hindrance and with safety." This same instruction required the jury to find that the defendant had torn out this crossing and had failed to replace it by placing the planks and timbers which are required by statute, and the filling of ballast between railroad ties and the rails. The evidence clearly shows that this was the condition of the crossing at the time of the accident. While the clause complained of should not have been in this instruction, it certainly did not mislead the jury in believing a higher duty was placed upon defendant than that required by the statute, because the evidence concerning this went clearly to show the things lacking which were required by statute. We do not think the error of placing it in the instruction materially affected the verdict. This objection is, therefore, overruled.

It is next contended that the verdict is excessive. The evidence shows that the plaintiff had from six to seven years to live before he reached his majority; that his father was sixty years of age. There is no showing that the father gave any particular amount to his son whom he was rearing in his home. The evidence, however, does show that he was a farmer, living on a rented farm on which there were fifty acres in cultivation; that he had no other trade or occupation and depended upon this farm for a living for the family. To allow him $ 5000 seems to us to be an amount which the parent in this case could not reasonably have been expected to furnish. To have given as much as $ 500 a year to this boy for board and lodging, sufficient clothing and some education would have required great sacrifice on the part of the father in the circumstances shown. We, therefore, must insist that in order that this verdict may stand and fall within an amount that could...