The State ex rel. Wabash Railway Co. v. Bland

• Citation: 281 S.W. 690,313 Mo. 246
• Parties: THE STATE ex rel. WABASH RAILWAY COMPANY and EDGAR H. RAGSDALE v. EWING C. BLAND et al., Judges of Kansas City Court of Appeals
• Decision Date: 12 March 1926
• Court: Missouri Supreme Court

281 S.W. 690

313 Mo. 246

THE STATE ex rel. WABASH RAILWAY COMPANY and EDGAR H. RAGSDALE v. EWING C. BLAND et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

March 12, 1926

Opinion and judgment quashed.

Homer Hall, J. E. Black and S. J. & G. C. Jones for relators.

(1) Under no phase of the case, under no word or syllable of testimony, was the plaintiff entitled to go to the jury on the humanity rule, because the evidence offirmatively shows that the train could not have been stopped, or the speed slackened in time to have averted the collision, nor was any attempt whatever made to prove that a warning signal could have been sounded in time to have notified Mrs. Loyd of the train's approach. Keele v. Railroad, 258 Mo. 78; Walquist v. Ry. Co., 292 Mo. 43; State ex rel v. Ellison, 270 Mo. 105; Kuhlman v. W. L. & T Co., 271 S.W. 789; Christian v. Ins. Co., 143 Mo. 469. Submitting the question of failure to warn, there being no evidence on that score was certainly enlarging the scope of the evidence, and also submitting an issue not based on any evidence in the case. (2) The holding of the Court of Appeals approving Instruction 3, violates the holding of this court in Treadway v. United Railways, 300 Mo. 156 and Grier v. Ry., 286 Mo. 523. The first paragraph of the instruction submits to the jury the question of a recovery of damages, not penalty. Not only that, but by the use of the word "damages" in the first paragraph of the instruction it allowed a recovery for a pecuniary loss, which was not permissible, as this court decided in the Treadway case. The fact is that if there was reversible error, and that there was admits of no doubt since the decision of this court in the Treadway case, then it constituted reversible error to give Instruction 3.

George W. Crowley, John C. Jacobs, Lavelock, Kirkpatrick, Clark & Garner for respondents.

(1) The facts of this case differ materially from those in each of the decisions cited by relators. In the case at bar, the fireman saw and knew Mrs. Loyd was oblivious to danger. No statutory or warning signals were given, although the fireman saw Mrs. Loyd forty feet away, and knew she was oblivious to her peril. If the warning signal had been given, she could have stopped within three to five feet. The case at bar, on the facts, is strikingly like the case of Zumwalt v. Ry., 266 S.W. 717, in which the Supreme Court held that the evidence made a case for the jury under the humanity rule. (2) The defendants (relators) having submitted to the jury the humanity rule by their requested instructions, after the overruling of their general demurrer to the evidence, are not now in a position to contend that the evidence did not justify the submission of this issue. State ex rel. v. Allen, 272 S.W. 925. (3) The holding that plaintiff's Instruction 3 was proper, is not in conflict with Treadway v. Ry., 300 Mo. 156, or Grier v. Ry., 286 Mo. 523. The Grier case is express authority in support of plaintiff's Instruction 3. The instruction condemned in the Treadway case was vastly different from Instruction 3, and for the reasons pointed out in McDaniel v. Davis, 266 S.W. 710, there is no conflict between the opinion of the Court of Appeals and the Treadway case. The McDaniel case expressly approves an instruction identical with Instruction 3, and completely answers relators' contentions upon this branch of the case.

OPINION

Ragland, P. J.

Certiorari. Relators seek in this proceeding to quash, on the ground of conflict of decision, the opinion and judgment of the Kansas City Court of Appeals in the case of Henry J. Loyd, respondent, v. Wabash Railway Company et al., appellants, lately pending before it on appeal from the Circuit Court of Clay County. We go to the opinion for the facts:

"This is an action to recover damages for the death of plaintiff's wife which resulted from a collision between one of defendant's freight trains and an automobile driven by the deceased. Defendant Wabash Railway Company is a corporation engaged in the operation of a railroad within and through the counties of Clay and Ray in the State of Missouri and elsewhere. The other defendants are Leslie E. Brooks, who was the conductor; Avery E. Guitar, the engineer, and Edgar H. Ragsdale, the fireman in charge of the train of defendant railway company at the time of the death of plaintiff's wife, as alleged in the petition.

"The accident which is the basis of this suit occurred at about 2:30 P. M. on July 26, 1923, at a point about one-half mile east of the station of the defendant railway company known and designated as Excelsior Springs Junction, in Clay County Missouri. The record discloses there is a public highway running east from said station on the south side of, and adjacent to, the right-of-way fence of said railway company, to a point about one-half mile east of said station, where said public highway, instead of continuing its eastern directon, turns north a distance of about forty to fifty feet south of the railroad track and continues north across said tracks at a point familiarly known in the vicinity as Connelly's Crossing.

"On the day in question plaintiff's wife, in an automobile, drove east from Excelsior Springs Junction along the said public highway and following the fixed direction thereof, turned north in an attempt to cross the railroad tracks at Connellys' Crossing. At about the same time a local freight train of defendant railway company, composed of an engine, a caboose and eight or ten freight cars, was approaching from the east. The automobile was being driven at a speed of about ten miles an hour and the train was running at a speed variously estimated at fifteen to thirty miles per hour. The automobile and train met at said crossing, and the former was struck about the middle of its right side and demolished; and plaintiff's wife, who was the driver and only occupant of the car, was so badly injured that she died immediately. . . .

"The evidence shows the public highway in question runs east and west, parallel with the south line of the Wabash Railway Company's right-of-way from Excelsior Springs Junction to the Connelly Crossing. When this highway reaches a point about forty or fifty feet south of the crossing, it runs north and crosses the railway tracks practically at right angles. The track at a distance of approximately one-half mile east of said crossing curves slightly to the left; from that point west to said crossing there is a slight up-grade, and the public highway from the point where it turns northward at the south line of the right-of-way is up-grade, the railroad track being on a fill from two to four feet high. The evidence further shows that a person driving on the public highway, after turning north at the south line of the right-of-way, may see a train approaching from the east for a distance of one hundred to five hundred feet, and that this line of vision increases as the railroad track is neared, until at or near the track a train so approaching may be seen for a distance of half a mile. There is nothing to obscure the view to the east practically from the time one makes the turn at the south line of the right-of-way, except some trees located on the south side of the right-of-way fence and immediately inside the property line of one Stephen Yates.

"Plaintiff attempted to show that the trees standing in the yard of Mr. Yates would have an obscuring effect on the view of one approaching from the west toward the turn in the highway and looking east along the railroad track, the proof showing varying distances of unobscured vision ranging from one hundred yards to a quarter of a mile. The testimony also shows the railroad company maintained two whistling posts near each other east of the Connelly Crossing, one for the crossing and the other for the station at Excelsior Springs Junction.

"Mr Yates, one of the two eye-witnesses to the accident, testified he was standing...