Underwood v. St. Louis, I. M. &. Ry. Co.

• Decision Date: 05 June 1915
• Docket Number: No. 1478.,1478.
• Citation: 190 Mo. App. 407,177 S.W. 724
• Parties: UNDERWOOD v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

177 S.W. 724

190 Mo. App. 407

UNDERWOOD v. ST. LOUIS, I. M. & S. RY. CO.

No. 1478.

Springfield Court of Appeals. Missouri.

June 5, 1915.

Rehearing Denied June 24, 1915.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Nellie A. Underwood against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. F. Green, of St. Louis, A. E. Spencer, of Joplin, and Parbour & McDavid, of Springfield, for appellant. I. V. McPherson and James A. Potter, both of Aurora, and Howard Gray, of Carthage, for respondent.

STURGIS, J.

Suit by the widow for the death of her husband caused by a collision with defendant's train at a railroad crossing. This is the second appeal in the case; our opinion on the first appeal being found in 182 Mo. App. 252, 168 S. W. 803. The case was retried on the same pleadings so far as the merits are concerned, the negligence counted on being defendant's failure to give the statutory signals of ringing the bell or sounding the whistle on the train approaching the wagon road crossing where plaintiff's husband met his death while attempting to cross defendant's track in a buggy. The defense, as on the other trial, is the contributory negligence of the deceased in going on the track without taking the proper precautions of stopping, looking, and listening for the coming train.

On the former appeal the case was reversed and remanded solely on the ground that the court erred in submitting the case on the humanitarian rule; the majority opinion holding that there was no substantial evidence then in the record on which to base a finding that defendant's engineer did see, or by the use of due care could have seen, deceased in a position of peril in time to have avoided the collision by the reasonable use of the means at his command, and that plaintiff failed to make a case of negligence on this ground. On this trial the court again heard the evidence on this point and at the close thereof instructed the jury that there was no evidence of negligence in this respect, so that such ground of negligence is now out of the case. The jury found for plaintiff on the issue submitted of defendant's negligence in its failure to give the required signals on approaching the crossing, and on the issue of deceased's contributory negligence in not using reasonable care in approaching the track at the crossing.

The defendant, at this trial, interposed, or attempted to do so, two constitutional questions, the determination of which it is claimed vests jurisdiction of this appeal in the Supreme Court. One of these questions relates to the constitutionality of section 5425, R. S. 1909, as interpreted by our Supreme Court in Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13, Ann. Cas. 1914D, 37, to the effect that said section is partly penal and partly compensatory. The argument is that as said section was held constitutional in Young v. Railroad, 227 Mo. 307, 127 S. W. 19, on the theory that any recovery is wholly penal, the holding in the Boyd Case that it is not wholly penal shakes, if it does not destroy, the constitutional foundation of said section. The other constitutional question sought to be interposed arises from the fact that the jury brought in a verdict for $7,583, and the plaintiff, conceding that the verdict was excessive to the extent of $83, voluntarily remitted that amount, and the court entered judgment for $7,500. The defendant objected to this reduction of the verdict and judgment against it as "being palpably made for the purpose a affecting the jurisdiction of the appeal," and as "being a fraud on the jurisdiction of the Supreme Court," whose jurisdiction is fixed by the verdict as rendered, and to deprive the Supreme Court of jurisdiction of the appeal in this manner is to deny defendant the equal protection of the law and is in contravention of its rights under the Constitution.

A motion to transfer the case to the Supreme Court on account of the constitutional questions mentioned was filed in and overruled by this court. A writ of prohibition was then asked for by defendant in the Supreme Court, on the ground that this court is wrongfully retaining jurisdiction of the case in which grave constitutional questions are properly involved. The granting of such writ of prohibition was denied by the Supreme Court without a written opinion, and we must take it either that there is no merit in the questions raised and that such have ceased to be debatable constitutional questions, Or that such questions were not timely raised as the same were not mentioned on the first appeal. We therefore retain jurisdiction of this appeal, and pass to the consideration of the case unhampered by any constitutional luggage. "

The defendant contends that the evidence on this appeal is different than on the former appeal, and, in any event, that this court is not irrevocably bound by any erroneous rulings made on the former appeal as to defendant being negligent or deceased's lack of negligence. We do not question either the power or duty of this court to correct its own errors either in another case involving the same question or on a subsequent appeal of the same case. Bowles v. Troll (Sup.) 171 S. W. 326; Mangold v. Bacon, 237 Mo. 496, 536, 141 S. W. 650; Greene County v. Lydy (Sup.) 172 S. W. 376. We have therefore carefully read and compared the statement of facts as given in our former opinion with the present record and find that the facts there stated are in every material way correct—certainly so with reference to the questions now involved and on which we all then agreed. We therefore refer to that opinion for a more detailed statement of the facts presented on this record.

A demurrer to the evidence having been overruled the defendant contends now, as it did then, that there is no substantial evidence that the defendant failed to give the signals of ringing the bell or sounding the whistle in the manner required by statute on approaching this crossing, and in fact claims that it did both. Defendant claims that its evidence is positive as to the signals being given, and that plaintiff's evidence is so indefinite and negative in character that it does not raise a conflicting issue. We recognize the full force of this rule as stated in many cases. Osborn v. Railroad, 179 Mo. App. 245, 255, 166 S. W. 1118; Quinley v. Traction Co., 180 Mo. App. 287, 296, 165 S. W. 346; Bennett v. Metropolitan St. R. Co., 122 Mo. App. 703, 709, 99 S. W. 480; Henze v. Railway Co., 71 Mo. 636, 638; Williamson v. Railroad, 139 Mo. App. 481, 488, 122 S. W. 1113. Such, however, is not this case. We do not think such is true even with reference to whistling at or near the whistling post, shown to be 1,487 feet from the crossing in question. There is strong negative testimony as to this by several witnesses who say they were giving attention, and that is enough to take the case to the jury. For example, Mrs. Hemphill, defendant's witness, who lived west of the crossing 300 feet, the direction from which the train was coming, says she heard the train before it reached the whistling post; that deceased had just passed her home; that her husband was across the track and might be coming home; that she knew of the danger and went from the kitchen to her front gate to give deceased warning; that she heard the noise of the train as it came along—"the faint noise of the train towards Aurora"—but did not hear any bell or whistle until the shrill danger signals, concededly not given until within 200 or 250 feet of the crossing. She explained that she was listening for the train, as it was late, and that the deceased could not hear it as easily as she could because he had entered the cut on the wagon road as it went down the hill towards the crossing and she was on higher ground and more in the open; that the train was not making much noise. Moreover as we stated on the other hearing, two of defendant's witnesses, used for no other purpose than to prove the whistling, say that they were watching the train from a field where they were at work, and that it gave two short weak blasts near the whistling post and no other sound by bell or whistle until near the crossing when the four or five quick danger signals were given.

We say again that the giving of two, or even more, blasts of the whistle at or near the whistling post and running in silence from there on is not a compliance with the statute requiring the whistle to be sounded at intervals until the crossing is passed. The defendant, as if recognizing that its own witnesses had not shown a compliance with the statute as to whistling, produced some evidence that it kept the bell ringing continuously to the crossing. The defendant lays stress on the fact that other witnesses heard the coming train, as for instance the Hemphill girl and her aged grandmother living east of the crossing, and that the deceased also would have heard if he had listened as he ought to; but these witnesses say that they heard the noise of the running train, but not of the bell or whistle. It is common knowledge that the bell or whistle sounds loud above the noise of the running train and the fact that these witnesses heard and observed the lesser noise and not the louder one is persuasive evidence that the louder signals were not given. Nearly all the evidence negatives the ringing of the bell at all and that any whistle was sounded, except possibly right at the whistling post nearly 200 feet further away than the regulation distance, and shows that for nearly, if not quite, one-quarter of a mile this train ran in silence under the edge of the hill out of the sight and hearing of the deceased traveler who was proceeding to the crossing unaware of its approach. So the jury have found and we approve such finding. That the deceased would have heard these signals had they been given is probable, and it devolved on defendant to show that...