Williams v. Hines

• Decision Date: 04 April 1921
• Docket Number: No. 13737.,13737.
• Citation: 229 S.W. 414
• Parties: WILLIAMS et ux. v. HINES, Director General of Railroads, et al.
• Court: Missouri Court of Appeals

229 S.W. 414

WILLIAMS et ux. v. HINES, Director General of Railroads, et al.

No. 13737.

Kansas City Court of Appeals. Missouri.

April 4, 1921.

Appeal from Circuit Court, Ray County; Ralph Hughes, Judge.

"Not to be officially published."

Action by John D. Williams and wife against Walker D. Hines, Director General of Railroads, and others. From judgment for plaintiffs, defendants appeal. Affirmed.

N. S. Brown, of St. Louis, S. J. & O. Jones, of Carrollton, and Lavelock & Kirkpatrick, of Richmond, for appellants.

Jacobs & Henderson, of Kansas City, and M. M. Milligan, of Richmond, for respondents.

ELLISON, P. J.

Plaintiffs are the father and Mother of Roland W. Williams, deceased, a lad 13 years old, who was killed as the result of being struck by one of defendant's trains. They brought this action for damages against Hines, Director General of Railroads, and Charles Hall, engineer in charge of the train, and recovered judgment for $3,500.

The action is based on the humanitarian rule. It appears that the railroad double track runs east and west through the town of Hardin, which has a population of about 1,000 people. The track is practically level I for more than a mile east and three miles west of the station building, and an object " could be clearly seen approaching, or on, the track at the station from any place within these distances. This defendant's tracks and those of the Atchison, Topeka & Santé Fe Railroad run near together and parallel through about the center of the town. A public street, running north and south, crossed these tracks about 100 feet east of the station. Defendant's south track is used for east-bound trains and the north track for those bound west. On the day deceased was killed he was riding his bicycle north along the street, and as he approached defendant's south track he noticed a freight train on the north track had blocked the crossing but was moving off west. He rode up to and over the south rail of the south track and there stopped till the train pulled off the crossing. He was described as having one foot on the ground and the other on one of the pedals of the bicycle, looking east with his back to the west. According to the evidence in plaintiffs' behalf, he stood there from two to four minutes before being struck.

At this time defendant's mail train was approaching from the west at a speed of 30 miles an hour. As already said, the track was straight, level, and the country open for a distance of perhaps 3 miles, and deceased, with his back to the train, was in plain view and his peril manifest, yet the train came on until within a few feet of him an alarm was sounded, but too late, as he was struck in an instant after. That deceased was in peril and unconscious of it, and that the railway company's servants saw him, knew his peril, and that he was oblivious to it, if they were looking ahead, is too clear for dispute. So, too, is it clear that defendant's servants might have avoided the catastrophe if they had seen deceased and endeavored to do so. It is apparent the train could have been stopped, or put under control, for it did actually stop within a distance of 650 feet from the point of collision.

We think there is no ground whatever upon which the trial court could have been justified in sustaining the demurrer to the evidence which was asked by defendants. Plaintiffs' instructions properly covered the case under the humanitarian rule and were not subject to just criticism. Ellis v. Street Ry. Co., 234 Mo. 657, 138 S. W. 23; Kinlen v. Railway Co., 216 Mo. 145, 160, 115 S. W. 523; Felver v. Railway Co., 216 Mo. 195, 212, 115 S. W. 980. The instructions refused for defendant were all drawn without recognition of the humanitarian rule, upon which the action is based. That rule was entirely ignored. They were properly refused.

Defendants insist that under "General Order No. 50, issued by the Director General October 28, 1918," there was no joint liability by them, and hence that the action should be abated or not maintained. No authority is cited for this. No demurrer or other objection was taken at the trial, and the matter, if objectionable, was waived. Sections 1800, 1804, R. S. 1909.

Under the evidence the verdict of $3,500 was not excessive. Defendant claims that sum is $1,500 above the penalty allowed by statute, and that the evidence does not justify it. We think it does. The boy was active, intelligent, and industrious, and earned $1.50 a day.

The record affords no ground for reversal, and hence we affirm the judgment.

All concur.

On Motion for Rehearing.

PER CURIAM.

In referring to defendants' point to the effect that there was no joint liability of defendants, we said in the foregoing opinion that such defect of parties was waived because "no demurrer or other objection was taken at the trial." Defendant in motion for rehearing interprets us as saying that no demurrer to the evidence was filed. We did not say that. In saying that no "demurrer" was filed we meant demurrer to the petition. The rule is that if the defect of parties is apparent on the petition a demurrer to the petition must be filed, and that if the defect is not apparent it must be pleaded in the answer, and if one or the other of these modes is not followed the objection is waived. Russell v. Defrance, 39 Mo. 506; Kellog v. Malin, 62 Mo. 429, 431; Boland v. Ross, 120 Mo. 208, 215, 25 S. W. 524; Fulwider v. Gaslight & Power Co., 216 Mo. 582, 591, 116 S. W. 508.

The chief ground for the motion for rehearing is that the verdict over and above the penalty of $2,000 is excessive. The total verdict is $3,500. We repeat that there is no fair ground for the charge that $1,500 (being the compensatory part of the verdict) is unreasonable. Ellis v. Met. Street Ry. Co., 234 Mo. 657, 688, 138 S. W. 23; O'Brien v. Reman, 191 Mo. App. 477, 500, 177 S. W. 805. In each of those cases the boy whose services were lost was above the are of the deceased in this case, and the verdict much larger.

But it is claimed that to recover damages above the penalty of $2,000 plaintiff should allege his pecuniary loss in the petition and prove it on the trial, and we are cited to two cases from the St. Louis Court of Appeals; one Schulz v. Railroad, 223 S. W. 757, and the other Rollinson v. Lusk, 217 S. W. 328. To the end that these cases should be examined with other authorities in this state a rehearing should be had, unless plaintiff will remit $1,500 from the verdict within ten days.

On Further Rehearing.

BLAND, J.

After the filing of the foregoing opinion on motion for a rehearing, a rehearing was granted and the cause has been again submitted to us. We have reexamined all the points raised, and are content with the holding made by the two opinions upon the former submission of the cause. However, we believe that the matter of the excessiveness of the verdict should be noted somewhat more fully.

It is insisted that there was no allegation in the petition of pecuniary loss suffered by plaintiffs. Section 4217, R. S. 1919, provides that the sum of $2,000 shall be assessed as a penalty and the remainder of the $10,000 mentioned therein as compensatory damages. Boyd v. Railway, 249 Mo. 110, 155 S. W. 13, Ann. Cas. 1914D, 37; Johnson v. Railway, 270 Mo. 418, 193 S. W. 827; Rollinson v. Lusk, 217 S. W. 328; Schulz v. Railway, 223 S. W. 767. This suit is under the third clause of the statute, which gives a cause of action to the parents for the death of their unmarried minor child. Of course, the parents are entitled to the services and earnings of such a child. It would seem that upon the mere allegation of the relationship the law would imply pecuniary loss. Clause 4 of the statute provides for a cause or action by an administrator for the death of an adult. Under that clause...