Young v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 01 March 1910
• Citation: 127 S.W. 19,227 Mo. 307
• Parties: YOUNG v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

127 S.W. 19

227 Mo. 307

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

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. CONSTITUTIONAL LAW (§ 301) — DUE PROCESS OF LAW — LIABILITY FOR PERSONAL INJURIES.

Rev. St. 1899, § 2864, as amended by Acts 1905, p. 135 (Ann. St. 1906, §§ 4761-1 to 4761-6), providing that when a person shall die from an injury received through the negligence of any person engaged in running a locomotive, car, etc., the owner of the vehicle "shall forfeit and pay as a penalty * * * the sum of not less than $2,000 and not exceeding $10,000 in the discretion of the jury," is not a delegation to the jury of the legislative power of fixing penalties so as to deprive one liable of his property without due process of law, in violation of Const. Mo. art. 2, § 30 (Ann. St. 1906, p. 166), and Const. U. S. Amend. 14.

2. MASTER AND SERVANT (§ 248) — INJURY TO SERVANT — INJURY AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

Where a servant was killed on a railroad track at a place where the master's trainmen had a right to a clear track, and they had no cause to suspect that the track would not be clear, the case is not one in which the master is liable if the trainmen saw, or by the exercise of ordinary care could have seen, the position of danger in due time, but one which the master is liable only if the trainmen saw decedent in time to have avoided the accident under the conditions and with the means at hand and failed to do so.

3. EVIDENCE (§ 568) — OPINION EVIDENCE — EFFECT.

In weighing opinion evidence as to the time and space required in which to stop a railroad train, jurors are bound to exercise their own common sense, and they are not bound to believe that a train could be stopped within a given space merely because a witness so testified.

4. MASTER AND SERVANT (§ 240) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE.

Where defendant's sectionman, after dismounting from his railroad velocipede on which he was riding on the approach of a train and reaching a place of safety, returned to remove the velocipede, and was thus killed, his contributory negligence is a complete defense to an action for his death.

5. MASTER AND SERVANT (§ 289) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Where the evidence, in an action for the killing of a section foreman by defendant's train, is conflicting whether decedent was guilty of such contributory negligence as to bar recovery for his death, the question is for the jury.

6. MASTER AND SERVANT (§ 248) — INJURY TO SERVANT — DUTY OF MASTER TO AVOID INJURY.

A railroad company owes its sectionman who is guilty of contributory negligence in the performance of his work of inspecting the track no greater duty to have its engineer avoid injuring him, after discovering his peril, than it owes a trespasser.

7. MASTER AND SERVANT (§ 137) — INJURY TO SERVANT — OPERATION OF TRAIN.

An instruction, in an action for the death of a railroad sectionman, which permits the finding of negligence from the failure of the engineer to sound the whistle is error, where the evidence shows that the sounding of the whistle would have been useless, and that the accident could have been avoided only by stopping the train.

8. TRIAL (§ 260) — INSTRUCTIONS — REFUSAL OF REQUEST.

The refusal of instructions fully covered by instructions given is not error.

9. NEGLIGENCE (§ 13) — NATURE AND ELEMENT OF "NEGLIGENCE."

Degrees of negligence are not recognized; for, though the terms "wanton, willful, and reckless" are sometimes used in characterizing conduct, yet the law applies only the word "negligence," which is a failure to perform a duty, and, though the law recognizes degrees in care, very high care, and ordinary care, the failure to exercise the highest degree of care required is only negligence, though failure to exercise ordinary care is also negligence.

10. DEATH (§ 90) — ACTION FOR WRONGFUL DEATH — DAMAGES AND PENALTIES — ELEMENTS.

In assessing the penalty under Rev. St. 1899, § 2864, as amended by Acts 1905, p. 135 (Ann. St. 1906, §§ 4761-1 to 4761-6), for wrongful death from the negligent operation of a locomotive, the jury may consider the conduct of the negligent person beyond the mere finding of negligence, such as whether the conduct which resulted in the accident arose from mere inattention, or was willful, wanton, or reckless.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by A. G. Young, administrator of Pansy Middleton, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. Plaintiff had judgment, and defendant appeals. Reversed.

M. L. Clardy and Edw. J. White, for appellant. John H. Flannigan, R. A. Mooneyham, and R. M. Sheppard, for respondent.

VALLIANT, J.

This suit was instituted by Pansy Middleton in her lifetime, then a minor, suing by her curator. She recovered a judgment for $5,000 against the defendant for the death of her father, whose death she alleged was caused by the negligence of the servants of the defendant railroad company in operating one of its trains. After the cause was brought to this court by defendant's appeal the plaintiff died, and the cause was revived here, to be prosecuted in the name of A. G. Young, the administrator of her estate. The petition states that the plaintiff's father was in the service of the Missouri Pacific Railway Company as a section hand. A part of his duties was to go over a section of the road at times and inspect its condition. That on the day in question he was passing over the road on a railroad velocipede, commonly called a "speeder," when he was struck by an engine drawing a train of cars belonging to the defendant, the Iron Mountain Railway Company, and killed. That defendant company was running its train over the Missouri Pacific Company's track by license to do so. The statement of the cause of action is that the servants of the defendant company saw the deceased on the track, saw that he was unaware of the near approach of the train, and they then and there became aware of his perilous position in time to have prevented striking and injuring him by the exercise of ordinary care, by stopping or placing their train under control, or sounding the usual danger signals, but "negligently, willfully, and wantonly" failed to use the appliances at hand to stop or place the train under control or sound the danger signal, failed to ring the bell or sound the whistle, but ran the engine against the plaintiff's father and killed him. The prayer of the petition was that the defendant be adjudged to forfeit and pay the sum of $10,000, and that plaintiff recover that sum and costs. The answer was a general denial and a plea of contributory negligence. At the trial, when the plaintiff was about to begin to introduce her evidence, the defendant interposed an objection, on the ground that the petition failed to state facts sufficient to constitute a cause of action, in that it was founded on the act of the General Assembly entitled "An act to amend section 2864 of chapter 17 of the Revised Statutes of the State of Missouri, 1899, entitled `Damages and Contributions in Actions of Tort,'" approved April 13, 1905 (Sess. Acts 1905, p. 135 [Ann. St. 1906, §§ 4761-1 to 4761-6]), which act was unconstitutional because it was in controvention of section 30, art. 2, of the Constitution of Missouri (Ann. St. 1906, p. 166), and the fourteenth amendment of the Constitution of the United States. The objection was overruled and exception saved. The same point was also subsequently made in instructions asked by defendant, and refused, and also in the motion for a new trial.

1. As the question of the constitutionality of the act of 1905 reaches to the foundation of the case, we will consider it before going into the facts of the case. We do not understand appellant to challenge the validity of section 2864 (Ann. St. 1906, p. 1637) as it stood until amended by the act of 1905, but the challenge is to the section as amended. Section 2864, Rev. St. 1899, has been so long in our statutes that its terms are familiar to every one, and it need not be literally quoted here. In general terms it provided that when a person should die from an injury received through the negligence of an officer, agent, or servant engaged in running a locomotive, car, etc. (naming other transportation vehicles), the corporation or person owning the vehicle "shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars which may be sued for," etc. The act of 1905 made several amendments to that section, but the only one to which our attention is now called is in reference to the clause just quoted, which was amended to read as follows: "Shall forfeit and pay as a penalty for every such person, employé or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for," etc. Of that amendment the learned counsel for defendant say: "In other words, this session law being highly penal, while the Legislature, as a police regulation, could fix any reasonable sum as the value of a man's life, or by way of punishment for the death of a human being, killed by negligence, this is peculiarly a legislative function, and the Legislature could not abrogate this function, or delegate the exercise thereof to a trial jury, without establishing some lawful basis for the jury's discretion." The words "as a penalty" inserted by the amendment add nothing to the meaning or effect of the section. We have always held it a penal statute, but the placing of a minimum and maximum limit to the amount of the penalty introduces an entirely new feature, and it is of that that appellant complains.

Appellant's contention is that the act of 1905, essaying to confer on the jury a discretion, within specified limits, of fixing the amount of the penalty, is in effect an attempt to deprive appel...