174 S.W.2d 806 | Mo. | 1943
Lead Opinion
This is an action for the alleged wrongful death of William T. Hendon under the Arkansas law. Tobitha Hendon, widow and administratrix of decedent's estate, is plaintiff-respondent. She recovered a judgment for $15,000. J.M. Kurn and John G. Lonsdale, trustees in bankruptcy for the St. Louis-San Francisco Railway Company, are defendants-appellants. This review covers a case made, alleged error in instructions and the amount of the verdict. The facts may be briefly stated.
Plaintiff's decedent met his death about 4:00 P.M. August 9, 1941, a clear bright day, when an automobile in which he was riding and one of defendants' fast passenger trains collided at a highway-railroad grade intersection, known as the San Souci or Mound crossing, about *987 1700 feet north of Grider station (a nonstop station) in Mississippi county, Arkansas. The highway, a gravel road, and the railroad extend in a northeasterly and southwesterly direction, with the highway converging upon the railroad at an acute angle as it extends southwesterly and when approximately 20 to 50 feet east of the railroad proceeding in a westerly curve and crossing the railroad at approximately a right angle. The tracks are at a slight elevation above the highway grade. There are no obstructions to the view between the highway and the railroad, except a small "patch of woods" estimated at 700 to 800 feet north of the crossing. The auto and the train were traveling southwesterly; the former at a speed estimated between 20 and 35 miles an hour and the latter at a speed estimated between 65 to 75 miles an hour. Otis Jackson, the owner, was operating the automobile, apparently en route to Grider. He was on the left-hand side of the front seat, with his wife at his side. Deceased was seated behind Jackson on the rear seat, with his small son, to his right. They knew the crossing. All were killed instantly.
The submissibility of plaintiff's case involves the Arkansas comparative negligence statute. It reads:
"In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence." Sec. 11153, Pope's 1937 Ark. Dig.
The sufficiency of the petition is not questioned.
Defendants' answer embraced a general denial, coupled with special pleas going [808] only to the merits of the cause of action.
A general demurrer to plaintiff's evidence was offered.
Plaintiff submitted her case on the charge of negligence that defendants failed to give statutory warning signals, abandoning several charges of negligence. There was evidence pro and con on the submitted issue. We need not set it out.
Defendants contend deceased was guilty of contributory negligence as a matter of law equal to or greater than that of defendants' employees. They stress Bradley v. Missouri Pac. Rd. Co. (1923), 288 F. 484, an action for the death of one Bradley occasioned by a collision between an automobile and a train at a highway-railroad intersection in Prescott, Arkansas, Bradley riding on the rear seat as the guest of one Brown, who was operating the automobile. Brown also was killed. There the occupants of the automobile could have seen the train from a point 40 feet from the track for a distance of 800 feet along the track; the automobile could have been stopped within *988 a few feet; and Brown and Bradley were familiar with the crossing and the train schedule (l.c. 486). The court pointed out (l.c. 493 [4]) that the presumption of due care on the part of Bradley could not prevail against evidence or against physical facts showing that due care could not have been exercised; that is, that such presumption would assume that Bradley saw the train, warned Brown, Brown refused to stop and Bradley then tried to get out of the automobile, stating (l.c. 495): "If the presumption could be carried thus far, it would conflict with another equally strong presumption, viz. that when Brown was warned of the near approach of the train he would exercise the instinct of self-preservation likewise and not drive immediately in front of a fast approaching instrument of death." In the circumstances the court said "the presumption of due care on his [Bradley's] part is unavailing. It cannot offset such positive evidence of negligence as the physical surroundings present." The court held Bradley guilty of contributory negligence of such a degree as to overbalance any negligence on the part of the railroad as a matter of law (l.c.s 485, 495, 496). The court considered the negligence of Brown not imputable to Bradley (l.c. 488[3]), stating (l.c. 489): ". . . we . . . place our decision squarely on the ground that, outside of any question involving the conduct of Brown, Bradley himself is conclusively shown by the record to have been guilty of contributory negligence." The court reasoned (486, 487): "The only reasonable inference that can be drawn from their conduct is that they did not look, or, if they did and saw the train, deliberately took the chance of beating it over the crossing. If the former, they were guilty of gross negligence — if the latter, gross recklessness. If parties driving automobiles persist in gambling with death at railroad crossings, their estates should not be augmented by damages if death win. Care, not chance, is the requisite at railroad crossings."
Defendants point out that the Bradley case has received the approval of the Supreme Court of the State of Arkansas, the above reasoning being quoted and applied in Missouri Pac. Rd. Co. v. Dennis (Ark.),
[1] In the instant case the train approached the intersection at a much greater speed than the automobile. Decedent's view of the train was to the right and to the rear of the automobile. The train overtook and collided with the automobile at the crossing. In the circumstances and absent affirmative evidence on the issue, we may not find as a matter of law that decedent's contributory negligence was equal to or greater in degree than that of defendants' employees. The following among other cases involving guests sustain this conclusion: St. Louis-S.F. Ry. Co. v. Beasley (Ark. 1943), 170 S.W.2d *990
667, 670[5]; Missouri Pac. Rd. Co. v. Johnson (Ark.),
[2] Several of defendants' contentions may be considered together. They say that plaintiff failed to prove an essential fact, i.e., that she was the personal representative of William T. Hendon, deceased. They also complain that the instructions failed to require a finding that plaintiff had the legal right to prosecute the action, or that deceased left a widow surviving, or that he left any next of kin, or that J.M. Kurn and John G. Lonsdale were trustees of said bankrupt railroad. (Issues of this nature may be easily and should be avoided.) These facts were well pleaded in plaintiff's petition, the verification of which contained a specific statement that plaintiff was administratrix of her deceased husband's estate. Plaintiff proved that she was the widow of and that certain named children were all the surviving children of William T. Hendon, deceased. Defendants did not put said facts in issue by any special plea. Their answer so far as material here, was a general denial. From what is said in David v. St. Louis, I.M. S. Ry. Co.,
The contentions are ruled against defendants.
[3] Defendants say Instruction II referred the jury to the petition to determine defendants' negligence. Instruction I (plaintiff's) predicated a recovery on finding defendants negligent in failing to comply with statutory requirements for the ringing of the bell or the sounding of the whistle on the locomotive upon approaching the highway-railroad grade intersection, unless decedent's negligence, if any, equaled or exceeded defendants' negligence. Instruction II (plaintiff's) informed the jury if they found "that the defendant company was guilty of any negligence with reference to the ringing of the bell or the blowing of the whistle as alleged in the petition," and further found deceased guilty of contributory negligence, but of a less degree than defendants, they were to reduce the amount of the recovery. The attack is against the alleged general issue presented by instruction II of negligence "with reference to the ringing of the bell or the blowing of the whistle as alleged inthe petition." Plaintiff's petition contained six charges of negligence. Only one set up negligence in failing to ring the bell or sound the whistle on approaching the highway-railroad grade intersection. Instruction I submitted this charge of actionable negligence in a conditional verdict-directing instruction; while instruction II, conditioned upon a finding of defendants' actionable negligence as aforesaid, informed the jury of the effect of contributory negligence, if any, of deceased. Instruction 4 (defendants') directed a defendants' verdict upon a finding that either the bell was ringing or the whistle sounding on approaching the crossing and instruction 5 required a defendants' verdict upon a finding that decedent's negligence, if any, was equal to or greater than defendants' negligence, if any, with reference to the ringing of the bell or the sounding of the whistle. While of opinion it would have no bearing on the issue, we mention that plaintiff's petition *992
also charged defendants with negligence in failing and refusing "to warn . . . of the approach of the . . . train . . . in any manner," a somewhat general allegation; which charge and all other charges of negligence in the petition, save the one respecting the ringing of the bell or sounding of the whistle, were withdrawn from the jury's consideration by specific withdrawal instructions given at the request of defendants. Reference to the petition for the facts in instructions is not to be approved. The phrase "as alleged in the petition" was an[811] unhappy choice. Under the given instructions the jury had to find the facts as stated in instruction I "with reference to the ringing of the bell or the blowing of the whistle" to return a plaintiff's verdict and could not have been misled as to what constituted negligence in said respect in the instant case. In the circumstances the fault did not constitute reversible error. The reference to the petition appears to be surplusage. Pollard v. Carlisle (Mo. App.), 218 S.W. 921, 922[5]; Hartpence v. Rogers,
[4] A complaint not heretofore considered against plaintiff's instruction III, telling the jury "the measure of damages will be such a sum as you find from the evidence to be a fair and just compensation . . . for the pecuniary losses and injuries resulting to them by reason of the death of" Mr. Hendon, is that it ignored contributory negligence on the part of the deceased. The complaint is based upon the portion of the Arkansas comparative negligence law providing that recovery, where plaintiff is negligent but to a less degree than a railroad, "shall be diminished in proportion to such contributory negligence." Sec. 11153, supra. Plaintiff contends the instruction follows the Arkansas statute on the measure of damages in death cases (Sec. 1278, quoted in footnote supra), and that the omitted matter is covered in plaintiff's instruction II (quoted infra); citing cases holding that all instructions are to be read together and stressing Owens v. Kansas City, St. J.
C.B. Rd. Co.,
[5] Mr. Hendon was thirty-six years old August 9, 1941, at his death. His widow was thirty-five years old at the time of the trial; November, 1942. He had six children (one of whom was killed in the same accident), between the ages of sixteen and one. He was gauge observer for the United States Government and was working on fleet No. 7. When not thus employed, he would farm and do other work. There was evidence putting his average monthly wage at $100. Defendants direct our attention to and cite no authority in support of their contention that the $15,000 judgment is excessive. Our investigation does not result in our conclusion that the judgment is in all events excessive. Southwest Power Co. v. Price,
The judgment is affirmed. Westhues and Barrett, CC., concur.
Section 1278, in part, reads: "Every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person . . .; and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person. . . ."
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur. *995