262 Mo. 271 | Mo. | 1914
Lead Opinion
Plaintiff recovered judgment for $3000 as damages for the death of her husband, George Hunt, and defendant appealed. The petition contains two counts — one invoking the humanitarian doctrine and the other alleging that Hunt’s death was due to defendant’s negligence in violating an ordinance of the city of Cape Girardeau restricting the speed of trains to five miles per hour.
The answer contained, among other things, a plea of contributory negligence.
At the close of plaintiff’s evidence and again at the close of all the evidence in the case defendant requested the trial court to direct the jury to find for it on both counts and excepted to the refusal to do so. On the first count the jury expressly found for defendant and thus denied plaintiff’s right to recover on the humanitarian doctrine. The verdict was for plaintiff on the second count, and it is with that count alone we are now concerned. It is contended the evidence pertinent to the issues under the second count is not sufficient to support the verdict rendered thereon.
The relevant facts are as follows: Defendant operates a railroad passing through Cape Girardeau from north to south and entering the city at a point about 130 feet north of Sloan Creek in that city, and an ordinance of the city was in force restricting the speed of trains to five miles per hour within the city limits. On
For defendant the engineer who had charge of the train which killed Hunt testified that the track north of Sloan Creek was straight for about 800 feet; that about 1:38 a. m. he rounded the curve and came out upon this tangent at the rate of forty miles per hour; that when his engine reached a point about 700 feet from the north end of the bridge he saw what he suspected to be a man lying with his head on or near the west rail and near the north end of the bridge and immediately made every effort, consistent with the safety of his train, to stop, but was unable to do so, though he reduced the speed of the train so that it was running about fifteen or eighteen miles per hour when Hunt was struck; that Hunt was lying with his head on a bundle of clothing on or near the west rail, his head partly over the rail; that his face was upward and his body and feet extended westward and away from the track; that Hunt did not move at all but lay supine until the step attached to the pilot, and about four and one-half or five inches above the rail, struck him ; that it was this step which inflicted the wound above described, and an examination thereafter disclosed that it was bent and had blood and hair upon it; that the force of the blow turned the body somewhat and turned it partially around.
In this case the position of the body after Hunt was struck, its nearness to the rail, the nature of the
The closing paragraphs in the opinion in Trigg v. Water, Light & Transit Company, 215 Mo. l. c. 544, lay down the rule applicable here. In that ease no speed, ordinance was violated but it was contended the rate of speed was negligent under the common law. This difference does not affect the applicability to this ease of the rule approved in that. A valid ordinance restricting the speeds of trains simply makes a speed violative of it negligent as a matter of law; whereas, in
The case last cited and that of Sullivan v. Railroad, 117 Mo. l. c. 224, and cases cited, disclose that under the law this judgment must be reversed.
This cause coming into Banc on a dissent, the foregoing opinion of Blair, 0., is adopted as the opinion of the court.
Dissenting Opinion
DISSENTING OPINION.
Plaintiff sued in two counts for the negligent death of her husband.
The first is bottomed on the theory that (because of the customary use of the place by footmen — -a bridge or trestle in Cape Girardeau where the defendant maintained a planked footway) it was the dnty of defendant to keep an outlook there, but that it neglected its duty; that decedent being exposed to peril there, defendant negligently struck and killed him by running a locomotive against him; that defendant’s agents and servants in charge of its locomotive saw decedent in peril, or by the exercise of ordinary care might have seen him in peril, in time to have stopped the locomotive before striking him, but, negligently failing to keep an outlook and failing to stop-, struck decedent and killed him.
The second count declared on a violation of a city ordinance forbidding a train speed in excess of five miles an hour within the limits of the city of Cape Girardeau, and ascribes the death of decedent to a negligent violation of that ordinance.
The jury found for plaintiff on the second count and assessed her damages at $3000, but our learned Commissioner reaches the conclusion that because the jury found for defendant on the first count such verdict necessarily precludes a recovery on the second, accordingly the judgment is reversed outright without remanding the cause. I cannot agree that such conclusion is sound and the object of this dissent is to state, in part, my reasons for that position.
I do not say there is no error in propositions of law put to the jury on plaintiff’s behalf or in those refused for defendant. I say nothing at all on that score. This for the reason that our learned Commissioner’s opinion does not turn on any such question and this includes the reasonableness of the ordinance (a. much agitated point in appellant’s brief). It lays such question out of view and this dissent does as it does. In other words, if our Commissioner has fallen into error in reaching his conclusion, then other questions remain to be considered before affirmance. If not, then those
As premises to reason from, the following may he assumed:
(1) That the speed ordinance was proved as pleaded.
(2) That its flagrant violation was proved at the time and by the locomotive in question.
(3) That there was evidence conclusively showing that if the ordinance had not been violated the accident would not have happened; for on this record decedent was seen by the engineer in a position of peril and (unconscious of it) more than seven hundred feet away, and if the ordinance had been obeyed the locomotive, under existing circumstances of train equipment, weather and grade, could have been stopped in fifty feet. At its actual speed rate it could not be stopped (so the jury found in their verdict on the first count) and warning was unavailing because decedent was unconscious through sleep, sickness or injury by foul means.
(4) That the locus in quo was in the corporate limits of Cape Girardeau sufficiently appears.
(5) That the locomotive killed decedent sufficiently appears; for that, though there was testimony directed to the theory that decedent was dead when struck by the locomotive, there was also evidence contra and the jury decided against defendant on the issue.
We have, then, a case where the death of a man directly results from the violation of a speed ordinance under circumstances where a duty to not Mil him, if by ordinary care his death could be avoided, was imperative.
In determining liability or nonliability in the case put, we may put to one side some other issues, viz.:
First, the negligence or non-negligence of decedent in putting himself in peril. This issue falls out of
Second, we may put to one side the duty to stop at the rate defendant was ru/nning its locomotive; for it could not stop and the jury so decided when it found for defendant on the first count. If, then, ordinary care began only with discovery of peril (which I deny) we confront inability to stop and the case is at an end. But does that view broadly meet the demands of justice or put an end to the case on the second count bottomed on negligent speed in violating the ordinance? So held our Commissioner and at that point we part company.
Because: In the first place, to so hold results in the anomaly that the more the law is violated .(i. e., the greater the speed and consequent inability to stop) the greater the immunity from liability for destroying life — an unthinkable proposition. It would be to encourage lawless speed, and the more lawless the better — a theory against all morals and ethics. It would be for the law to say: Break the law, break it flagrantly; for, behold, the more lawless the speed, the
If we ever announce that doctrine we strike the life out of every speed ordinance in Missouri. To illustrate, the object of those ordinances is not only to save life and limb, but to make it possible to save life and limb. But we say, run so fast in towns that you cannot stop where life and limb are likely to be or are in peril, and yon are acquit of liability. How long would one of those ordinances be effective in creating a civil liability for negligence in the face of such ruling? A pestiferous syllogism it would be to announce: Ability to stop creates liability. Fast running creates inability to stop. Inability to stop creates immunity. Hence, break the speed ordinance and be acquit.
Nor need we bother with the question of the duty to look out for decedent. The engineer saw him, that was one fact on which liability hinges. Closer home, he saw him in time to stop if he had been obeying the law. That was a remaining and necessary fact to fasten liability on defendant. Shall it be allowed to set up its servant’s lawless act that it may escape liability and thereby profit by its own wrong? Thereto the maxims are abundant and cover every angle of the matter ; for, example: A man should not be benefited by his own wrongdoing. A right does not arise from a wrong. The law hateth wrong. No one can improve his condition by his own wrong. No one can take advantage of his own wrong.
Any process of reasoning leading up to that conclusion must be unsound, because the conclusion is absurd. The right doctrine is: Grood reasoning leads to correct results; if, then, the results be incorrect the reasoning is bound to be unsound; for are not the general principles of the law the very perfection of reason?
In the second place, there is no complaint here of improper joinder of causes of action, or that the peti
In the third place, defendant assigned fifteen reasons for reversing the judgment. Observe what they were. The first four attacked the constitutionality of the new damage act; the fifth complains of the refusal of an instruction whereby the reasonableness of the speed ordinance was put to the jury; the sixth is by way of argument to the effect that decedent went to sleep on the track without relying on a lawful train speed; the seventh argues the ordinance was habitually violated and decedent knew that fact; the eighth puts the matter from the standpoint of a mutual fault; the ninth argues that the doctrine of the Trigg case, 215 Mo. 521, and Ayers case, 190 Mo. 228 (both distinguishable from this), applies; the tenth argues decedent wilfully exposed himself to danger; the eleventh argues that drunkenness did not excuse him; the twelfth complains of an instruction on the burden of proving the issue of contributory negligence; the thirteenth is like unto the last above; the fourteenth complains of another instruction; the fifteenth complains of error in admitting evidence.
To my mind it is of stiff significance that in none of those grounds for reversal did veteran counsel make
In this connection I stress the proposition that the contributory negligence of decedent as a causal factor in his death was squarely put to the jury and the fact was found against defendant. In that view of it, shall we say, on conflicting proof, as here, that decedent as a matter of law was guilty of such contributory negligence as destroys liability? One of defendant’s theories was that it did not kill the man at all. That he was killed by some one else. That issue was put to the jury and was found for plaintiff. He may have been wounded by an enemy (and the proof made that not a wild speculation) but the locomotive on this record must be taken as the thing that killed him.
Recurring now to ordinary care, all must admit' defendant owed it to decedent. It owed him, then, care according to circumstances. It owed him such care as an ordinarily reasonable, prudent man would exercise under the same or similar circumstances. As suggested heretofore the question is: When did ordinary care begin to operate as a factor? The principal opinion, it seems to me, acquits defendant if it used ordinary care in stopping after the peril was discovered. Is not that too close a view? Does.not reason push it back of that? It began sooner. Ordinary care began with the rate of speed and required obedience to the law so that ordinary care in stopping would have a chance to fill its due office. If, now, disobedience to the law make it impossible to stop, though ordinary care in the mere matter of stopping was used, shall defendant be absolved for carelessly putting it out of its power