253 Mo. 97 | Mo. | 1913
Lead Opinion
This suit was brought in the Cape Girardeau Court of Common Pleas August 23, 1907. plaintiff, respondent here, is the widow ^ Henry Lueders who was killed by a train of the defendant in the city of Cape Girardeau, May 1, 1907. She sues to recover, on account of his death, $10,000, the maximum penalty prescribed by section 2864 of the Revised Statutes of Missouri, 1899, as amended by the Act of April 13, 1905, being section 5425 of the Revised Statutes of 1909. The negligence charged is the' violation of an ordinance of the city limiting the speed of railway engines, cars and trains within the city to five miles per hour and prescribing a fine for its violation.
Defendant demurred to the petition on the ground that the statute is. unconstitutional because it vests in the jury an absolute and arbitrary discretion as to the amount of the recovery, depriving the court of the power to control it, thereby denying to the defendant the right of trial by jury as theretofore enjoyed, and depriving it of property without due process of law; and also that it closes the court against, and denies certain remedy to, the defendant for injury to his property. The demurrer was overruled and the point was
The defendant answered with a general denial and a plea of contributory negligence by going upon defendant’s tracks, and by failing to step off the track when he saw the train and was warned of its approach.
The accident occurred on Aquamsi street, a travelled street in the city of Cape Girardeau upon which defendant’s track had been laid and operated for many years along the wieist bank of the Mississippi Elver. The defendant’s shops and roundhouse and the trackage connected therewith were situated on a tract of land adjoining" the river in the southern part of the city through which its main track extended, from the southern limits, more than three quarters of a mile south of William street, reaching the river bank where Morgan Oak street .abutted on a levee; thence north to Good Hope street, a distance of one block of about 450 feet; thence across Good Hope street to William street, about five hundred and twenty feet further; .thence north along the levee in Aquamsi street some six hundred and thirty-five feet further, and thence in the same general direction to defendant’s passenger station and through the city. The freight depot was a considerable structure situated on the east side of the track toward the river between Good Hope and William streets, and between the main track and the depot, extending from Morgan Oak street to a point between the south side of William street and the north end of the depot, was a sidetrack used for loading and unloading cars. The grade of the main track from Morgan O'ak to Good Hope street was nearly level; and from Good Hope street north to and beyond the place of the accident descended one per cent, or one vertical foot in each one hundred horizontal feet. At the time of the
Mr. Carleton was a transfer man, and testified that he was at the freight depot on business the day of the accident, and first saw Mr. Lueders at a little, road that crosses from Aquamsi street into the freight house-about two-thirds of the way north from Good Hope street to William street, walking north; that witness-came out from the north end of the freight house and Mr. Lueders was walking on the track north of it, and witness passed him. He seemed to have a cane or fish-pole, he could not say which. The witness thought a man as feeble as he looked to be w,a,s in danger and had no business there. He was old and feeble and seemed to be nervous and that is h'ow he came to notice him so-much. The witness was on the north side of William-street when he first heard the- train, it was then south of Good Hope street and had not yet whistled for the-crossing. He walked on something like ten steps and turned around and saw the old man still walking, and about that time the train came around the curve and blew for the crossing — four whistles. The old man was then down almost to- William street. He did not look back when they blew for the crossing and the witness thought perhaps he might be deaf, and started back and motioned to him. He thinks he saw him and
Mr. Pish, the engineer, testified that he was running north into Gape Girardeau with an engine and caboose on the schedule and as first-section of a passenger train, with signals displayed indicating that a second section was- following. Eighty rods south of Good Hope he whistled for that crossing, and when he approached it he saw the train standing at the depot and.called attention to his own signals with two blasts of his whistle. The engineer of the standing train, the engine of which was heading south, did not respónd and on crossing the street he blew the same signal again making four blasts all together. The other engineer then appeared from the left side of his engine, came around the pilot and gave the necessary signal with his hands — two- movements as if he ware pulling the cord— and Mr. Pish passed on. He had shut off the steam before signaling the standing train, so as to drift down the hill, which gave him better control of his engine in case it should become necessary to make an emergency stop. The top of the grade was at Good "Hope street. Before shutting off the steam he had glanced ahead and seen nobody on the track. After shutting it off his attention was drawn to the front of the engine to look at
“ Q. At whiat rate of speed were you going when you struck him? A. I stated at one time I was making eight or ten miles, but since I have looked over the ground and seen the distance in which I stopped and seen the gentleman and stopped after I struck him, I don’t think I was running that fast, but I did state at the coroner’s inquest I was going that fast, because when anything like that happens a man will naturally judge his speed faster than any ordinary time.”
Mr. McKee testified that he was living on Aquamsi street and had for six years before the trial, about thirty feet from the street, behind the Catholic Church and pretty near the center of the block between William and Merriwether streets. He was at home the afternoon of the accident and saw them bring Mr. Lueders up the bank and put him in the caboose. The’ point from which they brought him was across the track and perhaps four feet further north than the northeast corner of’the witness’s house.
I. The appellant calls attention to the fact that since acquiring jurisdiction of this appeal we have upheld the constitutionality of the seetion of the statute: upon which the suit is founded in Young v. Railroad, 227 Mo. 307 (decided March 31, 1910), and Boyd v. Railroad, 236 Mo. 54 (decided July 1, 1913), and reminds us that we have also held that having obtained
II. Did the court err in refusing to direct a verdict for defendant? If there was substantial evidence tending to prove that the plaintiff, while in the exercise of that reasonable care which the law requires of persons acting under like circumstances and conditions, was struck by defendant’s train because it was being run in Aquamsi street in the city of Cape Girardeau at a speed exceeding five miles per hour, then there was no error in that respect; for the killing and the existence of the ordinance limiting the speed' of trains to five miles per hour are admitted for all the purposes of this hearing, and no excuse is offered for the violation of the ordinance, if it were violated, which is denied. It is seldom we have a case more free from difficulty as to the physical facts, for the stories of the three witnesses, each from his own standpoint, of which we have made the foregoing consecutive synopsis, naturally give us a clearer and more vivid impression of the details than we could have gained with our own senses from any single point of view. To qualify ourselves for the proper application of these facts, however, it will be helpful to first consider the legal situation of the parties at the time of their occurrence. Mr. Lueders was not there as a trespasser, nor did he have to depend for his right upon the permission of the defendant. The locality was a public street of the city, dedicated to
From this standpoint we have to approach the killing of Lueders. He came on the track at a private way leading across it into the station one-third of the block or one hundred and fifty feet south of the south line of William street and near the rear of the little train that stood there with its rear car clearing the switch. Mr. Carleton, who was in the depot and saw him come on the track, left the building from the north • end and got on the track behind him after he had passed the switch on his way north to the place of the accident. Lueders being old and feeble and very nervous, Mr. Carleton overtook and passed him and went on north of William street, when he heard the
Keeping these things in mind, we will look for a moment from the point of view of the engineer on the locomotive. He moved at least a half mile through the town at a speed of from .eight to ten miles per hour, whistled four blasts for the crossing at Good Hope street while yet a quarter of a mile away, and as he was approaching it he shut off the steam, and looking ahead saw nobody on the track, but did see a train standing at the freight house in the block north of Good Hope. He whistled twice to call attention to his signals and after waiting for a response and not receiving one he repeated his signal and it was answered. Up to this time he had not been hurried. If moving only ten miles
III. That the.evidence tended to prove that the train was running, at the time it struck Mr. Lueders, more than five miles per hour is not disputed by the appellant, and, in our opinion, it tends strongly to show that it was running! at even greater speed than ten miles per hour, the maximum mentioned by Mr. Fish. It says, however, that “the facts show that the failure to observe the ordinance of five miles per hour was not the proximate cause of the injury. ’ ’ Upon that question there is ample evidence tending to show (1) that if the train had been running at the rate of five miles per hour Mr. Lueders would have had ample time to and would have saved himself by clearing the train with his body in the effort he actually made to escape. Fiad the jury believed from the whole evidence, as they might well have believed, that the train was running at the rate of ten miles per hour, the old gentleman would have had as much time in which to take the last step for which he was feeling with Ms cane, as it had already taken him, after his warning, to escape to that point. Had the warning been received while the engine was only seventy feet away he would still have had five seconds in which to take this step. The jury had the right to come to the sensible conclusion that
We think that from the evidence the jury would have been justified in finding not only that the speed the train was excessive in view of the orclinance, but that the fact contributed directly to his death in any or all of the three ways we have indicated.
IY. The question whether Mr. Lueders by his own negligence contributed directly to his death is simplified by the fact that .it is specially P^eaded in the answer as follows: ‘‘That if plaintiff’s husband was killed as alleged in the petition, the same was the result of his own carelessness, and neglect by going upon the railroad track of the defendant and walking thereon, when he knew, o.r by the exercise of ordinary care might have known, that the trains of the defendant were constantly passing thereon; and that after the train which it is alleged struck him was in view, he saw the same and could have stepped off of the track, and out of its way without injury, but he neglected and failed to do so, although he saw the said train, and in addition thereto, was warned of its approach.”
As we have already seen, Mr. Lueders had the right, notwithstanding the municipal permission to the defendant to lay its track upon and move the trains along it, to use the street even where the defendant’s track is laid, for purposes of ordinary travel, in a manner consistent with the right of defendant; and the defendant’s right is measured by the permission by which it is created, and such lawful ordinances as may have been enacted defining and regulating its úse, so that the deceased' was under no obligation to anticipate that the defendant would use the street with its trains otherwise than to thiei extent of its said right, and might therefore presume, upon going upon the track, that it would conform its speed to the requirement of the ordinance. Being so in the use of this track, the presumption would continue until he should become aware or have reason to believe that the defendant was violating or would violate the ordinance. After he saw the train and had been warned of its approach, it was his duty to give it the right of way by making all reasonable efforts to get off the track sio that it might pass without striking him. Under this plóading we are not
Y. The defendant complains of the refusal of the court to give at its .request the following instruction:
“6. 'You are further instructed that although you may find from the evidence that the train which struck the deceased was running in excess of five miles an hour, yet, if you further find that the deceased was conscious of his danger m time to avoid the same, and he could have done so by stepping over the west rail and off the track, but instead of taking that course, he walked across the railroad track to the east, and undertook to leave the track on the east side, and in doing so he did not get off the same in' time to avoid the train, then and in that case you will find the issues for the defendant. ’ ’
It is sufficient to say of this instruction that the question is not what the deceased could have done to save himself in the light of all tbei facts and circumstances developed at the trial, but whether he acted as a reasonably careful man would have done in trying to escape it. The court committed no error in refusing it.
PEE CUEIAM The foregoing opinion of Brown, C., is adopted as the opinion of the court..
Concurrence Opinion
SEPAEATE CONCUSSING OPINION.
I concur in the result of the opinion by our learned commissioner, and in the opinion itself, except the following language:
“Since railways measure the distance from mile to mile by the number of telegraph pole's, directing public attention to the system and its resulting information by painting upon the poles, and .a nomenclature has come into general use in which ‘telegraph poles’ and ‘car lengths’ are used as units of distance, the courts may assume, without subjecting themselves to the imputation of arrogance, that a telegraph pole ordinarily represents a distance of as much as one hundred and fifty feet; so that, interpreting the statement of Mr. Carleton into the latter terms, it is safe to say that it means that the engineer whistled to alarm Mr. Lueders when he was yet three hundred feet away, and that he put the air on his brakes in emergency a hundred and fifty feet away.”
This language is in effect announcing that we will take judicial notice of the fact that telegraph poles are not set less then 150 feet apart. This is a matter of proof and there is no proof in the record. We can’t judicially know this fact, and as to the foregoing language I dissent. Lamm, J., concurs in these views.