*1 1919. TERM, Voh Tavis F. Receiver of BUSH, v. BENJAMIN
CALLIE TAVIS Ap- COMPANY, RAILWAY MISSOURI PACIFIC pellant. Two, January 6,
Division 1920. degree Degree of Care. Humanitarian Rule: NEGTiIG-ENCE: always imposed commen- of care humanitarian rule degree danger. engineer’s surate field of obser- danger danger vation to avoid wide as the which the is as field he creates covers. fireman, 2. -: -: Failure Traveler. Where the Warn engine ap- crossing, when his from the saw deceased proaching large in a motor truck at a miles of five six hour, and testifies knew oblivious of deceased coming, fact failed to him with warn whistle, proceeded blast but ahead until truck, struck the is entitled to recover under the humanitarian doctrine. 3- -: Compensatory Damages: Instruction: Negligent Measure of Acts. In an action a widow under Section Revised Statutes $10,000 in which she seeks recover for negligent killing husband, petition of her and in which her charges simple negligence, an instruction which tells that, estimating pecuniary loss, “may her take into con- sideration constituting negligence facts of defend- death,” ant causing erroneous, not The cir- harmless. killing, negligent cumstances of his defendant, or the acts not damages, elements [Following or of her loss. State ex Ellison, rel. Dunham v. 649.] Appeal from Jáckson O. Circuit Court.—Hon. William Judge.
Thomas, Reversed and remanded. J.
Edward White and Hachney Thomas appel- lant.
(1) The court erred in overruling defendant’s de- interposed murrer to the evidence at the plain- close of MISSOURI. COURT SUPREME OP v. Busii. all again close renewed tiff’s evidence and .the *2 testimony authorize was insufficient evidence. jury hu- under the of the to the case the submission Tanne- 79; 258 Mo. Railroad, rule. manitarian Keele v. v. United McMiens 818; W. hill Rys. 213 S. Railroad, v. Burge 102; 244 Mo. Railroad, v. 331; Mo. Co., 274 Pope Railroad, v. Begonia 596; 224 Railroad, Mo. v. Arm- England ;36 180 S. W. Railroad, 232; v. 242 Mo. Guyer Railroad, strong v. 203 249; S. Railroad, v. W. 1,74 Mc- 23'5; 1'91 Mo. Railroad, v. 351; Mo. Schmidt 199 Railroad, v. 543; duty 214 Mo. Porter Railroad, v.Gee (2) in driv- the deceased 82. It Mo. approached' public ing as he on road truck highest degree of care “use railroad very person like or use' under careful prevent collision with similar circumstances” p. 330. 1911, Par. Sec. Laws 9, 12, train. defendant’s duty as to others well defendant He owed this' Threadgill Rys. highway. Mo. v. Co., 279 United right engineer and had the 214 161. The fireman S. W. approaching presume the cross- that the deceased in speed variously confessedly at ing estimated slow per plain train in view, from 2 to miles hour, v. heard the train. Keele Railroad, seen both and. Ehgland (3) 79; Railroad, v. 258 Mo. 180 S. W. giving at the The court No. 5 erred Instruction By plaintiff’s this instruction the instance. were plaintiff’s damages determining told that could take into consideration loss occasioned any; of her husband, the death also “and any) you may (if take consideration the facts also into (if any) constituting negligence de- (if you causing find).” death This fendant so compensatory damages being only, for action punitive R. 5425', 1909. *No under Sec. S. dam- In case it ages such is error to asked. instruct - assessing they may take constituting negligence consideration into 1919. TERM, Mol.
causing death. rel. Dunham v. Ellison, State ex S. W. 459.
Hoy
Hoyle
$
respondent.
sett
(1)
ample warning of
Deceased
not have
did
approach
train.
v.
200 Mo.
Railroad,
137;
Stotler
Murray v. Transit
Go.,
188;
Dutcher v. Rail-
Harvey,
v. Railroad, 499; 158 Mo. Under- Railway. App. (2) wood v. 190 Mo.. This court has laid down the rule even where the hell ringing, warning ap- is parently hut where such bell is *3 duty a
ineffective, there
on
of the
is
engineer
Railroad,
sound
whistle. Rollinson v.
Epp-
262 Mo. '538;
137;
Dutcher
Railroad,
Mo.
Reyburn
Railroad,
735;
stein v.
Mo.
v. Railroad,
(3)
MOZLEY, C. This is action for County to the Jackson Circuit regular May at was tried therein Court, term, and court. The 1917, plaintiff, upon trial resulted a verdict for said judgment duly was rendered statutory.period appellant.duly the court. Within judg- for new trial, its motions arrest filed day being June, 30th the same ment, and, on the 38G MISSOURI. SUPREME COURT OE judicial days one of over- term, of said the court exceptions motions; each to this action ruled said duly thereupon, the court and, taken the case appealed court. crossing
This is a and the case facts material and necessary understanding an of them issues substantially involved are as follows: Respondent (and during the widow lifetime Appellant wife) of John .Tavis. owned operating place ques- a railroad which extends at north, tion a little of east and a south little of west. happened bright day sunshiny The accident on a at unincorporated village at Dodson the cross named ing public public road over railroad. The slight road with a smooth-surfaced, elevation^ approached,, grade track the right angles crossed same at substantially the track at crossed automatic-signal east west. was an There near ball crossing' feet east few track. Barrett’s Hurley’s Company buildings store and Lumber are sit opposite uated building sides of the track. Barrett’s store point at its nearest is 80' or from said crossing. day On accident driv deceased was ing large engaged motor truck and delivering- City for a Kansas stopped bread concern, at store, where he some transacted then business, got into his truck and started toward the *4 speed an estimated of three miles an hour. At same the appellant operating time ap was a train which was proaching speed crossing same twenty the at a miles an hour. approximately When deceased had traveled one-half the distance between Barrett’s store and the crossing, or about 40 he feet, 45 slowed his truck, with stopping, frightened out to allow a team hitched ato wagon pass and to which appar his .attention was ently opposite directed. crossing On the side of the was edge a disabled motor at truck the of the road deceased traveling, parties trying was to extricate predicament from its apparently and deceased’s atten Yol. 280] TERM, 1919. y. Busli. wagon passing
tion to this the was directed after agree team. All of deceased that when witnesses on-coming crossing train was from the 80 or 90 feet from, crossing, from was distant said' 600 feet nothing; that there vision was that interfered party. either E. testified fireman, Hart, E. follows: you your eye on the lookout
“Q, Did have you left until hand from side got up crossing? sir. Yes, to the road A. you you
“Q. tell the what saw 1 wish would you up there road saw the and when first moving up it was to the how timei automobile and it? A. we the collision. got tell them about When Just curve, my store line around there that got around the curve there store we vision, when truck; my line seen am auto vision, would be in slowly, very just moving like started, it to me looked it miles slowly, say along or six should it moved I five that, up got hour, until within an such, about fifteen side, Prospect track that crosses a matter supposed auto-truck Avenue, that time I all got stop, going when he but seen and was increased, that track within about feet of fifteen trying or was that he not seen us then I realised engineer, yelled to the ‘we across, us I beat applied going brakes to hit. that and he fellow/ emergency him.” we hit testified as follows: On cross-examinatiou he you A. see this man*? When first ££Q. When did swing the ev curve; when around we commenced ir gine swung him boiler throw around so the my line curve. of vision far he
££Q. Now, at time how just leaving about store, A. He track?' crossing. feet from approaching track man l£Q. You saw sir. Yes, feet from track? A. *5 SUPREME COURT OF MISSOURI.
- Yes, you A. on the curve? At that time were “Q. sir. slowly? Yes, sir. came forward A.
“Q. He say slowly? going A. Yes, You the truck “Q. sir. point á fifteen feet
“Q. And it reached about passing practically stopped? from the then track and A. Yes, sir. passing far is from main
“Q. track How track? believe. A. Fourteen I feet, eight wide A. feet and
Q. How is the track? Four inches. eighteen eight That A.
“Q. makes feet inches. Yes, sir. beyond And still
“Q. fifteen the man that? A. sir. Yes, twenty-nine That
“Q. makes about. and one-half you feet that this man was' the track when saw him start forward? A. sir. Yes, you
“Q. At that time A. knew not hear— did (interrupting) Fes, sir. your com- You
“Q. ltnev>he. didn’t know ing, isn’t that truef A. That is true. you n him,
“Q. notify Did then sound the whistle to you you, coming¶ when knew he didn’t know A. ’ ’ No, sir. supra, This witness who testified, that when the up truck started so at or six did five miles an hour, also running testified train was twen- ty-five thirty miles an hour. case was submitted on the humani-
tarian doctrine alone. strongly
I. It is appellant insisted that of the record fall prima-facie far making short of aout case under the humanitarian rule, and the court giving peremptory erred in not its in- Failureto Warn. struction in the nature of a demurrer di- recting return verdict for defendant. TERM, Yol. *6 v. Bush.
Tavis assignment, question confronting us tills tlie TJndor testimony tend- contain substantial record is, does the operatives ing dere- of train to that the show degree ushig of care the circumstances lict 2lot assignment upo2i imposed cannot he them? If so disposed question, should submitted as hut be of a law question fact. as a of to imposed degree humani of care “The degree always with the of is tarian rule commensurate engineer’s to danger. avoid observation field danger danger he cre as as the field wide ” Railway, 207 Pacific v. Missouri [Holmes ates covers. Mo. 149.] stepped not the traveler sud-
This is a case where closely denly of the train so on the t2'Rcl*: front injury not be avoided the exercise ordi- his could nary by operatives of train, or one where care party negligently injured driving was a vehiclé on and that he could have there no evidence the track injury, nor it one seen time to where been avoid danger. nothing indicate obliviousness there physical all it is one which as But facts appellant’s testimony when who, fireman well crossing, from: the he was feet distant saw deceased 500 approaching it at a of five six miles an hour fir admittedly that he was oblivious of the fact knew danger, coming his that the failed thereby him a blast of the whistle save warn his life. humanitariaji apply will not rule facts If the ought it is a rule value of this case then without be discarded. in the record, think disclosed fairly rulings bring it within the case,
instant Maginnis Mo. l. c. 2.68 Railroad, court in the cases v. Metropolitan Lyons Rv. Mo. 143- 678; Co., v. St. City, 152; & R. Co., Kansas St. L. v. C. Murrell Ry. Eppstein v. Mo. Pac. 964; Co., S. Mo. l. Railroad, c. 16. There 735;
l. c. Waddell SUPREME COURT OF MISSOURI. many other ruling cases likewise deem which we unnecessary to cite. Bppsteiu supra, page
In case, said: “Appellant’s plenty space plenty servants Avith way to see, Avith no obstructions in the of see- ing, preoccupied warned attitude conduct n fact that he approach, Avas oblivious their owed simple easy duty him, think, we him to tell purposed occupying spot at once the identical ponderous engine. with their This not re- quiring anything extraordinary at their hands— a twist *7 presumably.” of the wrist have done it would the In pages Waddell case, 16-17, the court laid doAvn this “ rule, by viz.: ‘When exer- sees, the defendant ordinary peril plaintiff see, cise care can the the by contributory negligence, caused the latter’s in time him, recover, injuring to avoid them plaintiff the can notwithstanding contributory negligence. This is accepted exception the settled general now to the plaintiff’s contributory negligence rule that re- bars covery.’” (Italics ours.) strong, facts of the case in hand are if not stronger, just quoted those of than the cases from and point unerringly negligence operative the of the train from Avhichthe of ohn death J Tavis resulted. submitting court not err in did thinPc the' point against appellant. to the case rule Appellant point II. makes the that Instruction No. given by plaintiff o court behalf erroneous rights prejudicially affecting- to the extent of its and, ought reason, for to be re- case reversed is on manded. instruction measure of as follows: reads you “The instructs that if court find the plaintiff you shall for her a issues allow sum not dollars and not than two thousand more than less ten dollars, thousand the discretion of the determining you ÉWT; and the amount Damages Measure of you may her, Avill into alloAV take considera- TEEM, Yol. Busli.
Tavis v. pecuniary to the tion the loss occasioned you may take (if any) also of her husband death negli- constituting any) (if into consideration the facts (if causing gence any) on the the defendant subject you (if considering find), and in death so you may have what would her loss consider support husband from from her been the value her probably during of his the time death you .may supported also con- her, and have lived any upon her, falls sider additional burden, support of his death.” reason of her minor child (The ours). italics 5425, Eevised
The action under Section necessary petition far’ as and the so Statutes against negligence quote charges following acts appellant: (a) appellant’s agents and servants operated negligent negligently at a rate said train (b) existing; then and there under circumstances upon ring placed negligently loco bell failed eighty train at least rods from motive such negligently keep crossing failed bell said said negligently ringing crossing (c) until affected; said] en attached to to sound the steam whistle failed negligently gine crossing failed rods *8 sound whistle at intervals until said to said give negligently (d) to said John "W. affected; failed approach (e) any warning train; of said Tavis signal permitted negligently the at said automatic bell repair that it would not become out of so' to approach ring give warning the of train, of the charge employees (f) although in of and defendant’s by ordinary operating of said train or the exercise saw, upon parti seen, their John care should have said Y. position position peril, approaching a of in a Tavis peril, peril, to train, of in front of said oblivious part ordinary in the of care on their exercise warning, stopped to sounded or have the slackened thereby injury the have avoided thereof-and yet they negligently of and resultant death Tavis, SUPREME COURT MISSOURI. OF v. Busa. injury did neither account on thereof collision, and death ensued. above sub As the case stated wás jury upon mitted to the the humanitarian doctrine alone. very In a recent State ex rel. case, Dunham v. Elli Judges City Appeals, son, al., et of of Kansas Court 278 Mo. our Court Banc before it for de precise question upon cision the under consideration counterpart instruction the exact of the one con under opinion Appeals sideration. of the Court- of quashed ground given that said instruction there jury negligence might that the of be told defendant purpose enhancing considered for the amount of of damages recover, entitled “By jury court said: that, this instruction told considering damages the amount of award plaintiff, things: (1) consider two could loss occasioned to her the death her of (2) negligence upo'n constituting husband, and clearly of defendants. The instruction author things fixing ized the consider these both plaintiff. the amount of the . . . doWe not think proper under this section [5425] petition statute, us in this case, before proper any it would be indeed case under sec such (Section tion of the statute. . . -. The statute 5425); contemplate does not consideration the character of negligent plain acts either increase or diminish compensatory damages. Any negligence tiff’s kind recovery penalty shown authorized $2000. degrees negligence have no so far as Missouri, right negligence to recover for is concerned. We confining our remarks to tho case in hand, and to the brought., princi statute . . . The ple common cases under both statutes. com That principle petition simple charging mon under a that, negligence, negligent a consideration acts them purpose selves for enhancing compensatory dam *9 ages improper. . . . The instruction is errone permits in it ous, that to consider the eireum- TEEM, Yol. 1919.
Vinegar Shelley. Pickling & v. Works killing aggravation stances of the widow’s com- pensatory damages.” unmistakably
The instruction discussion is stamped with same erroneous character as in- quoted just struction the case from, above since, wording stated, there no difference of the two. agree cannot with the last-resort contention of respondent learned counsel for if instruction is, appellant erroneous, nevertheless, harmless right complain no has not hurt it. because sufficiently What has been said above shows it was prejudicial appellant’s defense the case. pointed
On account of error out. the case will have to be remanded reversed for a new trial. It is so ordered. Bailey, sitting. G.,
White, concurs; G., not CURIA,Mu opinion foregoing PER —The of Moz- adopted hereby opinion as the ley, C., of the court. judges All of the concur. &
DAVENPORT VINEGAR PICKLING WORKS Trading as M. SHELLEY, M. B. B. SHELLEY Appellant. COMPANY, MANUFACTURING 6, Two, January 1920. Division Sufficiency. purpose a notice OF APPEAL: is to 1. NOTICE person No needs notice of what inform a fact. one notified already knowledge hy respondent knows. Actual that an appeal judgment has been taken from his favor rendered justice peace, is not alone sufficient under Section requires writing, Revised “in Statutes the notice be stating appeal judgment the fact taken has been upon specified;” writing therein re- but is served notice in spondent’s attorneys knowledge they have actual it refers particular judgment other, to a refer to it is sufficient. can no Discrepancies Judgment. Between date of the —:-: Notice judgment 26th, was October the notice recited