190 Mo. App. 407 | Mo. Ct. App. | 1915
Suit by tbe -widow for tbe death of her husband caused by a collision with defendant’s train at a railroad crossing. This Is the second appeal in the case, our opinion on the first appeal being found in 182 Mo. App. 252, 168 S. W. 803. The case was retried on the same pleadings so far as the merits are concerned, the negligence counted on being defendant’s failure to give the statutory signals of ringing the bell or sounding the whistle on the train approaching the wagon road crossing where plaintiff’s husband met his death while attempting to cross defendant’s track in a buggy. The defense, as on the other trial, is the contributory negligence of the deceased in going on the track without taking the proper precautions of stopping, looking and listening for the coming train.
On the former appeal the case was reversed and remanded solely on the ground that the court erred in submitting the case on the humanitarian rule, the majority opinion holding that there was no substantial evidence then in the record on which to base a finding that defendant’s engineer did see, or by the
The defendant, at this trial, interposed, or attempted to do so, two constitutional questions, the determination of which it is claimed vests jurisdiction of this appeal in the Supreme Court., One of these questions relates to the constitutionality of section 5425, R. S. 1909, as interpretated by our Supreme Court in Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13, to the effect that said section is partly penal and partly compensatory. The argument is that as said section was held constitutional in Young v. Railroad, 227 Mo. 307, 127 S. W. 19, on the theory that any recovery is wholly penal, the holding in the Boyd case that it is not wholly penal shakes, if it does not destroy, the constitutional foundation of said section. The other constitutional question sought to be interposed arises from the fact that the jury brought in a verdict for $7583, and the plaintiff, conceding that the verdict was excessive to the extent of $83, voluntarily remitted that amount and the court entered judgment for $7500: The defendant objected to this reduction of the verdict and judgment against it as “being palpably made for the purpose of affecting the jurisdiction of the appeal,” and as “being a fraud on the jurisdiction of the Supreme Court,” whose jurisdiction is fixed by the verdict as rendered,
A motion to transfer the case to the Supreme Court on account of the constitutional questions mentioned was filed in and overruled by this court. A writ of prohibition was then asked for by defendant in the Supreme Court on the ground that this court is wrongfully retaining jurisdiction of the case in which grave constitutional questions are properly involved. The granting of such writ of prohibition was denied by the Supreme Court without a written opinion and we must take it either that, there is no merit in the questions xaised and that such have ceased to be debatable constitutional questions, ox that such questions were not timely raised as the same were not mentioned on the first appeal. We, therefore, retain jurisdiction of this appeal and pass to the consideration of the case unhampered by any constitutional luggage.
The defendant contends that the evidence on this .appeal is different than on the former appeal, and, in .any event, that this court is not irrevocably bound by any erroneous rulings made on the former appeal as to ■defendant being negligent or deceased’s lack of negligence. We do not question either the power or duty of this court to correct its own errors either in another case involving the same question or on a subsequent appeal of the same case. [Bowles v. Troll, 262 Mo. 377, 171 S. W. 326; Mangold v. Bacon, 237 Mo. 496, 536, 141 S. W. 650; Greene County v. Lydy, 263 Mo. 77, 172 S. W. 376.]
We have, therefore, carefully read'and compared the statement of facts as given in our former opinion with the present record and find that the facts there stated are in every material way correct — certainly so, with reference to the questions now involved and on which we all then agreed. We, therefore, refer to that
A demurrer to the evidence having been overruled, the defendant contends now, as it did then, that there is no substantial evidence that the defendant failed to give the signals of ringing the bell or sounding the whistle in the manner required by statute on approaching this crossing, and in fact claims that it. did both. Defendant claims that its evidence is positive as to the signals being given and that plaintiff’s evidence is so indefinite and negative in character that it does not raise a conflicting issue. We recognize the full force of this rule as stated in many cases. Osborn v. Railroad, 179 Mo. App. 245, 255, 166 S. W. 1118; Quinley v. Traction Co., 180 Mo. App. 287, 296, 165 S. W. 346; Bennett v. Metropolitan St. R. Co., 122 Mo. App. 703, 700, 99 S. W. 480; Henze v. Railway Co., 71 Mo. 636, 638; Williamson v. Railroad, 139 Mo. App. 481, 488, 122 S. W. 1113. Such, however, is not this case. We do not think such is true even with reference to whistling at or near the whistling post, shown to be 1487 feet from the crossing in question. There is strong negative testimony as to this by several witnesses who say they were giving' attention and that is. enough to take the case to the jury. For example, Mrs. Hemphill, defendant’s witness, who lived west of the crossing three hundred feet, the direction from which the train was coming, says she heard the train before it reached the whistling post; that deceased had just passed her home; that her husband was across the track and might be coming home; that she knew of the danger and went from the kitchen to her front gate to give deceased warning; that she heard the noise of the train as it came along — “the faint noise of the train towards Aurora” — but did not hear any bell or whistle until the shrill danger signals, concededly not given until within two hundred or two hundred and fifty feet of the crossing. She explained that she was lis
Nor do we think that the deceased was conclusively shown to be. guilty of contributory negligence. We again hold that this was a question for the jury, the burden being on defendant. The facts now before us point out even more clearly than before the difficulty of deceased in hearing the train in the absence of ringing the bell or sounding the whistle at intervals. He had entered the cut of the wagon road going down the hill towards the crossing with the hill back towards the coming train and it and the dense growth of trees, brush and weeds between him and the track. Numerous witnesses testified as to the great difficulty of hearing a train as it came down grade around and under the hill by one at or near the crossing and especially if back a short distance in the wagon road cut. With the wind in the adverse direction to a traveler on the road, we can readily believe that a person at the Hemphill home in the valley east of this crossing with no hill between could more readily hear the train than the deceased. That he did not hear it is shown by his action in driving on the track in front of the train.
The defendant asked and the court refused to instruct the jury as a matter of law that it was deceased’s duty to stop before going on the track and that a failure of deceased to stop in order to listen was negligence barring a recovery, provided the jury also found that such stopping would have avoided thé injury. Tbe latter part of this instruction is embodied in the one
Nor do we assent to the proposition that defendant’s duty to give warning signals is a negligible fact in determining deceased’s contributory negligence. The deceased had a right, in the absence of any knowledge to the contrary, to take into consideration that defendant would obey its duty to sound the whistle or ring the bell on approaching this crossing. His care for his own safety is not to be determined by the same standard as if defendant owed no such duty to him or if deceased knew that no such signals would be given. One cannot heedlessly and blindly go upon a railroad track relying solely on defendant’s duty to give him warning while neglecting his own duty to use his senses of sight and hearing; but the law does not require him to anticipate and act on the theory that the persons in charge of the train will neglect' their duty as to giving signals and cast on the traveler the high degree of care made necessary only by such neglect. We again quote from the Campbell case, supra: £<In this case the boy had a right to expect that there would be a headlight (signals) on any car on that road, and
We cannot agree that the evidence unquestionably shows that the deceased was guilty of negligence in going on the track after he saw, or could with due care have seen, the approaching engine, or after he heard the danger signals given by the engineer on seeing deceased’s horse emerge from behind the embankment. According to the engineer’s story when he first saw, or could see, the horse as his engine rounded the hill and cut, the engine was one hundred to one hundred and fifty feet of the crossing and the horse’s head was then within three or four feet of the rail. The driver could not yet see the engine as he was further back behind the embankment. Another step or two of the horse and he was on the track with the fast moving train bearing down upon him. The evidence also shows that the approach to the track was narrow with ditches on each side making it difficult, if not dangerous, to turn either way. Looking at it now and after carefully studying the surroundings, one can suggest actions on the part of deceased which might have saved his life. He might have stopped the horse instantly, even if on the track, and let the engine strike the horse instead of the buggy, or he might have thrown himself out of the buggy in time to have fallen outside of the rail. But when suddenly confronted with an unexpected and appalling danger persons do not usually, and the law does not require them to, act instantly and in the most intelligent way to avert or extricate themselves’ from the peril. [Kleiber v. People’s Ry. Co., 107 Mo. 240, 247, 17 S. W. 946; Harshaw v. Railroad, 173 Mo. App, 459, 467, 159 S. W. 1; Donohue v. Railroad, 91 Mo. l. c. 365.] Allowances should be made for the frailties of human nature in favor of the traveler as well as of the engineer in charge of the ■ train, as was pointed out in our former opinion. The
The various phases of deceased’s duty in approaching the -track as to stopping, looking and listening were submitted to the jury by instructions drawn by defendant and sufficiently favorable to it and in accordance with the law as stated in this and the former opinion.
We do not see the force of defendant’s criticism of plaintiff’s instruction, submitting her whole case, on the ground that it submits the case on only one ground of negligence, that relating to the statutory signals, while the petition contains three grounds of negligence, one of which, however, was taken from the jury at defendant’s request. We know of no rule of law requiring a plaintiff to submit his case on all the grounds of negligence alleged even where there is evidence to support all. There is a rule of law requiring an instruction covering the whole case, not to ignore any defense supported by the evidence, but it would be novel to apply it to the grounds of recovery in instructions given for the plaintiff.
The court admitted evidence as to plaintiff’s pecuniary loss and instructed the jury that in case it found for plaintiff to allow $2000 as a penalty and an additional amount as compensatory damages not exceeding in the aggregate $10,000, taking into consideration the usual compensatory features, such as deceased’s age, earning capacity, etc. This instruction is not seriously criticised and is unobjectionable from
Tbe ease was well and carefully tried and tbe judgment will be affirmed.