227 Mo. 307 | Mo. | 1910
This suit was instituted, by Pansey Middleton, in her lifetime, then a minor, suing by her curator; she recovered a judgment for five thousand dollars against the defendant for the death of her father, whose death she alleged was caused by the negligence of the servants of the defendant railroad company in operating one of its trains. After the cause was brought to this court by defendant’s appeal, the plaintiff died and the cause was revived
Tbe petition states that tbe plaintiff’s father was in tbe service of tbe Missouri Pacific Railway Company as a section band; a part of bis duties was to go over a section of tbe road at times and inspect its condition; that on tbe day in question be was passing over tbe road on a railroad velocipede, commonly called a speeder, when be was struck by an engine drawing a train of cars belonging to tbe defendant, tbe Iron Mountain Railway Company, and killed; that defendant company was running its train over the Missouri Pacific Company’s track by license to do so. Tbe statement of tbe cause of action is that tbe servants of the defendant company saw tbe deceased on tbe track, saw that be was unaware of tbe near approach of tbe train, and they then and there became aware of bis perilous position in time to have prevented striking and injuring him by tbe exercise of ordinary care, by stopping or placing their train under control, or sounding tbe usual danger signals, but “negligently, wilfully and wantonly” failed to úse tbe appliances at band to stop or place tbe train under control or sound tbe danger signal, failed to ring the bell or sound tbe whistle, but ran tbe engine against the plaintiff’s father and killed him. Tbe prayer of tbe petition was that tbe defendant be adjudged to forfeit and pay tbe sum of ten thousand dollars and that plaintiff recover that sum and costs. Tbe answer was a general denial and a plea of contributory negligence.
At tbe trial, when tbe plaintiff was about to begin to introduce ber evidence, tbe defendant interposed an objection on tbe ground that tbe petition failed to state facts sufficient to constitute a cause of action, in that it was founded on tbe Act of the General Assembly entitled “An act to amend section 2864 of chapter 17 of tbe Revised Statutes of tbe State of Missouri, 1899,
I. As the question of the constitutionality of the Act of 1905 reaches to the foundation of the case we will consider it before going into the facts of the case. We do not understand appellant to challenge the validity of section 2864 as it stood until amended by the Act of 1905, but the challenge is to the section as amended.
Section 2864, Revised Statutes 1899', has been so long in our statutes that its terms are familiar to every one and it need not be literally quoted here. In general terms it provided that when a person should die from an injury received through the negligence of an officer, agent or servant engaged in running a locomotive, car, etc. (naming other transportation vehicles), the corporation or person owning the vehicle “shall forfeit and pay for every person or passenger so dying, the sum of five thousand) dollars, which may be sued for,” etc. The Act of 1905 made several amendments to that section, but the only one to which our attention is now called is in reference to the clause just quoted, which was amended to read as follows: “shall forfeit and pay as a penalty, for every such person, employee or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for,” etc.
Of that amendment the learned counsel for defendant say: “In other words, this Session Law being highly penal, while the Legislature, as a police regula
The words, “as a penalty” inserted by the amendment add nothing to the meaning or effect of the section; we have always held it a penal statute, but the placing of a minimum and maximum limit to the amount of the penalty, introduces an entirely new feature and it is of that that appellant complains.
Appellants contention is that the Act of 1905, essaying to confer on the jury a discretion, within specified limits, of fixing the amount of the penalty, is in effect an attempt to deprive appellant of its property without due process of law which is forbidden by section 30, article 2 of the Constitution of Missouri, and also by the Fourteenth Amendment to the Constitution of the United States.
The governmental function of declaring an act a crime or other offense against the law, to which a penalty may be affixed, can be exercised only by the legislative department, it cannot be delegated; to that extent the appellant is correct in its position. And it is also correct to say that the prescribing of the punishment or penalty is a legislative function that cannot be delegated, for example, the General Assembly could not forbid the commission of a certain act and say that one convicted thereof should be deemed guilty of a felony or misdemeanor and suffer such punishment as the jury might see fit to impose. But when the General Assembly has declared an act either a crime or negligence deserving a penalty and has prescribed the punishment or penalty within limits, not less or more, it is not a delegation of legislative power to leave to- the jury the fixing of the extent to the punishment or
The decision by a Federal judge in Tennessee, also cited, is to the-same effect. The New Jersey case also cited by appellant, as we understand it, holds substantially as we have above held. [Cigarmakers’ Union v. Goldberg, 72 N. J. L. 214.] The New Jersey court construed its statute to mean that the penalty between the minimum and the maximum limits was unconstitutional because it “was to be determined by the party to be benefited thereby,” and after so saying it used this language: “The fixing of the precise legal penalty to be imposed must be essentially either a legislative function, in which only general considerations can have weight, or a judicial function in which general considerations may be modified by special circumstances.”
The learned counsel in their brief concede “that damage acts which subject railroads to additional penalties over those which may be assessed against private individuals may be upheld because of the peculiar hazardous nature of the business of railroading rather than upon the mere occupation of railroading” (as indeed has been too frequently decided to admit now of
II. We come now to the case on its merits. The plaintiff’s testimony tended to show as follows: Her father was a section hand in the employ of the Missouri Pacific Company; one of his duties was to walk over the track at certain times from Webb City to Carthage to inspect the road; it was against the rules of the company and contrary to his orders for him to ride a velocipede over the road on his inspection route, but on the morning of the accident he had obtained a velocipede and was riding over his route; he was going east towards Carthage, and the train which struck him was going in the same direction; the point of the accident was about 150 feet east of the east approach
Another witness, a boy fourteen years old, testified that he was driving cows to pasture at a distance of half a mile east of the bridge; he heard the whistle and ran to head off the cattle from crossing the track, andi there he saw the engine coming; it ran a quarter' of a mile east of the water tank before it stopped, then it backed. A witness who was a passenger on the train testified that he heard no whistle or application of the air until they were on or near the bridge, then he heard or felt the air applied and the stop was quite sudden, the train stopped with the rear coach opposite to the water tank.
The foregoing is the substance of the evidence on the part of the plaintiff tending to show that the engi
The engineer and fireman, witnesses for defendant, testified that they did not see the deceased until they had passed out of the curve and came into the straight track, then they both saw him. The engineer’s testimony was: “As I came around the curve to the Center Creek bridge I seen the man crossing the bridge on the speeder. I reached for the whistle cord with one hand and the brake valve with the other. At the time the man got at the end of the bridge he got off the speeder and got down the dump clear off the right of way and as soon as he stopped himself he ran back up and caught hold of the speeder and pulled one end of the speeder on the ties and remained in that position until I struck him. It was only a second or two from the time the man stopped himself as he jumped down the embankment until he got back to his speeder.” He said he was about 150' yards distant from the man when he first saw him, about 300' feet from the.west end of the trestle; as soon as he saw him he used -all the appliances at hand to stop the train; the track at the point was down grade about one per cent. In his opinion the train going as it was could have been stopped in 600 or 700 feet, not less. The fireman’s 'testimony was to the same effect.
At the close of the plaintiff’s evidence and again at the close of all the evidence defendant asked an instruction to the effect that plaintiff was not entitled to recover, which was refused and exception saved.
In the above statement we have omitted a great deal of evidence tending to show that the plaintiff’s father was himself guilty of negligence that contributed to the accident, and this we have done because that is a fact conceded, at least it is not contradicted. The plaintiff’s petition states a cause of action based ■on the humanitarian doctrine alone, and the instructions under which the cause was submitted to the jury
This is not a case in which the defendant’s servants were chargeable with the duty of being on the lookout for a person on the track, hut it is a case where they had a right to a clear track and no cause to suspect that the track would not he clear, therefore it is not a case where it can he said that the defendant is liable if the engineer and fireman saw or by the exercise of ordinary care could have seen the position of danger in due time, hut the defendant would he liable’ only if the men in charge of the engine actually saw the deceased in time to have averted the accident under the conditions and with the means at hand. We have quoted the defendant’s evidence on this point not for the purpose of weighing it against that of the plaintiff hut only to see how far if at all it aided the plaintiff’s-evidence in making out a ease. The defendant’s is the • only direct evidence, however, to the effect that the-engineer and fireman did see the deceased before the collision, hut it is to the effect that as soon as they saw him they did everything in their power to save him hut it was too late. When they saw him they said they were about 150 yards distant on a downgrade going thirty-five miles an hour. One witness for the plaintiff testified that from the Lakeside crossing the engine could have been stopped on the trestle, which, according to the diagram, even counting to the-extreme east end of the trestle, would he about 375 feet. But that testimony was not competent, the witness had never had anything to do with running an engine, had' had no experience at all that rendered him qualified to* give an opinion on that subject.
The engineer testified that he realized the man’s danger as soon as he saw him, but we need no testimony to prove that a man on a bridge in front of a fast coming train is in peril. It is true as insisted by appellant that the testimony of the engineer and fireman to the effect that the man had gotten off the velocipede and down the embankment where he was safe, and ran back again in face of the engine then very near him, is uncontradicted, but the court could not assume that the testimony was true; if the fact was as so testified it was a complete defense to the cause of action stated in the petition, hut whether it was so or not was a question for the jury and it was given to them to say. Under this condition of the evidence the court could not have done otherwise than submit the case to the jury.
"The court instructs the jury that if you believe from the evidence in this case that Pansey Middleton was at the time of her father’s death, the only minor child of Lewis Middleton, deceased; that no wife survived! him; that on February 11, 1905, this Missouri Pacific Railway Company owned the line of railway between Carthage and Joplin mentioned in evidence, and that the plaintiff’s father was at that time in the employ of said railway company as section hand, and as such was at the time of the accident complained of engaged in inspecting’ the tracks on that part of said railroad where the accident occurred, going east over said track on a railroad velocipede commonly called a speeder, and that about eight o’clock in the forenoon of that day while plaintiff’s father was engaged in the line of his duty inspecting said track on said speeder, a passenger train composed of a locomotive and train of cars operated by the St. Louis, Iron Mountain & Southern Railway Company, over and upon the tracks of the Missouri Pacific Railway Company, approached said Middleton from the west, and that at the point of the accident the track was straight with nothing intervening to obstruct the view of the trainmen for some distance, and that said Middleton became in great danger of being run over and killed by said train; that both the said engineer and fireman saw him from the time the train was about twelve .bundled feet away until he was struck and killed, and knew that he was unaware of the near and dangerous approach of said train; and that the engineer became aware of Middleton’s perilous position on said track in time to have enabled him with the exercise of ordinary care to have prevented the accident and avoided running the locomotive against him, by stopping or placing the train under control or sounding the usual danger signals, and that said engineer failed to use the appliances at*329 hand to stop or place said train under control or to sound said danger signal hut ran the locomotive against said Middleton and killed him, and if you further believe from the evidence that the St. Louis, Iron Mountain & Southern Railway Company was authorized or permitted by the Missouri Pacific Railway Company to operate the train in question upon the tracks of the latter company at a point where the accident occurred, then the plaintiff is entitled to a verdict at your hands against the St. Louis, Iron Mountain & Southern Railway Company.”
That instruction assumes, or at least authorizes the jury to find, that the plaintiff’s father at the time of the accident was on the track in the due performance of his duty, from which an inference might improperly be drawn that he was where his duty then called him, where he had a right to be and therefore wa,s not negligent. If that was not the inference intended to be drawn then the fact was wholly irrelevant. It was immaterial under the theory on which the case was submitted to the jury whether he was there in the line of Ms duty or as a trespasser. The defendant would have owed a mere trespasser, under the evidence in this case, the same duty that it owed this man, that is, not to injure him after the engineer saw him and realized his danger if by the exercise of ordinary care it could avoid doing so. If that part of this instruction was intended or was liable to authorize the jury to find that the plaintiff’s father was not guilty of negligence in inspecting the track under the circumstances shown in the evidence, then it was error because there was no evidence that authorized such a conclusion ; the evidence showed he was negligent. There was evidence tending to show that he was a section hand and that it was his duty at times to inspect the track, and a witness for the plaintiff testified that at the time of the accident he seemed to be inspecting the track, but the plaintiff’s evidence also showed that
IV. At the request of the defendant the court gave five instructions, and refused sixteen others. We do not deem it necessary to discuss each one of those sixteen refused instructions, it is sufficient to say that all that was good in them was contained in the five given, and what was not so contained was not the law, therefore the instructions were properly refused. Some of the refused instructions related to the measure of damages and were in that respect predicated on the proposition that the Act of 1905, amending section 2864, was unconstitutional. Others required the jury to find that unless the conduct of the engineer and fireman was “wanton, willful and reckless” the verdict should he for the defendant. We do not recognize degrees of negligence and whilst the terms “wanton, willful and reckless” are sometimes used in characterizing conduct yet, after all is said, the law applies only the word “negligent.” Negligence is a failure to perform a duty. The law recognizes degrees in care, very high care and ordinary care, hut the failure to exercise the highest degree of care required is only negligence, whilst failure to exercise ordinary care is also negligence, neither more nor less. Liability attaches from the failure to exercise the care required by the law-negligence — but when the liability is established, the character of the defendant’s conduct, whether merely inattentive, or willful, wanton or reckless, is a fact that may be sometimes considered in assessing the damages. If it be a case in which the damages as for compensa
For the errors in the plaintiff’s instructions above pointed out the judgment is reversed and the cause remanded to the circuit court to be proceeded with according to law.