Johnson v. Wabash Railroad

168 S.W. 713, 259 Mo. 534, 1914 Mo. LEXIS 100

• Court: Supreme Court of Missouri
• Decided: June 30, 1914
• Status: Published

Opinion

GRAVES, J.

Plaintiff, an infant, sues by his next friend for the death of his mother, such death alleged to be due to the negligence of the defendant. 'The negligence is thus charged in the petition:

“That the city of Mexico, Missouri, is and was at all times herein' mentioned a municipal corporation of the third class, organized under the laws of the State of Missouri. That long prior to the happening of the wrong complained of herein, the said <city had duly passed, published and put in force and effect, an ordinance by which ordinance it is made and declared to be unlawful for any railroad company or ‘its agents, servants or employees to run upon its tracks or switches within that part of the corporate limits -of said city where said railroad track, tracks or switches is unfenced, any locomotive, car or train of cars at a rate of speed to exceed eight miles per hour; which ordinance was duly passed and published in book -form and promulgated by the city of Mexico, Missouri. That said ordinance was in full force and effect at the time of the wrongs herein complained of and a penalty was imposed for its violation.

“Plaintiff further states that at and near said crossing, the tracks of the defendant are unfenced and that said crossing is in the corporate limits of the city of Mexico, Missouri, and in the heart of said city, and that said city is a large and populous city, and that, as defendant well knew, the said crossing is always and at all times used by a great number of travelers, both on foot and in vehicles; that it is and was the duty of the defendant to have its locomotives and cars under full control .and to move the same very slowly and to keep a lookout for travelers when approaching said crossing, but plaintiff says that the defendant, its agents and servants, in violation of their duty and in violation of the ordinance heretofore pleaded, carelessly and negligently ran a locomotive and train of cars up to and over said crossing at a very high rate of- speed, to-wit, twenty-five to- forty miles per hour, and carelessly and negligently failed to run said train at a slow or lawful rate of speed or to have or to keep the same under control, and negligently and carelessly failed to keep'a lookout for persons on said crossing.

“Plaintiff further says that the defendant did not within eighty rods or within any other distance of said crossing, ring the bell or blow the whistle on said engine and train of cars and keep the same ringing and blowing until said engine had passed said crossing, but negligently and carelessly and unlawfully failed and refused to give any signals at all of the approach of said train at said crossing, and negligently ran said train against Emma Taylor. Plaintiff further says that as a result of the negligence of the defendant as set forth above, the collision aforesaid was caused and produced and his said mother was struck and killed by said train, and by her death he was and is damaged in the snm of ten thousand dollars, for which sum and costs he prays judgment.”

The answer is: (1) a general denial; (2) a specific denial that there was a legal appointment of the nest friend, coupled with an averment that section 1740, Revised Statutes 1909, is violative of constitutional restrictions, in so far as it authorizes the appointment of a next friend by the circuit clerk; and (3) a plea of contributory negligence upon the part of the deceased. No reply is found in the abstract of record, but the case proceeded below as if one had been filed. From a verdict of $3000' for the plaintiff and the judgment entered thereon the defendant has appealed. Further details will he stated in connection with the points urged.

Judicial Power: Appointment of Next Friend By Clerk. I. We are met with a preliminary question in this case. Such question is thus stated in the brief:

“Section 1740-, Revised Statutes 1909, is unconstitutional because in conflict with section 1, article 6, Missouri Constitution, and the appointment of Hall Taylor as' next friend by the clerk in vacation was void. Therefore the action cannot be maintained on account of no legal capacity to sue.”

In the instant case the appointment was made by the clerk of the court. The constitutional provision alleged to be violated by this section of the statute reads:

“The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts and municipal corporation courts.”

This statute'has been upon the books for some years, but up to this time does not seem to have been questioned. In onr judgment the newness of the idea is the only thing there is in the point made. The appointment of a next friend for an infant is only a preliminary matter in the course of a judicial proceeding, but not necessarily judicial in character. This idea is fully recognized by Valliant, J., in State ex rel. v. Woodson, 161 Mo. l. c. 455, whereat he said:

“What is here said is in reference to judicial power in its strict sense. There are quasi-judicial powers conferred upon quasi-judicial bodies, and powers to do certain acts in vacation, judicial in character, but subsidiary to a suit pending or about to be instituted in court, are conferred on judges of courts; but the power to try issues in a suit at law or in equity, .and pronounce judgment or decree upon the facts found or confessed, can be conferred, under our Constitution, only on a fully organized court.”

In other words, the judicial power referred to in the constitutional provision,’ supra, has reference to the actual and real trial and determination of “matters of law and equity” and not to mere preliminary steps necessary to be taken for the institution of the suit in law or equity. In our judgment the statute •does not violate the Constitution, and this point is ruled against the defendant.

Speed Ordinance: Applies to of Track. II. It will be observed that the petition counts upon at least two negligent acts: (1) running the train in excess of the*rate of speed fixed by ordinance and (2) failure to give crossing signals. Suffice it to say that the evidence for the plaintiff tended to prove a speed rate of twenty to twenty-five miles per hour, whilst the ordinance rate was eight miles per hour, and it further tends to prove a failure to sound the whistle or ring the bell prior to crossing the street named. So far as the facts were concerned both questions were properly questions for the jury.

Defendant’s contentions may be summarized shortly. The ordinance made it unlawful to run a train in excess of eight miles an hour in the city of Mexico on tracks which were unfenced. To get at the contention made, a short resume of pertinent facts is proper. Walnut street runs north and south in the eastern portion of the city of Mexico. The Wabash railroad runs east and west through said city, and parallel with it runs the Chicago & Alton railroad. At and near Walnut street these two parallel lines were about thirty feet apart. The corporate limit of that city on the east was about one-half mile to the east of Walnut street, but it would seem that up to the east line of said street the track was fenced. The west corporate line was one and one-half miles west of Walnut street, but from the east side of Walnut street on to the western city limits the tracks were unfenced. In the argument of the case, point was made that there had been no violation of the ordinance, because the defendant had the right to run in excess of eight miles per hour up to within a few feet of where the deceased was struck. This point is not well taken. Through the city was an unfenced stretch of track one and one-half miles long. The eastern end of this unfenced stretch of track coincided with the eastern side of Walnut street. This ordinance required the defendant to run from the eastern side of Walnut street to the western limits of the city at a rate of speed not to exceed eight miles per hour, and vice versa. The train doing the injury in this case came from the east and was going west. Under this ordinance it was the duty of the defendant to so approach the Walnut street crossing from the east as to have its train running within the ordinance rate when the unfenced portion of the track was reached. It could not run at twenty-five miles per hour up to the east side of Walnut street, and then begin to reduce its speed to bring it within the ordinance rate. When the law fixes boundary lines within which acts must conform to ordinance regulations, all territory within the fixed boundaries falls under the ban of the law. The law reaches from side to side and from center to circumference, and such territory must be so approached by the citizen, that compliance with the law can be accomplished at the very doorway of the regulated territory. The admissions of the train crew as to the speed of this train show a violation of the ordinance, which makes a prima-facie case of negligence. In the brief counsel for defendant says:

“The deceased had no right to presume that the train was running at any particular speed, because the ordinance did not apply until the train reached the east line of Walnut street, a few feet from the decedent.”

As above indicated the above is a misconception of the law. The deceased had a right to presume that the train would approach Walnut street at such a rate of speed, that when it (in the ordinary and usual course of handling trains) reached the east line of Walnut street it would be running at a rate not in excess of the ordinance rate.

Contributory Negligence. III. It is next urged that the deceased was guilty of such contributory negligence as would bar a recovery by the plaintiff. This calls for more facts. Deceased, with others, at about twelve o’clock at night was coming up the Chicago & Alton tracks from the west. Some of the parties were with her and some behind her. According to the plaintiff’s evidence the night was dark. The headlight on the engine was not burning —at least was not seen by those who followed plaintiff up the Chicago & Alton tracks. To the east were some brick kilns which were in operation that night, and the evidence tends to show - that the lands east of Walnut street are low lands, and when there are cloudy nights the smoke settles to the ground and renders it difficult to see an ordinary oil headlight on an engine. This engine was equipped with an oil lamp. The length of the train is not given; the evidence is in fragments, showing an engine and caboose. The evidence shows that others not far behind plaintiff did not see or hear this train, until it passed them and they saw the lights in the' caboose. If conditions were such that others did not or could not see or hear this train, it can hardly be said that deceased was guilty of contributory negligence as a matter of law. Being dead, and there being no evidence of what her condition was at the point and time of injury, she is entitled to the presumption of having used due care. The evidence is not such as to so destroy this presumption and authorize the court to say that she was negligent as a matter of law. The demurrer to the testimony was properly overruled.

Evidence: Conclusion IV. It is next urged that the court erred in permitting the witness Spurs to testify that no bell was rung or whistle sounded by the approaching train. This witness was walking up the railroad track of the Chicago & Alton. He says he was looking toward the Wabash tracks. The objection goes to two questions, but the context of his whole statement should be considered. His testimony in full upon this question is as follows:

“Q. Where were you coming from and where were you going at that time? A. I was coming down from the restaurant; I was going home.

“Q. You were coming from, town and going towards home? A. Yes, sir.

“Q. Which way were you looking, down towards the Wabash? A. Yes, sir.

“Q. Direct east? A. Yes, sir.

“Q. As you were walking down there? A. Yes, sir.

“Q. State to the jury if you saw or heard any train? A. Well, when I was going down the railroad tracks I didn’t hear no train and I didn’t see any until- the caboose came by me, and I could tell by the lights of the caboose and knew there was a train.

“Q. Where were you walking? A. I was walking on the C. & A. tracks.

“Q. Were you walking on the O. & A. tracks east? A. Yes, sir; I was down between the switch track and the main line.

“Q,. Is there a path in there? A. Yes, sir.

“Q. The Chicago & Alton and the Wahash run along together there east of Mexico for a distance ? A. Yes, sir.

“Q.' For quite a distance? A. Yes, sir.

“Q. About how far is the O. & A. tracks from the Wabash tracks ? A. Fifteen or twenty feet, maybe further.

“ Q. That is, the main line of the O. & A. and Wabash is further than the switch, isn’t it? A. Yes, sir; further than the switch.

“Q. Now, tell the jury if any bell was rung on the engine? A. No, sir.

“Q. State to the jury if any whistle was blown or bell rung as that train came up to and over that crossing. A. No, sir, there wasn’t.”

The objections were lodged to the last two questions and the answers thereto. In view of what the witness says about his actions there at the time, these questions were proper. He puts himself in a position to hear, and says that he was looking. If I say that I was near, and watched a train pass, I certainly can say, as a fact' (not as a mere conclusion, as is suggested in the objections) that no bell was rung or whistle sounded. This witness says that he did see the caboose as it passed him, and could certainly say that no bell was being rung or whistle sounded at or about that time. His testimony does not go further, when it is all considered. The objection is without substance and is therefore ruled against the defendant.

Instruction numbered 6, as modified by the court, is criticized, but there is no substance in the objections thereto.

V. Defendant urges that the court erred in giving plaintiff’s instruction numbered 3. This instruction reads:

Instruction: Proximate injury: speed of Tram. “The court instructs the jury that under the ordinance of the city of Mexico, it is made unlawful for any railroad company, or its agents, servants or employees to run upon the tracks or switches of any railroad company within that part of the corporate limits of said city where said railroad track or tracks are nnfenced, any locomotive cars, or train of cars, at a rate of speed exceeding eight miles per hour; and if you believe from the evidence that the locomotive engine which struck deceased was at the time and before it struck her, being run by the defendant upon unfenced tracks of defendant railroad company within the corporate limits of Mexico at a rate of speed in excess of eight miles an hour, then you are instructed that such running in excess of eight miles an hour is negligence; and if you believe as a direct consequence of such negligence the decedent was killed, you will render a verdict for plaintiff, unless you believe from the evidence decedent was guilty of negligence which contributed to her death, and you are instructed that contributory negligence on the part of decedent must be established by the greater weight of the evidence in the case and unless it is so established you cannot find for the defendant upon that ground.

“Provided you further believe from the evidence that plaintiff was a minor child of decedent, horn out of wedlock, and that at the time of her death decedent was unmarried, and that no husband survived her, and that no other child than plaintiff born to her survived her and was living when she died. ’ ’

It is urged that the violation of the ordinance was not the proximate cause of the injury, and we are cited to King v. Railroad, 211 Mo. 1. Having written the King case we are familiar with its facts — and what was there said had reference to the facts in judgment, which were wholly different from the facts here. Had .the train involved here so reduced its speed that it would have been running at eight miles per hour when it reached the east line of Walnut street, this accident might never have occurred. It was at least a question for the jury to say whether or not the violation of the ordinance occasioned the injury to deceased under the facts of this record, and the instruction is well worded to that end. This contention of defendant is without merit and is therefore ruled against it.

Instructions. VI. It is further urged that the court erred in refusing defendant instructions á and 10. Instruction 4 was a peremptory instruction withdrawing from the jury the question of speed of the train. From what we have said in a previous paragraph there was no error in refusing this instruction. It was a question for the jury to say .whether or not the rate of speed was a proximate cause of the injury.

Instruction 10 reads: “The court instructs the jury that there is no evidence in this case that the decedent, Emma Taylor, was struck by defendant’s train as the result of the' failure of the agents and servants in charge thereof to keep a lookout for persons on said Walnut street crossing, and that issue is withdrawn from the jury and will not be considered by yon in arriving at a verdict.”

This theory of the case was not urged by the plaintiff, and the plaintiff did not by his instructiona predicate a right to recover upon such theory. The plaintiff having abandoned that issue, no harm resulted to defendant by the refusal of this instruction. Upon the whole this case was well tried nisi and we see no reason for disturbing the judgment.

Let the judgment be affirmed.

All concur.