Chawkley v. Wabash Railway Co. , 317 Mo. 782 ( 1927 )

The plaintiff brought this suit to recover damages on account of the death of her husband and two children, and injuries to herself, which occurred in Clay County when the automobile in which they all were riding was struck by an engine drawing a train of the defendant Wabash Railway Company. The suit was filed in the Circuit Court of Davies County, against the defendant Railway Company, Christopher Smith, engineer, in charge of the engine, and Herbert Long, fireman. Afterwards, the death of Engineer Smith was suggested, and the suit dismissed as to him. The defendant then filed application to remove the cause to the Federal court, which application was overruled. The case was transferred on change of venue to Grundy County, where a trial was had, verdict returned, and judgment rendered June 30, 1924.

The petition is in four counts: The first asks $10,000 damage on account of the death of plaintiff's husband; the second, $10,000 on account of the death of plaintiff's daughter, Margaret Chawkley, four years of age; the third, $10,000 on account of the death of plaintiff's daughter, Blanche Chawkley, six years of age; and the fourth, $50,000 for plaintiff's injuries. The verdict awarded her $10,000 on the first count, $5,000 on the second count, $5,000 on the third count, and $30,000 on the fourth count.

While the appeal was pending at the April term, 1926, of this court, the death of the defendant Long was suggested; Soper J. Taul, his administrator, entered appearance, and action was revived against him.

Ernest Chawkley, with his family, lived in Kansas City, Kansas. On September 4, 1923, he, with his wife and two children, Blanche and Margaret, drove to Clay County, Missouri, north of Excelsior Springs, to visit Mr. and Mrs. Jenkins. After a visit to the Jenkins home they drove in Chawkley's touring car to the Jenkins farm, which Chawkley contemplated renting. They drove across the defendant's railroad track at the Harris crossing, going west, and soon started on the return trip to the Jenkins home, going east, Chawkley driving the car, Jenkins sitting with him in the front seat. The plaintiff, Mrs. Chawkley, sat on the right in the rear seat, with Mrs. Jenkins on the left, and the two little girls between them. When they reached the Harris crossing a train of the defendant company came from the north and struck the automobile as it got upon the track, instantly killing the two little girls, injuring Chawkley so that he died within three hours, and injuring plaintiff.

The negligence alleged as ground for recovery was failure of the servants of the defendant company, Engineer Smith and Fireman Long, to sound the statutory warnings on approaching the crossing; and principally failure to observe the humanitarian rule and stop the train, or slacken its speed, or give warning of its approach, after the operative saw, or by the exercise of ordinary care could have seen, the plaintiff and her companions in a position of imminent peril. The case was submitted to the jury, on the first count, on the humanitarian rule, and on each of the other counts it was submitted on the humanitarian rule and the company's alleged primary negligence in failing to give the statutory signals.

I. The first error assigned is the action of the trial court in overruling defendant's demurrer to the evidence on the ground that a case was not made out on any theory of negligence. This makes it necessary to examine the evidence bearingSufficient particularly upon the humanitarian rule.Evidence:SoundingWhistle.

The railroad track at that point, running north and south, was upon a grade which put the tops of the rails about five feet higher than the roadway at a distance of 400 feet from the crossing. The road approached the crossing in ascending grade. For about a hundred feet west of the crossing the grade rose three feet and two inches. In the last thirty feet of the approach to the crossing the grade rose 2.23 feet. The right-of-way at that point was 100 feet wide. The plaintiff introduced measurements to show that the right-of-way fence on the west was fifty-five feet and seven inches from the track; that the wrecked automobile was found 520 feet south of the centre of the crossing. But defendants' evidence tends to show that it was carried less than 500 feet when the train stopped.

The plaintiff introduced evidence to show that, as they approached the crossing, a field of high corn on the left came within a few feet of the right-of-way fence, which with weeds and bushes between the corn and the fence, obscured the view to the north so that the occupants of the car could not see the coming train.

The engine was moving backward; the train was hitched to the front, so that the engineer and fireman were obliged to look back through the cab, over the tender, in order to observe anyone approaching the railroad in front. This made it more difficult to observe persons approaching the track, and caused some delay in operating the controls so as to check the speed of the train. While this would not impose a greater degree of care upon the employees of the railroad company, ordinary care involved diligence commensurate with that situation, and required them to be more alert than if they were driving forward and were themselves in the normal positions. This circumstance placed the engineer to the right, away from the approaching automobile. Only Fireman Long, on the west side, was in position to see the approach of the automobile, and upon his diligence in observing the danger, announcing it to the engineer, and the engineer's promptness of action, would depend whether sufficient diligence was observed.

Plaintiff introduced evidence tending to show that no whistle or bell was sounded, or warning given of the train's approach. She introduced the deposition of Fireman Long, and also Long was sworn and testified as a witness for her. He was not definite in his statements about the rate of speed at which the train and automobile were going. He said in one place that the automobile was traveling at the rate of twenty miles an hour. Other witnesses testified to the same. He said also that the train was traveling about twenty-five or thirty miles an hour. In another place he said that the train was going about twice as fast as the automobile. He said he saw the automobile when it was 200 feet from the crossing. The plaintiff's counsel tried to get him to say that he had admitted it was 300 feet, but he stuck to the statement that it was about 200 feet. Then this occurred:

"Q. What did you say to the engineer immediately upon seeing it? A. I told him to stop.

"Q. What did you say to him, if anything, of the impending danger to those people? A. I didn't say anything about that.

"Q. You saw the people did not see you? A. I could not tell whether they saw us or not.

"Q. You saw they were not going to stop? A. No, sir; I didn't see that; they didn't look like they were going to stop. . . .

"Q. You observed that they were not going to stop as you thought, and immediately notified the engineer? A. Yes."

In his deposition he stated that he could not tell which way the people in the automobile were looking. While on the stand he testified that he saw the automobile 200 feet away from the crossing, and immediately told the engineer to stop. In answer to leading questions by plaintiff's counsel, which the court permitted, he stated that he did not say anything to the engineer until the automobile was within seventy-five feet of the track. He then told the engineer to stop. On repeated questioning he stated that was all he said to the engineer. He never suggested the whistle, because the engine had whistled for that crossing back at a distance which is not definitely given. He stated further that in order to sound the whistle all the engineer had to do was to give one pull on the bell cord — to reach up and take hold of the cord.

Mrs. Chawkley and Mrs. Jenkins, the only survivors of the wreck, testified that as the automobile approached the crossing some men at a sand car, to the right of the crossing, saw the approaching automobile and began to call and wave their hands, endeavoring to attract attention. They were seen by Fireman Long. One of those men. Otha Waters, was asked what he saw about the people in the automobile that caused him to think a warning was necessary when they were about a hundred or one hundred and fifty feet from the crossing. He said: "Well, they just kept coming; the automobile was running about twenty miles an hour." Several of those men testified to their attempts to attract the attention of those in the automobile to the on-coming train. One of them said they did this when the automobile was about even with the right-of-way fence, which the evidence showed was 55 feet and 7 inches from the crossing. Long put the distance of the automobile at 100 feet when the sand men made their demonstration.

The defendants produced, as witnesses, engineers who testified that the train would run about 450 feet after the engineer got the signal to stop. It ran a greater distance than that after the collision. There was also evidence tending to show that the brakes were not applied until about the moment of the collision.

The fact that the men at the sand car saw that the automobile appeared to be going on across when it was from 150 to 55 feet from the crossing, indicates that the occupants of the automobile were not aware of the approaching train, and their danger. To the fireman himself the people "didn't look like they were going to stop," when the automobile was two hundred feet from the track. The inference most favorable to the plaintiff, which we are obliged to draw, is that he immediately told the engineer to stop. That fact proves that he then thought the automobile was not going to stop. But the engineer did not act upon it, for the train ran 450 feet or more before it stopped. So there is ample evidence to show that the driver of the automobile and his companions were oblivious of their peril and unaware of the on-coming train when they were at a distance of 100 to 200 feet from the track, and Long knew it.

There is some evidence as to the distance within which an automobile could be stopped: going at twenty miles an hour, within twenty or twenty-five feet; going at twelve miles an hour, within ten or fifteen feet; and in a shorter distance when going up grade. This evidence was objected to, but, as a matter of common knowledge, automobiles of all makes can be stopped within about that distance. Even if the automobile could not have been stopped in time it could have been turned off the road, down an embankment, at much less risk than being hit by a train.

For the purpose of this argument it may be conceded that the engineer could not have stopped the train, or appreciably slackened its speed, and Long's suggestion was useless except to warn the engineer of danger. But it is reasonable to infer that a sudden blast of the whistle when the automobile was 200, or 100, or even 50 feet or less from the track, would have been heard, heeded, and acted upon by the driver. Long's reason for not telling the engineer to whistle, that he had already done that further back, is absurd. A warning which the people in the automobile had not heeded, and apparently had not noticed or even heard, was all the more reason for sounding another warning.

There is some speculation as to how much time it would take for the fireman, after seeing the peril of the plaintiff and her companions, to call to the engineer, for the engineer to comprehend the message and to sound the whistle. It must be remembered that men in charge of railway trains are trained to quick observation and quick action. They do not have to stop and think of the thing to be done. Action follows the impression — automatic and instantaneous — otherwise, they could not hold their jobs. Appellant cites cases, State ex re. Wabash v. Bland.281 S.W. 690, and Sullivan v. Gideon, 271 S.W. 983.

In the Sullivan case there is considerable refinement in the quoted extracts from the Springfield Court of Appeals, regarding what might happen in a given number of seconds where it is said that four seconds is equivalent to four ticks of a watch. A careful count shows that a watch ticks four or five times in a second. An official who watches a foot race can time it to the tenth of a second. His mind apprehends the end of the race and the winner and his action stops the watch. That is, his eye registers the thing that happens, the message is conveyed to his brain, his volition transfers the message to his hand, and the watch is stopped within the tenth of a second. A sprinter runs three hundred feet in ten seconds — thirty feet a second. If, as Long says, the train was going thirty miles an hour, and the automobile half as fast, the latter moved at twenty-two feet per second. There was evidence that the automobile was going not more than twelve miles an hour. If, when it was 200 feet from the track, Long saw it was not going to stop, nine seconds, and if it was only 100 feet, then 4½ seconds, intervened before the collision in which Long could have told the engineer of danger. It is not a violent inference that the fireman could say "Whistle!" and the engineer could pull the cord within the space of a single second or less. We do not have to indulge in refinements to reach such a conclusion because trainmen are trained to act instantaneously.

The danger zone in this case was the point where the Chawkleys were seen to be going on, unaware of the danger. It was for the jury to say whether nine seconds intervened between the apprehension of danger and the time of collision, or whether within even half that period there was time to have put into execution a warning blast of the whistle, while the car was yet at such a distance that it could have been stopped or driven off the road. We think, under the humanitarian rule, a case was made out for the plaintiff on each count.

The cases more nearly in point on the showing made here are Allen v. Railway, 281 S.W. 737, and Zumwalt v. Railway, 266 S.W. 717. In each of these the facts are similar to the facts in this case. In the Zumwalt case the very propositions discussed here are quite fully considered. This court said (l.c. 725): "Engine men are required and trained to be in such positions as not to be surprised, but to act quickly in emergencies."

Appellant argues that because Long had no control of the engine, and the engineer could not see the automobile, there was no negligence. On that theory the defendant company owed no duty, in approaching a crossing, to exercise care to discover danger and prevent injury to people on the highway. In this case Longsaw the plaintiff and her companions in a perilous position: his duties did not require him to use any effort to prevent his engine from slaughtering them, is the effect of the argument. Long stood up to look for danger to anyone ahead. He told the engineer to stop. He thus recognized a duty upon him to use care to prevent hurting the people who were going into danger, unaware of it. That he owed them that duty as an employee of the company is too manifest for discussion. In the Zumwalt case it was held that sounding the emergency whistle might have avoided the injury.

II. While plaintiff's counsel was making his opening statement plaintiff fainted and was carried out. Defendants thereupon moved to discharge the jury, and the motion was overruled. Again, while Mrs. Chawkley was on the stand, immediately at theFainting: close of her direct examination she fainted and wasDischarge carried out by her attorneys. She was taken to theof Jury. jury room where she could be heard moaning and crying. The defendant again moved the court to discharge the jury because of the prejudice the incident would create in the minds of the jurors. A number of cases are cited, but we are unable to find any which directly supports the appellants' contention. It was, of course, the duty of the trial court to protect the jury from any improper influence. There appears to have been nothing in the incident to indicate that this fainting was purposely accomplished. The evidence of physicians shows that Mrs. Chawkley had been subject to hysteria and fainting spells since her injury and the death of her relatives. The general rule is that the trial court is in best position to observe such "emotional outbursts" of a witness and to determine whether a discharge of the jury is justified. [Stutz v. Milligan. 223 S.W. 128; Ullom v. Griffith, 263 S.W. l.c. 880.] These and other cases are cited by appellant. In none of them is it decided that the trial court abused his discretion either in sustaining or overruling a motion of the kind.

Plaintiff fainted at the close of her examination in chief, and appellants were deprived of cross-examination. Her counsel thereupon offered to bring the witness back for cross-examination, which offer was declined for the stated reason that there might be another fainting spell. Plaintiff's counsel then offered to allow the witness to be examined in the absence of the jury, her examination reduced to writing and read to the jury later. That offer was refused. There was no motion to strike out the plaintiff's evidence because of its injurious effect. Appellant claims that such action would not have been an adequate remedy because the evidence was already before the jury, had made its impression and could not be erased. As to that, the same facts testified to by the plaintiff were testified to by other witnesses, in every particular, not only as to the situation of the parties at the time of the injury, but as to her condition. If was not the effect of her evidence that the appellant complains of, but the effect of her fainting spell. As to the propriety of discharging the jury, we are unable to find that the discretion of the trial court was abused. On another trial precaution should be taken to avoid a repetition of the incident.

III. Appellants contend that the plaintiff, Blanche Chawkley, had no right to maintain this action on account of the death of the children, because such right was in their father who survived them for three hours, and instead of passing to the plaintiff it passed to the administrator of Ernest Chawkley. TheDeath of statute under which this action is brought (Sec. 4217,Father: R.S. 1919), provides that in case of the death of aSuit by person from injury, the person or corporation causingMother. the injury, or whose employees caused the injury, may be sued: "3rd. If such deceased be a minor and unmarried . . . then by the father and mother who may join in a suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor."

That does not mean the parent surviving at the time of the injury or death. If that had been in the legislative mind, language more clearly expressive of the idea would have been used. The "survivor" may bring the suit; that is, the survivor at the time the suit is brought. This statute is practically the same as it was in the Revised Statutes of 1889, which was construed by this court in the case of Senn v. Southern Railway Company, 124 Mo. 621, contrary to the contention of appellant.

IV. Appellants assign error to the admission in evidence over their objection, Exhibit 2, a photograph of the scene of the collision, offered by the plaintiff. While this photograph is mentioned as having been introduced in evidence and the abstract of the record has a notation directing the clerk toPhotograph. copy, still it does not appear in the record. We cannot consider whether there was error in introducing it, because of that fact.

Appellants complain of the admission of the testimony of experiments made by witness Hall Thomas, showing the view in looking over the ground, and the testimony of witness L.M. Smith in tests made in stopping a train. The appellant,Evidence Not while carefully citing the pages of objectionableQuoted. matter which he desires us to consider on other points, has neglected to quote the evidence objected to, and to point out the place in the record where it occurs.

V. Mrs. Jenkins testified that she was still in the automobile after the accident, and that Long, the fireman, came to her and this conversation ensued: "He asked if I was hurt. IRes Gestae: said, ``Aint it awful,' and he says. ``Yes, but itsAdmission. our fault.'" Long denied this statement.

Appellants contend that it was error to receive it because it was not res gestae. We have held that a statement which arises out of a litigated act, undesigned, spontaneous, is res gestae. [State v. Reeves, 195 S.W. l.c. 1030; State v. Hart, 309 Mo. 77,274 S.W. 385; Atkinson v. Am. Sch. Osteopathy, 202 S.W. 452; Mitchell v. Violette. 221 S.W. 777; Friedman v. United Railways Company,293 Mo. 235.] The circumstances indicate that this statement of Long was spontaneous, undesigned; it was not a narration nor an explanation. It occurred immediately after the train stopped and appeared to have been unpremeditated: uttered in the intense excitement of the moment. It was admissible as res gestae. This is in accordance with the ruling in Rosenweig v. Wells,308 Mo. 617, l.c. 630-633, where the authorities on the subject are reviewed at length. It was also admissible as an admission on the part of Long, a defendant. Where evidence is admissible against one or more of several parties to a suit, it cannot be excluded because it is incompetent as to other parties to the suit. It can be taken advantage of only by proper instruction directing the jury that it is not to be considered as to the parties against whom it is incompetent. That is true even in a criminal case. [State v. Bersch, 276 Mo. l.c. 416, and cases cited.]

The statements of Long at the coroner's inquest were admitted in evidence. He was one of the employees in charge of the train which did the damage. The rule in relation to admissions and declarations of an agent is, that, in order to bind the principal, the admission or declaration must have been made during the continuance of the agency in regard to theAdmissions transaction to which it relates. It must beby Agent. contemporaneous and illustrative of its character. A merely subsequent narrative of how the matter occurred would be inadmissible. [St. Charles Savings Bank v. Denker 205 S.W. l.c. 210: Fisher v. Pullman Co.,212 Mo. App. 280.] The statement of Long at the coroner's inquest was a mere narration of previous events, after the occurrence, and was not made during the continuance of the act to which it relates. Therefore, while admissible against Long, it was not admissible against the Railway Company. [Redmon v. Railroad, 185 Mo. l.c. 11, 12; State ex rel. Banker's Life Insurance Co. v. Reynolds, 277 Mo. l.c. 24.]

VI. That Chawkley was guilty of contributory negligence, precluding recovery, on account of the failure of the Railway Company to give the statutory signals, is conceded by the respondent in submitting the first count only on the humanitarian doctrine. As he approached the railroad crossing theDriver's sign of it was visible for three hundred feet. HeNegligence. knew the danger of such crossing. Respondent claims that the view of the train was obscured by corn and weeds; that the automobile was old and rattled so as to prevent hearing the approaching train. Under those circumstances it would seem that Chawkley, in the exercise of ordinary care, would have put his car under control so that he could stop within a safe distance from the track at a point where he could see an approaching train. It is conceded that he was in plain view of it when within thirty feet of the track.

Was Mrs. Chawkley, the plaintiff, negligent, so as to bar her recovery on the ground of primary negligence of the Railway Company? It is true that Chawkley's negligence could not be imputed to her, but she had it within her power to warn Chawkley and prevent his going upon the track, just as theWife's fireman had it within his power to warn the engineerNegligence. of danger in front. She saw the men at the sand car frantically waving and calling, words she could not understand, when she was about on a line with the right-of-way fence, 55 feet and 7 inches from the west rail of the track. The road approached the track on ascending grade of between two and three feet in the last thirty feet of the approach. The plaintiff's witness, Miles Monroe, testified that an automobile going at twelve miles an hour could be stopped within ten or fifteen feet, and going at twenty miles an hour could be stopped at twenty or twenty-five feet, and that going up grade it could be stopped within a shorter distance. Defendant objected to this testimony, but the plaintiff is bound by it.

She labored to prove that the fireman on the engine, who saw the automobile when it was 200 feet away from the track, and all the time from that time until it was struck, could have caused the engineer to give a blast of the whistle in time so that the automobile could have been stopped before it got upon the track. At the same time the plaintiff labored to prove that the occupants of the car could not see the approaching train on account of the corn and other obstructions. That is, that Long could see the automobile, but the people in the automobile could not see the engine. No doubt circumstances might be so that such a thing could happen. For instance, the corn and other obstructions could have been so high that Long could see only the top of the automobile, while his engine was entirely obscured from view. But the evidence here contradicts that situation.

Mrs. Chawkley herself testified that as they approached the crossing their view to the north was obscured by the corn, which came up near the right-of-way fence, which was 55 feet and 7 inches from the west rail of the track. She mentions no obstructions between the right-of-way fence and the track. Mrs. Jenkins testified that the corn was close to the right-of-way fence, and trees and bushes were inside the field between the corn and the fence, all of which obscured the view to the north because she could not see over them. She also said there was a dump on the right-of-way, about as high as the right-of-way fence, and weeds grew two or three feet high on top of that dump. But she nowhere says that that dump or those weeds. either on account of their height or on account of their covering all the space, obscured the view of the train. She did not say how wide they were, nor that the train could not be seen on that account after the automobile got beyond the line of the right-of-way fence. After that she did not look in thatdirection for the coming train. Both she and Mrs. Chawkley testified that Chawkley and Jenkins looked both ways for a train; that about the time they got to the line of the right-of-way fence their attention was attracted by the outcrys and gestures of the sand-car men, and they did not turn their eyes back up the track until the automobile was too close to the track to stop.

The evidence of those two witnesses who viewed the matter from the automobile fails to show any obstruction to the view of the train from the automobile after they passed the line of the fence. The automobile on that ascending grade could have been stopped in twenty feet, at furthest. Mrs. Jenkins testified that the car was going at twelve miles an hour, or less; therefore it could have been stopped in ten feet going up grade. Not one in the car took the precaution to look up the track to see if a train were coming. It is argued that their attention was distracted by the clamors of the sand-car men, which appellant says could have been heard a half-mile. The very attempts to warn them confused them, and it is claimed, contributed to their catastrophe.

But the matter is entirely settled by the testimony of Long, the plaintiff's witness. He said in the passage quoted above from his deposition that he saw the automobile 200 feet away, and immediately told the engineer to stop. The people in the automobile "didn't look like they were going to stop."

He then went on to say that he could not tell which way the people were looking. This indicates that he formed his judgment that they were not going to stop from the actions of thepeople. He was not talking about the automobile, but about the people in it. In his testimony on the stand he said that, as he approached the crossing, standing in the cab, he could see behind the cornfield the heads of the people in the automobile, back 200 feet. He was asked:

"Q. You could see their heads then? A. Yes.

"Q. Could you tell which way they were looking? A. I said in the statement that I didn't know which way they were looking.

"Q. You looked at the people — saw their heads? A. I saw thepeople in the car."

The plaintiff wants us to hold that the fireman of the engine could see the people in the car, but that he was out of sight to them. If the evidence for the plaintiff and defendant conflicted in this particular it would be another question, butall this is evidence produced by the plaintiff, who makes out a case for herself by proving that the fireman could have caused a blast of the whistle in time for the automobile to stop before it went into danger, when 200 feet away, because he saw the people in the car. Since he plainly saw them they necessarily could see him at the same time so as to employ the same method of escape. The approach of the train in plain view was the same warning to the people in the car as the blast of the whistle would have been. While the plaintiff insists that Long had it within his power to cause the engineer to sound a warning, by the same reasoning Mrs. Chawkley had it within her power to call her husband's attention to the danger and induce him to stop the car before going upon the track.

In this connection it is not intended that we should give undue endorsement to the assumed function of the back-seat driver. It is not a question of controlling the movements of the car, but negligence in failing to discover danger in time to warn the man at the wheel.

We have held that the case was submissible under the humanitarian rule, and on the theory that in a second, or the fraction of one, a warning could be sounded. The same prompt action is demanded of the driver of an automobile. In a fraction of a second he can press down on the brakes and throw out the clutch. The rule must work both ways, as to the opportunity to see and the time to act upon the appearance of danger. So that the case for the personal injuries, on the fourth count, was improperly submitted on the issue of primary negligence.

VII. Instructions 3, 4 and 5, were wrong because they contained the hypothesis that Long, the fireman, could have stopped the train by the exercise of ordinary care, in time to have prevented the accident. There was no evidence whatever that theFireman. controls were at his hand. They were convenient for the engineer. The precaution he could take was to cause the warning to be sounded or the train to be stopped.

VIII. Appellants complain of error in the giving of instructions which authorized a recovery by the plaintiff on counts 2 and 3, for the death of the children on account of primary negligence on the part of the defendant Railway Company in failing to give the statutory warnings of its approach to the crossing.

We have held above that the plaintiff is not entitled to recover for her own injuries on account of primary negligence of defendants: that she can recover, if at all, only under the humanitarian rule. The question, then, is: Can a parent, whose negligence has contributed to the death of the child, recoverunder the penal statute on account of that death except under the humanitarian rule?

So far as the children are concerned, had they survived, no negligence on the part of their parents could prevent their recovery. Negligence is not imputed. The doctrine of imputed negligence no longer obtains. [Neff v. City of Cameron, 213 Mo. 350.]

The general rule is that when a parent brings an action in his own name for the death of an infant child, he must be denied recovery if his own negligence contributed to the accident which resulted in the child's death, provided the defendant was negligent only, and did not wantonly inflict the fatal injury. [23 A.L.R. 670 et seq.] The annotation at that point cites cases from many states in support of the rule. That is the rule in this State. [Howard v. Scarritt Estate, 267 Mo. 398, l.c. 402; Levin v. Street Ry. Co., 140 Mo. 624; Cornovski v. Transit Co.,207 Mo. 263; Reynolds v. Kinyon, 222 S.W. 476, l.c. 479; Czezewzka v. Railway Co., 121 Mo. 201.] This rule seems to obtain whether the action is one at common law or one under a statute. Of course, the common-law cause of action accruing to the parent on account of such death is a different cause of action from that which accrued to the child had it survived the injury. In the Cornovski case, supra, the court approved an instruction which denied recovery by the parents if the jury should find that their negligence contributed to the death. That was an action at common law.

In the Kinyon case, supra, an action by the parents for the death of their child, the defense was that the parents negligently permitted the child to stray unattended into the street where it was killed. It was held (at page 479) that such defense in that case was not good, because the recovery was warranted on account of the negligence of the driver in failing to prevent the casualty when by the exercise of ordinary care he could have done it. Judge SMALL, who wrote the opinion, placed it on the same basis as an action to recover under the humanitarian rule. Some of the other cases arose in the same way. Where the parent has been negligent in allowing the child to be placed in a position of danger, recovery is allowed because the driver of the vehicle which caused the death, by the exercise of proper care could have prevented it. These cases do not aid us in solution of the question here.

If the children had survived their injuries each would have had a cause of action on account of the primary negligence of defendants, not under the statute, but one at common law, with the measure of recovery incident to that action. But that cause of action died with them. The statute (Sec. 4217, R.S. 1919)created a cause of action which did not before exist, in favor of their parents. It was not the same cause of action as that which accrued to the children transferred to them. It was entirely different, with a different measure of damages and based upon a different principle. The children's recovery would have been entirely compensatory, with the amount limited only by the extent of the injury sustained. The recovery by the parents for the death has a maximum and minimum limit, without regard to the amount necessary to compensate for the loss. Some light is thrown upon this problem by cases in jurisdictions where the statute permits a recovery by the administrator of the child whose death is caused by the negligence of the defendant, and where the parent contributed to that injury. In such cases negligence of the parent bars recovery to the extent of his interest in the result, but it will not defeat recovery altogether. [Phillips v. Denver City Tramway Co., 53 Colo. 458; Donk Bros. Coal Coke Co. v. Leavitt, 109 Ill. App. 385.] The rule is the same in several other states. In some jurisdictions it is held that the negligence of one parent is the negligence of both, and prevents recovery.

In this State the statute fixes a penalty against the Railway Company for causing the death. While it is not compensation for the loss, it must be paid to the parent, the person who sustains the loss. There is no reason then why the same principle should not be applied as in a common-law action by a parent whose negligence has contributed to the death of its child. The penalty is punishment of the Railway Company for negligently causing the death. No recovery can benefit the dead children. The parent negligently contributed to that death. Without her negligence it would not have happened. She is not in position to claim the penalty for a catastrophe to which her own act contributed. Therefore, Instruction 7. submitting counts 2 and 3, on the alleged primary negligence of defendant, was error.

IX. While Dr. Hass was on the stand as a witness for the plaintiff he was permitted by the court, over the objection of defendants, to testify that the plaintiff, Blanche Chawkley, was afflicted with prolapsus of the womb and lacerationExpert from childbirth; that she had borne quite a number ofTestimony. children. Aside from the absence of any attempt to show that this was due to the injury complained of, it was not within the pleadings and was inadmissible.

The witness was further permitted to say that she was crazy, mentally unbalanced, and had fainting spells with a suggestion of epilepsy.

The petition alleges that the plaintiff's "nerves and nervous system were shocked, injured and permanently impaired and made diseased, and her memory, mental faculties and powers of concentration and thought and speech permanently affected and impaired." It also alleges that she was "seriously and permanently injured, wounded, bruised and made diseased, both externally and internally." These allegations are entirely general and not specific. There is nothing in them to suggest prolapsus. While that might naturally follow from shocks, bruises and internal injuries, it would not necessarily do so. That is the test of admissibility of an injury not specifically pleaded. [Hibbler v. K.C. Rys. Co., 292 Mo. 23-24.] It is a specific injury and therefore should have been pleaded in order to let that evidence in. Further, the allegations of shock to the nervous system and impairment of memory and mental faculties is a general allegation of injury, and does not necessarily include insanity and epilepsy. This court in the Hibbler case considered this question at length.

All this evidence was therefore inadmissible in support of the fourth count.

Further, in examining the physician, the attorney for the plaintiff in a hypothetical question predicated it upon the fact that the defendant was normally strong and healthy before injury; that she was in the automobile accident in which she received several jolts and jars, and in which her husband was killed and her two little children killed outright, and the physician was asked, assuming these facts to be true, whether prolapsus might be caused by that. The answer was, "Yes." The physician was then allowed to state the condition of plaintiff, her raving and muttering, as an indication of derangement. He said that she was insane. The court neglected to rule on an objection to that evidence, and exception is assigned to failure to rule.

A hypothetical question was propounded by plaintiff's counsel to Dr. Rooks, which hypothesized the facts concerning the injury and killing of the husband, and the two little girls, as well as the various shocks to the plaintiff. The physician was asked if the fainting spells and hysterio-epilepsy was due to the collision, and answered in the affirmative. Objection to this was overruled. All this included matters entirely outside the pleadings, and matters irrelevant.

The condition was aggravated further in the continued examination of plaintiff's counsel, where Dr. Rooks said:

"A. My judgment is presence of the existing cause of the condition was the traumatism received at the time of the accident.

"Q. Would you say, coupled with that the violent death ofhusband and two children? A. I should think that her condition is due to the whole incident."

Objection to the question was overruled and the answer permitted. Then attorney for plaintiffs suggested in his question that there was no way to restore the dead husband, and the two children. Objection overruled. The answer was that of course the dead husband and two children could not be restored. Then followed these questions:

"Q. I will ask you to state whether or not that is one material cause, in your opinion, as a fair medical man?" Objection overruled and the physician answered. "Yes, sir."

There was more of this. An endeavor constantly to get before the jury that the shock of seeing her husband fatally injured and her two children instantly killed so affected plaintiff as to aggrevate her condition.

The rule is that mental distress, suffering, may not be recovered for unless directly caused by a physical injury. The plaintiff could not recover for impairment which the evidence showed to be in her physical and mental condition, unless that particular impairment could be traced directly to the physical shock or physical wounds or bruises inflicted upon her. Respondent attempts to escape this conclusion by calling attention to the instruction which authorized only a recovery for mental suffering caused directly by her physical injuries. But that instruction does not take away the injurious effect of this evidence which was clearly put before the jury. Respondent also calls attention to cases where a person injured was permitted to recover for injury caused by fright. As to that it is sufficient to say that there is no allegation of fright in the petition. Neither is there any evidence that the plaintiff was frightened. The injury in that respect was done when she saw her husband and dead children. It was not fright in anticipation of an injury, which was put before the jury: it was mental distress caused by a realization of the injury which had already occurred. All of this was inadmissible in support of the fourth count.

In examining Otha Waters, one of the men at the sand car, plaintiff's counsel asked him to describe the scene. The witness stated that he first came to Jenkins. Over the objection of the defendant he said Jenkins was terribly mangled, cut up, his head crushed; his face was all there, but his skull and brains were scattered over the track; he saw what they called the brain; he saw them scrape them up; he didn't see any dogs there.

The court overruled objections to all this testimony. Plaintiff's counsel said he wanted to show "the condition this woman saw — I want to get all the conditions . . . I asked the condition . . . the sight was . . ."

One of the sand car men testified that it made him nervous to see the situation there, and this was objected to. Objection overruled. The witness was permitted to say that Chawkley, as he lay there, was groaning, and he was asked if he heard Chawkley begging for someone to kill him. Witness answered he didn't hear the words.

Here was an effort, approved by the court, to show horrifying scenes there which produced the very conditions in the plaintiff of which she complains and for which she asks damages. The witness was then asked if he saw the little girls. He saw one; and was asked if she was mangled. The witness did not know about the mangling, but he found the girl under the car.

All this evidence was irrelevant so far as the fourth count is concerned. It was also incompetent as to other counts, particularly counts two and three. The statute, Section 4217, permits a recovery for a death of not less than two thousand dollars nor more than ten thousand dollars, "in the discretion of the jury." It was held in the case of Grier v. Railway Company, 286 Mo. l.c. 533, a death case, that an instruction which told the jury, in determining the amount to be awarded, they might take into consideration the facts constituting negligence, including aggravating circumstances, if any, tending to show such negligence was proper. Under that ruling it may be said that the violent and sudden death of the little girls and the fatal wounding of the husband were aggravating circumstances, attending the negligence of the railroad company, if its negligence was the cause. But it was not proper, even in support of the death claims in the first three counts to show the gruesome nature of the situation as it affected the plaintiff's mind.

All the evidence in regard to the mangled body of Jenkins, his scattered brains and the like, was wholly irrelevant to any issue on any count. It was very prejudicial to the defendant, and should have been entirely excluded. It requires reversal of the case on all counts, even if there were no other errors.

X. It is further claimed by the appellants that the verdict on the fourth count is excessive. That the personal injury to the plaintiff was insufficient to warrant a verdict of that size. No doubt the verdict was largely augmented on account of the irrelevant and otherwise incompetent evidenceExcessive mentioned above. It is not necessary for us to go overVerdict. the evidence regarding these specific injuries which she incurred. On another trial the jury may be able properly to appraise any injury to her if they find for her on the fourth count.

XI. The court permitted the witness Waters in his examination for plaintiff, to testify what he would do, or could do, if he were in charge of an engine under similar circumstances, all of which was mere opinion and wholly incompetent. NorIncompetency was it proper for the plaintiff to show the age andof Engineer. enfeebled condition of Engineer Smith because incompetency of the employees of the train was not alleged as a ground of negligence.

XII. The respondent contends that the objection to the evidence is not preserved in the motion for new trial because such objections are only general and do not call specifically the attention of the court to the particular evidence objected to. Appellant cites on that point the case of Bartner v. Darst, 285 S.W. 449. That case supports the position ofGeneral appellant, but it is not sound law; it is contraryAssignments. to the rule announced by this court in the Wampler case, 268 Mo. 486, which has been pretty consistently followed. It is contrary to the later ruling of this court in the case of State v. Baldwin, decided at the present term of this court, en banc, 317 Mo. 759, where Judge GRAVES, who wrote the opinion, reviews the authorities on that point at length. It must be remembered that the Act of 1925, relating to motions for new trial in criminal cases, does not apply to civil cases. If it did it would not apply to this case, because the trial was had on motion filed before that act went into effect.

XIII. Some of the objections to the remarks of counsel apply to the comments upon the evidence as to disputed facts. Those objections are not well taken.

Counsel for respondents dwelt upon certain horrifying facts with remarks such as "these people lay there dead;" "that coroner impanelled a jury in the presence of the dead little girls, in the presence of the dead man, in the presence of the gruesome sight — the blood and brains." The objection to this was overruled. This was a comment upon the evidence which was wholly incompetent, as shown above, and called attention to the gruesome conditions for which there could be no recovery on any account. It aggravated the prejudice caused by the incompetent evidence relating to the body of Jenkins. Objection to all remarks of that kind should have been sustained and plaintiff's counsel rebuked. Likewise, the argument of plaintiff's counsel regarding the age and incompetency of the engineer was without the issues, and the objections to it should have been sustained.

The appellants complain of other errors in instructions given on behalf of plaintiff, and of error in refusing instructions offered by defendants. The instructions are at great length; it is unnecessary to consider them in detail. On another trial they should be framed in accordance with the law as announced in this opinion.

There are other complainants in relation to the admission and exclusion of evidence, but whatever errors may have been committed in that respect, probably would not occur on another trial.

For the reason mentioned above the judgment is reversed and the cause remanded on all counts. All concur, except Walker, C.J., who concurs in result only.