Murrell v. Kansas City, St. Louis & Chicago Railroad , 279 Mo. 92 ( 1919 )

RAILEY, C.

This action was commenced by plaintiff, in the Circuit Court of Lafayette County Missouri, on September 17, 1913, as the widow of John D. Murrell, who was killed in the City of Higginsville in said Lafayette County, by an east-bound fast-passenger train, operated at the time by the Chicago & Alton Railroad Company, by virtue of a lease in 1879, from defendant, a Missouri coporation, which was the owner of the right-of-way, road-bed, tracks, etc., where deceased was killed. On defendant’s application the venue was changed to Saline County, Missouri, and there tried upon plaintiff’s second amended petition, which among other things, in substance, alleges the following grounds of negligence: 1. That the statutory signals were not given for the crossing, where deceased was killed. 2. That the train in question was being operated through the city limits of Higginsville, Missouri, in violation of its six-mile speed ordinance, and while traveling at a highly dangerous rate of speed, to-wit, twenty-five to thirty-five miles per hour. 3. Failure on the part of the servants operating the train to be at their posts of duty, to slow down the train and have the same under control as it approached and passed over the crossing, when they knew and saw, or by the exercise of ordinary care could have known and seen, deceased in peril on the crossing in time, by the exercise of ordinary care, t to have slowed down the locomotive and train, given emergency signals or stopped the train and averted the killing, which they carelessly and negligently failed to do.

The answer to second amended petition contains (1) a general denial; (2) a plea of negligence on the part of deceased; (3) an averment mat the statutes, under which it is sought to hold defendant, are unconstitutional; and (4) that the six-mile speed ordinance of Higginsville is unreasonable, void, unconstitutional, and an unlawful interference with interstate commerce.

At the time of his death, deceased was sixty-seven years of age; hie health was good, but he was a cripple. His right leg had been broken; he wore a stirrup on this leg; it was shorter than the other. He used a crutch under his left arm and a cane in his hand. Deceased lived about three blocks southwest of where he was killed, and walked very slowly.

It is conceded that, at the' time of said killing, defendant was the lessor of the railroad right-of-way, road-bed and tracks over which the Chicago & Alton Railroad Company was operating the train which killed deceased. It is likewise conceded that, at the time of said killing, the Chicago & Alton Railroad Company was operating defendant’s road, by virtue of the lease aforesaid, and that it was at the time an interstate common carrier, etc.

Plaintiff’s evidence tends to show that the public crossing, where Murrell was killed, is situate in the heart of Higginsville, a city of the fourth class, with about 2700 inhabitants, the business portion of the city being north, and about half of the residence population south, of the railroad tracks, about midway between the depot and the western limits of the city, or about a quarter of a mile east of the western limits of the city and about 1200 feet west of the depot in said city. Two other public crossings intervened between the one on which Murrell was killed and the depot. There were two other public crossings between the depot and the eastern limits of the city. Murrell was killed at the intersection of Brand Street and the railroad tracks. Brand Street, after passing over the railroad tracks, west where the killing occurred, and Brand Street, with the other crossings mentioned, ran practically north and south. Brand Street was a regular traveled public road or street, and used by many residents going to and continues on north to other portions of the city. The railroad tracks ran in the general direction of east and from their places of business. North and south of this crossing, where the killing occurred, and west thereof, except the railroad right-of-way, were many and numerous residences, extending to and beyond the city limits on the west. The crossing, with five tracks, covered a space of about fifty feet, over which there was constructed a plank walk about four feet wide, on the west side of Brand Street, over the railroad tracks, and there was a regular north-and-south wagon crossing, east of the sidewalk. The road-bed at this crossing was elevated above the ground on each side, the tracks being constructed on a fill, some four feet or more deep, extending west for about 1200 feet, and ending at the 'cut mentioned in evidence. The approach to the crossing from the south was up this incline to the road-bed and south switch track, parallel and connected with four other tracks, and connected with the next track north about 100 feet or more west of the crossing. The second track, traveling north, extended west from the crossing from 800 to 900 feet, where it connected with the next track north. The third track from the south, called in the evidence a “passing track,” and at times used as the main track, continued west from the crossing some 1200 feet, where it connected with the next north track, called in the evidence, “the main track,” which continued west from the crossing to.Kansas City, Missouri. The north, or switch track, extended west about 200 or 300 feet, and connected with the main track. Plaintiff’s evidence tends to show that the tracks at the crossing were about four feet and eight inches wide, between rails; and the space between the main track and passing track was thirteen feet and two inches. The entire distance from outside of north rail to outside of south rail was about fifty feet.

Plaintiff contends that a man on the crossing looking west along the tracks could see from 500 to 600 feet. Defendant contends that a man anywhere on the crossing could see an engine approaching from the west for at least a thousand feet. Substantial testimony was offered in support of each contention.

The deceased came upon the board'walk across the tracks, from the south, with his crutch and cane, and must have traveled north toward the main track where he was killed. The train was due at 11:35 a. m. and arrived at 11:40 a. m. on the day of the accident. Plaintiff’s evidence tends to show that Murrell was crossing over the north rail of the main track when struck and killed, as his headless body, his brains, pieces of his skull, broken crutch, hat and clothing’, were found immediately after the train passed, north of the north rail of the main track, between the latter and the north switch track, and some portion of same was attached to slivers on the north rail of the main track, commencing about ten feet east of the plank walk, and continuing for some distance.

Such other facts and circumstances shown by the record, as far as necessary, will be considered later, .in connection with the instructions given and refused.

At the conclusion of plaintiff’s evidence, the defendant interposed .a demurrer thereto, which was overruled and an exception saved. At the conclusion of all the evidence, defendant again asked the court to direct a verdict in its behalf, which request was refused, and an exception saved to the ruling of the court.

The jury returned a verdict in favor of plaintiff for $2,000, and judgment was entered accordingly. Defendant, in due time, filed its motion for a new trial, which was overruled and the cause duly appealed by it to the Kansas City Court of Appeals, and certified to this court on account of the constitutional questions raised in the case.

Title

I. The lease under which appellant was operating its trains over the property of defendant was executed in 1879. In its assignment of errors, defendant attacks constitutionality- °f Section ,2 of the Act of the General Assembly for 1870, at pages 90 and 91, approved March 24, 1870, and now known as Section 3078, Revised Statutes 1909, as follows: “Section 3078, Revised Statutes 1909, is unconstitutional for the reason that the bill when enacted contained more than one subject, which was not clearly expressed in the title, as provided by Section 28, Article 4, of the Constitution of Missouri.”

The above charge is more specifically stated at page 10 of appellant’s brief, as follows: “By reference to the title of the act, it will be observed that at no place in the title is any reference made to holding the railroad leasing its line of railroad liable, the same as though operating it.”

The title to the Act of 1870, page 89, reads as follows: “An Act to amend chapter sixty-three of the General Statutes, entitled ‘of railroad companies,’ so as to authorize the consolidation, leasing and extension of railroads.” (Italics ours).

We had occasion to fully consider this subject in the recent case of Woodward Hardware Co. v. Fisher, 269 Mo. l. c. 276-9, where many recent authorities are collated, including some of those cited by appellant. We have no fault to find with the above cases, nor those cited by appellant, considered in connection with the general principles of law announced therein. In our opinion, they do not sustain appellant’s contention, when applied to the facts before us.

In the Act of 1870, supra, the Legislature had under consideration the subject, as to what aid railroad companies might furnish each other by way of extension lease or consolidation. The State, acting through its legislative agencies, had the undoubted right in the granting of railroad charters to corporations organized under the laws of this State, to prohibit them from leasing such roads to railroad corporations, chartered under the laws of another State. The General Assembly likewise possessed the power to authorize leases under such circumstances, and to designate the terms and conditions upon which such leases could be made. [Fleming v. Railroad, 263 Mo. l. c. 186-7-8; Brown v. Railroad, 256 Mo. l. c. 533-4; Moorshead v. United Railways Co., 203 Mo. 121; Dean v. Railroad, 199 Mo. l. c. 390; Markey v. Railroad, 185 Mo. 348.] The same principle of law is recognized by Court in Banc in the recent case of State ex rel. v. Hemenway, 272 Mo. 1. c. 199.

Appellant contends that the following portion of Section 2 of the Act of 1870, to-wit, “and a corporation in this State leasing its road to a corporation of another State shall remain liable as if it operated the road itself” relates to a different subject than the lease mentioned in the title to the act. We do not so interpret the act. On the contrary, we think it manifest that the Legislature intended that the words quoted aboye should be construed as an inseparable part of the lease itself. In other words, the title to the act provided ■ that a lease might be made, but left the legal effect thereof to be determined in the body of the act. They both relate to the same subject, and contemplate the making of a lease by the Missouri Corporation, to a railroad corporation of another State, with the understanding, that the former shall remain liable as if it operated the road itself.

The cases cited by appellant are clearly distinguishable from the case at bar in many particulars and are insufficient, in our opinion, to overturn the validity of the act under consideration. We accordingly rule that the Act of 1870 is not obnoxious to the criticism leveled against it in appellant’s brief, and that it is a valid enactment.

Ordinance.

II. Appellant contends that the Higginsville speed ordinance of six miles an hour “is unreasonable, unconstitutional, and an attempt to interfere with and regulate interstate commerce, contrary to Section 8 of Article I of the Constitution of the United States.” The following authorities are cited in support of this contention: Lusk v. Town of Dora, 224 Fed. 650; Zumault v. K. C. & I. Air Line, 71 Mo. App. 670; White v. Railroad, 44 Mo. App. 540; Plattsburg v. Hagenbush, 98 Mo. App. 669; Murphy v. Lindell Ry. Co., 153 Mo. 252; Byington v. St. Louis R. R. Co., 147 Mo. 673.

In the Lusk case, supra, 224 Fed. 650, an injunction suit was brought to restrain the enforcement of a six-mile speed ordinance in a town of one thousand inhabitants. The court, under the peculiar facts of the case, sustained the injunction, and in doing so, at page 654, said: ‘ ‘ This finding is predicated upon the idea that the danger to be apprehended can be adequately guarded against by property protecting the crossing or crossings that need protection by flagmen, without unnecessariU impeding the plaintiffs’ operation of the railroad by so stringent a speed limit.”

The court, by its decree, required the railroad company to maintain' adequate protection against the hazards arising from the operation of trains over the crossings. It further appears that there was a watchman stationed at,the principal crossing. We do not think this case can have any application to the facts before us.

In Zumault v. K. C. & I. Air Line, 71 Mo. App., 670, decided by Judge Smith of the Kansas City Court of Appeals, it was held that the six-mile speed ordinance of Kansas City was inapplicable and oppressive in the operation of the Independence Air Line Railroad between the Grand Central Depot and the eastern limits of the city. Judge Smith simply held that an ordinance might be declared unreasonable as to certain localities where there was no necessity for having a speed ordinance of this character.

In White v. Railroad, 44 Mo. App. 540, a speed ordinance of four miles an hour through Marshfield, Missouri, was held to be unreasonable under the facts disclosed by the record in said case. On pages 542-3, the court said: “The uncontroverted facts show that the city has a population not exceeding fifteen hundred inhabitants, and that only about one-third of its area is platted, the residue consisting of farming lands. The restriction, if valid at all, extends over this entire area. As far as the farm lands are concerned, the necessity of any restriction whatever is not obvious, and as far as the residue of the town is concerned, the necessity of a restriction to four miles an hour, which, as we know, is less than the maximum speed permitted in the most populous cities in' this State, is equally not apparent. In the absence of any necessity shown, the restriction is clearly unreasonable. If one city may adopt it, they all may, and thereby make rapid transit, in which the people of the entire State are interested, an impossibility. ” In this case the ordinance was offered in evidence for the purpose of showing negligence, in a place where a cow was killed in the corporate limits. No such facts were presented, in regard to the necessity for such an ordinance as are shown in this case. The court does not intimate that a speed ordinance of six miles an hour would be held unreasonable, where the safety of the public demanded it.

In Plattsburg v. Hagenbush, 98 Mo. App. 670, the court had before it a six-mile speed ordinance of said city, and which was attacked as being unreasonable. On page 673, Judge Smith said: “We are unable to conclude that the limitation imposed by the ordinance, when applied to trains running on that part of said railroad line between East Street and the western limits of the city, is in the least unreasonable or oppressive. A like ordinance-limitation in what was doubtless a less populous city was held by the Supeme Court to be not unreasonable. [Robertson v. Railroad, 84 Mo. 119.] And so, too, it has been held by the same court.that an ordinance of the City of St. Louis, limiting the speed of certain trains to six miles an hour, was not reasonable. [Gratiot v. Railroad, ante.] But it seems to us that the limitation as applicable to the movement of trains on that part of the said railroad between the eastern limits of the city and Second Street is wholly unnecessary for the protection of the public.” It is thus seen, from an examination of this case, that there was no intention to hold, that a city like Higginsville could not pass an ordinance that would he effective at the place where Murrell was killed.

In Murphy v. Lindell Ry. Co., 153 Mo. 252, and Byington v. St. Louis Railroad Co., 147 Mo. 673, cited by appellant, the validity of speed ordinances was not involved. The court, in those cases, held that unless the railway companies had accepted the ordinance which had been enacted, a third party would have no right of action based thereon for violation of same. These two cases were practically overruled in Jackson v. Railway Co., 157 Mo. 622, and in Sluder v. Transit Co., 189 Mo. 107 and following, decided by the Court in Banc.

We do not find, upon a careful examination of the authorities cited by appellant, any ground for holding the ordinance in controversy void. On the other hand, by a long and unbroken line of decisions in this State, six-mile speed ordinances have been upheld by this court, in cities and towns where they were necessary for the public welfare, and to prevent accidents at public crossings. In the following cases, speed ordinances were upheld by this court, to-wit: Karle v. Railway Co., 55 Mo. l. c. 483, where a five-mile ordinance at St. Joseph was sustained; Robertson v. Railroad, 84 Mo. l. e. 121, in which a six-mile ordinance in the town of Jamison was sustained; Merz v. Railway Co., 88 Mo. l. e. 675, in which a six-mile ordinance in the city of St. Louis was sustained; Keim v. Railway Co., 90 Mo. l. c. 321, in which the St. Louis six-mile ordinance was again sustained; Kelly v. Railway Co., 95 Mo. 1. c. 285-6, in which the St. Louis ordinance was again sustained; Eswin v. Railway Co., 96 Mo. l. c. 294, in which the St. Louis ordinance was again sustained; Schlereth v. Railway Co., 96 Mo. l. c. 512, in which this court again sustained the St. Louis ordinance; Grube v. Railway Co., 98 Mo. l. c. 334, in which the six-mile speed ordinance of Kansas City was sustained; Gratiot v. Railway Co., 116 Mo. l. c. 455, in which the St. Louis ordinance was again sustained; Prewitt v. Railway Co., 134 Mo. l. c. 619-20, in which a six-mile ordinance of Sedalia was sustained; Jackson v. Railway Co., 157 Mo. 621, in which a six-mile speed ordinance of West Plains was sustained, and the court, in its opinion, reviewed all the former authorities of this State in relation to this subj ect; Stotler v. Railroad, 200 Mo. l. c. 120, in which an eight-mile speed ordinance of Laddonia was sustained; King v. Railway Co., 211 Mo. l. c. 5, in which a six-mile ordinance of Elm Plat was sustained; Johnson v. Railroad, 259 Mo. l. c. 544, in which an eight-mile ordinance of Mexico was sustained; Hunt v. Railroad, 262 Mo. l. c. 275, in which a five-mile ordinance of Cape Girardeau was sustained. The last case cited was disposed of in Court in Banc.

With this long line of decisions confronting us, sustaining six-mile ordinances, we have no disposition to declare invalid the one adopted'by Higginsville in controversy here. As a police regulation it was the duty of the municipality to protect its citizens in the enjoyment of their rights, under such circumstances as are disclosed in this record.

According to the plaintiff’s evidence, the Brand Street crossing was located in the heart of Higgins-ville, a city of the fourth class, containing 2700 inhabitants, and over which many people traveled to and from their places of business.

Upon a full consideration of all the facts connected with the case, we have reached the conclusion that the ordinance in question is not unreasonable and that, at the place where Murrell was killed, it was needed for the protection of the public.

III. It is insisted by appellant, that the trial court committed error in submitting the case to the jury on the last-chance theory.

of EviTence.

The petition undoubtedly states a good cause of action based upon the humanitarian rule, and stands unchallenged in defendant’s assignment of errors. Plaintiff’s instruction numbered 3 correctly placed before the jury the law in respect to this subject, and is likewise unchallenged in appellant’s assignment of errors. Was the evidence sufficient to warrant the trial court in submitting this issue to the jury?

At the close of plaintiff’s case in chief, defendant’s demurrer thereto was overruled and it put before the jury its own evidence. The sufficiency of plaintiff’s testimony must be determined from all the evidence in the case. It was the province of the jury to pass upon the facts, and every inference which men of average intelligence and fairness might legimitately draw from the proven facts, must he indulged in favor of plaintiff, in considering the demurrer to the testimony.

It may he conceded for the purposes of the case that deceased, at the time and place of the accident, was guilty of negligence which directly contributed to his own death, in failing to learn of the approach of the train before going upon the main track where he was killed. On the other hand, there was substantial evidence tending to show the following: That the servants in charge of the train were negligent in failing to ring the bell and keep it ringing, as required by the statute, before approaching the crossing where Murrell was killed; that they were guilty of negligence in failing to give .proper and timely danger signals after deceased was known to be in peril; that they were guilty of negligence in violating the six-mile speed ordinance of HigginsviÜe, and which they continued to violate until the time of killing; that they were guilty of common-law negligence in running the train, at the time and place of accident, at a dangerous and unsafe rate of speed; that the engineer was guilty of negligence, in failing to reduce the rate of speed with which he was running, after seeing deceased in peril, and apparently oblivious of the approach of the train; and was likewise negligent-under such circumstances, in failing to give danger signals with a whistle, so as to arouse in deceased a realization of the danger into which he was then travel-

In the absence of evidence to the contrary, the jury had the right- to draw' the inference that the engineer was at his place in the cab, looking toward the depot, as he owed that duty to the passengers on his train, as well as those who might be upon the crossing. [Reyburn v. Railroad, 187 Mo. l. c. 565-6.] The jury also had the right to infer from the facts before them, that the engineer and fireman were at their respective places in the cab, as evidence was offered by defendant tending to show that the station whistle was sounded and that the bell was rung at some time before the crossing was made. Especially is this true, as the train stopped at the station and, hence, the engineer must have been performing the duty concerning the movements of the train.

No witness claims to -have seen deceased after he came upon the sidewalk and started across the tracks, or to have witnessed the killing, except one Joe Fleming, who testified in behalf of defendant. This witness was not only impeached, by other witnesses, who testified in the cause, but, in our opinion, his own testimony is inconsistent and self-contradictory. It is so at variance with the physical facts, that neither court, nor jury, were bound to give credence to his testimony. But even this witness says that deceased, after he knew the train was coming, just started off and hobbled along on his crutch and stirrup as usual.

Even if it be conceded that deceased was guilty of negligence, as heretofore stated, yet the jury had the right to infer from the other facts in the case, that the engineer saw deceased in peril when the latter was less than 500 feet away, moving to a place of danger, apparently oblivious of the approach of the train. The evidence is undisputed that the train ran on over the crossing twenty-five to thirty-five miles an hour, without the slightest effort to slow down the speed of same, when, by so doing, even to the extent of two seconds, it would probably have saved the life of' deceased. Plaintiff’s evidence tends to show that deceased was in peril in front of a rapidly moving train, in plain view of the engineer for over 500 feet, when a few sharp blows of the whistle might have arrested his attention and saved ■ him from entering upon the track. It is claimed on account of the curve that the engineer may not have seen deceased approaching the track, but the jury had the right to infer from all the evidence, as the deceased was approaching the track on the same side of the engineer, that when the comparatively straight track of 500 feet was reached, the engineer could see down the track, and had a plain view of deceased, moving toward the main track where he was killed. As said in the Reyburn case, the jury had the right to take into consideration the further fact that the engineer and fireman were not produced as witnesses, when, of all other persons, they would have been better prepared to have given the actual facts, than any one else could have done. Unless the humanitarian rule in this State is to be abandoned, the facts before us present a plain case for its application. [Reyburn v. Railroad, 187 Mo. 565; Eppstein v. Railway Co., 197 Mo. 720; Hinzeman v. Railroad, 199 Mo. 56; Holmes v. Railway Co., 207 Mo. 149; Lynch v. Railroad, 208 Mo. l. c. 34; Dutcher v. Railroad, 241 Mo. 137; Maginnis v. Railroad, 268 Mo. 667, 187 S. W. 1165.]

Many other well considered decisions of this court might be cited in line with the foregoing, but we deem the above sufficient to sustain the action of the trial court in overruling defendant’s demurrer to the evidence and submitting the cause to the jury under the humanitarian rule.

Cases.

IY. We call especial attention to the cases of Reybura, Hinzeman and Holmes above cited, where the fac^s are fully set out and the principles of law governing the same are clearly defined.

We have given full consideration to the assignment of errors submitted by appellant, as well as the propositions discussed in the respective briefs on file in the ease. We are satisfied from the record before us that the judgment below was for the right party, and

it is accordingly affirmed.

White and Mozley, CC. concur.

PER CURIAM:

The foregoing opinion of Raikey,

C., is hereby adopted as the opinion of the court.

All of the judges coneur.