Carter v. Norfolk & Western Railway

CARL R. GAERTNER, Judge,

dissenting.

Although I agree with the determination by the majority regarding the impropriety of the withdrawal instruction, I am constrained to dissent from the remanding of this case for a new trial. Having found in favor of plaintiff on one of his alleged trial court errors, we must address the issue of submissibility before remanding the case. Grippe v. Momtazee, 696 S.W.2d 797, 799 (Mo. banc 1985).

The Missouri Supreme Court has never deviated from the rule that recovery may not be had against a railroad by a trespasser jumping on and off a moving train upon a theory of primary negligence. As stated in McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704, 708 (1952):

As a general rule a street-railroad company or railroad company is bound only to abstain from willfully, wantonly or recklessly injuring a trespasser on its car, or to exercise ordinary care to avoid injuring him after discovering his peril. 60 C.J., Street Railroads, § 278, pp. 376-377; 52 C.J., Railroads, § 2177, pp. 628-629, 75 C.J.S., Railroads, §§ 925-926. These two duties are distinguishable, and, transposed upon our conception of a defendant’s humanitarian duty, it seems to be recognized that a carrier is responsible for the willful, wanton or reckless injury of a trespasser on its cars; and is responsible for its negligence under the humanitarian rule. Frailey v. Kurn, supra; Stewart v. Missouri Pac. R. Co., 308 Mo. 383, 272 S.W. 694; also Hall v. Missouri Pac. R. Co., 219 Mo. 553, 118 S.W. 56; O’Donnell v. Kansas City, St. L. & C.R. Co., 197 Mo. 110, 95 S.W. 196; Youmans v. Wabash R. Co., 143 Mo.App. 393, 127 S.W. 595.

In Frailey v. Kurn, 349 Mo. 434, 161 S.W.2d 424, 427 (1942), under facts quite similar to those of the instant case, the Supreme Court stated:

Plaintiff’s invasion of defendants’ rights in voluntarily hopping defendants’ train and continuing to ride thereon and the delict of any duty, if any delict there be, owed plaintiff by defendants arising from the operation of the train in the usual and ordinary conduct of defendants’ business were, at best under this record, mutual faults, and, absent other factors depriving defendants of such defenses, the law does not cast the consequences upon defendants or authorize any apportionment thereof. Consult Moore v. Lindell Ry. Co., 176 Mo. 528, 542-544, 75 S.W. 672, 676; Annotations, 41 A.L.R. 1379; L.R.A. 1918D, 1195.

No contention is made in this case that the plaintiffs injuries were the result of willful, wanton or reckless conduct on the part of the railroad. Nor is there any evidence which would bring this case within the humanitarian doctrine. As recognized in the majority opinion, the entire thrust of plaintiffs’ case is predicated upon antecedent negligence, the inability of the defendant to meet its duty of keeping a lookout in order to discover the trespassing plaintiff.

None of the cases relied upon in the majority opinion involve injuries sustained while jumping on or off moving trains. Three of the cases so relied upon, Henderson v. Terminal Railroad Association of St. Louis, 659 S.W.2d 227 (Mo.App.1983), Wilson v. Missouri-Kansas-Texas Railroad Company, 595 S.W.2d 41 (Mo.App.1980), and Coonce v. Missouri Pacific Railroad Company, 358 S.W.2d 852 (Mo.1962), involve submissions under the humanitarian doctrine. In Henderson, this court held that because railroad employees could have seen the plaintiff approaching the train in a position of imminent peril in time to have stopped a slow moving train, a submissible case was made. In Wilson, the present ability of the train crew to see the intoxicated plaintiff, passed out on the tracks ahead of the train, in time to stop the train moving at a speed of two or three miles an hour, made a submissible case under the humanitarian doctrine. In Coonce, it was judicially admitted that a trespassing plaintiff was guilty of contributory negligence as a matter of law and the case was submitted under the humanitarian doctrine. A plaintiff’s verdict was reversed because the evidence was insufficient to impose a duty upon the defendant to keep a lookout at the place of plaintiff’s injury or to have avoided the injury after his peril was discovered.

The fourth case relied upon in the majority opinion, Savage v. Chicago, R.I. and P. Railway Co., 328 Mo. 44, 40 S.W.2d 628 (1931) did not involve a trespassing plaintiff. Savage was not “hopping” on and off of a moving train, but rather was crossing the defendant’s tracks in an area where he had a right to be and where the defendant had a duty to be on the lookout for employees of other railroads. Contributory negligence in this case was held to be a jury question only because the defendant’s train was operated at night without a headlight or warning and could not be seen or heard by the plaintiff under the circumstances.

The majority opinion also refers to Burnham v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858 (1936). This case involved an injury to a 5 year old child playing under box cars which were started in motion. A verdict against the railroad was reversed because of error in the admission of evidence. The theory under which the case was submitted is not set forth in the opinion. However, the quoted allegations of the petition are couched in the terms of the humanitarian doctrine.

I agree the evidence concerning children playing about the tracks is sufficient to impose a duty upon the defendant to keep a lookout. However, I cannot ignore the effect of the plaintiff’s own conduct. Plaintiff was a 16 year old above average student well aware of the hazards involved in hopping on and off of moving trains. In its motions for directed verdict the defendant asserted plaintiff’s contributory negligence as a matter of law barred any recovery. On appeal defendant buttresses this argument with the admission in plaintiff’s brief that “both Mark Carter and Norfolk & Western Railway Company were guilty of contributory fault....” I do not believe the issue of contributory negligence can be cavalierly written off by means of a footnote. Rather, the admission in plaintiff’s brief constitutes a statement of the obvious and inescapable conclusion that plaintiff was guilty of contributory negligence as a matter of law. Plaintiffs’ purported explanation of the admission, that there is a conceptual difference between contributory fault and contributory negligence, may have some applicability to products liability cases involving the doctrine of strict liability in tort, but it misses the mark here. In the ordinary negligence case, the only distinction between contributory negligence and contributory fault is in the effect of such conduct, the former barring recovery entirely, the latter mitigating damages. Indeed, the principal thrust of plaintiffs’ appeal is that they are being unfairly deprived of the benefit of the doctrine of comparative fault because their case was tried before that doctrine became the law of Missouri. Since the Supreme Court of Missouri established the effective date of this change in the law, this court is powerless to disregard its mandate. We are constitutionally constrained to follow the controlling decisions of the Missouri Supreme Court. Mo. Const. Art. V, § 2; Estate of Seabaugh, 654 S.W.2d 948, 957 (Mo.App.1983).

Accordingly, I dissent.