Summary
In Carson, this Court invalidated a law making it a misdemeanor for a train to block a public crossing for more than five minutes in towns having a population of 10,000 or less. The Court noted the fact that traffic in the cities excluded from the act would be more adversely affected than traffic in those cities included.
Summary of this case from State v. DavisOpinion
October 31, 1940.
1. JURISDICTION: Blocking Statute. In an action for injuries to plaintiff caused by a collision of an automobile in which he was riding with defendant's flat car across the road, contrary to a statute against blocking a public crossing, where the defendant challenged the constitutionality of the statute the Supreme Court had jurisdiction of the appeal.
2. NUISANCE: Obstructing Highway. At common law it was a public nuisance to unreasonably obstruct a highway which necessarily impedes its use by the traveling public.
And a railroad was subject to indictment at common law if it permitted a train of cars to obstruct a highway for an unreasonable length of time.
3. STATUTE: Obstructing Road. A statute providing punishment for anyone obstructing a road for five minutes was not improper.
But a provision of such statute which limits its application to all parts of the State including cities and towns up to 10,000 inhabitants and in effect excludes larger cities, was contrary to Section 53, Article IV of the Constitution, providing the General Assembly shall not pass any local or special law on certain subjects.
There is no purpose which is reasonable or just for exempting from the statute cities of over 10,000 inhabitants, and there is no real distinction with reference to the purpose of the act between those localities included and those excluded, and it is therefore void.
4. CONSTITUTIONAL LAW: Statutes. A statute making it a misdemeanor to block a highway or street crossing for five minutes, except in towns of over 10,000 inhabitants, offends against the rule that under the Constitution the Legislature may not enact a law making the same act a crime if committed in one locality and not punishable if committed in another.
5. TRIALS. In a trial for injuries received by plaintiff caused by a collision of the automobile in which he was riding with defendant's train, it was error to tell the jury that the train blocking the crossing for more than five minutes was an unlawful act.
An instruction which incorrectly states the law is obviously ground for reversal.
6. TRIALS: In an action for injuries to plaintiff caused when the automobile in which he was riding collided with defendant's flat car at a crossing, where the testimony showed that the flat car which blocked the street straddled it squarely so that only the narrow edge of the platform of the car would be visible to persons coming along the street, the flat car not being in motion and unlighted on the side plaintiff was approaching, the street being heavily traveled, and the surface inclined down to the track which tilted the beam of the automobile headlights away from the edge of the car, under all the circumstances the trial court properly submitted the case to the jury.
Appeal from Bates Circuit Court. — Hon. C.A. Calvird, Judge.
REVERSED AND REMANDED.
Thos. J. Cole, H.E. Sheppard, L.J. Bishop and D.C. Chastain for appellants; Patterson, Chastain, Graves Smith of counsel.
(1) The court erred in admitting the testimony as to the population of Rich Hill. This was admissible only in order to make Section 4830, Revised Statutes 1929, applicable. That section prohibiting the blocking of a crossing for more than five minutes in cities of less than 10,000 is unconstitutional, because: (a) The title of the section is indefinite and does not clearly express the subject matter. Laws 1911, p. 152; Sec. 28, Art. IV, Mo. Const. (b) The act is a special law relating to the maintaining of roads, highways and streets and is prohibited. Sec. 53, Art. IV, Mo. Const. (c) The act is special legislation relating to the affairs of the city and it is local in its character and is arbitrary and special in classifying cities in which it is applicable. Sec. 53, Art. IV, Mo. Const.; Murnane v. St. Louis, 123 Mo. 479, 27 S.W. 711; State ex rel. Garesche v. Roach, 258 Mo. 541, 167 S.W. 1008; Henderson v. Koenig, 168 Mo. 356, 68 S.W. 72; Colley v. Jasper County, 337 Mo. 503, 85 S.W.2d 57; State ex rel. Ashby v. Cairo Bridge T. Co., 340 Mo. 190, 100 S.W.2d 441; Wooley v. Mears, 226 Mo. 41, 125 S.W. 1112; State ex inf. Gentry v. Armstrong, 315 Mo. 298, 286 S.W. 705. (2) The court erred in submitting the case to the jury, because: (a) There was no proof of negligence in the alleged violation of Section 4830. (b) There was no evidence that the train had blocked the crossing more than five minutes at the time of the accident. Mo. Pac. Ry. Co. v. Bacon, 91 F.2d 175. (c) Negligence cannot be based upon the violation of a statute unless the injury was one the statute was designed to prevent. The purpose of Section 4830 was to facilitate travel and not to prevent collisions with standing cars so that negligence cannot be grounded upon its violation. Mansfield v. Wagner Mfg. Co., 294 Mo. 235, 242 S.W. 400; Anderson v. Wells, 220 Mo. App. 19, 273 S.W. 233, certiorari quashed (Mo.), 287 S.W. 603; Degonia v. St. L., I.M. S. Ry. Co., 224 Mo. 564, 123 S.W. 807; Borack v. Mosler Safe Co., 288 Mo. 83, 231 S.W. 623; Harper v. St. Louis Merchants' Bridge Term. Co., 187 Mo. 575, 86 S.W. 99; Krelitz v. Calcaterra, 33 S.W.2d 909; Wecker v. Ice Cream Co., 326 Mo. 451, 31 S.W.2d 974; Hudson v. Wabash Western Ry. Co., 101 Mo. 13, 14 S.W. 15; Spain v. St. L. S.F. Ry. Co., 190 S.W. 358; Cherry v. St. L. S.F. Ry. Co., 163 Mo. App. 53, 145 S.W. 837; Capelle v. B. O. Ry. Co., 136 Ohio St. 203, 24 N.E.2d 822; Jones v. A., T. S.F. Ry. Co., 129 Kan. 314, 282 P. 593; Denton v. M., K. T. Ry. Co., 90 Kan. 51, 133 P. 558; Killen v. N.Y. Cent. Ry. Co., 232 N.Y.S. 76; Irvin v. So. Pac. Ry. Co., 95 P.2d 62. (d) The length of time the crossing was obstructed prior to the accident was a condition rather than the proximate cause of the accident. Had the cars prior to the accident been obstructing the crossing four minutes instead of over five minutes in violation of Section 4830, the result would have been the same. Orton v. Pa. Ry. Co., 7 F.2d 36; Hendley v. C. N.W. Ry. Co., 225 N.W. 205; Gilman v. Cent. Vt. Ry. Co., 107 A. 122; Simpson v. Pere Marquette Ry. Co., 268 N.W. 769; Webb v. Ore., Wash. R. N. Co., 80 P.2d 409; Cuccia v. Gulf, M. N. Ry. Co., 180 So. 513; Jones v. I. P. Ry. Co., 154 So. 768. (e) Nor was there proof of negligence in failing to have a watchman or warning lights. There was no proof of any special hazard requiring special warning. Without such proof the presence of a car on the crossing was sufficient notice of danger. Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W.2d 617; Thompson v. Stevens, 106 F.2d 739; Smith Const. Co. v. Brumley, 88 F.2d 803; Sisson v. So. Ry. Co., 68 F.2d 403; N.Y. Cent. Ry. Co. v. Casey, 14 N.W.2d 714; Coleman v. C., B. Q. Ry. Co., 5 N.E.2d 103; Sheets v. Baldwin, 146 Kan. 596, 73 P.2d 37; Phil. R. Ry. Co. v. Dillon, 114 A. 62; Bowers v. Great N. Ry. Co., 259 N.W. 99; Ausen v. M., St. P. S. Ste. M. Ry. Co., 258 N.W. 511; Diamond v. Term. Railroad Assn., 141 S.W.2d 795. There was no evidence that the train crew had notice of any special hazard created by fog or physical conditions. Proof of this by plaintiff was essential to recovery. Williams v. K.C. Term. Co., 288 Mo. 11, 231 S.W. 954; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Howard v. Knutson, 77 S.W.2d 158; St. L. S.F. Ry. Co. v. Guthrie, 114 So. 215; C., C., C. St. L. Ry. Co. v. Gillespie, 173 N.E. 708. (f) But in any event the sole proximate cause of the accident was the negligence of the driver of plaintiff's car, or the presence of fog. Wood v. Wells, 270 S.W. 332; Megan v. Stevens, 91 F.2d 419; Thompson v. Stevens, 106 F.2d 739; Probert v. Chi., I. L. Ry. Co., 93 F.2d 259; Pennington v. So. Ry. Co., 61 F.2d 399; Orton v. Pa. Ry. Co., 7 F.2d 36; Mabry v. Union Pac. Ry. Co., 5 F. Supp. 397; Bledsoe v. M., K. T. Ry. Co., 149 Kan. 741, 90 P.2d 9; Inkret v. C.M., St. P. P. Ry. Co., 86 P.2d 12; Highton v. Pa. Ry. Co., 1 A.2d 568; Murray v. Yazoo M.V. Ry. Co., 183 So. 262; Gilman v. Central Vt. Ry. Co., 107 A. 122. (2) The instruction erroneously submitted to the jury a question of law as to the duty of the defendants to maintain a watchman or warning light. Winslow v. M., K. T. Ry. Co., 192 S.W. 121; Brock v. C., R.I. P. Ry. Co., 305 Mo. 502, 266 S.W. 691; Macklin v. Fogel Constr. Co., 326 Mo. 38, 31 S.W.2d 14.
James A. De Armond and Frank W. Long for respondent.
When a railroad crossing is on account of surrounding circumstances or conditions especially dangerous, the company must exercise care commensurate with the danger. Elliott v. Mo. Pac. Ry. Co., 52 987 S.W.2d 451. There were special circumstances due to weather conditions in this case requiring special care upon the part of defendants, the omission of which were negligence. The blocking of the railroad crossing for an unlawful time, contrary to railroad regulation and established custom, on a foggy night, was a special hazard. There was negligence in failing to have a watchman or warning lights when the crossing was blocked contrary to railroad regulations as well as contrary to law. Contributory negligence under the facts in this case was a question for the jury. Poehler v. Lonsdale, 129 S.W.2d 59; Elliott v. Mo. Pac. Ry. Co., 52 S.W.2d 448; Roper v. Greenspon, 272 Mo. 288; Ross v. Hoffman, 269 S.W. 679. There was no negligence upon the part of the driver of the automobile.
This is an action for damages for personal injuries. The plaintiff was riding at night as a guest in an automobile along a street in Rich Hill. The driver of the automobile suddenly discovering the street was blocked by a flat car in one of defendant's trains turned sharply to avoid a collision and the automobile upset causing plaintiff's injuries. Plaintiff based his petition both on negligence for blocking the street without providing a warning and on the violation of the statute for the unlawful blocking of the street. To support the latter charge he alleged that Rich Hill is a city of less than 10,000 inhabitants and that the flat car blocked the public street for more than five minutes. However, in submitting his case to the jury in his main instruction he first submitted the abstract statement of law that if, under the conditions of the statute, which were set out, the flat car blocked the street for more than five minutes such act was unlawful. Then the instruction proceeded to submit the facts of the blocking of the street by the flat car, the conditions present as to the crossing, the lack of warning and authorized the jury to find if the defendant was negligent in not giving a warning it could find for the plaintiff. The jury returned a verdict for $1,000 in his favor.
Appellant has properly challenged the constitutionality of the blocking statute, thereby giving this court jurisdiction. Section 4830, R.S. 1929, Mo. Stat. Ann., p. 2200, makes it a misdemeanor for a railroad to block any public crossing for more than five minutes anywhere in the state except in cities and towns of more than 10,000 inhabitants. No provision is made for the latter. Otherwise the statute is of state-wide application.
The common law condemns as a public nuisance any unauthorized or unreasonable obstruction of a highway which necessarily impedes or incommodes its use by the travelling public. It made indictable such a disturbance of the public convenience or safety. [State v. Campbell, 80 Mo. App. 110.] And so a railroad was subject to indictment at common law if it permitted a train of cars to obstruct a highway for an unreasonable length of time. [Southern Ry. Co. v. State, 141 Tenn. 133, 207 S.W. 724.] "The accommodation of public travel, for which the ways have been provided and are maintained, requires that at grade crossings travelers shall not be subjected to prolonged delays arising from their occupancy by the cars or engines of a railroad company." [Com. of Mass. v. N.Y.C. H. Railroad Co., 202 Mass. 394, 88 N.E. 764, 23 L.R.A. (N.S.) 350.]
It has been held that a Missouri Statute providing punishment for anyone obstructing a road in a specific manner created no new offense but merely enlarged an offense at common law. [State v. Turner, 21 Mo. App. 324.] The statute under consideration attempts to do the same thing. It has set a limit on the length of time, five minutes, a railroad company may lawfully obstruct a highway, and has made it a crime to exceed that period. The propriety of this part of the statute is not questioned. It is that provision which limits the application of the act to all parts of the State including cities and towns up to 10,000 inhabitants and in effect excludes larger cities, that is challenged as being a special law and contrary to Section 53 of Article IV of the Constitution.
By following the rule of favorable construction in upholding this statute we would be required to find it is based on reasonable and just considerations in making the same act a crime in some parts of the State and not in others of different population. We cannot do so. We find no purpose which is reasonable or just for exempting from the statute cities of over 10,000 inhabitants. Such classification is purely arbitrary. In fact communities of denser population where, for that very reason, travel is heavier and traffic more complex have even a greater demand that its streets and highways be kept open and unobstructed. The heavier the traffic, the greater the need that it be mobile and not subject to long interruption and interference. Where germane to the general purpose of the act, population is a proper basis for classification but in this case those localities which most properly might have been included within the terms of the act, are the very ones which have been left out. There is no real distinction with reference to the purpose of the act between those localities included and those excluded. The statute therefore comes under the constitutional ban of special legislation and is void. [See Ex parte French, 315 Mo. 75, 285 S.W. 513.]
There is even a stronger reason why this statute is void. It is criminal statute. It offends the rule fixed by a line of cases which declares that under our Constitution the Legislature may not enact a law making the same act a crime if committed in one locality and not punishable if committed in another. We found in State v. Gregori, 318 Mo. 998, 2 S.W.2d 747, that a difference in population should not make an act a criminal offense in one place and not in another. In State v. Walsh, 136 Mo. 400, 37 S.W. 1112, it was held that a law which made it a crime to bet on a horse race any place except within the enclosure of a regular race course violated Section 53, Article IV of the Constitution. This decision was approved in State v. Thomas, 138 Mo. 95, 39 S.W. 481, and was properly distinguished in State v. Thompson, 160 Mo. 333, 60 S.W. 1077, 54 L.R.A. 950, which although it upheld a similar statute did so on a different theory because that statute was different to the extent that it included a licensing feature. We have also held that under our Constitution it is not permissible to punish the same offense or violation of some public or general law by one species of punishment in one locality and by a different or more severe punishment in another locality. [State v. Buchardt, 144 Mo. 83, 46 S.W. 150. See also State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 S.W.2d 319.]
There are cases in this State where criminal statutes applicable only to a specified class of persons have been upheld where the classification was reasonable, followed natural lines and included all persons within the class. [State v. Gregory, 170 Mo. 598, 71 S.W. 170; State v. Gritzner, 134 Mo. 512, 36 S.W. 39.] For the reasons already stated and the facts here involved the ruling of these cases is not apposite here.
It follows since the statute is unconstitutional it was a misstatement to tell the jury that if the train blocked the crossing for more than five minutes such act was unlawful. It is true that the violation of the statute was not submitted to the jury as the proximate cause of the injury. Had this been done it would have been error in view of the illegality of the statute. Whether the violation of a lawful statute under these circumstances may be advanced as the proximate cause of the injury presents a dispute in which we need not join. It is also true that an instruction which contains an abstract statement of law, correctly stated, though it makes the instruction erroneous, will not form the basis for reversal. [McGrew v. Mo. Pac. Ry. Co., 109 Mo. 582, 19 S.W. 53.] But an instruction which incorrectly states the law is obviously ground for reversal. Otherwise, plaintiff's instruction is not subject to the attacks made upon it. On retrial, it may be drawn in a form which will avoid any objection.
Appellant makes the further contention that the court erred in submitting the case to the jury because there were no special conditions or circumstances peculiar to the crossing which made it so unusually hazardous as to require the maintenance of a watchman or warning light. It is not denied that there was no warning of any kind of the presence of the car except the car itself. Where special conditions create unusual hazards at a crossing some warning to travelers of the approach or presence of a train at the crossing may be required in the exercise of ordinary care. This is so for the reason a train may not be seen in time to prevent a collision because of such peculiar conditions. [Poehler v. Lonsdale (Mo. App.), 129 990 S.W.2d 59; Elliott v. Mo. Pac. Railroad Co., 227 Mo. App. 225, 52 S.W.2d 448; Roshel v. Litchfield M. Ry. Co. (Mo. App.), 112 S.W.2d 876; Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W.2d 617; Toeneboehn v. St. L. S.F. Ry. Co., 317 Mo. 1096, 298 S.W. 795.] Testimony in behalf of plaintiff shows that the flat car which blocked the street saddled it squarely so that only the narrow edge of the platform of the car would be visible to persons coming along the street; the car was not in motion, but was at rest and silent; the crossing was unlighted on the side plaintiff was approaching; a box car standing on an adjoining track also blocked the view; the street was a heavily traveled one in Rich Hill; the surface of the street inclined down to the tracks which tilted the beam of the headlights away from the edge of the platform of the car; a light fog or mist reduced visibility to a slight degree. Under these circumstances we believe the trial court properly submitted the case to the jury.
The plaintiff was obliged to exercise only ordinary care for his own safety. The decision in Fitzpatrick v. The Kansas City So. Ry. Co., 347 Mo. 57, 146 S.W.2d 560, by DALTON, C., considered contemporaneously herewith, involving somewhat similar facts is not pertinent. That decision turns on the contributory negligence, as a matter of law, of the driver of the automobile who was obliged to exercise the highest degree of care.
Because of the conclusions above stated the judgment is reversed and the cause remanded for retrial. All concur.