Rashall v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 28 February 1913
• Citation: 155 S.W. 426,249 Mo. 509
• Court: Missouri Supreme Court
• Parties: RASHALL v. ST. LOUIS, I. M. & S. RY. CO.

155 S.W. 426

249 Mo. 509

RASHALL v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

February 28, 1913.

Rehearing Denied March 28, 1913.

Motion to Transfer to Court in Banc Denied April 8, 1913.

1. STATUTES (§ 281)—FOREIGN LAW—PLEADING.

A foreign law, which is the foundation of a cause of action or defense, must be pleaded, but a foreign law, which is only evidentiary, need not be pleaded to be proved.

2. EVIDENCE (§ 35)—FOREIGN LAW—JUDICIAL NOTICE.

A foreign law, which is the foundation of a cause of action or defense, or which is only evidentiary, must be proved, for the court will not take judicial cognizance of foreign laws.

3. EVIDENCE (§ 80)—PRESUMPTIONS—LAWS OF SISTER STATE—COMMON LAW.

Where the parties, in an action for injuries to an employé received in a sister state, stipulated that there was in the sister state no statute governing the relation of fellow servants, and the decisions of the sister state, declaratory of its common law, were not offered in evidence, the court must apply the common law of Missouri.

4. MASTER AND SERVANT (§ 261)—INJURY TO SERVANT — LAST CLEAR CHANCE — PLEADINGS.

A petition in an action for injuries to a railroad employé caught in a switch and there struck by a train, which alleges that the employé's foot was caught in a switch while walking over tracks in the performance of his duty, that he was run over by an engine, and that the trainmen saw, or by reasonable care might have seen, his peril and by ordinary care might have averted any injury, but negligently ran the train against him, states a cause of action involving the application of the doctrine of last clear chance.

5. RAILROADS (§ 390) — MASTER AND SERVANT (§ 248)—LAST CLEAR CHANCE—APPLICABILITY OF DOCTRINE.

The last clear chance doctrine, when invoked against a railroad company by one of the general public for an injury sustained at a place where the company had no right to expect a clear track, charges the trainmen with knowledge of what is actually seen, or what could be seen by proper care, while passing over the track, but, when invoked by one injured at a place where a clear track is to be expected or by an employé on the tracks, the rule does not make the company liable, unless the person injured was actually seen by the trainmen in a position of peril in time to stop the train by ordinary care and avoid the injury.

6. MASTER AND SERVANT (§ 296)—INJURIES TO SERVANT—EMPLOYÉS ON TRACK—EVIDENCE —INSTRUCTIONS—LAST CLEAR CHANCE.

Where, in an action for injuries to a railroad employé struck by a train while caught in a switch, the employé testified that the trainmen were at their places and showed that he was in a position of peril at a sufficient distance from the approaching train for the trainmen to have stopped it, and the trainmen testified that they did not see the employé in a position of peril, an instruction authorizing a recovery if the trainmen, by the exercise of reasonable care, might have seen the employé in a position of peril in time to have avoided the accident by the exercise of ordinary care was erroneous in its application of the doctrine of last clear chance.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by Harry Rashall against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff was employed as yard clerk at Bixby, Ill., where defendant's railroad yards contain 11 tracks connected by a "lead" with its main track, which is laid north and south at that station. The yard tracks are on the west side of the main track. On the 17th of July, 1907, plaintiff had been in the employ of defendant two months; his duties being, when a north-bound freight train arrived, to go on the yard tracks and check and record in a book the number and initials of each car of that train and then return to the office, which stood east of the main track, and get the proper way-bills for that train, and, from a comparison of them and the notations on his book, to make out cards for each car and to go back into the yards and affix these cards on the cars of that train, beginning at the north end and going south. Plaintiff testified: That on the morning of said day, after he had finished checking a few cars placed on the repair track, and while he was returning to the office, he heard an incoming north-bound train. That he went to the office, got his book, checked and carded that train, after which he heard another "one pull in," whereupon he went again to the office, got his book, and returned to the yards and checked this train, and then went to the office to make out proper cards, after which he went back on the yards and carded that last train, but found, when he got to the south end, that there was one car left over, so he went further south to look up that car and found it and carded it. That he did not remember on which one of the yard tracks this car stood, but knows it was on the west side of the main track at the south end, adding: "Well, when I got through carding that car I went back to the west end to get the footpath, because I could not get through because the cars were all along there. I did not want to climb over them cars or under them." That his intention was to go back to the office. That, while following the footpath, he heard a train which got ahead of him about two cars and slowed down. That he walked about 25 or 35 feet ahead of this train and then attempted to cross the track, when his foot caught right in the switch. That the train was moving about two miles an hour. That he waved his hands and "holloed to the fireman, and holloed and waved his hands." He also stated that it was a clear bright morning; that the engineer and fireman were at their places in the engine which came along and caught his left leg and left arm, throwing him back on his head; that the front part of the engine passed over and severed his two limbs; that his leg was cut entirely off and left in the switch, and his arm left hanging by a little bit of flesh; that he was taken to the office and from there to the hospital in East St. Louis, where amputations were performed the same morning; that he remained there about one month. At the time of the injury he wore a wide leather shoe, the whole of which was caught in the switch. The injury happened about eight feet and two inches in front of the switchboard connecting the "lead" from the yard tracks to the main track. The engine of the train was at the time about 52 feet north of this switch stand and was drawing 13 cars loaded with coal. The train was stopped when the plaintiff was between the engine proper and its tender. There was a footboard or platform at the front part of the engine. The plaintiff testifies that he seized this with his arms and tried to pull himself up at the moment the engine came upon him, but could not detach his foot. He further testified that he had never ridden on this platform, and that he did not throw the switch for this train. There was testimony tending to show that such a train, moving at two miles an hour, could have been stopped within 10 feet. On cross-examination one of defendant's witnesses (Patton) said that, in reply to an inquiry from some one, the plaintiff, at the time of the injury, stated "that he did not try to get on the footboard, but that his foot was caught." The defendant introduced a number of witnesses who testified that the plaintiff had ridden on the footboard attached to the pilot of this engine from the time the train left one of the yard tracks, and was riding on the same when it stopped before entering the main track over the switch where the accident occurred; that when it stopped the plaintiff got off the footboard, went to the switch and threw it open so that the train could come on the main track, and walked back towards the approaching train, and was injured in endeavoring to get on the footboard of the engine by some slip or mishap; and also by a number of witnesses that after the accident occurred, and when the trainmen were getting the plaintiff from the place where he was injured, he stated he did not know how the accident occurred; and by one witness that the plaintiff stated that he was trying to get on the footboard. The defendant also introduced two statements made by its witness Patton (which it was permitted to do on the ground that his testimony had surprised them) and signed by him contradictory of his statement on cross-examination as to the remark made by plaintiff at the time of the injury, and which further showed that Patton was the switchman on this engine and saw plaintiff throw the switch after alighting from the footboard of the engine, and that he (Patton) gave the signal for the train to go on, in obedience to which it began to move.

Plaintiff alleged as his cause of action that he was employed by defendant as yard clerk at...