Lavender v. Kurn

Decision Date04 June 1945
Docket Number39174
PartiesWalter A. Lavender, Administrator de bonis non of the Estate of L. E. Haney, Deceased, v. J. M. Kurn et al., Trustees of St. Louis-San Francisco Railway Company, Debtor, and Illinois Central Railway Company, Appellants
CourtMissouri Supreme Court

Rehearing Denied July 2, 1945. Motion to Modify Overruled September 4, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed.

M G. Roberts, E. G. Nahler, A. P. Stewart and C. H. Skinker, Jr., for appellants J. M. Kurn et al., Trustees.

(1) The evidence was insufficient to show that there was a rod or other object projecting or swinging out beyond the side of said passenger train or that any such object struck Haney, except by resorting to speculation and conjecture. Hamilton v. St. L.-S.F. Ry. Co., 318 Mo. 123, 300 S.W. 787; Mullen v. Lowden, 344 Mo. 40, 124 S.W.2d 1152; Carnahan v. M.-K.-T. Ry. Co., 338 Mo. 23, 88 S.W.2d 1027; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511; A., T. & S.F. Ry. Co. v. Toops, 281 U.S. 351; Kansas City So. Ry. v. Jones, 276 U.S. 303; C., M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; Penn. R. Co. v. Chamberlain, 288 U.S. 333; N.Y.C.R. Co. v. Ambrose, 280 U.S. 486; Brady v. Southern Ry. Co., 320 U.S. 476. (2) The court erred in admitting, over the objections of trustee defendants, the hearsay testimony of the witness Drashman concerning statements which he said he heard made by an unknown person at the point where Haney had been fatally injured, and again erred in refusing to give Instruction lettered "C," requested by trustee defendants, withdrawing such testimony from the consideration of the jury. Wigmore on Evidence (3 Ed.), sec. 1571; Barker v. St. L., I.M. & S. Ry. Co., 126 Mo. 143, 28 S.W. 866; Redmon v. Met. St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Ruschenberg v. So. Elec. Ry. Co., 161 Mo. 70, 61 S.W. 626; State ex rel. Bankers Life Ins. Co. v. Reynolds, 277 Mo. 14, 208 S.W. 618; Landau v. Travelers Ins. Co., 305 Mo. 563, 267 S.W. 376; Woods v. So. Ry. Co., 73 S.W.2d 374; Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777; Johnson v. So. Ry. Co., 351 Mo. 1110, 175 S.W.2d 802; 32 C.J., sec. 410, p. 24; Beck v. Dye, 92 P.2d 1113; Hines v. Patterson, 225 S.W. 642; Tex. Int. Ry. Co. v. Hughes, 53 S.W.2d 448.

Watts & Gentry for appellant Illinois Central Railroad Company; John W. Freels of counsel.

(1) The statements of an unknown man in the group gathered at the scene of the accident some time after it occurred, which the trial court permitted a witness for plaintiff to repeat, did not meet the requirements of the rule relating to admitting statements as part of the res gestae, and, therefore, constituted no substantial evidence whatever as to the way in which Haney was fatally injured. There was no other evidence to show how he was injured; hence the demurrer to the evidence should have been sustained. Wigmore on Evidence (3 Ed.), sec. 1751; Barker v. St. L., I.M. & S. Ry. Co., 126 Mo. 143; Redmon v. Met. St. Ry. Co., 185 Mo. 1; Ruschenberg v. So. Elec. Ry. Co., 161 Mo. 70; Bankers' Life Ins. Co. v. Reynolds, 277 Mo. 14; Landau v. Travelers Ins. Co., 276 S.W. 376; 4 Chamberlayne on Ev., 2893; 3 Wigmore on Evidence (2 Ed.), sec. 1747; Woods v. So. Ry. Co., 77 S.W.2d 374; 22 C.J. 462, sec. 550; Sconce v. Jones, 121 S.W.2d 777; Johnson v. So. Ry., 175 S.W.2d 802; 32 C.J., sec. 410, p. 24; Beck v. Dye, 92 P.2d 1113; Schuman v. Bader & Co., 227 Ill.App. 28; Hines v. Patterson, 225 S.W. 642; Tex. Int. Ry. Co. v. Hughes, 53 S.W.2d 448. (2) Even if it could be said that plaintiff's evidence tended to show that some object protruding from or swinging from the train struck Haney, or that his death was just as probably due to another cause, but the evidence failed to point clearly to the true cause of his death, such evidence would not be enough to justify submitting the case to the jury. Hamilton v. St. L. & S.F. Ry. Co., 300 S.W. 787; Bates v. Brown Shoe Co., 116 S.W.2d 31; Pape v. Aetna Cas. Co., 150 S.W.2d 669; Lappin v. Prebe, 131 S.W.2d 511; Penn. R. Co. v. Chamberlain, 55 S.Ct. 198; N.Y.C.R. Co. v. Ambrose, 50 S.Ct. 472; C., M. & St. P.R. Co., v. Coogan, 271 U.S. 472; Patton v. Tex. & Pac. Ry. Co., 179 U.S. 658; C. & O. Ry. Co. v. Stapleton, 299 U.S. 587, 53 S.Ct. 591. (3) Even if the evidence had shown that Haney's death resulted from being struck by an object projecting or swinging from the Frisco train, the accident would have been so unusual that it could not reasonably have been foreseen by a reasonably prudent person in the exercise of ordinary care, and, for such an accident, a defendant is not liable. Hence, this appellant's demurrer should have been sustained. Urie v. Thompson, 176 S.W.2d 471; Brewing Assn. v. Talbot, 141 Mo. 674; State ex rel. v. Ellison, 271 Mo. 463; Nelson v. C. Heinz Stove Co., 8 S.W.2d 918.

N. Murry Edwards, James A. Waechter and Douglas H. Jones for respondent Walter A. Lavender, Admr.

(1) Circumstantial evidence was sufficient to sustain verdict that injury and death was caused by Haney being struck by a mail hook or catcher arm swinging loose from the side of the Frisco Mail Car as it passed Haney. Whittle v. Thompson, 179 S.W.2d 22; Evans v. Missouri Pac. R. Co., 342 Mo. 420, 116 S.W.2d 8; Noce v. St. Louis-S.F. Ry. Co., 337 Mo. 689, 85 S.W.2d 637; Hicks v. Pac. R. Co., 64 Mo. 430; Whitaker v. Pitcairn, 174 S.W.2d 163; Youngs v. M., K. & T.R. Co., 100 S.W.2d 929; Sibert v. Litchfield & M. Ry. Co., 159 S.W.2d 612; Benner v. Terminal Railroad Assn., 348 Mo. 928, 156 S.W.2d 657; Kelley v. St. Louis-S.F. Ry. Co., 219 Mo.App. 543, 282 S.W. 480; Burns v. Railroad, 176 Mo.App. 330; Chapman v. Davis, 287 S.W. 832; Scott v. Davis, 216 Mo.App. 530, 270 S.W. 433. (2) Statement of Illinois Central switchman that Haney was struck by something protruding from the side of the Frisco train was admissible as res gestae. Statements of strangers ordinarily classed as hearsay will be admitted as res gestae if they are made as a part of the transaction and so closely connected therewith that the witness has no time to reflect or to make up a story that is not true. Discretion of trial court in admitting statement should be upheld on appeal. Roach v. Kansas City Pub. Serv. Co., 141 S.W.2d 800; Pryor v. Payne, 304 Mo. 560, 263 S.W. 982; Demaray v. M., K. & T.R. Co., 330 Mo. 589, 50 S.W.2d 127, certiorari denied 53 S.Ct. 20, 287 U.S. 620; Brinkley v. United Biscuit Co., 349 Mo. 1227, 164 S.W.2d 325; State ex rel. S.S. Kresge Co. v. Shain, 101 S.W.2d 14; Edwards v. Ethyl Gasoline Corp., 342 Mo. 98, 112 S.W.2d 555; Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413; Lynch v. M., K. & T.R. Co., 333 Mo. 89, 61 S.W.2d 918; Beeson v. Fleming, 315 Mo. 177, 285 S.W. 708; Smith v. Trimble, 285 S.W. 729; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678; Smith v. Southern Ill. Bridge Co., 326 Mo. 109, 30 S.W.2d 1078; Rosenzsweig v. Wells, 308 Mo. 617, 273 S.W. 1071; Rooker v. Deering S.W. Ry. Co., 247 S.W. 1016; Kuether v. Kansas City L. & P. Co., 276 S.W. 105; Goucher v. Woodmen Accident Co. of Lincoln, Neb., 231 Mo.App. 573, 104 S.W.2d 289; State v. Kaiser, 124 Mo 651, 28 S.W. 182; Soderstrom v. Mo. Pac. R. Co., 141 S.W.2d 73; Sculley v. Rowling, 88 S.W.2d 394; May v. Chicago, B. & Q.R. Co., 225 S.W. 660; Bennette v. Hader, 337 Mo. 997, 87 S.W.2d 413; Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION
BRADLEY

Action under the Federal Employers' Liability Act, 45 U.S.C.A., Secs. 51 et seq., to recover damages for the death of L. E. Haney. Verdict and judgment for $ 30,000 went for plaintiff and defendants appealed.

Haney was a switch tender in the railroad yards of Memphis Tennessee, and was killed, while on duty, December 21, 1939, about 7:30 p.m. by being struck in the back of the head by some object. If deceased was an employee of defendants, then it is conceded the cause is properly under the Federal Employers' Liability Act.

Error is assigned (1) on the refusal of a demurrer to the evidence; (2) on the admission of evidence; (3) on giving plaintiff's instruction No. 2 and refusing defendant trustees' instruction C; and (4) on an alleged excessive verdict. One phase of the alleged incompetent evidence is of importance in connection with the demurrer as we shall see.

It was plaintiff's theory that Haney was the employee of the trustee defendants and the Illinois Central, and that his death was caused by being struck by a mail hook or mail catcher arm, hereinafter for the most part, referred to as the mail hook, swinging out from the side of a Frisco mail car. Defendants contend that there was no substantial competent evidence to support such theory, and it is contended that Haney was not the employee of the Frisco trustees or of the Illinois Central, but was the employee of the Yazoo & Mississippi Valley Railroad Company. The demurrer raises two questions: Was there substantial competent evidence that Haney was struck by the mail hook? and, Was there substantial evidence that Haney was the employee of defendants?

The Frisco train involved was a passenger train, consisting of 12 cars, made up of 3 baggage cars, 1 mail car which was next to the tender; other cars were Pullmans and chair cars. The train was from Birmingham, Alabama, and its destination was Kansas City, Missouri. The Frisco tracks in the yards extend east and west and the Illinois Central tracks extend north and south. The Frisco train approached from the east, but stopped east of the Illinois Central tracks. Haney's shanty (office) was west of the Illinois Central tracks, and north of the Frisco mainline track, on which the Frisco train approached from the east. The Illinois Central's Grand Central station was about 2700 feet north of the Frisco mainline...

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3 cases
  • Hartgrove v. Chicago, B. & Q. R. Co.
    • United States
    • Missouri Supreme Court
    • February 14, 1949
    ... ... Ellis v ... Union Pacific R. Co., 329 U.S. 649; Myers v. Reading ... Co., 331 U.S. 477; Fleming v. Kellett, 167 F.2d ... 265; Lavender v. Kurn, 354 Mo. 196, 189 S.W.2d 253 ... (2) The injury must be such as might reasonably be ... anticipated, and not one resulting from mere ... ...
  • Union Pac. R.R. Co. v. Estate of Gutierrez
    • United States
    • Texas Court of Appeals
    • August 21, 2014
    ... ... Id. In Lavender v. Kurn, a switchman died after being struck in the head while operating a switch in the defendant's rail yard. 327 U.S. 645, 648, 66 S.Ct. 740, ... ...
  • Lavender v. Kurn
    • United States
    • Missouri Supreme Court
    • June 10, 1946

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