Lavender v. Kurn
| Decision Date | 10 June 1946 |
| Docket Number | 39174 |
| Parties | Walter 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 |
| Court | Missouri Supreme Court |
Rehearing Denied July 8, 1946.
Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.
Reversed and remanded.
M G. Roberts, E. G. Nahler, A. P. Stewart and C. H. Skinker, Jr., for appellants J. M. Kurn et al., Trustees.
Watts & Gentry for appellant Illinois Central Railroad Company; John W. Freels of counsel.
N. Murry Edwards, James A. Waechter and Douglas H. Jones for respondent Walter A. Lavender, Admr.
Bradley, C. Dalton and Van Osdol, CC., concur.
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.
June 4, 1945, we handed down an opinion in this cause reversing outright the judgment on the ground that plaintiff failed to make a submissible case against either defendant. See Lavender v. Kurn et al., 354 Mo. 196, 189 S.W.2d 253. The supreme court of the United States granted certiorari and held that plaintiff made a submissible case against both defendants and that such was so without consideration of the evidence admitted on the theory that it was competent under the res gestae rule. See infra. Our judgment was reversed by the United States Supreme Court and the cause remanded for further proceedings "not inconsistent" with the opinion by the supreme court. See Lavender v. Kurn et al., 66 S.Ct. 740, 90 L.Ed. 692. The cause was reargued here, but no additional briefs were filed.
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 swinging out from the side of a Frisco mail car while the train was backing on to a switch track lined by Haney. The United States supreme court, as stated, held that plaintiff, without consideration of what we may term the res gestae evidence, made a submissible case and we are bound by the ruling of the supreme court in cases arising under the Federal Employers' Liability Act. Arnold v. Scandrett et al., 345 Mo. 115, 131 S.W.2d 542, l.c. 544, and cases there cited. The questions not ruled by the supreme court are on the admission of evidence and on an alleged excessive verdict.
In order to accommodate the reader we here make a brief statement of the facts. For complete statement we make reference to our former opinion. 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 Memphis 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 track. There was a Frisco switchstand about 200 or 250 feet west of Haney's shanty and on the north side of the mainline Frisco track, by which switch the tracks were so lined that a train could back into the Grand Central Station. In order to reach the Grand Central Station the Frisco train moved west on its mainline track until the rear passed this switchstand, and then Haney lined the switch so the train could back into the station.
The Frisco train started up from the point where it had stopped east of the Illinois Central tracks, moved west until its rear was 20 or 30 feet west of this switch; Haney then lined the switch and the train backed east to the switch and there entered the track which turned north to the station. It was Haney's duty to close the switch when the train cleared, then return to his shanty and give the green light to any train that wanted to cross the Frisco tracks. The Frisco train cleared the switch backing into the station, but the red lights at Haney's shanty remained on. Investigation was made and Haney was found unconscious on the north side of the Frisco mainline track and 14 feet west of the switch with a wound in the back of his head. An ambulance was called, but he was dead when the ambulance arrived at the hospital.
The questions based on the admission of evidence pertain to the evidence of plaintiff's witness Drashman and to the cross examination of defendants' witness Mee. Drashman was coach foreman of the Frisco. It may be said that he testified that he went to the place of Haney's injury with the Frisco superintendent of terminals and before Haney was removed, and while there an Illinois Central switchman (not identified) told him (Drashman) that Haney "was supposed to have been struck by something protruding on the side of the (Frisco) train." Plaintiff contends, as stated, that the evidence of Drashman was competent under the rule of res gestae, and as stated, such is the theory upon which the evidence was admitted. In our former opinion we ruled that this evidence was incompetent. In ruling the point we said [189 S.W.2d l.c. 258]:
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State ex rel. Southern Ry. Co. v. Mayfield
... ... 56; Douglas v. New Haven R. Co., 279 ... U.S. 377, 49 S.Ct. 355; Chesapeake & O. Ry. Co. v ... Kuhn, 284 U.S. 44, 52 S.Ct. 45; Lavender v ... Kurn, 355 Mo. 168, 195 S.W.2d 460, certiorari denied 329 ... U.S. 762, 67 S.Ct. 111; Jenkins v. Kurn, 348 Mo ... 942, 156 S.W.2d 668, ... ...
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