Shaw v. Chicago
Citation | 282 S.W. 416 |
Decision Date | 12 March 1926 |
Docket Number | No. 25124.,25124. |
Court | United States State Supreme Court of Missouri |
Parties | SHAW v. CHICAGO & A. R. CO. |
Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.
Action under the federal Employers' Liability Act by Effie Shaw, administratrix of the estate of John D. Shaw, deceased, against the Chicago & Alton Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Roger S. Miller and Charles M. Miller, both of Kansas City, for appellant.
J. Vernet Jones, of Slater, and Harry R. Freeman and Madden & Madden, all of Kansas City, for respondent.
Action for death of the husband, occasioned by the alleged negligence the defendant.
It is not seriously contended that deceased, at the time of his accident and death, was not engaged in interstate commerce. The action is brought under the Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). The deceased and his family lived at Roodhouse, Greene county, Ill. Deceased was switchman employed in defendant's yards at Roodhouse. Plaintiff; the wife of the deceased, was appointed administratrix of his estate by the proper court in Greene county, Ill. One line of defendant's road was operated from Roodhouse, in Greene county, Ill., across Missouri, and into Jackson county, Mo., in which latter county this suit was brought. The plaintiff sues as administratrix for and in behalf of herself, and a minor son, who was born a few days after Shaw met his death. The negligence is thus stated in the petition:
The action was for $75,000. Upon a former trial, plaintiff had verdict for $35,000, but this verdict was set aside for reasons not pertinent here:
The defendant first filed a motion to dismiss the proceedings, the particulars of which will be discussed in the opinion. It suffices to say that the motion was overruled, and defendant answered over.
The answer is: (1) Plea of contributory negligence; (2) assumption of risk; and (3) a renewal in the answer of the grounds upon which the motion to dismiss was predicated, and a prayer asking a dismissal of the proceeding, with other legal relief. Reply was general denial.
Upon the second trial, from the judgment therein this appeal was taken, the verdict and judgment was in for plaintiff in the sum of $25,000.
There is no separate assignment of errors in the brief. Assignments of errors and points and authorities are joined in one. As to this it must be said that the points made assign in specific terms alleged trial errors. These assignments will be left to the opinion. What we have stated is a general outline of the case.
I. The motion to dismiss, which was repleaded by way of answer, urges that both plaintiff and defendant are residents of Illinois; that the cause of action arose in Illinois; that to try the cause in Missouri meant the bringing of witnesses from a great distance; that the trial of such causes originating as this is an imposition upon our courts, and imposition upon the taxpayers of Jackson county, the place of trial; that such a trial would require the taking of depositions and the inconvenience and expense of getting witnesses, all to the great prejudice of the defendant. This point is fully covered by our very recent case of Wells v. Davis, 261 S. W. 58, 303 Mo. 388. The discussion there is so full and so recent that we will not rehash the subject, except to emphasize the fact that a cause of action given by the federal government, and made enforceable in the state courts, as are cases under the Employers' Liability Act, such a law is not one of a foreign country, but is one which fairly comes within the terms of section 1163, R. S. 1919, relative to our practice in this state. It is a part of the law in every state. See, also, State ex rel. v. Hoffman (Mo. Sup.) 274 S. W. 362. The motion to dismiss was properly overruled, and that portion of the answer properly ignored by the trial court.
As stated above, there was evidence tending to prove the negligence charged in the petition, and we find nowhere a challenge to the sufficiency of the petition to state actionable negligence. The sufficiency of the petition to charge actionable negligence is not even attacked in this court. The portions of the petition which are pertinent we have fully set out in our statement.
As in all cases of this kind, the evidence for plaintiff and defendant is conflicting. There is some conflict in this case, but it was for the jury to reconcile such conflict, and determine the facts. This the jury has done. For the determination of this particular point it will only be necessary for us to give the facts shown by plaintiff, and then determine whether or not they show actionable negligence.
The husband (deceased) of plaintiff was a switchman in the switchyards of defendant at Roodhouse, Ill. The switch crew to which John D. Shaw (deceased) belonged, and with which he was working, was composed of Charles R. Smock, as foreman of the crew, E. 0. Vineyard, engineer, William Cardwell, fireman of the engine, John D. Shaw, and Frank England. Joe Whitworth was the assistant yardmaster, and gave the orders to Smock for the switching to be done that night. The crew went on duty at midnight, and Shaw was run over and killed 20 minutes later. Whitworth had charge of business in the north yard more particularly. There were three adjoining yards at Roodhouse all having a general direction of from south to north. The stockyards were to the northwest. A train of dead freight had come in from Missouri (west of Roodhouse), and this switch crew was to take out and add to cars from this train, in making up a new train to go north and east from Roodhouse. They also had to take off the caboose and put it upon the caboose track, and get another caboose for the train that they were making up. This switching crew went to the roundhouse to get a switch engine for their work, and when...
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