Shaw v. Chicago

Citation282 S.W. 416
Decision Date12 March 1926
Docket NumberNo. 25124.,25124.
CourtUnited States State Supreme Court of Missouri
PartiesSHAW 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.

GRAVES, J.

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:

"Plaintiff further states that on or about the 24th day of May, 1020, John D. Shaw, deceased, was in the employ and service of defendant as a switchman at said yards in Roodhouse, Greene county, Ill., and was engaged with other employees of defendant in switching and their contents were shipped and moved from points outside the state of Illinois and were en route to points in the state of Illinois and other states; and that in handling said cars the defendant and John D. Shaw, deceased, were engaged in commerce between states.

"At the above-mentioned time, a switch engine was being backed over one of said switching tracks to connect with and switch interstate cars and shipments as aforesaid, and one Whitmore, acting as yardmaster and foreman and vice principal over the plaintiff, stepped upon the footboard of said moving engine at a point near where it was the duty of deceased to board said engine, and remained standing in that position, requiring deceased to step upon the track on which said engine was being operated to board same, and when said deceased was in the act of boarding said engine and stepping from the roadbed to the footboard of said engine, said Whitmore suddenly stepped to that part of the footboard where deceased was attempting to get on, striking his body against that of deceased, causing the latter to fall back to the ground and be run over by said switch engine, cutting off both his legs and injuring him internally, and as a direct result of said injuries he died several hours later on said date. "Said John D. Shaw was a strong and healthy man, 22 years of age, at the time of his death, and left surviving him Effie Shaw, his widow, age 18 years, and a few days after his death a son, John David Shaw, was born. Said Effie Shaw was entirely dependent upon deceased for her support and maintenance, and this action is brought for the benefit of said widow and child, who had a pecuniary interest in the life of deceased and by said death suffered and will suffer in the future the pecuniary loss of the society, consortium, maintenance, support, assistance, and contributions of said John D. Shaw, deceased, and said child will also suffer the pecuniary loss of his father's care, advice, counsel, and training.

"The injuries and death of said John D. Shaw, deceased, were due to and occasioned by the negligence of defendant, in that said Whitmore was negligent, in that after boarding said engine he remained standing at the end of the footboard where it was the duty of deceased to board the engine, and required deceased to step upon the tracks to board said engine, and said defendant was further negligent in that said Whitmore suddenly and without warning stepped towards the opposite end of said footboard and against the deceased, and prevented him getting upon said footboard when he was in the act of boarding said engine, causing deceased to fall and to be injured as aforesaid, and was further negligent in that he failed to warn deceased of his intention to change his position on said footboard. Said Whitmore knew, or in the exercise of ordinary care could have known, at the time he stepped and remained upon the end of the footboard, that it was the duty of John D. Shaw to board said engine, and that John D. Shaw was in a position to board same, and thereafter he also knew, or by the exercise of ordinary care could have known, that John D. Shaw was upon the track and in position to step upon the footboard prior to the time said Whitmore changed his position upon said footboard."

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.

II. The second assignment of negligence goes to the vitals of the case. The plaintiff had evidence tending to prove the issues of alleged negligence pleaded. No demurrer was lodged against this petition.. Notwithstanding this situation, the appellant urges as a second assignment of error that—

"No actionable negligence was proven against appellant, and the trial court erred in refusing appellant's peremptory instructions, for the reason that no actionable negligence was proven against appellant."

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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