Gandy v. St. Louis-San Francisco Ry. Co.

• Decision Date: 21 December 1931
• Docket Number: 29745
• Citation: 44 S.W.2d 634,329 Mo. 459
• Parties: Chester Gandy v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

44 S.W.2d 634

329 Mo. 459

Chester Gandy v. St. Louis-San Francisco Railway Company, Appellant

No. 29745

Supreme Court of Missouri

December 21, 1931

Appeal from Lawrence Circuit Court; Hon. Charles L. Henson Judge.

Reversed and remanded.

E T. Miller and Mann, Mann & Miller for appellant.

(1) Plaintiff was not, when injured, engaged in interstate commerce. Poindexter v. Ry. Co., 319 Mo. 285, 4 S.W.2d 1067; Martin v. Ry. Co., 258 S.W. 1027; Shanberger v. Ry. Co., 25 F.2d 298; Illinois Central Ry. Co. v. Behrens, 233 U.S. 473; Erie Ry Co. v. Welch, 242 U.S. 303; Illinois Central Ry. Co. v. Peery, 242 U.S. 292; Delaware, L. & W. Ry. Co. v. Peck, 255 F. 262; Koziusko v. Hines, 267 F. 507; Southern Ry. Co. v. Pitchford, 253 F. 736; Grigsby v. Ry. Co., 3 F.2d 988; Chunes v. Ry. Co., 292 F. 157; Mayor v. Ry. Co., 26 F.2d 905. (2) Plaintiff's Instruction 2 was error. This instruction submitted two theories upon proof of either of which the jury was authorized to return a verdict for plaintiff. These two propositions were submitted in the disjunctive, separated by the word "or." (a) It was error to submit the first theory because, first, it was not within the pleadings, and, second, the jury would not be warranted in finding the defendant guilty of negligence because of the mere adoption of a custom to have a coemployee watch for and warn the employee under the car, instead of using a blue flag. The instruction assumes that if such was the custom and orders of the foreman, that it was a negligent custom and practice, and without proof of any other fact it would warrant a verdict for plaintiff. Where the jury is permitted by an instruction to find a verdict for plaintiff on either of two specifications of negligence, as to one of which the evidence is insufficient to support the verdict, the judgment must be reversed and remanded. Kuhn v. Lusk, 281 Mo. 342; Morris v. Manufacturing Co., 243 S.W. 426. (b) The instruction is further erroneous in that it authorizes the jury to return a verdict for the plaintiff, if Nichols knew, or by the exercise of ordinary care could have known that the cars were coming in on track 13 and were about to strike the car under which plaintiff was working, in time for him to have signaled the switchman moving the cars, or in time to have warned plaintiff so that he could get out of danger, and that he failed to do either of these. The failure to warn the switchman would not be actionable negligence, unless the jury found that the switchman would have received the warning in time thereafter to have stopped the engine and cars attached thereto before they struck and moved the car under which plaintiff was working. In other words, the failure to warn is not actionable negligence, unless, had the warning been given, the accident would not have occurred. Sullivan v. Ry. Co., 297 S.W. 950; State ex rel. Boeving Co. v. Cox, 310 Mo. 367, 276 S.W. 871. The instruction assumes and nowhere requires the jury to find that had Nichols warned the switchman the latter would thereafter have had time to have relayed a signal to the engineer, who thereafter could, by the exercise of ordinary care, have stopped the cars before injuring plaintiff, a fact without proof of which Nichols' failure to warn would not be actionable negligence. State ex rel. Wabash Ry. Co. v. Bland, 313 Mo. 246, 281 S.W. 692.

Sizer & Gardner for respondent.

(1) Plaintiff's work was interstate in character, but in submitting his case, it was not necessary for plaintiff to prove beyond doubt that he was so engaged at the time he was injured. If the evidence reasonably shows or will support a reasonable inference that plaintiff was engaged in interstate work, or his work was so closely related thereto as to be practically a part thereof, then the testimony meets the law's requirements. It need not show such fact to be a certainty. Berry v. Railroad, 26 S.W.2d 993; Soeder v. Railroad, 100 Mo. 680; Leeright v. Ahrens, 60 Mo.App. 120; Shinn v. Tucker, 37 Ark. 589. (a) Such proof may be made either by direct evidence or by reasonable inferences from the facts or testimony in the case. Helton v. Hawkins, 221 Mo.App. 101; Eckhardt v. Electric Mfg. Co., 235 S.W. 117; Stratton v. Barnum, 263 S.W. 477; Gerber v. Kansas City, 663 S.W. 432; Daily v. Pryor, 197 Mo.App. 586. (b) The question of whether or not plaintiff was engaged in interstate commerce in this case was a jury question. It has many times been held error to instruct a jury that the evidence of any necessary fact must be sufficient to convince or satisfy them. Allison v. Corson, 88 F. 585; Railroad v. Burgess, 25 So. 251; Murphy v. Waterhouse, 45 P. 866; French v. Day, 36 A. 909; Berry v. Railroad, 26 S.W.2d 993. (c) This cut or transfer was being inspected as a unit, had not been broken up and segregated, and it was not necessary for plaintiff to show that the particular car upon which he was working was then engaged in interstate commerce. Poindexter v. Railroad, 4 S.W.2d 1067. (d) If the transfer or cut of cars contained any car in interstate transit, then plaintiff's work of inspecting and checking was a work of interstate commerce. Poindexter v. Railroad, supra; Midwest Natl. Bank & Trust Co. v. Davis, 288 Mo. 563; Kepner v. Railroad, 15 S.W.2d 825; Hines v. Logan, 269 F. 105; McKay v. Railroad, 44 F.2d 150; Railroad v. Boktor, 290 F. 760; Railroad v. Industrial Acc. Comm., 175 P. 453; Patterson v. Railroad, 131 A. 484; Director General v. Bennett, 268 F. 767; Denison v. Payne, 293 F. 339; Railroad v. Jolly, Admr., 23 S.W.2d 570; Railroad v. Seals, 229 U.S. 156, 57 L.Ed. 1129. (2) Instruction 2 was a correct declaration of law under the facts of this case. The instructions should be considered together and if when so considered they properly declare the law, no ground for complaint exists. Harrington v. Sedalia, 98 Mo. 583; Railroad v. Stewart, 201 Mo. 491. (a) Only one ground of negligence was submitted by Instruction 2, that is failure to warn. Young v. Lusk, 268 Mo. 625, 638; Hock v. Railroad, 315 Mo. 1208; State ex rel. Kroger Gro. & Bak. Co. v. Haid, 18 S.W.2d 480. (b) A rule of the master or a custom developed in the course of business, to warn with respect to moving cars when danger impends, cast such duty upon the master, and consequent liability for his failure. State v. Haid, supra, 480; Johnson v. Brick & Coal Co., 276 Mo. 42; Gettys v. Am. Car & Foundry Co., 16 S.W.2d 85. (c) Instruction 11, given at the request of appellant, should be construed with Instruction 2, relating to the same subject. Deschner v. Railroad, 200 Mo. 333.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for personal injuries under the Federal Employers' Liability Act (45 U.S.C. A., secs. 51-59). Plaintiff obtained judgment for $ 30,000, from which defendant has appealed.

Plaintiff was injured while working in defendant's yards in Rosedale, Kansas. In these yards there was a lead track which came in, in a southeasterly direction, on a curve bearing to the south. Switch tracks 11, 12 and 13 ran from this lead track to the southwest. These tracks curved at the north end with the curve of the lead track. They were used to receive deliveries of cars from the Union Pacific Railway. The yards of the Union Pacific were nearby, and freight cars, which that railroad desired to deliver to defendant railroad, were frequently brought in over the lead track and switched onto one of these side tracks. Cars brought from the Union Pacific yards to defendant's Rosedale yards, crossed the Missouri-Kansas state line.

On the day plaintiff was injured a string or cut of twenty-five or thirty cars, coupled together, were brought from the Union Pacific yards to defendant's yards and switched on to track 13. The north car of the string was from a half a quarter to a quarter of a mile southwest of the lead track. It was not shown how many of these cars were loaded, nor what was the destination of each. There was evidence that they were mostly loaded; that some of them were to go to Fort Scott, Kansas, Springfield, Missouri, points in Oklahoma and other southern states; that some were empty cars being returned to defendant; and that others were to be delivered to industries in or near Rosedale for loading or unloading. Plaintiff was an oiler and light repair man. He had a co-employee, Nichols, called his buddy, with whom he worked. Their duties were to pack and oil the boxes on the cars and make light repairs. It was their duty to commence this work as soon as a cut of cars was delivered to the tracks on which they worked in defendant's yard. At the time they were doing this work there were also inspectors inspecting the cars for other purposes. Some times the inspectors and oilers would commence work at the same end of the string of cars and at other times they would commence at opposite ends, depending, mainly, on where they were when the cars were brought in. After the cars were inspected, oiled and light repairs completed, the string was to be broken up, by switching crews, and the cars put into trains, which were being made up, or placed on other tracks for unloading or storage.

The defendant had promulgated a rule known as "the Blue Flag rule," which required that a blue flag by day and a blue light by night be placed on the track or at the end of a car, engine or train, when workmen were at work under or about it, and required employees to place such a blue signal before working at such places. The moving of any such car, engine or train, until the blue signal was removed by the person placing it, was prohibited. Plaintiff had worked in defendant's yards in Kansas City, Missouri, before coming to the Rosedale yards and had signed for a copy of this rule there. Plaintiff's evidence, however, was...