Armstrong v. Mobile & O. R. Co.

• Decision Date: 31 December 1932
• Citation: 55 S.W.2d 460,331 Mo. 1224
• Parties: Margaret Armstrong, Administratrix of the Estate of William N. Armstrong, v. Mobile & Ohio Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

55 S.W.2d 460

331 Mo. 1224

Margaret Armstrong, Administratrix of the Estate of William N. Armstrong, v. Mobile & Ohio Railroad Company, a Corporation, Appellant

Supreme Court of Missouri

December 31, 1932

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Affirmed.

R P. & C. B. Williams for appellant; Carl Fox of counsel.

(1) The uncontradicted evidence shows that the deceased walked directly in front of moving engine 455, fully knowing it was approaching towards him, and placed himself between that engine and engine 480, fully knowing and appreciating the risk and danger of that action, and he, therefore, assumed the risk as a matter of law. Grand Trunk W. Railroad Co v. Reid, 42 F.2d 404; Martin v. Wabash Ry. Co., 30 S.W.2d 735; C. & O. Ry. Co. v. Kuhn, 52 S.Ct. 45; C. & O. Railroad Co. v. Leitch, 275 U.S. 429, 72 L.Ed. 638; So. Pac. Railroad Co. v. Berkshire, 254 U.S. 415, 65 L.Ed. 335; Toledo Railroad Co. v. Allen, 276 U.S. 167, 72 L.Ed. 513; Chesapeake & Ohio Railroad Co. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; Boldt v. Pennsylvania Railroad Co., 245 U.S. 441, 62 L.Ed. 385; Tuttle v. Detroit Railroad Co., 122 U.S. 189, 30 L.Ed. 1114; Randall v. Baltimore Railroad Co., 109 U.S. 480, 27 L.Ed. 1040; Reese v. Philadelphia Railroad Co., 239 U.S. 463, 60 L.Ed. 384; Delaware & L. Railroad Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202; Seabord Air Line Railroad Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062; St. Louis Railroad Co. v. Mills, 271 U.S. 344, 70 L.Ed. 979; Northern Railroad Co. v. Page, 274 U.S. 65, 71 L.Ed. 929; Osborne v. Chicago Ry. Co., 1 S.W.2d 181; Hoch v. St. Louis Ry. Co., 287 S.W. 1047; Quigley v. Railroad Co., 291 Mo. 23, 235 S.W. 1050; Reynolds v. N. Y. Railroad Co., 42 F.2d 164; Norfolk Railroad Co. v. Kratzer, 37 F.2d 522; Slocumb v. Erie Railroad Co., 37 F.2d 42; Pennsylvania Railroad Co. v. Hammond, 7 F.2d 1010; Pennsylvania Railroad Co. v. Lutton, 29 F.2d 689; Norfolk Railroad Co. v. Collingsworth, 32 F.2d 561. (2) The evidence indisputably shows that the deceased was fully aware that engine 455 was backing on the cinder track when he undertook to cross it and get upon engine 480, and that it would surely pass dangerously near the latter. Warning, therefore, with such complete knowledge, would not have been useful to deceased and there was no duty to give it. Aerkfetz v. Humphreys, 145 U.S. 418, 36 L.Ed. 756; Martin v. Wabash Railroad, 30 S.W.2d 735; Ingram v. M. & O. Railroad Co., 30 S.W.2d 989; Toledo Railroad Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177; N. Y. Railroad Co. v. Oles, 296 F. 474; Hines, Dir. Genl. v. Kersheimer, Admr., 198 Ky. 580, 249 S.W. 1001; Norwood v. Railroad Co., 296 S.W. 222; Knoles v. S.W. Bell Co., 265 S.W. 1005; Clark v. Wheelock, 293 S.W. 456. (3) The sole and only proximate cause of deceased's injury and death was his own reckless act in putting himself in a position of known and obvious danger. Va. Ry. Co. v. Linkaus, 230 F. 88, certiorari denied, 248 U.S. 630; Paster v. Pennsylvania Railroad Co., 43 F.2d 908; Unadilla Valley Railroad Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91; Pleasant v. Director General, 285 F. 342; C. & O. Railroad Co. v. Mihas, 280 U.S. 102; Southern Railroad Co. v. Hilton, 37 F.2d 843; Kemp. v. Del. & L. Railroad Co., 99 N. J. L. 238, 122 A. 731, certiorari denied, 264 U.S. 583; Slocumb v. Erie Railroad Co., 37 F.2d 42; Freese v. C. B. & Q. Railroad Co., 263 U.S. 1, 68 L.Ed. 131; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210; Great Northern Railroad Co. v. Wiles, 240 U.S. 444, 60 L.Ed. 732; Kansas City So. Railroad Co. v. Jones, 276 U.S. 303, 72 L.Ed. 583, 48 S.Ct. 308; Hines, etc. v. Kesheimer, 198 Ky. 580, 249 S.W. 1001; Boghich v. L. & N. Railroad Co., 26 F.2d 361; Unadilla Valley Railroad Co. v. Dibble, 31 F.2d 239; Wagner v. St. L. & S. F. Railroad Co., 19 S.W.2d 518; Imboden v. St. L. & S. F. Ry. Co., 272 S.W. 1092; Delano v. Roberts, 182 S.W. 771. (4) There was no substantial evidence of the alleged custom to sound the whistle on the locomotive or to ring the bell upon approaching the place where the deceased was crossing the track to warrant a submission of the case. Norfolk & Western v. Collingsworth, 32 F. 561; Chicago Ry. Co. v. Lindenman, 143 F. 946; Jones v. St. Louis & S. Railroad Co., 30 S.W.2d 481; Delaware & L. Railroad Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210; Kansas City So. Railroad Co. v. Jones, 276 U.S. 303, 72 L.Ed. 583; Atchison, T. & S. F. Railroad Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281; Gulf Railroad Co. v. Wells, 275 U.S. 455, 72 L.Ed. 370; Samuel v. Lamborn & Co., 267 U.S. 250, 69 L.Ed. 597; Southern Railroad Co. v. Walters, 52 S.Ct. 58. (5) Plaintiff's Instruction 1 is fatally erroneous in submitting as a ground of liability that "engine 455 was then and there being operated by a hostler and not by a switching crew." There are no facts pleaded showing that deceased, by virtue of any custom or rule, had a right to rely upon the protection of a switching crew of five men. (6) Instruction 1 is reversibly erroneous in directing a finding that it was "unusual and extraordinary for the cinder track to be used by an engine of the type of engine 455." There is no pleading that the switching of the larger type engine on the cinder track was "unusual and extraordinary." Such submission makes the instruction broader than the pleading. Allen v. Railroad Co., 294 S.W. 80, syl. 14; State ex rel. v. Ellison, 270 Mo. 645; Degonia v. Railroad Co., 224 Mo. 589; Beave v. Transit Co., 212 Mo. 331. (7) Instruction 1 is fatally erroneous in submitting the theory that the engineer saw the deceased in a position of imminent peril. There was no evidence to justify such a submission. Voorhees v. C. R. I. & P. Railroad Co., 30 S.W.2d 22; Rashall v. Ry. Co., 249 Mo. 509; Martin v. Wabash Ry. Co., 30 S.W.2d 735; Degonia v. Railroad Co., 224 Mo. 592; Cahill v. Railroad Co., 205 Mo. 408; Evans v. Railroad Co., 178 Mo. 517; Toledo Railroad Co. v. Allen, 276 U.S. 165; C. & O. Railroad Co. v. Nixon, 271 U.S. 218, 70 L.Ed. 914. (8) It was prejudicially erroneous for Instruction 1 to put the duty upon the operatives of engine 455 to exercise ordinary care to discover the deceased in a position of peril. Voorhees v. C. R. I. & P. Railroad Co., 30 S.W.2d 22; Rashall v. Railroad, 249 Mo. 509; Martin v. Wabash, 30 S.W.2d 735; Degonia v. Railroad, 224 Mo. 592; Cahill v. Railroad, 205 Mo. 408; Evans v. Railroad Co., 178 Mo. 517; Toledo Railroad Co. v. Allen, 276 U.S. 165; C. & O. Railroad Co. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; Connelly v. Pennsylvania Railroad Co., 201 F. 54; Reading Co. v. Haldeman, 20 F.2d 53; N. & W. Railroad Co. v. Collingsworth, 32 F. 561; Biemacki v. Penn. Ry. Co., 45 F.2d 677. (9) The court erred in admitting evidence that the defendant failed to furnish a regular switching crew, composed of five men, instead of a hostler and his helper. There is no pleading of a custom or practice to switch with a full crew for the protection of the deceased. Martin v. Wabash Railroad Co., 30 S.W.2d 735; Kirkland v. Bixby, 282 Mo. 462; Jones v. Railroad Co., 30 S.W.2d 481; Pennsylvania Railroad Co. v. Lutton, 29 F.2d 689; Norfolk & W. Ry. Co. v. Collingsworth, 32 F.2d 561; Gilmer v. Ry. Co., 4 F.2d 963. (10) Instruction broader than pleading. The petition contains no allegation that it was customary to switch at the place in question with a switching crew of five men instead of with a hostler and his helper, and Instruction 1, in submitting that issue, is broader than the petition, and, therefore, reversible error. Allen v. Railroad Co., 294 S.W. 80, syl. 14; State ex rel. v. Ellison, 270 Mo. 645; Degonia v. Railroad Co., 224 Mo. 589; Beave v. Transit Co., 212 Mo. 331. (11) The judgment after remittitur is grossly excessive. Midway Natl. Bank v. Davis, 288 Mo. 563, 233 S.W. 406; Crecelius v. Railroad Co., 284 Mo. 26; McIntyre v. Railroad Co., 286 Mo. 234.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) In passing upon a demurrer to the evidence it is the duty of the court to accept as true all evidence in favor of plaintiff and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom. The court cannot draw inferences in favor of defendant to countervail or overthrow inferences favorable to plaintiff. Buesching v Gas Light Co., 73 Mo. 219; Troll v. Drayage Co., 254 Mo. 337; Gratiot v. Railroad, 116 Mo. 466; Scherer v. Bryant, 273 Mo. 602; Steffens v. Fisher, 161 Mo.App. 393. (a) The jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as they find the same to be true or false, when considered in relation to the other testimony and the facts and circumstances in the case. Anderson v. Davis, 314 Mo. 515; Gould v. Railroad Co., 315 Mo. 723; Zlotnikoff v. Wells, 220 Mo.App. 875. (b) When defendant does not rest upon the demurrer offered at the close of plaintiff's case, but elects to offer evidence, the plaintiff is entitled to the most favorable view of all the evidence. Anderson v. Davis, 314 Mo. 546; Maginnis v. Railroad, 268 Mo. 667. (c) It was the province of the jury to choose between the statements of the witness, Mayes, on direct examination, and alleged contradictory statements made by him on cross-examination. Ellis v. Met. St. Ry. Co., 234 Mo. 669; Maberry v. Mo. Pac. Ry. Co., 83 Mo. 664; Hoelkker v. Am. Press, 317 Mo. 82; Thornberry v. Railroad, 178 S.W. 200; Wray v. Wabash Ry. Co., 159 Mo.App. 616; Crowell v. St. Louis Screw Co., 220 Mo.App. 728. (d) The same rule applies with respect to the alleged conflict between his...