Berry v. Railway Co.
| Decision Date | 19 February 1930 |
| Docket Number | No. 27739.,27739. |
| Parties | LENORA E. BERRY, Administratrix of Estate of WILLIAM W. BERRY, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. — Hon. C.W. Bates, Judge.
AFFIRMED.
E.T. Miller and Mann & Mann for appellant.
(1) The defendant was not guilty of actionable negligence, contributing either in whole or in part to the collision, and resulting in the injuries and death of the deceased. (a) The proximate cause of this collision was not the rate of speed of train 331, but the failure of train 516 to reduce its speed. (b) There was no duty on the part of the crew of train 331 to warn the deceased of the approach of its train, independent of rule 14. It was the duty of the deceased to be on the lookout and protect himself against trains, and he could not rely upon a warning to advise him of their approach. Reading Co. v. Haldeman, 20 Fed. (2d) 53; C. & O. Railroad v. Nixon, 271 U.S. 218, 70 L. Ed. 914; Aerkfetz v. Humphreys, 145 U.S. 418, 36 L. Ed. 758. (c) Plaintiff is in no position to complain of the failure, if any, to sound a crossing warning. The crossing whistle is only for the benefit of a person upon the crossing. No one else may complain of the failure to give it. Bell v. Railroad, 72 Mo. 50; Degonia v. Railroad, 224 Mo. 564; Gurley v. Railroad, 104 Mo. 211; Maxey v. Railroad, 113 Mo. 1. (d) In order for the violation of a rule adopted by the defendant to be negligence, the rule must be pleaded and its violation affirmatively alleged. Kirkland v. Bixby, 222 S.W. 462; Nivert v. Railway, 232 Mo. 626. (e) The deceased was not engaged in intestate commerce when injured. The status of the deceased, whether he was or was not engaged in interstate commerce, is to be determined by the work in which he was actually engaged when injured. This is not determined or influenced by work he had previously done and completed or work he was to have done after the completion of the work in hand at the time. The work in hand was not interstate in character. C.B. & Q. Railroad v. Harrison, 241 U.S. 177, 60 L. Ed. 941; I.C.C. Railroad v. Behrens, 233 U.S. 473, 58 L. Ed. 1051; Martin v. Railroad, 258 S.W. 1026; D.L. & W. Railroad v. Peck, 255 Fed. 262; P. & R. Railroad v. Cannon, 296 Fed. 302; Minneapolis & St. Louis Railroad Co. v. Winters, 242 U.S. 353, 61 L. Ed. 358; Erie Railroad v. Welsh, 242 U.S. 303, 61 L. Ed. 319; Schauberger v. Railroad, 25 Fed. (2d) 297; Kozimko v. Hines, 268 Fed. 507: Poindexter v. Ry. Co., 4 S.W. (2d) 1065. The evidence is undisputed that at the time deceased was injured his train consisted only of a switch engine and a caboose, and was on its way to a certain sidetrack, there to pick up and move to another track certain empty cars, unless, after the engine and caboose reached this siding, the conductor might decide to perform other work or switching operations before moving these cars. The burden is upon the plaintiff to prove that the deceased was, at the time he was injured, engaged in interstate commerce. This burden requires something more than a mere showing that he might have been so engaged. Martin v. Railroad, 258 S.W. 1023, 1027; Poindexter v. Railroad, 4 S.W. (2d) 1067; Meyer v. Railroad, 296 Mo. 267, 246 S.W. 263; Osborn v. Gray, 241 U.S. 16, 60 L. Ed. 865; Bay v. Lumber Co., 211 Fed. 720; P. & R. Ry. Co. v. Cannon, 296 Fed. 304; Hench v. Ry., 246 Pa. 1. Each switching operation of this switch engine done or to be done was a separate and distinct one, and the nature of deceased's employment is to be determined by the one in hand and not by the others. Grigsby v. Railroad, 3 Fed. (2d) 988, 69 L. Ed. 1166; Mayor v. Vermont Railroad, 26 Fed. (2d) 905, 907, 73 L. Ed. 32; Erie Ry. v. Welsh, 242 U.S. 303, 61 L. Ed. 324; Schauberger v. Ry., 25 Fed. (2d) 297. While there was evidence that some of the empty cars on various sidetracks in this locality were to be loaded with chat for the defendant's use, all of the empty cars were not so used, some of them being used by shippers of commercial chat. A car not yet designated or billed is not engaged in interstate commerce, although it may later be designated for, or billed, or moved in interstate commerce, and until so designated, billed or moved in interstate commerce, an employee injured while working with such car is not engaged in interstate commerce. P. & R. Railroad v. Cannon, 296 Fed. 302; Schauberger v. Ry. Co., 25 Fed. (2d) 297; Fenstermacher v. Ry., 274 S.W. 718; C.B. & Q. Ry. v. Harrington, 241 U.S. 177, 60 L. Ed. 941; Raymond v. Ry., 243 U.S. 43, 61 L. Ed. 583; N.Y. Cent. Ry. v. White, 243 U.S. 188, 61 L. Ed. 667-670; Lehigh v. Barlow, 244 U.S. 183, 61 L. Ed. 1070; Schauffel v. Director General, 276 Fed. 116, 61 L. Ed. 422. (2) The deceased's injuries and death were directly, proximately and solely caused by his violation of rule 93, a rule promulgated and in force for the protection of the deceased and other trainmen. Violation of this rule defeats plaintiff's recovery in this case. Great Northern Railroad v. Wiles, 240 U.S. 444, 60 L. Ed. 732; Frese v. Railroad, 263 U.S. 1, 68 L. Ed. 131; Ib., 290 Mo. 501, 235 S.W. 97; Davis v. Kennedy, 266 U.S. 147, 69 L. Ed. 212; Yaokin Railroad v. Sigmon, 267 U.S. 577, 69 L. Ed. 795; Spokane, etc., Railroad v. Campbell, 241 U.S. 497, 60 L. Ed. 1125; McDonald v. Railroad, 207 N.W. (Minn.) 194; Matthews v. Railroad, 202 N.W. (Minn.) 896; Neales v. Railroad, 284 S.W. (Ky.) 429; Erie Railroad v. Lindquist, 27 Fed. (2d) 98; Patterson v. Director General, 105 S.E. 749. (3) If the deceased, when injured, was engaged in interstate commerce, he assumed the risk of injury as a matter of law. An interstate employee assumes such risks and dangers as are normally and necessarily incident to the work in which he is engaged, whether aware of them or not. He also assumes those risks, even though they may grow out of the master's negligence, if they are known to him or are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. He assumes the risk arising from his violation of the rules of his employer. Seaboard Air Line Railroad v. Horton, 233 U.S. 492, 58 L. Ed. 1062; Arizona Copper Co. v. Hammer, 250 U.S. 421, 63 L. Ed. 1067; Williams v. Pryor, 254 U.S. 43, 65 L. Ed. 120; Jacobs v. Railroad, 241 U.S. 299, 60 L. Ed. 977. Deceased assumed the risk as a matter of law in proceeding on this "free track," which he used daily with a knowledge of the custom of operating trains in both directions without train order and in failing to protect himself against a known and obvious danger. Gilmer v. Railroad, 4 Fed. (2d) 963; C. & O. Ry. v. Nixon, 271 U.S. 218, 70 L. Ed. 914; Boldt v. Railroad, 245 U.S. 441, 62 L. Ed. 385; Reading Co. v. Haldeman, 20 Fed. (2d) 55; Jacobs v. Railroad, 241 U.S. 299, 60 L. Ed. 977; Aerkfetz v. Humphreys, 145 U.S. 418, 36 L. Ed. 758.
J.M. Fisher and C.A. Randolph for respondent.
(1) The propriety of the rulings of the trial court in overruling defendant's demurrers to the evidence is not properly before this court for review for the reason that the appellant has not brought up in its abstract all the evidence relating to the negligence charged in plaintiff's petition and submitted to the jury in the court's instructions and has not brought up all the evidence adduced at the trial relating to the engagement of the deceased in interstate commerce. Brand v. Cannon, 118 Mo. 597; Vandeventer v. Goss, 190 Mo. 239; Halstead v. Stone, 147 Mo. 652; Cravens v. Midland Milling Co., 228 S.W. 513; State, etc. v. Parrish, 270 S.W. 688; Huggins v. Hill, 245 S.W. 1108; Marks v. Phonograph Co., 236 S.W. 902; Shelley v. Pipe Line Corp., 247 S.W. 472; Sandretto v. Ry. Co., 265 S.W. 858; Crohn v. Modern Woodmen, 145 Mo. App. 158; Moore v. Harmes, 123 Mo. App. 34. (2) Under the evidence brought up in the appellant's abstract and respondent's additional abstract, defendant's demurrers to the evidence were properly overruled. (a) Defendant was guilty of actionable negligence proximately causing the collision and resulting injuries and death to Berry, as submitted in Instruction A. (b) The defendant was guilty of actionable negligence in operating train 331 in violation of Rule 93, as submitted by Instruction A. Chicago R.I. & Pac. Ry. v. Wright, 36 Sup. Ct. Rep. 185; Pyles v. Ry. Co., 155 Pac. 788; Parker v. Chicago, Great Western, 195 N.W. 892, 157 Minn. 184. (c) The defendant was guilty of actionable negligence in operating train 331 at a high, negligent and excessive rate of speed, as submitted by Instruction A. Chicago, R.I. & Pac. v. Wright, 36 Sup. Ct. Rep. 185; Kidd v. Railroad, 274 S.W. 1079; Rigley v. Pryor, 290 Mo. 10, 233 S.W. 828. (d) The defendant was guilty of actionable negligence in failing to warn Berry of the approach of train 331, as submitted in Instruction A. Toledo etc. Railroad v. Allen, 276 U.S. 165, 72 L. Ed. 513; Greenwell v. Railroad, 224 S.W. 404; Brimer v. Davis, 245 S.W. 410; Carbaugh v. Frisco, 2 S.W. (2d) 195; Brown v. Railroad, 286 S.W. 45; McAuliffe v. N.Y. Central, 158 N.Y. Supp. 922, 172 App. Div. 597; Baird v. Mo. Pac., 170 Pac. 1016, 100 Wash. 384, 173 Pac. 636; Chawkley v. Ry., 297 S.W. 20; Allen v. Railroad, 281 S.W. 737; Brasel v. Box Co., 220 S.W. 984. (3) At the time of the collision the defendant was engaged in interstate commerce and Berry was an interstate employee assisting the defendant in such commerce. (a) The defendant's road was a highway for interstate commerce and engaged generally in interstate commerce. Lewis v. Ry. Co., 154 N.W. 945; Reindahl v. Ry. Co., 291 Fed. 924; Midwest Natl. Bank v. Davis, 233 S.W. 406; Geer v. Railway, 194 S.W. 939; Kilburn v. Railroad, 232 S.W. 1017, 289 Mo. 75; Mimms v. Railroad, 85 S.E. 372, 100 S.C. 375. (b) All loaded cars handled or to be handled by switcher 516 on the day of the collision were destined to a state outside of Missouri, and every empty...
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