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

• Decision Date: 07 January 1935
• Citation: 78 S.W.2d 389,336 Mo. 316
• Parties: Fred Bird v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

78 S.W.2d 389

336 Mo. 316

Fred Bird v. St. Louis-San Francisco Railway Company, Appellant

Supreme Court of Missouri

January 7, 1935

Appeal from Jasper Circuit Court; Hon. R. H. Davis, Judge.

Reversed and remanded.

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

(1) Plaintiff can recover, if at all, only upon this theory. He cannot sue upon one theory and recover upon another. He is bound by his trial theory. Guthrie v. Gillespie, 6 S.W.2d 891; Pinnell v. Railroad Co., 263 S.W. 186; Degonia v. Railroad Co., 224 Mo. 588; O'Hara v. Laclede G. L. Co., 244 Mo. 403. (a) There were other specific allegations of negligence, namely, that the coal chute was defective, but these charges of negligence were abandoned by plaintiff. Where the petition contains several specific allegations of negligence and, as here, the case is submitted to the jury on but one of these, all others will be considered as having been waived and no longer in the case. Nahorski v. Railroad Co., 274 S.W. 1027; Crossno v. Term. Railroad Assn., 41 S.W.2d 800; Wallace v Burkhardt M. Co., 3 S.W.2d 390; Denkman v Prudential F. Co., 289 S.W. 596. (b) The specific charge of negligence is that in coaling the engine of plaintiff's train, coal negligently escaped to the ground; that defendant had notice, actual or constructive, of that fact and negligently permitted the coal to remain. There is no evidence of this alleged fact. The only evidence on the question is to the contrary. Where there is any evidence touching any disputed fact, no presumption relating thereto may be indulged, even though this evidence comes from defendant's witnesses. Mockowik v. Railroad Co., 196 Mo. 571; Burge v. Railroad Co., 244 Mo. 94; Dyrcz v. Railroad Co., 238 Mo. 33; George v. Railroad Co., 213 Mo.App. 668, 251 S.W. 732. Defendant and its employees are presumed to have exercised ordinary care. No presumption of negligence on their part may be indulged. Haggard v. McGrew Coal Co., 200 S.W. 1074; Removich v. Bambrick B. C. Co., 264 Mo. 52; Beebe v. St. Louis T. Co., 206 Mo. 441; Coble v. Railroad Co., 38 S.W.2d 1036; State ex rel. Mo. Pub. Util. Co. v. Cox, 298 Mo. 427, 250 S.W. 552. The mere presence of coal on the ground near defendant's tracks is not sufficient to convict defendant of negligence Chicago & H. W. Railroad Co. v. Payne, 8 F.2d 333; Pippin v. Plummer Coal Co., 187 Mo.App. 369. (c) There was no evidence that coal escaped to the ground while coaling the engine of plaintiff's train. The record does not warrant an inference that it did so escape, but assuming it does, yet, since such fact appears only by inference, there cannot be builded upon it the further inference that it negligently so escaped. Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 428; State ex rel. Macon v. Trimble, 12 S.W.2d 734; State ex rel. Pub. Util. Co. v. Cox, 298 Mo. 433, 250 S.W. 552; Hamilton v. Railroad Co., 250 Mo. 714; Thompson v. Railroad Co., 274 S.W. 531; Layton v. Chinberg, 282 S.W. 436; Strother v. Railroad Co., 188 S.W. 1102; Webber v. Milling Co., 242 S.W. 989. The Supreme Court of the United States has consistently held in cases arising under the Federal Employers' Liability Act that the scintilla of evidence rule does not obtain and negligence may not be established by building inference upon inference. C., M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1045; Gulf M. & N. Railroad Co. v. Wells, 285 U.S. 455, 72 L.Ed. 372; Western & A. Railroad Co. v. Hughes, 278 U.S. 496, 73 L.Ed. 473; Atchison, T. & S. F. Railroad Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896. (d) Assuming for present purposes that under the pleadings plaintiff is not confined, in order to recover, to prove that the coal over which he stumbled, fell to the ground while coaling the engine of his train but may recover upon proof that the coal was there with knowledge, actual or constructive, of the defendant (a theory presented by his Instruction 1). In that event, we say that no case was made for the jury because there is no evidence as to when or how the coal got upon the ground or whether it was placed there by or as a result of some act of defendant's employees or that defendant knew it was there or that it had been there long enough to charge defendant with notice of its presence and to give it a reasonable time within which to remove it. The foregoing facts were necessary to a finding of negligence and there is no evidence supporting either of them. Delaware, L. & W. Railroad Co. v. Kooke, 279 U.S. 10, 73 L.Ed. 581; Patton v. Railroad Co., 179 U.S. 663, 45 L.Ed. 364; Chicago & N.W. Railroad Co. v. Payne, 8 F.2d 332; C. & O. Ry. Co. v. Burton, 50 F.2d 731; Hatton v. Railroad Co., 261 F. 669; Cole v. Savings & Loan Society, 124 F. 113; Haggard v. McGrew Coal Co., 200 S.W. 1074; Manche v. St. Louis B. & B. Co., 262 S.W. 1023; Wilson v. Railroad Co., 319 Mo. 308, 5 S.W.2d 21, certiorari denied 73 L.Ed. 543; Williams v. Railroad Co., 119 Mo. 316; Windlow v. Railroad Co., 192 S.W. 125; Eudy v. Federal L. Co., 220 S.W. 506; Rowden v. Daniels, 151 Mo.App. 24; Burns v. Railroad Co., 129 Mo. 55; Smith v. Union Elec. L. & P. Co., 148 Mo.App. 574; Glasscock v. Swafford Brothers D. G. Co., 106 Mo.App. 666. (e) Where the accident occurred from one of two or more causes, for one of which, but not for the other, the defendant would be liable, the burden is upon the plaintiff to prove with reasonable certainty that the accident resulted from the cause for which defendant is liable. Trigg v. Ozark L. & L. Co., 187 Mo. 227; Coin v. Lounge Co., 222 Mo. 508; Warner v. Railroad Co., 178 Mo. 134; Harper v. Railroad Co., 187 Mo. 586; Odell v. Natl. Lead Co., 253 S.W. 399; Byerly v. Light Co., 130 Mo.App. 603; Strother v. Railroad Co., 188 S.W. 1105; Kramer v. Lumber Co., 24 F.2d 316; Patton v. Railroad Co., 179 U.S. 663, 45 L.Ed. 361. (2) Plaintiff assumed the risk as a matter of law and for that reason the demurrer to the evidence should have been sustained and defendant's Instruction 3 should have been given. York v. Railroad Co., 62 S.W.2d 475; Hoch v. Railroad Co., 315 Mo. 1199, 287 S.W. 1047; Osborn v. Railroad Co., 1 S.W.2d 181; Martin v. Railroad Co., 30 S.W.2d 735; Delaware, L. W. Railroad Co. v. Koske, 279 U.S. 7, 73 L.Ed. 578; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; Jacobs v. Railroad Co., 241 U.S. 229, 60 L.Ed. 970; Braden v. Railroad Co., 174 Mo.App. 587; Baker v. Lusk, 201 S.W. 358; Thomas v. Hines, 100 S.E. 657; Mo. Pac. Railroad Co. v. Alby, 275 U.S. 426, 72 L.Ed. 351; Arizona Copper Co. v. Hammer, 250 U.S. 421, 63 L.Ed. 1067.

Norman & Norman for respondent.

(1) The servants of defendant having left the pile of coal so near the track and roadbed as to be dangerous to the employee who was injured by reason thereof the defendant is liable. Lock v. Ry. Co., 281 Mo. 532, 219 S.W. 919; Hicks v. Ry. Co., 40 S.W.2d 512; Young v. Wheelock, 64 S.W.2d 950; Johnson v. Ry. Co., 64 S.W.2d 674; Hawkins v. Railroad Co., 189 Mo.App. 201, 174 S.W. 129; B. & O. Ry. Co. v. Kast, 297 F. 419; C. N. O. & T. Ry. v. Thompson, 236 F. 1; Doyle v. St. L. Mer. Bridge Co., 31 S.W.2d 1060, 326 Mo. 425, certiorari denied, 283 U.S. 820, 51 S.Ct. 345. (2) The instructions given were based on the evidence in the case and fully covered all necessary elements to authorize a verdict for plaintiff. Goodwin v. Am. Car & Foundry Co., 285 S.W. 529; Adskim v. Oregon Wash. Nav. Co., 276 P. 1095. (3) Where there is no evidence of contributory negligence on the part of the plaintiff an instruction on the measure of damages that does not provide for a deduction for such contributory negligence is not error. O'Donnell v. Ry. Co., 26 S.W.2d 929, 324 Mo. 1097, certiorari denied, 283 U.S. 820, 51 S.Ct. 345; Laughlin v. Ry Co., 205 S.W. 3, 275 Mo. 459; C. & O. Railroad Co. v. Cooper, 181 S.W. 933, 168 Ky. 137; L. & N. Ry. Co. v. Mount, 35 F.2d 634; Cassin v. Lusk, 277 Mo. 663, 210 S.W. 902; Capitol Traction Co. v. McKeon, 103 A. 314; Hawkins v. Railroad Co., 182 Mo.App. 323, 170 S.W. 459. (4) Defendant not having asked instruction respecting diminishing of damages because of contributory negligence could not complain on appeal that plaintiff's instruction did not authorize diminution of damages. Kamer v. Railroad Co., 32 S.W.2d 1075, 326 Mo. 792, certiorari denied, 282 U.S. 903, 51 S.Ct. 216; Hawkins v. Railroad, supra. (5) The judgment was not excessive. Schlueter v. Ry. Co., 296 S.W. 105, 316 Mo. 1266; Dees v. Sprainka Const. Co., 8 S.W.2d 873; Baker v. Railroad Co., 327 Mo. 986, 39 S.W.2d 535; Jordan v. Ry. Co., 308 Mo. 31, 271 S.W. 997. (6) The remarks were not prejudicial. Hick v. Mo. Pac., 40 S.W.2d 512; Lewis v. Railroad Co., 37 S.W.2d 552.

OPINION

Tipton. J.

This case comes to the writer on reassignment. In the Circuit Court of Jasper County, the respondent recovered a judgment for eleven thousand dollars ($ 11,000) against the appellant for personal injuries received about seven-thirty p.m., on December 13, 1929, at Cherokee, Kansas.

The respondent was in the employ of the appellant as a rear brakeman. It is admitted that both respondent and appellant were engaged in interstate transportation at the time the respondent was injured. The train on which the respondent was working was enroute from Afton, Oklahoma, to Fort Scott, Kansas. At Cherokee, the appellant had tracks running north and south and also east and west. At the southwest corner of the intersection of these tracks was the deposit. About two and one-half blocks north of the depot is a concrete coal chute.

To get from the east and west track onto the north and south track the entire train had to pull over one leg of the Y and then back up. This was done on the night the respondent was injured, leaving the engine headed north. As the train backed down the main...