Brainard v. Mo. Pac. Railroad Co.

• Decision Date: 11 April 1928
• Docket Number: No. 26,687.,No. 26,688.,26,687.,26,688.
• Citation: 5 S.W.2d 15
• Parties: B.F. BRAINARD v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

5 S.W.2d 15

B.F. BRAINARD v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 26,687.

No. 26,688.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Rosskopf, Judge.

REVERSED AND REMANDED.

James F. Green and Thomas J. Cole for appellant.

(1) The burden rested upon respondent to establish by the greater weight of the evidence not only that the defendant was negligent, but that such negligence was the proximate cause of his injury. There was no proof of a causal connection between the negligence charged and the injury. This being true, the case should not have been submitted to the jury. Warner v. Railway, 178 Mo. 133; Strother v. Railroad Co., 188 S.W. 1102. (2) Instruction 1 was clearly erroneous. (a) It purported to cover the whole case and directed a verdict, and the defenses made by the defendant are not referred to or included in any way in said instruction, nor did said instruction require the jury to find the alleged negligence to exist as a condition precedent to a verdict against defendant. State ex rel. v. Ellison, 272 Mo. 587; English v. Page, 236 S.W. 392; Mitchell v. Grossman, 241 S.W. 962; Riffe v. Wabash, 207 S.W. 81; Bennett v. Traction Co., 138 S.W. 144; 38 Cyc. 1787. (b) It referred the jury to the pleadings and apparently left the jury to its memory of the petition to determine the issues. Elders v. Mo. Pac. Ry. Co., 280 S.W. 1048; Bank v. Dowler, 163 Mo. App. 68; Webb v. Carter, 121 Mo. App. 155; State ex rel. v. Randolph, 186 S.W. 590. (c) Having referred the jury to the pleadings, it then attempts to recite what the petition alleges and incorrectly recites said allegations. (d) It submits to the jury the question of determining whether or not certain alleged acts of defendant were negligent when there is absolutely no proof of such acts, if any, being negligent. Authorities cited under Point 1. (e) The instruction is not accurate, certain, definite or plain, but is ambiguous and apparently designed to mislead the jury. (f) Such an instruction is erroneous and requires reversal. 38 Cyc. 1598, 1611.

Douglass & Inman for respondent.

(1) The evidence discloses that the motor car was being run at an excessive and negligent rate of speed, and that there was a "hump" in the track at the approach to the bridge about two and a half inches high, and that the motor car derailed when it hit this hump. This made a question for the jury. Railroad v. Cosio, 182 S.W. 83; Railroad v. Botkins, 45 Ind. App. 80; Railroad v. Turner, 138 S.W. 1126; Coil v. Payne, 220 Pac. 172; Lopez v. Hines, 254 S.W. 37; Railroad v. Davern, 177 Pac. 909; Soderland v. Railroad, 102 Minn. 240. (2) Plaintiff's Instruction 1 is based upon the facts stated in plaintiff's petition and does not omit any defense pleaded by the defendant as a defense to this action. But if it did omit such a defense it would not be error, as its alleged defense claimed to be omitted was presented to the jury in Instruction 8 given by the court. Heigold v. U. Rys. Co., 271 S.W. 773; Rawie v. Railroad, 310 Mo. 72; Morrow v. Gas & Electric Co., 308 Mo. 142; State ex rel. v. Trimble, 291 Mo. 227. (3) Defendant's motion for new trial makes no complaint of the action of the court in refusing to give its requested Instruction 8, and hence the refusal of this instruction is not before this court for review. Johnson v. Brick & Coal Co., 276 Mo. 55.

LINDSAY, C.

This is a suit for damages for personal injuries sustained by the plaintiff, alleged to be the result of the negligence of defendant. It is based upon the Federal Employers' Liability Act, and the answer admitted the facts necessary to bring it within the provisions of that act.

On January 11, 1924, plaintiff was employed by defendant as a section man upon the section of its line extending ten miles northwestward from the town of Hesston, Kansas, and had been at work, at a point about two miles northwest from Hesston, and at the time of his injury he, and the section foreman and another employee were returning from the place of work, to Hesston, riding upon a railroad motor car furnished by defendant for that purpose, and driven at the time by defendant's section foreman. At a point about one-half mile northwest of Hesston, defendant's track passed over a small bridge. As the motor car came upon the west end of this bridge, it left the rails, and the plaintiff was thrown off, run over, and injured. Plaintiff claims that from a point about two feet west of the west end of this bridge, and thence up to the west end of the bridge, there was a rise of the rails of about two and one-half inches, forming what is termed in the petition a "hump" and that the motor car as it approached the bridge, was being driven at an excessive rate of speed, and that thereby the car was caused to leave the rails. The plaintiff had a verdict in his favor.

The errors assigned are: (1) the overruling of defendant's demurrer at the close of the case; (2) the giving of plaintiff's Instruction 1 authorizing a verdict; and (3) the refusal of defendant's Instruction 8, as offered, its modification, and giving by the court in modified form.

The first assignment requires consideration of the evidence. The evidence shows that on the occasion in question and at all times Phillips, the section foreman, operated the motor car. Plaintiff was seated on the front end, and one Tatro, another employee, was seated on the rear end of the car. They were not assigned to these places on the car, but they sat as they desired; but, defendant's foreman testified that the instructions were that men so riding should watch the track. The plaintiff had been employed by defendant for short periods, at intervals, for a period of about three years. At this particular time he had been employed for seven days as an extra man, taking the place of an employee who was sick. The evidence as to there being a hump or rise in the rails immediately west of the bridge, consisted of the testimony of one Hale, and of the plaintiff, and of certain pictures. The plaintiff described the manner of the happening by saying: "Just as we went on the bridge the car gave a bump and I was thrown off." It seems clear that his injuries were such that at the time he did not and could not examine the place. He was soon afterward taken to a hospital. He testified that about the 19th of June, 1924, after his return from the hospital at St. Louis, he was in an automobile upon the public road running parallel to the railroad tracks near the point of the accident, and saw "a sharp hump in the track, a rise of about two or two and one-half inches, just as the tracks went onto the bridge;" that this rise started about two feet west of the bridge and that both rails had that rise in them.

Hale testified that at the time of plaintiff's injury he lived on a farm in the vicinity of the accident; that on the afternoon in question he was near by the scene of the accident, having driven there in his car to meet his children who were returning from school; that he saw the railroad motor car coming down toward the bridge at a point about thirty or forty rods from the bridge; that at about that distance from the bridge it entered a cut, and he did not see it afterward; that at the time he saw the car it was going about forty miles an hour; that he did not hear of the accident until the next day, but that on the next day, having heard of it, and when returning from Hesston, he looked at the bridge. He said the bridge had been worked on a short time before, and that it was higher than the roadbed, at each end; that he looked to see if he could find any sign of what "throwed" the car, and "couldn't see nothing more than the rise in the track;" that the track seemed to be level up to about two feet of the bridge, and then there was a rise to get on the bridge, of probably two or two and one-half inches. He stated that "about the fourth tie from the west end of the bridge was where the wheels had hit the bridge and went off about the center; following it up, straddle of the north rail about the center, and went off on the north side." He said he saw no mark indicating the car left the track before it got on the bridge. The ties were about eight inches wide, and three or four inches apart.

The plaintiff testified the motor car was running at a speed of twenty-five to thirty miles an hour, all of the way, and when approaching the bridge. Defendant introduced testimony tending to show there was no hump as described by plaintiff and Hale. Phillips, the foreman, and the other section man, Tatro, testified that on the day of the accident there was something wrong with the motor car; that the engine was missing and back firing; that at no time on the trip in which plaintiff was injured had the car travelled at a speed greater than twelve miles an hour. The theory of defendant was that the derailment of the motor car was caused by a block of wood being on one of the rails; and that it might have been placed there by school children; that this block of wood was not seen by Phillips, the foreman, because as he approached the bridge he was bending over, looking down to see, if he could, what was wrong with the motor car. The answer, however, did not refer to a block of wood. Phillips testified that on the day after the accident he went back to the place, found and picked up a block of wood, and took it to the tool house at Hesston; that it remained there for several months and then disappeared, and he did not know what had become of it; that there was a lock on the section house to which the foreman carried the key, but that at times the doors were left open and people could go in and out. Phillips said the block of wood, when he found it the next day, was lying about two feet from the northwest end of the bridge — about eight inches from the rail — and was split on an angle. He also testified that after the accident the motor car had...