Brannock v. St. Louis & San Francisco Railroad Company
| Citation | 126 S.W. 552,147 Mo.App. 301 |
| Parties | LONA BRANNOCK, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Decision Date | 08 March 1910 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Stoddard Circuit Court.--Hon. Jas. L. Fort, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
W. F Evans, W. J. Orr and S. L. Clark for appellant.
(1) The failure to block the frogs and guardrails in appellant's railroad yards, was not the proximate cause of the injuries to respondent's husband. Stepp v. Railroad, 85 Mo. 229; Mathiason v. Mayer, 90 Mo. 585; Kennedy v. Railroad, 70 Mo. 352; Rutledge v. Railroad, 110 Mo. 312; Henry v. Railroad, 76 Mo. 294; McGrath v. Transit Co., 197 Mo. 94; Warner v Railroad, 178 Mo. 133; Epperson v. Telegraph Co., 155 Mo. 346; Evans & Howard Brick Co. v Railroad, 17 Mo.App. 624; Hudson v. Railroad, 32 Mo.App. 667; Brown v. Railroad, 20 Mo.App. 222; Saxton v. Railroad, 98 Mo.App. 494; Breen v. Cooperage Co., 50 Mo.App. 202; Cothron v. Packing Co., 98 Mo.App. 349; Foley v. McMahon, 114 Mo.App. 442; Lawrence v. Ice Co., 119 Mo.App. 328; Moriarty v. S. & S. Co., 112 S.W. 1034; Hodges v. Railroad, 116 S.W. 1131; Glick v. Railway, 57 Mo.App. 97; Smart v. Kansas City, 91 Mo.App. 586; Bank v. Railroad, 40 Mo.App. 458; Bradford v. Railroad, 64 Mo.App. 475; Columbia v. Railroad, 69 P. 338; Huber v. Railroad, 92 Wis. 636; Block v. Railroad, 89 Wis. 378, 27 L.R.A. 365; Bliel v. Railroad, 98 Mich. 228; Mauch v. Hartford, 87 N.W. 816; Bajus v. Railroad (N.Y.), 28 Am. and Eng. R. R. Cases, 499; Schwartzschild & S. Co. v. Weeks, 72 Kan. 190; Railroad v. Kelley, 91 Tenn. 704; Deming & Co. v. Cotton Press, 90 Tenn. 353; Ohl v. Bethlehem Township, 199 Pa. 588; Yoders v. Antwell Township, 172 Pa. 454; Hoag v. Railroad, 85 Pa. 293, 27 Am. Rep. 653; Railroad v. Sipes (Colo.), 55 P. 1093; Lining v. Railroad, 81 Iowa 246; Butcher v. Railroad, 37 West Va. 180; Railway v. Mutch (Ala.), 11 So. 894, 21 L.R.A. 316; Troy v. Railroad, 99 Conn. 306, 6 Am. St. Rep. 521; Isbell v. Railroad, 27 Conn. 406, 71 Am. Dec., 78; Smith v. Bank, 99 Mass. 605, 97 Am. Dec. 59; Searles v. Railroad, 101 N.Y. 61; Goodlander v. Standard Oil Co., 64 F. 400; Pierce v. Kile, 80 F. 865; Lindvall v. Woods, 44 F. 857; Railway Co. v. Kellogg, 94 U.S. 469; Scheffer v. Railroad, 105 U.S. 249; Insurance Co. v. Boon, 95 U.S. 130. (2) The rule res ipsa loquitur, has no application to the facts in this case, because, first: In this case, the facts are susceptible of direct and positive proof by living witnesses; and, second, The proof of the injury was as accessible to the plaintiff as to the defendant. Klebe v. Distilling Co., 207 Mo. 480; Bowen v. Railroad, 95 Mo. 268; Oglesby v. Railway Co., 177 Mo. 272; Fuchs v. City of St. Louis, 167 Mo. 620; Bohn v. Railway Co., 106 Mo. 429; Ash v. Verlenden, 154 Pa. 246, 26 A. 374; Stackpole v. Wray, 77 N.Y.S. 633; Griffin v. Manice, 166 N.Y. 188; Searles v. Railway Co., 101 N.Y. 662; Dobbins v. Brown, 119 N.Y. 188; Starer v. Stern, 91 N.Y.S. 821; Mining Co. v. Kitts, 42 Mich. 35; Brownfield v. Railway Co., 107 Iowa 254; Lehman v. Plumbing Co. (Minn.), 116 N.W. 552; Tibbitts v. Railroad, 115 N.W. 1021; Moriarty v. S. & S. Co., 112 S.W. 1034; Coal Co. v. Jones (Ky.), 118 S.W. 342; Railroad v. Hill, 79 Ark. 80; Railway v. Harper, 44 Ark. 527; Railroad v. Gaines, 46 Ark. 555; Railroad v. Rice, 51 Ark. 467; Ross v. Cotton Mills, 140 N.C. 115; Peters v. Light Co. (Va.), 61 S.E. 745; Robinson v. Gas Co. (N.Y.), 86 N.E. 805; Patton v. Railway Co., 179 U.S. 658; Texas P. Ry. Co. v. Barrett, 166 U.S. 617; Shandrew v. Railroad, 142 F. 330. (3) It was incumbent upon respondent at the trial to establish by a preponderance of the evidence, the negligence of appellant and to show a causal connection between such negligence and the injuries that resulted in her husband's death. This she did not do, and it was error to refuse appellant's demurrer to her evidence. Rutledge v. Railroad, 110 Mo. 312; Hudson v. Railroad, 32 Mo.App. 667; Hodges v. Railroad, 116 S.W. 1131; Kearns v. Railway Co. (N. C.), 52 S.E. 131; Byrd v. Southern Express Co. (N. C.), 51 S.E. 851; Lumber Co. v. Mills (Ala.), 42 So. 1023; Car Wheel Co. v. Mehaffey, 128 Ala. 242; Railroad v. Quick, 125 Ala. 561; Richards v. Steel & Iron Co. (Ala.), 41 So. 288; O'Connor v. Railroad, 106 N.W. 161; Kennedy v. Navigation Co. (N.J.), 72 A. 382. And, while this causal connection may be shown either by direct or circumstantial evidence, it must be stronger than merely consistent with plaintiff's theory of how the accident occurred. If the proof is equally balanced, or, if the facts are as consistent with one theory as another, plaintiff can not recover. O'Connor v. Railroad, supra; McGrath v. Transit Co., 197 Mo. 97; Gettys v. Transit Co., 103 Mo.App. 564; Rissler v. Transit Co., 113 Mo.App. 120; Ries v. Transit Co., 179 Mo. 1; Moore v. Lindell Railway Co., 176 Mo. 528; Hawkins v. Railroad (Mo. App.), 116 S.W. loc. cit. 19; Bogan v. Railroad, 129 N.C. 154, 39 S.E. 808; Ashback v. Railroad, 74 Iowa 261, 37 N.W. 182; Wheelan v. Railroad, 85 Iowa 167, 52 N.W. 119; Rhines v. Railroad, 75 Iowa 597, 39 N.W. 912; Neal v. Railroad (Iowa), 105 N.W. 197; Tibbitts v. Railroad, 115 N.W. 1021; Lehman v. Plumbing Co., 116 N.W. 352; Koslowski v. Thayer, 66 Minn. 150, 68 N.W. 973; Sash & Door Co. v. Railway Co., 89 Minn. 143; Ulseth v. Lumber Co., 97 Minn. 179; Stewart v. Carpet Co. (N. C.), 50 S.E. 562; Edgar v. Railway Co. (Utah), 90 P. 745; Fritz v. Electric Light Co., 18 Utah 493; Sorensen v. Paper Co., 56 Wis. 338; Deserant v. Coal R. Co., 55 P. 290; Shaw v. Gold Mining Co., 77 P. 575; Ryan v. Iron Works Co. (Mass.), 86 N.E. 310; Kennerson v. St. Ry. Co., 168 Mass. 1; Saxe v. Walworth Mfg. Co., 191 Mass. 338; Hill v. Sporting Goods Co., 188 Mass. 75; Flynn v. Beebe, 98 Mass. 575; Curtin v. Elevated Ry. Co., 194 Mass. 260; Thompson v. Fire Works Co., 195 Mass. 328; Hofnauer v. R. H. White Co., 186 Mass. 47; Childs v. Express Co., 197 Mass. 337; Railroad v. Cox's Adm'r (Ky.), 104 S.W. 956; Railroad v. Jolly's Adm'r (Ky.), 90 S.W. 977; Coal Co. v. Jones (Ky.), 118 S.W. 343. (4) There was an entire failure of proof of the allegation that the injuries to respondent's husband were caused by his foot being caught in an unblocked guard-rail or frog. On the contrary, the physical facts established upon the trial disprove the allegations of the petition in that respect, and it was error to refuse to direct a verdict for defendant. Nugent v. Milling Co., 131 Mo. 256; Trigg v. Ozark Land & Lumber Co., 187 Mo. 227; Weltmer v. Bishop, 171 Mo. 116; Deane v. Transit Co., 91 S.W. 505; Hook v. Railroad, 162 Mo. 580; Wray v. Railroad, 68 Mo.App. 389; Baker v. Railroad, 122 Mo. 593; State v. Bryant, 102 Mo. 32; State v. Nelson, 118 Mo. 126; State v. Brown, 119 Mo. 538; Pickens v. Metropolitan Ry. Co., 103 S.W. 124; Payne v. Railroad, 136 Mo. 576; Spiro v. Transit Co., 102 Mo.App. 265; Gurley v. Railroad, 104 Mo. 211; Waters-Pierce Oil Co. v. Kinsel, 79 Ark. 608; Waters-Pierce Oil Co. v. Van Eldereen, 106 S.W. 947; Waters-Pierce Oil Co. v. Van Eldereen, 137 F. 567; Railroad v. Mogart (Ark.), 19 S.W. 751; Artz v. Railroad, 34 Iowa 152; Meyers v. Railroad, 24 A. 747; Blumenthal v. Railroad, 44 A. 750; Jeske v. Irvin, 44 S.W. 1062; Keller v. Railroad, 73 N.E. 965; Dolfini v. Railroad, 70 N.E. 69; McClintock v. Railroad, 6 Am. Neg. Cases, 228; Morland v. Railroad, 16 A. 623; Byersdorf v. Sash & Door Co., 84 N.W. 861; Mushbach v. Chair Co., 84 N.W. 39; Crawley v. Railroad, 77 N.W. 179; Badger v. Cotton Mills, 95 Wis. 599, 70 N.W. 687; Vorbrich v. Manufacturing Co., 96 Wis. 277, 71 N.W. 434; O'Brien v. Railroad, 102 Wis. 628, 78 N.W. 1084. (5) Respondent's husband was guilty of contributory negligence as a matter of law in needlessly going between the cars to uncouple them when he had a comparatively safe place to perform that duty by remaining on the outside of the cars. Moore v. Railroad, 146 Mo. 572; Morris v. Railroad, 108 F. 747; Gilbert v. Railroad, 128 F. 529; Dawson v. Railroad, 114 F. 870; Railroad v. O'Shaughnessy, 122 Ind. 588; Lorange v. Railway Co. (Mich.), 62 N.W. 137; Coal Co. v. Hoodlet, 129 Ind. 327; Publishing Co. v. Beaumeister (Va.), 47 S.E. 821; Schoultz v. Eckard Co., 112 La. 568; Railroad v. Estes, 37 Kas. 715; Carrier v. Railroad, 61 Kas. 447; Haven v. Bridge Co., 151 Pa. 620; Quirouet v. Ala., etc., Co., 111 Ga. 315; Railroad v. Hamlin (Ind.), 83 N.E. 343; Thompson on Neg., sec. 5372.
N. A. Mozley for respondent.
Plaintiff's former husband was killed by one or two of defendant's freight cars running over him on January 10, 1903. The deceased was then and had been for four or five months a switchman in defendant's railroad yards in the city of Cape Girardeau, and it was part of his duty to couple and uncouple cars while trains were being made up or changed on the tracks in the yards. In the performance of this duty he attempted to uncouple two freight cars from a train of eleven cars which was in backward motion at the rate of four to six miles an hour, and held together by couplers with lever attachments that could be reached by an employee and manipulated so as to uncouple cars without going between them, as the lever extended to within three or four inches of the outer edge of the car it was on. Those cars were in motion and the evidence tends to show plaintiff walked from six feet to twenty yards by the side of the cars with his left hand on the lever, before going between them then caught hold of a handhold and stepped or jumped on the brake beam of the front car. His feet slipped from the beam and he walked a few steps, or, as one witness said, "trotted," following the front car, when he sank down or was jerked down, fell across the guardrail or frog and the car in the rear ran over...
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