Brock v. Railroad Co., 29997.

• Decision Date: 13 June 1932
• Docket Number: No. 29997.,29997.
• Citation: 51 S.W.2d 100
• Court: Missouri Supreme Court
• Parties: TENNIE BROCK, Administratrix of the Estate of WM. BROCK, v. MOBILE & OHIO RAILROAD COMPANY, a corporation, Appellant.

51 S.W.2d 100

TENNIE BROCK, Administratrix of the Estate of WM. BROCK, v. MOBILE & OHIO RAILROAD COMPANY, a corporation, Appellant.

No. 29997.

Supreme Court of Missouri, Division 1.

June 13, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. O'Neill Ryan, Judge.

AFFIRMED.

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

(1) The violation of Rule 1273, by the deceased foreman of the section crew, in operating the motor car up to the curve and cut, where the view was obscured, without sending out a flagman to protect them, was the sole cause of his injury and death. Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 Sup. Ct. Rep. 91; So. Ry. Co. v. Hilton, 37 Fed. (2d) 483; Pleasant v. Director General of Railroads, 285 Fed. 342, cited in Chesapeake & Ohio Railroad Co. v. Mihas, 280 U.S. 102, 50 Sup. Ct. Rep. 42; Great Northern Railroad Co. v. Wiles, 240 U.S. 444, 60 L. Ed. 732; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 Sup. Ct. Rep. 210; Slocum v. Erie Ry. Co., 37 Fed. (2d) 42; Frese v. Railroad Co., 263 U.S. 1, 68 L. Ed. 131; Davis v. Kennedy, 266 U.S. 147, 69 L. Ed. 212; Kansas City Southern Railroad Co. v. Jones, 276 U.S. 303, 72 L. Ed. 583, 48 S. Ct. 308; Hines Director v. Kesheimer, Admx., 198 Ky. 580, 249 S.W. 1001; Boghick v. Louisville Railroad Co., 26 Fed. (2d) 361; Kemp v. Del. L.W. Railroad Co., 99 N.J. Law 238, 122 Atl. Rep. 731. Certiorari denied, 264 U.S. 583, 68 L. Ed. 861; Unadilla Ry. Co. v. Dibble, 31 F. (2d) 239; Wagner v. St. L. & S.F. Ry. Co., 19 S.W. (2d) 518; Va. Ry. Co. v. Linkons, 230 F. 88 (certiorari denied, 248 U.S. 630). (2) The demurrer to the evidence should have been sustained because there was no substantial evidence of the alleged custom to sound the whistle on the locomotive upon approaching the curve in question, to warrant the submission of the case. Jones v. Ry. Co., 30 S.W. (2d) 481; Atchison, Topeka & Santa Fe Railroad Co. v. Mabel Toops, Admx., 281 U.S. 351, 50 Sup. Ct. Rep. 281; Chicago Ry. Co. v. Lindeman, 143 F. 946; Staroski v. Pulitzer Pub. Co., 235 Mo. 67; Martin v. Wabash Railroad Co., 30 S.W. (2d) 735; Ingram v. M. & O. Ry. Co., 3 S.W. (2d) 989; Norfolk & Western v. Collingsworth, 32 Fed. 561; Delaware, etc., R.R. Co. v. Koske, 279 U.S. 7, 49 Sup. Ct. Rep. 202; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 Sup. Ct. 210; Kansas City Southern Railroad v. Jones, 276 U.S. 303, 72 L. Ed. 583; Gulf Railroad Co. v. Wells, 275 U.S. 455, 72 L. Ed. 370; Chesapeake & Ohio Railroad Co. v. Nixon, 271 U.S. 218, 70 L. Ed. 914; Small v. Lamborn & Co., 267 U.S. 250, 69 L. Ed. 597; M.C. Ry. Co. v. Timmerman, 24 Fed. (2d) 23; Lehigh Valley v. Mangan, 278 Fed. 88; Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 Sup. Ct. 91; New York Central Ry. Co. v. Ambrose, 50 Sup. Ct. Rep. 198; Unadilla Valley Ry. Co. v. Dibble, 31 F. (2d) 239. (3) There was no evidence that the alleged custom was intended to cover a class to which section men belonged. This is an essential element which must be affirmatively proved to make the custom actionable. Norfolk Ry. Co. v. Gesswine, 144 Fed. 56; Chesapeake & Ohio Railroad Co. v. Mihas, 280 U.S. 102, 50 Sup. Ct. Rep. 42; C. & O. Ry. Co. v. Nixon, 271 U.S. 218; Norfolk & Western Railroad Co. v. Collingsworth, 32 Fed. (2d) 561; Reynolds v. N.Y. Ry. Co., 42 F. (2d) 164; Delaware, etc., Railroad Co. v. Koske, 279 U.S. 7, 49 Sup. Ct. 202; Jones v. St. L. & S.F. Ry. Co., 30 S.W. (2d) 481; Randall v. Railroad Co., 109 U.S. 478, 27 L. Ed. 1003; Sullivan v. Railroad Co., 36 N.E. 751; Reynolds v. Railroad Co., 69 Fed. 808, 16 C.C.A. 435; Roback v. Railroad Co., 43 Mo. 187; Anderson v. Wells, 273 S.W. (Mo. App.) 233; Degonia v. Railroad Co., 224 Mo. 564; Louisville & Nashville Railroad Co. v. Hyatt, 191 Ky. 85, 229 S.W. 101; Cincinnati Railroad Co. v. Brown, 234 S.W. 455; So. Ry. Co. v. Hilton, 37 Fed. (2d) 843. (4) There is no averment in the petition, nor was there any proof that the decedent knew of and had a right to rely upon the alleged custom to warn as one of a class within its protection. Norfolk Ry. Co. v. Gesswine, 144 Fed. 56; Kirkland v. Bixby, 282 Mo. 462; Chesapeake & Ohio Railroad Co. v. Mihas, 280 U.S. 102, 50 Sup. Ct. Rep. 42; 17 C.J. 518, sec. 81; Louisville & Nashville Railroad Co. v. Hyatt, 191 Ky. 85, 229 S.W. 101; C.M. & St. P. Ry. Co. v. Lindeman, 143 Fed. 946. (5) The decedent section foreman assumed the risk when he operated the motor car dangerously near to the cut and curve, where the view was obscured, without stopping and sending a flagman ahead, in direct violation of Rule 1273, the danger being fully known and obvious, and it being fully known and obvious that the whistle of train No. 15, if blown at the curve, could not have been heard a safe distance away. Chesapeake & Ohio Railroad Co. v. Nixon, 271 U.S. 218, 70 L. Ed. 914; Reynolds v. N.Y.O. & W. Railroad Co., 42 Fed. (2d) 164; Norfolk Railroad Co. v. Kratzer, 37 Fed. (2d) 522; Slocumb v. Erie Railroad Co., 37 Fed. (2d) 42; Toledo Railroad Co. v. Allen, 276 U.S. 165, 48 S. Ct. 215, 72 L. Ed. 513; Boldt v. Pa. Railroad Co., 245 U.S. 441, 62 L. Ed. 385; Delaware, etc., Railroad Co. v. Koske, 279 U.S. 7, 49 S. Ct. 202; C. & O. Railroad Co. v. Leitch, 276 U.S. 429, 72 L. Ed. 638; Southern Pac. Railroad Co. v. Berkshire, 254 U.S. 415, 65 L. Ed. 335; Tuttle v. Detroit Railroad Co., 122 U.S. 189, 30 L. Ed. 1114; Hoch v. St. L. Railroad Co., 287 S.W. 1047; Osborn v. Chicago Railroad Co., 1 S.W. (2d) 181; Seaboard Airline v. Horton, 233 U.S. 492, 58 L. Ed. 1062; Dozier v. Railroad Co., 3 S.W. (2d) 678; Quigley v. Ry. Co., 291 Mo. 23, 235 S.W. 1050.

C.O. Inman for respondent.

(1) The court properly overruled defendant's demurrer to the evidence. (a) In ruling upon a demurrer offered at the close of the case the court will accept as true all evidence in the record in plaintiff's favor, and will make every inference of fact in plaintiff's favor which a jury could, with any degree of propriety, draw therefrom. In ruling upon the demurrer the court will not draw inferences of fact in defendant's favor to countervail or overthrow inferences tending to support plaintiff's cause of action. Buesching v. Gas Co., 73 Mo. 219; Gratiot v. Railroad, 116 Mo. 466. (b) The jury had the undoubted right to believe all of the testimony of any witness, or none of it, or to accept it in part, or reject it in part, as they found 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, and cases cited. (c) It is not the function of the appellate court to weigh conflicting testimony. The verdict of the jury conclusively settles all issues of fact in favor of the successful party. Reid v. Insurance Co., 58 Mo. 430. (d) Appellant has selected detached statements from the cross-examination of a number of the witnesses as the basis of its contention that there was no evidence of a custom to sound the whistle of the locomotives as they approached and traversed the curve where the accident occurred. It was not the province of the trial court, on demurrer to the evidence, to select testimony unfavorable to plaintiff, or to draw inferences adverse to her case. Hoelker v. American Press (Mo.), 296 S.W. 1015; Thornsberry v. Railroad (Mo.), 178 S.W. 200; Rigley v. Pryor, 290 Mo. 10; Benjamin v. Railroad, 245 Mo. 616; Crowell v. St. Louis Screw Co., 220 Mo. App. 728; Brown v. Mill Co. (Mo. App.), 217 S.W. 334. (e) The evidence adduced by plaintiff to establish the defendant's custom to sound the locomotive whistle upon approaching and traversing the curve in question was substantial and required the submission of that issue to the jury. Koonse v. Railroad Co. (Mo.), 18 S.W. (2d) 471 (cert. den. 50 S. Ct. 34); O'Donnell v. Railroad Co. (Mo.), 26 S.W. (2d) 933; De Clue v. Railroad Co. (Mo.), 264 S.W. 995; St. Louis & S.F. Ry. Co. v. Jeffries, 276 Fed. 76; Director General v. Templin, 268 Fed. 483; Derrington v. Ry. Co., 40 S.W. (2d) 1069. (f) The defendant is liable to plaintiff for the negligence of its employees in failing, in violation of said custom, to sound the locomotive whistle upon approaching and rounding the curve. Federal Employers' Liability Act, 45 U.S.C., sec. 52; Smith v. Railroad Co. (Mo.), 15 S.W. (2d) 794; Hunt v. Railroad Co. (Mo.), 303 Mo. 123; Hughes v. M.R. & B.T. Ry., 309 Mo. 560; Rigley v. Pryor, 290 Mo. 10; McGovern v. Ry. Co., 235 U.S. 401; Norfolk & W. Railroad Co. v. Earnest, 229 U.S. 114; Balto. & O. Railroad Co. v. Robertson, 300 Fed. 314; Lehigh Valley Railroad Co. v. Doktor, 290 Fed. 760; Lehigh Valley Railroad Co. v. Mangan, 278 Fed. 85; Director General v. Templin, 268 Fed. 483. (g) The fact that no means were provided at the time by which the approach of delayed trains could be ascertained, except looking and listenting for them, that the section men were listening intently for the whistle as the motor car approached the curve, and that they always did so, was ample evidence to warrant the finding that deceased relied upon the custom of the trainmen to sound the whistle. It will be presumed that the deceased was listening for the whistle, as we must assume he was exercising ordinary care in that respect, there being no evidence to the contrary. De Clue v. Railroad Co. (Mo.), 264 S.W. 995; Pacheco v. Railroad Co., 15 Fed. (2d) 469; Knorpp v. Wagner, 195 Mo. 665; Koonse v. Mo. Pac., 18 S.W. (2d) 471; Hunt v. Railroad Co., 303 Mo. 127; McDaniel v. Hines, 292 Mo. 401; Burtch v. Ry. Co., 236 S.W. 338. (h) It sufficiently appears from the evidence that the custom was intended for the protection of the section men. Montgomery v. Balto. & O. Railroad Co., 22 F. (2d) 360; Southern Ry. Co. v. Cook, 226 Fed. 1, writ of error den. 245 U.S. 677; Hunt v. Railroad, 303 Mo. 125; Smith v. Railroad Co. (Mo.), 15 S.W. (2d) 797. (i) There was ample evidence that the men on the motor car could have heard the...