Busch v. L. & N. Railroad Co., 27098.

CourtUnited States State Supreme Court of Missouri
Citation17 S.W.2d 337
Decision Date29 March 1929
Docket NumberNo. 27098.,27098.

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

AFFIRMED (upon condition).

A.M. Warren and H.R. Small for appellant.

(1) The court erred in overruling plaintiff's plea in abatement, because (a) the cause of action having arisen in Illinois, the plaintiff being a citizen of Indiana, the defendant of Kentucky, and the witnesses residing in Illinois, and none of them in Missouri, and defendant being subject to suit in Illinois and in Indiana where plaintiff lived, it was an undue burden on interstate commerce to institute and maintain and proceed with this suit in the Circuit Court of the City of St. Louis, in violation of the Constitution of the United States; and because (b) subjecting defendant foreign corporation not engaged in business in Missouri, and only engaged therein in interstate commerce, to suit on a foreign cause of action by a citizen of Indiana, and making the sheriff's return conclusive in Missouri that defendant was doing business in Missouri and so subject to service without any right in defendant to question such return, was a denial of due process of law in violation of the Federal Constitution. U.S. Constitution, Art. 1, sec. 8, and Fourteenth Amendment; Simon v. Southern Ry., 236 U.S. 115; Davis v. Co-operative Co., 262 U.S. 312; Mechanical Appliance Co. v. Castleman, 215 U.S. 437; Union Pacific Co. v. Pub. Serv. Comm., 248 U.S. 67; Newcomb v. Railroad, 182 Mo. 687; Smoot v. Judd, 184 Mo. 508; State ex rel. v. Sale, 232 Mo. 166. (2) Plaintiff's deliberate and unjustifiable inflaming of the jury by stating three times that Engineer Schmidt was a man who had a bad record for injuring people and was incompetent, followed as it was by the closing speech of plaintiff's counsel to the jury to the effect that Schmidt, not content with crushing the plaintiff on July 12, 1924, when the engine ran over him, was at the trial trying to crush him again, was conduct on the part of counsel for plaintiff that in justice to defendant required the withdrawal of this case from the jury and required the sustaining of defendant's motion for new trial on the ground of the court's refusing to withdraw the case from the jury on account of such conduct. (3) The instruction in the nature of a demurrer to the evidence offered by defendant at the end of the whole case should have been given: (a) Because plaintiff was shown without contradiction not to be engaged in any duty in furtherance of his employer's business as he sat near the tender in the most dangerous place he could select when the other members of his crew were engaged in the operation of recoupling the engine to the cars, and while he admittedly gave no attention to his engine or his crew, but gave his whole attention to the passing train, which went by with great noise. (b) Because plaintiff was not only at the time and place not engaged in any duty for his employer, but was also not engaged in any interstate duty or employment for his employer. Pederson v. Railroad Co., 229 U.S. 146; Kinzell v. Railroad, 250 U.S. 130; Clarke v. Wheelock (Mo. App.), 293 S.W. 456; Bryce v. Lloyd, 2 K.B. 804; Berry v. Ry. Co., 98 Mo. 70; Elliott v. Payne (Mo.), 239 S.W. 851; Lyons v. Ryson & Son, 148 Ill. App. 284; Bunida v. Armour & Co., 150 Ill. App. 302; Horn v. Arnold S. Co., 150 Ill. App. 559; Ellsworth v. Matheny, 104 Fed. 119; Brock v. Railroad, 305 Mo. 502; Bruce v. Railroad, 271 S.W. (Mo.), 762; Wolf v. Terminal Railroad, 282 Mo. 563; McEntyre v. Railroad, 286 Mo. 234; Arnold v. Graham, 272 S.W. (Mo. App.) 90; Williams v. Schaff, 222 S.W. 412; Aerkfetz v. Humphreys, 145 U.S. 418; Sutton v. Wabash, 152 Ill. App. 140; Railroad v. Craven, 52 Ill. App. 415; Railroad v. Barnes, 132 Ky. 728; Railroad v. Harmon, 147 Ky. 805; Hobbs v. Great Western, 80 Wash. 678. (c) Because plaintiff assumed the risk of injury in voluntarily assuming the risk of the engine backing on him when he sat down on a rail close to the tender where he was not in duty required to be, and where it was not necessary or safe for him to be, and did so with full knowledge and appreciation of the peril such situation entailed. Williams v. Pryor, 254 U.S. 43; Aerkfetz v. Humphreys, 145 U.S. 418; Boldt v. Railroad, 245 U.S. 441; Conley v. Railroad, 201 Fed. 54; Davis v. Railroad, 276 Fed. 187; Elliott on Railroads (3 Ed.) sec. 1862; Osborn v. Railroad, 1 S.W. (2d) 181. (4) The court erred in giving plaintiff's instruction numbered 1. It asked the jury to find as a conclusion of law that plaintiff was employed in interstate commerce. It is to the effect that if there was no warning bell sounded before the engine as it stood moved backward toward plaintiff "and if you find and believe from the evidence that the movement of the engine, if any, was negligent" without any statement that the movement was negligent on account of not first ringing the bell. (5) The court erred in refusing to strike out the testimony of Dr. Hoge, a doctor employed by counsel for plaintiff to testify at the trial, which testimony so sought to be stricken out related to the statements made by plaintiff to Dr. Hoge. Railroad v. Townsend, 206 Ky. 329; Kinchlow v. Railroad, 264 S.W. 416. (6) The verdict of $81,000 was excessive and the result of bias and prejudice; it was induced by inflammatory tactics of counsel for plaintiff during the trial in the cross-examination of Conductor Dew, followed as it was by inflammatory argument to the jury, and was induced by the instructions, which failed to advise the jury that plaintiff was guilty of negligence. For the same reason judgment left by the court below of $36,000 is excessive. Johnson v. Coal Co., 276 Mo. 42; Newcomb v. Railroad, 182 Mo. 726; Kinney v. Railway, 261 Mo. 97; Foster v. Davis, 252 S.W. 437; Miller v. Schaff, 228 S.W. 491; Bryant v. Railways, 228 S.W. 476; Greenwell v. Railways, 224 S.W. 410; Market v. Railroad, 185 Mo. 348; Lessenden v. Railway, 238 Mo. 247; Yost v. Railroad, 245 Mo. 219; Kibble v. Railroad, 285 Mo. 603; Fitzsimmons v. Railroad, 294 Mo. 551; Thompson v. Smith, 253 S.W. 1029; Brock v. Railroad, 266 S.W. 691. (7) The court erred in permitting Busch to testify over objection by defendant, as to his prospects of promotion and increased wages. Railroad v. Elliott, 149 U.S. 266.

Charles P. Noell and Abbott, Fauntleroy, Cullen & Edwards for respondent; Glen Mohler of counsel.

(1) A railroad corporation of another state may be sued in this State by a non-resident plaintiff upon a cause of action arising outside of this State in all cases where the corporation operates a railroad line in this State and maintains agents with offices for the transaction of its usual and customary business. Hoffman v. Missouri ex rel. Foraker, 274 U.S. 21; Hoffman v. Company, 309 Mo. 625; Harris v. Express Co., 12 Fed. (2d) 487. (2) A railroad fireman may, in accordance with the long-established and prevailing custom, leave his engine after it is stopped on a siding in a switch yard and take a position nearby in a shady spot on the tracks and there remain and rest until notified that the engine is about to be moved, and by so doing he does not place himself outside of the scope of his employment, nor remove himself from employment in interstate commerce. Such conduct is not inconsistent with his duty to his employer, and the cessation from labor is incidental and from some natural and necessary purpose which falls within the contemplation of the parties. Railroad v. Zachary, 232 U.S. 248; Geneva Mill Co. v. Andrews, 11 Fed. (2d) 924; Harvey v. Ry. Co., 116 Fed. 398; Ry. Co. v. United States, 231 U.S. 112; United States v. Ry. Co., 220 U.S. 37; Carter v. Railroad, 307 Mo. 595; Carter v. Railroad, 305 Mo. 595; Brook v. Railway Co., 305 Mo. 502; Railroad v. Scott, 71 Tex. 703; Graber v. Ry. Co., 150 N.W. 491; Charron v. Fuel Co., 49 L.R.A. (N.S.), 165; Rogers v. Davis (Idaho), 228 Pac. 331; Wallace v. Standard Oil Co., 66 Fed. 263. (3) The action of the engineer in starting the engine from a stationary position was in violation of the written rules of the company, in violation of the established custom, and constitutes gross and inexcusable negligence. Montgomery v. Railroad, 22 Fed. (2d) 360; Louisiana Ry. v. McGlory, 20 Fed. (2d) 546; Lewis v. Railroad, 142 Mo. App. 585; Rutledge v. Railroad, 123 Mo. 121; 20 R.C.L., 119, 120, sec. 101. (4) The conduct of a fireman as outlined in Point 2 does not constitute contributory negligence as a matter of law and is not the sole cause of an injury inflicted upon him while in that position by the sudden and unexpected movement of the engine in violation of rules and custom and without notice. Lewis v. Railroad, 142 Mo. App. 585; 20 R.C.L., 117, sec. 101; Gornstein v. Priver (Cal.), 221 Pac. 396; Ruehl v. Tel. Co., L.R.A. 1918C, 1063; Brock v. Railway Co., 305 Mo. 525; Montgomery v. Railroad, 22 Fed. (2d) 360; Louisiana Ry. v. McGlory, 20 Fed. (2d) 546. (5) A fireman does not assume the risk of injury when he has no knowledge or notice that the engineer is about to reverse and start his engine, without giving signals and in violation of the written rules of the company and contrary to the prevailing custom, and by so doing commit an act of negligence by silently and suddenly putting a standing engine into motion and running it backward. Reed v. Director General, 258 U.S. 92; Boston Railroad Co. v. Benson, 205 Fed. 876; San Pedro Railroad Co. v. Brown, 258 Fed. 806; Shaw v. Railroad (Mo.), 282 S.W. 421. (6) It was competent to prove the earning capacity of plaintiff as a locomotive engineer, even though he was not then employed as an engineer, because he had already been promoted to that position and was a qualified engineer. Bryant v. Railroad, 98 Iowa, 483; Railroad v. Ford (Tex. Civ. App.), 46 S.W. 77; Railroad v. John, 9 Tex. Civ....

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