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

• Citation: 89 S.W.2d 947,338 Mo. 257
• Decision Date: 04 January 1936
• Docket Number: 31116
• Parties: Hurburt Carner v. St. Louis-San Francisco Railway Company, Appellant
• Court: United States State Supreme Court of Missouri

89 S.W.2d 947

338 Mo. 257

Hurburt Carner v. St. Louis-San Francisco Railway Company, Appellant

No. 31116

Supreme Court of Missouri

January 4, 1936

Respondent's Motion for Rehearing Overruled November 3 1935.

Respondent's Motion to Transfer to Banc Overruled January 4, 1936.

Appeal from Circuit Court of City of St. Louis; Hon. Victor Falkenhainer, Judge; Opinion filed at May Term, 1935 September 3, 1935; motion for rehearing filed; motion overruled November 5, 1935; motion to transfer to Court en Banc filed; motion overruled at September Term, January 4 1936.

Reversed and remanded.

E. T. Miller, A. P. Stewart and C. H. Skinker, Jr. for appellant.

(1) The demurrer to the evidence should have been sustained and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) Plaintiff failed to prove actionable negligence on the part of defendant. The exercise of ordinary care on the part of defendant's employees operating defendant's engine does not require a warning signal in approaching an ordinary open-top coal car standing alone on a spur track, partially unloaded, with no trucks or wagons alongside, with nobody in the car, no signs of activity about the car, and no person in sight anywhere near the car. Lovell v. Railroad Co., 121 Mo.App. 466; De Bolt v. Railroad Co., 123 Mo. 506; C. & O. Ry. Co. v. Mihas, 280 U.S. 108. (b) Under plaintiff's own testimony and under the physical facts in the case plaintiff was guilty of contributory negligence as a matter of law. Dyrcz v. Railroad Co., 238 Mo. 46; Gurley v. Ry. Co., 104 Mo. 230; St. Louis-S. F. Ry. Co. v. McClinton, 9 S.W.2d 1060; Myers v. Ry. Co., 103 Mo.App. 268; Moore v. Ry. Co., 146 Mo. 582; Hunter v. Candy Co., 307 Mo. 672. (2) Instruction 1, given for plaintiffs, is erroneous in that it predicates a verdict for plaintiff on a finding by the jury that defendant's employees knew, or by the exercise of ordinary care would have known, that someone was likely to be upon said car in connection with unloading the same when, under the undisputed evidence, defendant's employees saw that there was no one upon said coal car or in the same, and these facts are admitted by plaintiff. The giving of an instruction, a portion of which is unsupported by or contrary to the evidence, constitutes reversible error. Stid v. Railroad Co., 236 Mo. 398; Dixon v. Construction Co., 318 Mo. 62; Black v. Met. St. Ry. Co., 217 Mo. 681; Kuhlman v. Water, Light & Transit Co., 307 Mo. 636; Degonia v. Railroad Co., 224 Mo. 589; Allen v. Ry. Co., 294 S.W. 87. (3) The verdict of the jury is grossly excessive and the judgment is still grossly excessive, notwithstanding the remittitur. Sallee v. Ry. Co., 12 S.W.2d 476; Radler v. Ry. Co., 51 S.W.2d 1012; Westover v. Ry. Co., 6 S.W.2d 843; Busch v. Railroad Co., 17 S.W.2d 337; Vaughan v. Ry. Co., 18 S.W.2d 62; Rose v. Ry. Co., 289 S.W. 913; Kibble v. Railroad Co., 285 Mo. 603.

Charles P. Noell, Charles L. Moore and Allen, Moser & Marsalek for respondent.

(1) Proof that defendant's agents and servants ran its locomotive against the coal car, which had been put upon the unloading track to be unloaded, and which defendant knew was not fully unloaded, without ascertaining whether anyone was about the car, and without notice or warning of any sort, whereby the plaintiff was injured while lawfully about the car in the performance of his duties in unloading the same, amply sufficed to show a negligent breach of duty on defendant's part -- without regard to the fact that the proof showed a violation of defendant's own rules. Neal v. Curtis Co. Mfg. Co., 328 Mo. 389; Butler v. Railroad Co., 155 Mo.App. 287; Hudgens v. Railroad Co., 139 Mo.App. 44; Gessley v. Railroad Co., 32 Mo.App. 413; Pearson v. Railroad Co., 200 S.W. 441; Johnson v. Waverly Brick & Coal Co., 276 Mo. 42; Chicago N.W. Railroad Co. v. Goebel, 119 Ill. 515; Chicago & E. Railroad Co. v. Shaw, 116 F. 621, certiorari denied, 187 U.S. 640, 47 L.Ed. 345; Jacobson v. Railroad Co., 41 Minn. 206; Pittsburgh, C. C. & St. L. Ry. Co. v. Schaub, 124 S.W. 885; L. & N. Railroad Co. v. Hurst, 132 Ky. 121, 116 S.W. 291; K. C. So. Ry. Co. v. Moles, 121 F. 351; Atlanta, K. & N. Railroad Co. v. Roberts, 116 Ga. 505, 42 N.E. 753; Fitzpatrick v. Railroad Co., 149 Mich. 194, 112 N.W. 915; Bachant v. Railroad Co., 187 Mass. 392, 73 N.E. 642; Copley v. Railroad Co., 26 Utah 361, 73 P. 517; Hauenstein v. Traction Co., 229 Pa. 128, 78 A. 31, 31 L. R. A. (N. S.) 960. (a) When a railroad company puts a loaded car upon a sidetrack for the purpose of being unloaded by the consignee, and the latter, with the express or implied consent of the company, proceeds to have the freight removed therefrom, the agents and servants of the railroad company, in the operation of its engines and cars, are required to anticipate the presence of persons about such car, and have no right, without special notice and warning, to run a train or locomotive in or upon said sidetrack and disturb such car while the process of unloading remains uncompleted. Neal v. Curtis & Co. Mfg. Co., 328 Mo. 415; Butler v. Railroad Co., 155 Mo.App. 297; Gessley v. Railroad Co., 32 Mo.App. 418; Hudgens v. Railroad Co., 139 Mo.App. 44. (b) It is well settled that those who go upon the premises of a railroad company in the usual course of business with it, for the purpose of loading or unloading freight cars, are not mere licensees, but occupy the status of invitees; and that it is the duty of the railroad company to exercise due care and diligence in moving its cars to prevent injury to such persons while on or about the cars in the course of such work. Hudgens v. Railroad Co., 139 Mo.App. 44; Butler v. Railroad Co., 155 Mo.App. 297; Neal v. Curtis Co. Mfg. Co., 328 Mo. 389; Gessley v. Railroad Co., 32 Mo.App. 418; Chicago & E. Railroad Co. v. Shaw, 116 F. 621; certiorari denied, 187 U.S. 640, 47 L.Ed. 345; K. C. So. Railroad Co. v. Moles, 121 F. 351. (c) The question of plaintiff's alleged contributory negligence was obviously a matter for the jury. Plaintiff, while approaching and passing around the west end of the car in the course of his duties, for the purpose of climbing thereon by means of the ladder on the north side thereof, had the right to assume that the defendant would not imperil his safety by causing or permitting the car to be struck and moved by a locomotive without some sort of notice or warning. Neal v. Curtis Co. Mfg. Co., 228 Mo. 416; Johnson v. Brick & Coal Co., 276 Mo. 52; Pearson v. Ry. Co., 200 S.W. 442; Gessley v. Railroad Co., 32 Mo.App. 418. (d) The evidence shows that plaintiff looked to the east, but that his view was obscured by the embankment and weeds and the coal car itself. Furthermore, one "is not required to look for danger when he has no cause to anticipate danger, or when danger does not exist except it be caused by the negligence of another." Crawford v. Stockyards Co., 215 Mo. 414; Langdon v. Railroad, 72 Mo. 392. (2) Upon the undisputed facts, it was the duty of defendant's agents and servants, under the law, to anticipate the presence of persons on or about the car incident to the unloading thereof. Neal v. Curtis Co. Mfg. Co., 328 Mo. 415; Butler v. Railroad Co., 155 Mo.App. 287; Gessley v. Railroad Co., 32 Mo.App. 413.

Bohling, C. Cooley, C., dubitante; Westhues, C., concurs.

OPINION

BOHLING

This case is pending on rehearing. The original opinion was written by the late Honorable John T. Fitzsimmons, and is here quoted insofar as adopted upon rehearing.

"Appellant Railway Company appeals from an adverse judgment of $ 30,000 damages, awarded to respondent Carner for the loss of his right forearm and right foot. The verdict of the jury for $ 50,000 was reduced by the trial court upon a remittitur. The principal question for decision is the sufficiency of the evidence. Plaintiff, twenty years of age at the time of the accident, was employed by the firm of Govero Brothers to help unload a car of coal on a spur track at Festus, Missouri. Somewhere near the noon hour on the date in question defendant's engine approached the coal car from the east and attempted to couple onto the east end of the car. In attempting to make the coupling the coal car was moved several feet and plaintiff, who was on the spur track at the west end of the coal car, was run over.

"The petition averred the employment of plaintiff as a laborer for Govero Brothers to help unload coal from the car in question and alleged several assignments of negligence based upon the charge that defendant moved its engine into and against the coal car without sounding the whistle or ringing the bell or giving plaintiff any warning. The answer charged contributory negligence on the part of the plaintiff in failing to look or listen for the approaching locomotive and in sitting on the spur track near the west end of said coal car. The reply was a general denial.

"The main-line track of defendant runs through Festus, Missouri, in an easterly and westerly direction and is located on the north side of the station. The scene of the accident in question was something over half a mile west of defendant's station. At that point defendant's main-line track is on a high grade. Immediately south of the main-line track is a public road running parallel to the track, and immediately south of the public road is the spur track known as the brickyard spur. This track was over 1200 feet long. It took off from the main track nearly 1000 feet east of the scene of the accident. It curved and descended from the main track until it reached a level grade and began to run parallel to the main track some distance east of the point of injury.

"A private road about thirty feet long led southwardly from the public road across the spur track...