Copeland v. Terminal R. Ass'n of St. Louis

• Decision Date: 05 September 1944
• Docket Number: 38934
• Citation: 182 S.W.2d 600,353 Mo. 433
• Parties: Nellie Copeland, Administratrix of the Estate of John W. Hertz, Deceased, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

182 S.W.2d 600

353 Mo. 433

Nellie Copeland, Administratrix of the Estate of John W. Hertz, Deceased, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 38934

Supreme Court of Missouri

September 5, 1944

Rehearing Denied October 9, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Affirmed.

Joseph A. McClain, Jr., and Arnot L. Sheppard for appellant.

(1) Decedent's negligence in placing himself in a position of certain and extreme peril was the sole proximate cause of his death. Davis, Agent, etc., v. Hand, 290 F. 731 certiorari denied 263 U.S. 705, 68 L.Ed. 516, 44 S.Ct. 34; Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787, 73 L.Ed. 957; Peters v. Wabash Ry. Co., 42 S.W.2d 588; Pankey v. A.T. & S.F.R. Co., 180 Mo.App. 185; Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 73 L.Ed. 601, 47 S.Ct. 210; Morris v. Pryor, 272 Mo. 350, 198 S.W. 817; Ford v. Dickinson, 280 Mo. 206, 217 S.W. 294; Stone v. Chicago & N.W. Ry. Co., 176 Minn. 108, 222 N.W. 641; Haring v. Great Northern Ry. Co., 137 Wis. 367, 119 N.W. 325; B. & O.R. Co. v. Newell, 196 F. 866. (2) Not only is there no evidence that the proximate cause of Hertz's death was the moving of the cars with "unnecessary and unusual force and speed," but the uncontradicted evidence is to the contrary, i.e., that he was killed "just as the movement started." Therefore, respondent failed for this reason to make a submissible case. Hunt v. Kane, 100 F. 256. (3) The fact that Asselmeier was appellant's witness does not make his evidence any the less binding upon the court. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819; Chesapeake & O.R. Co. v. Martin, 283 U.S. 209, 215, 75 L.Ed. 983, 987. (4) The court erred in refusing to give to the jury Instruction F, requested by appellant, leaving to the jury the question of whether or not decedent's sole negligence was the proximate cause of his injury. Hunt v. Kane, 100 F. 256; Bashkow v. McBride, 177 S.W.2d 637. (5) The only hypothesis of recovery submitted in respondent's Instruction 1 is that appellant negligently "caused said train to move with unnecessary and unusual force and speed," thereby crushing decedent. The uncontradicted evidence of Asselmeier shows that decedent "got caught just as soon as the movement started." Thus, decedent would have been killed regardless of the "force" or the "speed" of the movement. Consequently, neither the "force" nor the "speed" was the proximate cause of the death. Hunt v. Kane, 100 F. 256. (6) The petition does not charge appellant with moving the cars with unnecessary and unusual force and speed. Therefore, the instruction is broader than both the petition and the proof, and consequently erroneous. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (7) Respondent's counsel committed reversible error by insisting upon arguing to the jury the fact that foreman Dailey knew where decedent was and failed to order him to get out of the way, despite the fact that the case was not submitted upon that issue and despite the further fact that the court repeatedly cautioned counsel not to make such an argument. Carpenter v. Kurn, 136 S.W.2d 997. (8) The verdict of the jury is excessive under the circumstances of this case. Decedent was under the duty of paying the sum of $ 5 per week for the support of his minor daughter, for whose benefit this case was being prosecuted. The duty of contributing to her support would have ended in sixteen years, as she was five years old at the time of trial. Consequently, the pecuniary loss sustained by the infant daughter was $ 4,180, whereas the verdict herein is in the sum of $ 10,000. Harris v. McClintic-Marshall Const. Co., 168 Mo.App. 724.

Erwin B. Tucker and Cyrus A. Geers for respondent.

(1) The mere fact that some other cause operated with the negligence of the defendant, does not relieve it from liability. I.C.R.R. Co. v. Skinner's Admx., 246 U.S. 663. (2) Under the Federal Employers' Liability Act, the action lies for "injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." Railroad v. Kerse, 239 U.S. 576; Going's Admx. v. N. & W. Ry. Co., 248 U.S. 538; C.V.R. Co. v. White, 238 U.S. 507; So. R. Co. v. Fisher, 144 So. 580. (3) Railroad company is liable for the negligence of its engineer in backing engine and tank, when he knew, or had reasonable cause to believe that brakeman was between the ends of the cars intended to be coupled, if such negligence proximately caused the injury. Louisiana R. & N. Co. v. McGlory, 20 F.2d 545. (4) Railroad was liable for the death of employee, if railroad's negligence, though not the sole cause of employee's death, contributed thereto proximately as a substantial factor of causation. McDermott v. M.N. & S. Ry. Co., 283 N.W. 116. (5) In an action under this chapter, issue is whether there was negligence on the part of the employing carrier, and carrier is liable if injury to employee resulted, in whole, or in part, from negligence of any of the carrier's other employees, since neglect of a co-employee in the performance of his duty is attributed to the employer, and contributory negligence is merely ground for diminishing amount of recovery. Walaite v. C., R.I. & P. Ry. Co., 376 Ill. 59; So. Pac. Co. v. Hackley, 296 U.S. 630; Evans v. A., T. & S.F. Ry. Co., 345 Mo. 147; M. St. P. & S.S.M. Ry. Co. v. Rock, 279 U.S. 410; N.Y.C. & St. L.T. Co. v. Niebel, 214 F. 952; C., R.I. & P. Ry. Co. v. Calloway, 282 U.S. 894. (6) Where the method of doing the work has a direct bearing on safety of servant, the duty is on the master to use reasonable care to provide a safe method, and he cannot escape liability by intrusting its performance to others. Wilczynski v. Penn. R. Co., 90 N.J. Law 178. (7) The duty to warn employee of unsafe conditions is the duty of the master who cannot avoid responsibility for its non-performance by delegating it to a fellow servant. Penn. R. Co. v. Minnix, 282 F. 47; I.C.R. Co. v. Norris, 245 F. 926. (8) Plaintiff had the right to rely on the exercise of ordinary care on the part of the foreman, who was operating the motor-car and facing the switch target, to discover and act upon the signal of danger in time to avoid derailment. It was for the jury to say whether plaintiff assumed the risk. Jenkins v. Wabash R. Co., 73 S.W.2d 1002. (9) The Federal rule is that the employee's knowledge and realization of extraordinary risk caused by the master's negligence must appear before it can be said that the employee assumed the risk. Jenkins v. Wabash R. Co., 73 S.W.2d 1002. (10) An employee owes no duty to exercise care to discover extraordinary dangers arising from employer's negligence, but may assume that employer, or his agents, have exercised proper care for employee's safety until notified to the contrary, unless want of care and resulting danger are so obvious that an ordinarily prudent person would observe and appreciate them under the circumstances. So. Pac. R. Co. v. Weiand, 309 U.S. 670. (11) In an action for the wrongful death of a railroad switchman killed while coupling an air hose on a train being made up, it is not error to refuse instruction exonerating defendant if the switching crew had no notice and were ignorant that the deceased was in a position of danger. Mullen v. A., T. & S.F. Ry. Co., 191 P. 206. (12) Evidence of actuary is proper to show decedent's life expectancy. Willgues v. Penn. R. Co., 298 S.W. 817; Shaw v. Railroad, 282 S.W. 423. (13) Recovery may be had for full pecuniary damages actually sustained. Devine v. Railroad, 239 U.S. 52. (14) Care, attention, labor and assistance rendered by deceased are proper elements of damage. Jenkins v. Wabash R. Co., 302 U.S. 737. (15) The Federal statute does not fix the limit as to the amount of damages; that question is left largely to the jury. Chafin v. Norfolk R. Co., 93 S.E. 822.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action under the Federal Employers' Liability Act (45 U.S.C.A., Sec. 51, et seq.) to recover damages on account of the death of plaintiff's decedent, John W. Hertz. Verdict and judgment went for plaintiff for $ 10,000 and defendant appealed.

On the night of December 16, 1941, Hertz was employed as a rear brakeman on defendant's freight train, which was engaged in a switching operation in defendant's yards in St Clair County, Illinois. The particular operation was to "spot" the rear four cars (boxcars) of a 25 car train on track barges of the Federal Barge Line. The cars were to be placed on "spots" numbered 2, 3, 4, and 5, adjacent to an unloading platform on the west side of the barges. These "spots" or spaces were about 40 feet in length and were numbered from the south end of the barges. No. 1 "spot" was empty. There were two track barges anchored end to end along the east side of the Mississippi river, with two warehouse or dock barges anchored immediately on the west side thereof. The railroad tracks extended generally north and south, came down a rather steep incline along the east bank of the river, first at a 1.59% grade and then at a 3.5% grade, then up a rather steep grade on what is referred to as a cradle (a moveable track carrying device), and then out level onto the track barges, which would hold 12 cars. There were two railroad tracks on the barges. The clearance between cars on the two tracks was 3 feet, but on this occasion there were no cars on either track and the four cars were to be spotted on the west track, immediately adjacent to the unloading platform, the edge of which came to within 3 or 4 inches of the grab irons on the west side of the cars. The floor of the unloading platform was about even with the floor of the freight...