Cox v. Missouri-Kansas-Texas R. Co.

• Decision Date: 16 November 1934
• Docket Number: 31869
• Citation: 76 S.W.2d 411,335 Mo. 1226
• Parties: John J. Cox v. Missouri-Kansas-Texas Railroad Company, Appellant
• Court: Missouri Supreme Court

76 S.W.2d 411

335 Mo. 1226

John J. Cox v. Missouri-Kansas-Texas Railroad Company, Appellant

No. 31869

Supreme Court of Missouri

November 16, 1934

Motion for Rehearing Overruled November 16, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Reversed.

Carl S. Hoffman and Everett Paul Griffin for appellant.

(1) The court erred in refusing the peremptory instruction in the nature of a demurrer to the evidence, offered by the defendant at the close of all of the evidence. (a) The cause of action, if any, was under the Federal Employers' Liability Act, and was barred because the suit was not instituted within the time limited by said act. 45 U.S. Code Ann., sec. 56; Atlantic Coast Line Railroad Co. v Burnett, 239 U.S. 199; Reading Co. v. Koons, 271 U.S. 58; Oglesby v. Ry. Co., 1 S.W.2d 172; Lehigh Valley Railroad Co. v. Huben, 10 F.2d 78; Flynn v. Railroad Co., 283 U.S. 53. (b) There was no actionable negligence shown by the evidence. If plaintiff was struck by a glancing blow, it was one of the ordinary risks incident to the employment. Such risks he assumed. Ingram Day Lbr. Co. v. Joh, 64 So. 934; C. N. O. & T. P Ry. Co. v. Gossett, 18 S.W.2d 986; Hunter v. Busy Bee Candy Co., 307 Mo. 656; Quigley v. Hines, 291 Mo. 23; Flack v. Ry. Co., 285 Mo. 28. (c) There was no competent evidence that the cancer was the result of a blow struck by a fellow employee. Adelsberger v. Sheehy, 59 S.W.2d 644; O'Leary v. Scullin Steel Co., 303 Mo. 363; De Donato v. Wells, 41 S.W.2d 184; May Department Stores Co. v. Bell, 61 F.2d 830; State ex rel. Gosselin v. Trimble, 41 S.W.2d 801. (d) Respondent's evidence that the hammer was swung in an improper manner is contrary to physical facts. Haviland v. Ry. Co., 172 Mo. 106. (2) The court erred in permitting the expert witness to answer the hypothetical question as to whether the blow detailed therein could have caused the cancer. The question included facts not supported by the evidence and excluded essential elements. The evidence showed that the witness was not qualified to answer. Hahn v. Hammerstein, 272 Mo. 248; De Donato v. Wells, 41 S.W.2d 184; Root v. Ry. Co., 195 Mo. 348.

Allen, Moser & Marsalek for respondent.

(1) Plaintiff's evidence made a prima facie case. No point to the contrary is being made. The burden of proving that his injury is controlled by the Federal act rests on defendant, which asserted it as an affirmative defense. Plaintiff's prima facie case cannot be destroyed by defendant's oral testimony, no matter how clear, convincing or uncontradicted such testimony may be. The issue remains one for the jury. Gannon v. Gas Co., 145 Mo. 514; Cluck v. Abe, 328 Mo. 84; Whittington v. Hotel Operating Co., 326 Mo. 1127; Rockenstein v. Rogers, 326 Mo. 481; State v. Breese, 326 Mo. 895; Darlington Lbr. Co. v. Railroad Co., 243 Mo. 245; Waters v. Bankers Life Assn., 226 Mo.App. 1199; Minneapolis v. Railroad Co., 242 U.S. 353, 61 L.Ed. 358; Osborne v. Gray, 241 U.S. 15, 60 L.Ed. 865; Myers v. Railroad Co., 296 Mo. 239; State ex rel. St. L.-S. F. Ry. Co. v. Haid, 37 S.W.2d 440. (2) The record contains substantial evidence of negligence on the part of the witness Brown, plaintiff's fellow servant, for which defendant is liable. Sec. 4226, R. S. 1919, now Sec. 3275, R. S. 1929. (a) Plaintiff did not assume the risk of injury arising from negligence of his fellow servant. Williams v. Pryor, 272 Mo. 621; Sloan v. Polar Wave I. & F. Co., 19 S.W.2d 476; Briscoe v. Railroad Co., 130 Mo.App. 513; Hogue v. Ry. Co., 20 S.W.2d 301. (3) The evidence is amply sufficient to justify a finding that plaintiff's cancerous condition was caused by the blow from the hammer. Fetter v. Fidelity & Casualty Co., 174 Mo. 256; Wheeler v. Fidelity & Casualty Co., 298 Mo. 640; Kuenzel v. St. Louis, 278 Mo. 277; Seckinger v. Mfg. Co., 129 Mo. 590; Sharp v. Ry. Co., 213 Mo. 517; MacDonald v. Railroad Co., 219 Mo. 468; DeMaet v. Fidelity Storage, P. & M. Co., 231 Mo. 615; Gaetz v. City of Melrose, 193 N.W. 691; Canon Reliance Coal Co. v. Commission, 211 P. 868; Loveless v. Red. Top Cab Co., 158 Wash. 474, 291 P. 344, 79 A. L. R. 347; Rosenburg v. State to Use of Ambrose, 99 A. 680; McCafferty v. Railroad Co., 193 Pa. St. 339, 44 A. 435; Atlantic Coast Line Railroad Co. v. Thompson, 211 F. 889; L. & N. Railroad Co. v. Kemps, 149 S.W. 835; Shaw v. Ry. Co., 173 Ill.App. 107; Santa Ana Sugar Co. v. Ind. Acc. Com., 170 P. 630; Potter v. Welch & Sons, Ltd., 3 K. B. 1020. (a) Appellant, by its objection, prevented the introduction of testimony to prove that the injury actually caused the cancer. It is now estopped from asserting that such evidence is required. 4 C. J. 705; Garst v. Good, 50 Mo.App. 149; Paul v. Western Union Tel. Co., 164 Mo.App. 233; Minor v. Woodward, 179 Mo.App. 336; Walther v. Warner, 26 Mo. 143. (4) The question of whether an expert witness is qualified is a matter resting largely in the discretion of the trial court. Its action on the question will not be disturbed on appeal in the absence of a showing that its discretion was abused. Seckinger v. Mfg. Co., supra; Spaulding v. Edina, 122 Mo.App. 68; 22 C. J. 526; Hulsey v. Quarry & Const. Co., 326 Mo. 213.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The defendant, as its name indicates, is an interstate railroad company and engaged in interstate commerce. It has connected lines of railroad in Texas Oklahoma, Kansas, and Missouri, with its eastern terminus at St. Louis, where it connects with a large number of eastern lines. The plaintiff, a machinist in defendant's employ, brought this suit for personal injuries which he claims to have received in the course of his work at Franklin, Missouri, a division point on defendant's main line of road some 200 miles west of St. Louis and 40 miles northeast of Sedalia, Missouri.

The defendant maintained a roundhouse and repair shop at Franklin, Missouri, where its engines and other railroad equipment were repaired and conditioned for further use, and plaintiff was employed in that line of work. About September 1, 1925, the plaintiff claims to have received the injuries in question while assisting one Brown, also a machinist in defendant's employ, in repairing a passenger engine used by defendant in operating one of its regular passenger trains between Sedalia, Missouri, and St. Charles, Missouri, a point some 25 miles northwest of St. Louis. The injury is alleged to have occurred by reason of the fellow machinist Brown negligently striking plaintiff's left hand with a sledge hammer which Brown was wielding in driving an iron wedge against which plaintiff was holding a punch, in the course of making the engine repairs. According to plaintiff's evidence, the machinist Brown struck the punch which plaintiff was holding what plaintiff says was a glancing blow which, by glancing, also struck plaintiff's left hand. This negligent blow of the sledge hammer itself caused only a slight injury to plaintiff's hand, but plaintiff claims that in the course of a year or so such slight injury developed into a cancer of the hand, necessitating the left arm being amputated between the wrist and elbow. It is for the loss of his hand that plaintiff brought this suit and on a jury trial recovered a verdict for $ 20,000 damages, which the trial court caused plaintiff to reduce by remittitur to $ 17,000, for which judgment was entered. The defendant has appealed.

The defendant by its answer denied that plaintiff received any injuries at the time, in the manner or by the means stated, and further alleges that at the times mentioned in plaintiff's petition it was operating an interstate railroad and engaged in interstate commerce; that the locomotive engine on which plaintiff was working was assigned to and engaged in the transportation of persons and property in interstate commerce and that plaintiff's cause of action, if any, is covered exclusively by the Act of Congress known as the Federal Employers' Liability Act, 36 United States Statutes at Large, Chapter 143, which provides that "No action shall be maintained under this chapter unless commenced within two years from the day the cause of action accrued;" that plaintiff did not within two years after the accrual of his cause of action commence this or any suit on such cause of action, and that this and any cause of action growing out of or based on the facts alleged in the petition is barred by the aforesaid Statute of Limitation contained in the Act of Congress. The plaintiff does not claim that he brought any suit on the present cause of action within the two years after the same accrued to him, but by his reply denies that the injuries sued for were connected with or grew out of interstate commerce so as to be governed exclusively by the Federal act mentioned, and therefore that the two-year Statute of Limitation contained in the Federal act is not applicable.

There is no doubt but that the Congress of the United States has occupied the whole field of interstate commerce and if the injuries to plaintiff for which he sues were received while he and the defendant were engaged in commerce between the states, then plaintiff's cause of action is governed exclusively by the Federal act and is barred by the limitations therein provided. [45 U.S. Code Anno., sec. 56.] In Milburn v. Chicago, M., St. P. & P Railroad Co., 331 Mo. 1171, 56 S.W.2d 80, 86, this court ruled: "If the employee is not engaged in commerce 'among the several states,' Congress has no authority to legislate concerning his rights and remedies for injuries sustained. [Article 1, Sec. 8, Clause 3, Constitution of the United States.] Likewise, if he is so engaged, since the entire subject of injuries in interstate commerce is so completely covered by Federal acts, the...