Crain v. Illinois Cent. R. Co.

• Decision Date: 09 July 1934
• Docket Number: 31500
• Citation: 73 S.W.2d 786,335 Mo. 658
• Parties: Ida B. Crain, Administratrix of the Estate of Frank Crain, v. Illinois Central Railroad Company, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 786

335 Mo. 658

Ida B. Crain, Administratrix of the Estate of Frank Crain, v. Illinois Central Railroad Company, Appellant

No. 31500

Supreme Court of Missouri

July 9, 1934

Motion for Rehearing Overruled July 9, 1934.

Motion to Transfer to Court en Banc Overruled July 9, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Affirmed.

Watts & Gentry for appellant; Edward C. Craig and Vernon W. Foster of counsel.

This case being brought under the Federal Employers' Liability Act (45 U.S.C. A., Secs. 51-59), and violation of a law of the United States known as the Boiler Inspection Act (U.S Code, Title 45) being alleged by plaintiff, the rights of the parties must be determined in accordance with the decisions of the Supreme Court of the United States, and where such decisions conflict with rules laid down by Missouri courts the latter must be disregarded. Ill. State Tr. Co. v Railroad Co., 5 S.W.2d 368; C. M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564; Gulf M. & N. Railroad Co. v. Wells, 275 U.S. 255, 48 S.Ct. 152; Western & A. Railroad Co. v. Hughes, 278 U.S. 496, 49 S.Ct. 232; C. & O. Ry. Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 443; A. Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210; Peters v. Ry. Co., 42 S.W.2d 588; Norton v. Wheelock, 23 S.W.2d 146. This case, to use the language of the Supreme Court of the United States, is one of a peculiar class where that court has frequently been obliged to give special consideration to the facts in order to protect interstate carriers against unwarranted judgments and enforce observance of the Liability Act as interpreted by that court. A., T. & S. F. Ry. Co. v. Saxon, 284 U.S. 458. It is a case wherein the special investigators for the Interstate Commerce Commission, whose duty it was to make an examination into and report the cause of the accident, testified as witnesses that the defect claimed by the plaintiff to exist did not exist. A. Coast Line Railroad Co. v. Temple, 52 S.Ct. 334, 76 L.Ed. 469; Am. Exch. Natl. Bank v. Lacy, 123 S.E. 475. The trial court erred in overruling defendant's demurrer to the evidence at the close of all the evidence in the case, for three reasons: (a) The rule applied by the Supreme Court of the United States to determine whether or not a demurrer to the evidence should be sustained is that, although there is some evidence offered which tends to prove plaintiff's case, yet if that evidence is so unsubstantial or so overwhelmingly shown to be untrue that the court could not, or should not, allow a verdict in plaintiff's favor to stand if one should be rendered, then the trial court should sustain the defendant's demurrer to the evidence. The evidence in this case clearly brings the case within that rule. So. Ry. Co. v. Walters, 52 S.Ct. 58; Gulf M. & N. Ry. Co. v. Wells, 48 S.Ct. 151; Small v. Lamborn, 45 S.Ct. 300; N. Y. Railroad Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198; Delaware, L. & W. Railroad Co. v. Converse, 139 U.S. 469; Gunning v. Cooley, 50 S.Ct. 231; Pleasants v. Fant, 22 Wall. 116; A. Coast Line Railroad Co. v. Driggers, 49 S.Ct. 490; Patton v. Ry. Co., 179 U.S. 658; So. Pac. Ry. v. Pool, 160 U.S. 438; Sekinoff v. Severin Co., 53 F.2d 733; Southern Ry. v. Verelle, 57 F.2d 1008; Penn. Railroad v. Chamberlain, 53 S.Ct. 391. In this case a mere scintilla of evidence offered by plaintiff to show that the flange of one wheel was worn below the legal requirement for six or eight inches of its surface, without any identification of the location of that wheel, was used as a basis for the jury to speculate upon, in spite of the most overwhelming evidence that there was no defect at all. That will not do. C. & O. Ry. v. Martin, 283 U.S. 209. (b) The trial court erred in overruling defendant's demurrer to the evidence, offered at the close of all the evidence in the case, for the further reason that no evidence offered tended to establish a causal connection between the alleged defective condition of one pony truck wheel of defendant's engine No. 1159 and the overturning of said engine and the resulting death of Crain. The burden was on plaintiff to prove, not only that defendant was negligent, but also that its negligence was a direct cause of the injury which resulted in Crain's death. A. Coast Line Railroad Co. v. Driggers, 49 S.Ct. 490; A., T. & S. F. Ry. Co. v. Saxon, 52 S.Ct. 229; A. T. & S. F. Ry. Co. v. Toops, 50 S.Ct. 281; K. C. So. Ry. Co. v. Jones, 48 S.Ct. 308; So. Ry. Co. v. Walters, 52 S.Ct. 58; Patton v. Ry. Co., 179 U.S. 664; St. L.-S. F. Railroad Co. v. Mills, 46 S.Ct. 520; St. L. I. Mt. Ry. v. McWhirter, 229 U.S. 265; Roberts Fed. Lia. of Carriers, sec. 785; A. Coast Line v. Temple, 52 S.Ct. 334; Delaware, L. & W. Railroad v. Koske, 279 U.S. 7, 52 S.Ct. 202. The Missouri rule on this subject is precisely the same as the Federal rule. Harper v. Terminal Co., 187 Mo. 575; Van Bibber v. Swift & Co., 286 Mo. 317; Coble v. Ry. Co., 38 S.W.2d 1036. (c) A verdict for the plaintiff on the evidence produced could only be based on speculation and conjecture as to what caused the accident, and, therefore, the jury should have been directed to find a verdict for the defendant. If, as the evidence strongly tended to show, the accident was caused solely by Crain's negligent disobedience of orders (in that he disregarded written orders limiting speed to ten miles per hour, and attempted to pass through the double curve at such a dangerously high rate of speed that he caused the engine to be overturned), then the defendant could not be held liable; for, even if defendant was negligent in using a wheel with a flange worn to a forbidden degree, that negligence had nothing to do with the accident, and, therefore, there was no right of recovery under the Federal Employers' Liability Act, as construed by the Federal courts. So. Ry. v. Youngblood, 286 U.S. 313, 52 S.Ct. 518; Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91; Davis v. Kennedy, 266 U.S. 147, 45 S.Ct. 33; Frese v. Railroad Co., 290 Mo. 501, 263 U.S. 1; Bradley v. Ry. Co., 44 F.2d 683. On the other hand, if defendant's negligence caused Crain's death, there would be liability. Only by a guess could the jury reach a conclusion as to which possible cause produced the result. A verdict resting on guesswork cannot stand. A., T. & S. F. Railroad Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281; C., M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564; Gulf M. & N. Railroad Co. v. Wells, 275 U.S. 455, 48 S.Ct. 151; K. C. So. Ry. v. Jones, 276 U.S. 303, 48 S.Ct. 308; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 165; Sekinoff v. Severin Co., 53 F.2d 733; Ford v. McAdoo, 131 N.E. 874; White v. Lehigh Valley Ry., 115 N.E. 439; Asbach v. Railroad Co., 37 N.W. 182; C. R. I. & P. Railroad Co. v. Rhoades, 68 P. 58; 2 Roberts Fed. Liability of Carriers, 1326-27; Looney v. Railroad Co., 200 U.S. 485; Condon v. Schoenfeld, 214 Ill. 231; Patton v. Railroad Co., 179 U.S. 658; Penn. Railroad v. Chamberlain, 53 S.Ct. 391; N. Y. Central Railroad v. Ambrose, 288 U.S. 490; Fryer v. St. L.-San F. Ry. Co., 63 S.W.2d 47; Robison v. Ry. Co., 64 S.W.2d 660.

Eagleton, Henwood & Waechter for respondent.

Under the pleadings and the evidence as a whole a case was made for the jury on the issues of defective wheel and proximate cause, and therefore the demurrer to the evidence was properly overruled. (a) There is substantial evidence tending to show that defendant violated the Safety Appliance Act in using or permitting the use of an engine with a defective wheel. M. & St. L. Railroad Co. v. Gotschall, 244 U.S. 66; S.-A. & A. P. Ry. Co. v. Wagner, 241 U.S. 476; T. & P. Ry. Co. v. Rigsby, 241 U.S. 33; Donegan v. Ry. Co., 165 F. 869; U. P. Ry. Co. v. O'Brien, 161 U.S. 451; C. & N. W. Ry. Co. v. Struthers, 52 F.2d 88; N. & W. Ry. Co. v. Gillespie, 224 F. 316; St. L. & S. F. Ry. Co. v. Duke, 192 F. 306; B. & O. Railroad Co. v. Taylor, 186 F. 828; Patton v. So. Ry. Co., 82 F. 979; Young v. Wheelock, 333 Mo. 992; Schlueter v. Ry. Co., 316 Mo. 1266; Burtch v. Wabash Ry. Co., 236 S.W. 338; Miller v. Schaff, 228 S.W. 488. (b) There is substantial evidence tending to show that the defective wheel of the engine was the proximate cause or a contributing proximate cause of the derailment. Davis v. Wolfe, 263 U.S. 239; L. & N. Railroad Co. v. Layton, 243 U.S. 617; M. & St. P. Ry. Co. v. Kellogg, 94 U.S. 469; Erie Railroad Co. v. Russell, 183 F. 722; Donegan v. Ry. Co., 165 F. 869; C. & N. W. Ry. Co. v. Struthers, 52 F.2d 88; N. & W. Ry. Co. v. Gillespie, 224 F. 316; Young v. Wheelock, 333 Mo. 992; Harrison v. Electric Light Co., 195 Mo. 606. (c) Plaintiff's evidence need not exclude other possible causes of the derailment. State ex rel. v. Haid, 28 S.W.2d 97; Conner v. Railroad Co., 181 Mo. 397; Settle v. Ry. Co., 127 Mo. 336.

OPINION

Tipton, J.

This case comes to the writer on reassignment. It is an action for damages under the Federal Employers' Liability Act, arising out of the death of respondent's husband, Frank Crain, while employed by appellant as a locomotive engineer. The trial resulted in a judgment for respondent in the sum of $ 27,500 and the appellant has duly appealed to this court.

The respondent alleged in her petition that she had been duly appointed administratrix of the estate of her husband; that on January 11, 1929, while he was operating an engine attached to a passenger train of the appellant, he was killed in a wreck resulting from the derailment of the engine at Belleville, Illinois, and she further alleged: "That said derailment and injuries to and death of her said husband directly and proximately resulted from defendant's violation of the laws of the United States, known as the Boiler Inspection Act (U.S. Code,...