Crecelius v. Chicago, Milwaukee & St. Paul Railway Company

• Citation: 223 S.W. 413,284 Mo. 26
• Parties: MAUDE CRECELIUS, Administratrix of Estate of WALTER CRECELIUS v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Decision Date: 12 July 1920
• Court: United States State Supreme Court of Missouri

223 S.W. 413

284 Mo. 26

MAUDE CRECELIUS, Administratrix of Estate of WALTER CRECELIUS v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Missouri

July 12, 1920

Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.

Affirmed (on condition).

Fred S Hudson for appellant.

(1) The court erred in refusing to strike out parts of plaintiff's second amended petition on account of same being a departure from the first petition. Scovill v Glassner, 79 Mo. 449. (2) The court erred in not sustaining defendant's demurrer at the close of plaintiff's case and again at the close of the entire case. Illinois Central v. Behrins, 233 U.S. 473; Shanks v. Railway, 239 U.S. 556; D. L. & W. Ry v. Yurkonis, 238 U.S. 439; C. B. & Q. v Herrington, 241 U.S. 177; Matti v. Railway, 176 P. 154; St. L. I. M. & S. Ry. v. True, 176 P. 758; Odell v. Railway, 248 F. 343, 345; Erie Railroad v. Welsh, 242 U.S. 303; Jacoby v. Railroad, 161 N.W. 753. (3) Deceased was an employee, familiar with the yards and train movements, and defendant did not owe him the same duty that it would a passenger, trespasser or invitee. Cahill v. Railway, 205 Mo. 408; Degonia v. Railway, 224 Mo. 564; Rashall v. Railway, 249 Mo. 519; Gabal v. Railway, 251 Mo. 270. (4) Deceased was guilty of contributory negligence as a matter of law. Crecelius v. Railway, 274 Mo. 684. (5) The crew of which Crecelius was time-keeper was constructing a new, temporary track, and as to this work, neither plaintiff nor defendant was engaged in any kind of commerce, the work being purely new construction work. Raymond v. Railway, 243 U.S. 43; New York Central v. White, 243 U.S. 188; Peterson v. Railway, 229 U.S. 146; Bravis v. Railway, 217 F. 234; C. & E. Railway v. Steel, 108 N.E. 4; McKee v. Railway, 88 S.E. 616; So. Pac. Ry. v. Indust. Acct. Co., 40 S.Ct. 130. (6) The stipulation states what the company and the deceased were doing on the day that Crecelius was killed, and clearly shows the work was new construction, and that neither party was engaged in interstate commerce, and that the accident occurred after the day's work was over. Authorities under Point 5. (7) The stipulation is binding on plaintiff. Carroll v. Raul, 19 Mo. 103; Pratt v. Conway, 148 Mo. 299; Oskangan v. Arms Co., 103 U.S. 261; Butler v. National Home, 144 U.S. 65; Steamship Co. v. Emigration Commrs., 113 U.S. 37; Tootle v. Buckingham, 190 Mo. 195; St. Louis v. Babcock, 156 Mo. 154; State ex rel. v. Merriam, 159 Mo. 655; Walsh v. Railway, 102 Mo. 582; St. Charles v. Hackman, 133 Mo. 634; Ribard v. Railway, 257 Mo. 155; Steel v. Railway, 265 Mo. 116; Munford v. Wilson, 15 Mo. 540; Scaife v. Western Co., 90 F. 238; Gen. Elec. Co. v. Wagner, 130 F. 772; Prestwood v. Watson, 111 Ala. 607; Bingham v. Supervisors Winona County, 6 Minn. 88; Abbott's Trial Briefs, (Civil) 240; Rice on Evidence, 128; 1 Jones on Evidence, sec. 258; Greenleaf on Evidence, sec. 206. (8) The court erred in permitting expert testimony as to what was the negligent running of engines in the Morley yards. Hamilton v. Coal Co., 108 Mo. 370; Koons v. Railway, 65 Mo. 597; L. E. & St. L. Ry. v. Berry, 35 N.E. 566; Lawson on Expert and Opinion Evidence, 584; 8 Ency. Evidence, 954. (9) The verdict under the testimony was excessive, and was the result of prejudice and passion and not that of deliveration. Ry. Co. v. Kelly, 241 U.S. 485; Ry. v. Gainey, 241 U.S. 494; Chafin v. Railway, 93 S.E. 882. (10) To show user it must be shown that the public as well as the employees used the track at the point of accident. Plaintiff's Instruction 2 was therefore erroneous. Degonia v. Railway, 224 Mo. 590. (11) The verdict is excessive in that the jury did not diminish the damages as required by the Employers' Liability Act and by Instruction 5. Railway v. Earnest, 229 U.S. 122; Railway v. Sheeley, 221 F. 906.

Platt Hubbell and Geo. H. Hubbell for respondent.

(1) The amendment in plaintiff's second amended petition is not a departure; and any claim of departure was waived by the appellant in answering to the merits and going to trial. Schroeder v. Edwards, 267 Mo. 482; Sperry v. Hurd, 267 Mo. 639; Smith v. Mo. Pac. Ry., 56 F. 458. (2) The appellant was negligent, and the cause was properly submitted to the jury. Ry. Co. v. Glinn, 219 F. 148; Crecelius v. Mil. Ry. Co., 274 Mo. 671; Kippenbrock v. Railroad Co., 270 Mo. 479; Hubbard v. Wab. Railroad Co., 193 S.W. 579; Erie Railroad Co. v. Downs, 250 F. 419, 38 S.Ct. 583; Haven v. Ry. Co., 175 N.W. 587; Brossard v. Ry. Co., 149 N.W. 915. (3) Plaintiff's instruction numbered 2 properly declares the law under the facts of this case. Crecelius v. Mil. Ry. Co., 274 Mo. 671; Kippenbrock v. Railroad, 270 Mo. 483; Hubbard v. Wabash, 193 S.W. 579. (4) Deceased was not guilty of contributory negligence. Haven v. Ry. Co., 175 N.W. 587; Erie Railroad Co. v. Downs, 250 F. 415, 38 S.Ct. 583; Choctaw Railroad v. Baskins, 93 S.W. 758; St. Louis, I. M. & S. Ry. Co. v. Dillard, 94 S.W. 617; Jennings v. Ry. Co., 112 Mo. 268; Wensel v. Ry. Co., 170 N.W. 409; Torrance v. Pryor, 210 S.W. 433; City of Louisville v. Vaughn, 206 S.W. 547; City of Ashland v. Boggs, 171 S.W. 463, 161 Ky. 728, Ann. Cases, 1916B, 1005, 37 S.Ct. 652, 244 U.S. 654, 61 L.Ed. 1373. (5) On the day Crecelius was killed, part of the crew of which he was time-keeper were physically engaged in working on, and in the repair of the old main line track. The construction of the temporary track was also a part of the work of repairing the old main line track -- and part of the work in raising and lowering the grade and making the fills and cuts in the roadbed of the old main line track -- the construction of the temporary track was therefore not the construction of a new instrumentality of interstate commerce to be used permanently in the future, independently of the aforesaid repairs of the old main line track and roadbed; the temporary track was thereafter wholly abandoned and destroyed. The primary purpose of the temporary track was the repair of the old main line track and roadbed as aforesaid under the conceded facts of this record; and, all the work done by all the crew of which Crecelius was time-keeper, was work done in the repair of the old main line track and roadbed and was work in interstate commerce under the Federal Employers Liability Act. The cases cited by appellant are cases where the track or instrumentality was purely new construction work where the instrumentality was to be used permanently as an instrumentality of interstate commerce after completion, and was not incident to or a part of the work of repairing an old instrumentality then in use in interstate commerce as in the case at bar. Pederson v. Del., Lack. & West. R. R., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; So. Ry. Co. v. McGuin, 240 F. 649; K. C. So. Ry. Co. v. Martin, 262 F. 241; Phil. B. & W. R. Co. v. Smith, 250 U.S. 101, 39 S.Ct. 396; Coons v. Louisville & N. Railroad Co., 215 S.W. 946; N. Y. Cent. Ry. Co. v. Porter, 249 U.S. 168, 39 S.Ct. 188; Kinzell v. Ry. Co., 250 U.S. 130, 39 S.Ct. 412; So. Pac. Co. v. Indust. Acc. Com., 40 S.Ct. 130; Ohio Valley Elec. Ry. Co. v. Brumfield's Admr., 203 S.W. 541; Eley v. Railroad Co., 166 N.W. 739; Cincinnati Ry. Co. v. Hall, 243 F. 80; Columbia & P. S. R. Co. v. Sauter, 223 F. 604; Erie Railroad Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 557; Grand Trunk Ry. Co. v. Knapp, 233 F. 950; Coal & Coke Ry. Co. v. Deal, 231 F. 608; Brier v. Ry. Co., 168 N.W. 341, 183 Iowa 212; Denver Railroad Co. v. Wilson, 163 P. 857; Richey on Fed. Em. L. & Saf. App. Act. (2 Ed.), sec. 36; 1 Roberts, Fed. Lia. of Carr., secs. 467, 468, 694; Louisville Railroad Co. v. Walker's Admr., 172 S.W. 519, 162 Ky. 209; Stool v. So. Pac. Co., 172 P. 101; Knowles v. Railroad Co., 223 N.Y. 513. Graber v. Duluth Railroad Co., 150 N.W. 491; Crecelius v. Mil. Ry. Co., 274 Mo. 671. (6) The stipulation was properly set aside by the trial court on motion of the plaintiff. White v. Herminghausen, 275 Mo. 694; White v. Kincade, 95 Kan. 466, 148 P. 608, Ann. Cas. 1916B, 667. (7) The expert testimony was competent. Reifsnyder v. Ry. Co., 57 N.W. 693, 90 Iowa 76; Quinlan v. Ry. Co., 84 N.W. 961, 113 Iowa 89; Czezewzka v. Ry. Co., 121 Mo. 212; Schlereth v. Mo. Pac. Ry., 115 Mo. 107; Buckman v. Ry. Co., 100 Mo. 35; Abbott's Proof of Facts (3 Ed.), p. 830; 5 Encyc. Ev., pp. 600, 488, 692, 626; Goins v. Ry. Co., 47 Mo.App. 181; Spencer v. Bruner, 126 Mo.App. 102; Obermeyer v. Chair Mfg. Co., 120 Mo.App. 77; Seligman v. Rogers, 113 Mo. 654; Abbott's Trial Brief (2 Ed.), pp. 564, 28; Snyder v. Witner, 82 Iowa 652; Holton v. Cochran, 208 Mo. 424; Jones on Ev. (2 Ed.) sec. 371, p. 464; Meily v. Ry. Co., 215 Mo. 590; Wilder v. Co., 134 Iowa 451; Combs v. Const. Co., 205 Mo. 391; Fogus v. Ry. Co., 50 Mo.App. 265; Helfenstein v. Medart, 136 Mo. 615; 12 Am. & Eng. Ency. Law, 424, 425; Bradford v. Ry Co., 64 Mo.App. 483; Kreigh v. Westinghouse Co., 53 L.Ed. 984, 214 U.S. 249; Holmes v. Goldsmith Co., 37 L.Ed. 123, 147 U.S. 150; Gessley v. Ry. Co., 32 Mo.App. 418; Gordon v. Railroad, 222 Mo. 530; 3 Ency. Ev. 849, 855; Hamilton v. Mining Co., 108 Mo. 372; Moore v. Railroad, 268 Mo. 35; Mutual Life Ins. Co., v. Hillmon, 36 L.Ed. 711, 145 U.S. 285; Denver Railroad Co. v. Spencer, 61 P. 606, 27 Colo. 313, 51 L. R. A. 121; Haines Admx. v. Ry. Co., 193 Mo.App. 464. (8) The verdict is not excessive in view of the present purchasing power of money. Louisville & N. Ry. Co. v. Holloway's Admr; 168 Ky. 262, 181 S.W. 1126, 246 U.S. 525, 38 S.Ct. 379; Gulf Ry. Co. v. Carpenter, 201 S.W. 270, 39 S.Ct. 492; So. Ry. Co. v. Bennett, 233 U.S. 80, 34 S.Ct. 566, 58 L.Ed. 860, 98 S.C. 42; Meng v. Sav. Bank, 154 N.Y.S. 509, 169 A.D. 27; 17 C. J. 1090, 1334; Neary v. Ry. Co., 110 P. 226.

WILLIAMSON J. Woodson,...