David v. Mo. Pac. Railroad Co.

• Citation: 41 S.W.2d 179
• Decision Date: 28 July 1931
• Docket Number: No. 29330.,29330.
• Parties: SOPHIA DAVID, Administratrix of Estate of JAMES LEE DAVID, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: United States State Supreme Court of Missouri

41 S.W.2d 179

SOPHIA DAVID, Administratrix of Estate of JAMES LEE DAVID, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 29330.

Supreme Court of Missouri.

Division One, July 28, 1931.

Appeal from Jackson Circuit Court. — Hon. Ralph S. Latshaw, Judge.

AFFIRMED.

Edw. J. White and Hackney & Welch for appellant.

(1) The deceased, having been employed by the defendant for the express purpose of protecting defendant's trains from car thieves and train robbers, and having been fully warned that robberies of such trains as he was guarding and riding were likely to occur at any time and place, and that the car thieves were desperate characters who were likely to take his life in attempts to frustrate such robberies and in the protection of said property by him, and having been fully instructed to arm himself, as he did arm himself, with a loaded revolver and loaded sawed-off shotgun, and having accepted employment with knowledge of such probable activities of said train robbers and of the dangers to himself in coping with them, voluntarily assumed the risks of such employment, and the shooting of David by Gladsen was incident to David's service and was one of the risks assumed by him. This was one of the risks and perils ordinarily incident to his employment. 37 C.J. 704-705; 39 C.J. 708, 709, 710; 3 Labatt, Master and Servant (2 Ed.), sec. 1174, pp. 3130 and 3131; Wharton on Negligence, sec. 200; Thomas v. Ry. Co., 109 Mo. 200; Joyce v. Worcester, 140 Mass. 345; Vestner v. Power Co., 158 Cal. 284, 110 Pac. 918. (2) The inherent nature of David's work was sufficient warning to him of the danger which caused his death. No duty, therefore, rested on his employer to obtain and give to David notice of this particular intended train robbery. 3 Labatt, Master and Servant (2 Ed.), sec. 1113, p. 2939, Id. p. 2948; Lowrey v. Atlanta Joint Terminals, 145 Ga. 782, 89 S.E. 832; 30 C.J. 502; Atlantic Coast Line v. Southwell, 272 U.S. 64; 48 Sup. Ct. 25; Manwell v. Dourst, 178 Cal. 752, 174 Pac. 881; 1 A.L.R. 669; Feaster v. Ry. Co., 15 Fed. (2d) 540; St. L.-S.F. Ry. Co. v. Mills, 271 U.S. 344, 46 Sup. Ct. 520. (3) David had no knowledge of the employment of McCarthy as an informant, and the defendant had never undertaken or held out to David that it would furnish him advance information of any particular robbery. The mere fact that defendant had voluntarily undertaken to do more in anticipating robberies than it was obliged to do, did not make the furnishing of such information to David a duty on the defendant's part. Therefore the defendant was not legally responsible to David for the failure of McCarthy to communicate to the defendant advance information of the intended robbery. There was no such duty at common law, nor any duty assumed in defendant's conduct toward David. St. L.-S.F. Ry. Co. v. Mills, 271 U.S. 344. (4) The evidence is wholly insufficient to show what caused Gladsen to shoot David; nor to show what, if any, altercation was had between David and Gladsen previous to the shooting; nor does the evidence show that David did not know of Gladsen's presence and of his purpose to shoot David prior to the firing of the fatal shot; and there is an utter failure of proof to show that the failure to warn David of the intended attempt to rob the cars had a causal connection with or, was the proximate cause of, the fatal shooting. St. L.-S.F. Ry. Co. v. Mills, 271 U.S. 344; Feaster v. Ry. Co., 15 Fed. (2d) 540; Lowry v. Atlanta Joint Terminals, 145 Ga. 782. (5) The jury were left to conjecture, speculation and guesswork, owing to lack of sufficient evidence to find: First, whether McCarthy made any efforts to communicate with Boult; second, whether McCarthy had any opportunity without uncovering himself to communicate with Boult so as to apprise him of the intended attempt to rob the cars. There was no evidence that McCarthy had an opportunity to telephone Boult, nor that there was any telephone in the drug store, nor if one was there that McCarthy had access to it; third, (a) what caused Gladsen to shoot David, the circumstances of the shooting not being shown; (b) whether there was any altercation between them, or whether David attempted to arrest Gladsen or provoked the shooting otherwise; (c) whether David was shot with or without previous warning; fourth, what David could or would have done, and what the company could have done to avert the shooting even though McCarthy had made his report and David had been warned of the intended robbery; and, fifth, whether, if so, how, additional police force, train riders or guards could have prevented the shooting. The verdict cannot be permitted to stand. St. L.-S.F. Ry. Co. v. Mills, 271 U.S. 344.

Edmund H. McVey, Samuel R. Freet and Lester G. Seacat for respondent.

(1) The defendant, through its agent and employee, McCarthy, actually knew for twelve hours before the robbery that it would occur at the time and place it did, and it owed David the primary and non-delegable duty of warning him of this unusual and increased danger, and by not warning him, it not only failed in the fundamental duty so to warn, but also thereby rendered the place in which he was working unsafe. Having failed in its duty, defendant is liable for David's death resulting from such breach. 39 C.J. 507, 491, 490; 7 Am. & Eng. Ency. Law (2 Ed.) 417; Dixon v. Construction Co., 318 Mo. 50; Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160; Holshouser v. Gas & Elec. Co. (Colo.), 72 Pac. 289; Perry v. Marsh, 25 Atl. 659; Mooney v. Railroad Co., 317 Mo. 1255; McCalman v. Railroad Co., 215 Fed. 465; Co-Operative Tel. Co. v. St. Clair, 168 Fed. 645; Cincinnati, N.O. & T.P. Ry. Co. v. Hall, 243 Fed. 82. (2) David did not assume the risk of the attack by the robbers as one of the usual and ordinary hazards of his employment, for the reason that this was an unusual and imminent risk existing at the time David was killed, known to the defendant through its employee McCarthy, and unknown to David, and defendant is liable for the negligent failure of McCarthy to report the information so that it might be passed on to David. 18 R.C.L. 685, 686, 690, 691; Chicago & N.W. Ry. Co. v. Bower, 241 U.S. 470, 36 Sup. Ct. 624; Chicago, R.I. & P. Ry. Co. v. Ward, 252 U.S. 18, 40 Sup. Ct. 275; Clift v. Railway Co., 320 Mo. 791. (3) There was ample evidence that McCarthy had plenty of opportunity, with safety to himself, to communicate with defendant after the plans were made for this robbery. (4) Defendant's authorities are distinguishable and not in point.

RAGLAND, J.

This case comes to the writer on reassignment, having originally been assigned to one of our commissioners for the preparation of an opinion. It is an action under the Federal Employer's Liability Act to recover damages for the death of James Lee David, alleged to have been caused by the negligence of the defendant. David was in the employ of defendant as a train rider. Whilst engaged in the discharge of the duties incident to his employment, in the early morning of May 17, 1923, he was shot and killed by one Bert Gladsen, a train robber, who had gone to the place where the train under David's protection was standing for the purpose of breaking into and stealing from the box cars. The trial in the circuit court resulted in a verdict for plaintiff for $15,000. The cause comes to this court on defendant's appeal.

"It was admitted that David, when killed, was in the line of his duty, that his work was interstate commerce, and no question was raised as to the plaintiff being the administratrix of his estate. The sole question presented in the trial court and pressed here is whether or not any negligence of the defendant was shown and if so, whether it was the proximate cause of David's death." [Appellant's brief.]

The statement of the facts will be limited accordingly.

In April, 1923, the appellant was being "harrassed, annoyed and robbed" by an organized gang of thieves, in and adjacent to Kansas City; it was being "robbed" every week around Kansas City; robberies had occurred at Leavenworth, Atchison, Stillwell, Osawatomie and Paola, in Kansas, and at Pleasant Hill and Raytown, in Missouri. The thieves, who were reported to be "bad men" who would shoot their way out of trouble when confronted with it, specialized in looting box cars carrying certain kinds of merchandise. Their depredations were not confined to any particular trains or runs, nor would they occur every night; they happened sporadically, yet frequently, at some point in the territory just referred to.

David was employed as a train rider on or about April 1, 1923. As such he was under the immediate supervision of appellant's divisional special agent at Kansas City by whom he was assigned to trains as and where needed. It was his duty to examine the seals of the car doors and see that they were intact and that the train was all right, both before departure and en route. In a general way he was to protect the train. There was no fixed rule about where he should ride on a train. He could ride in the caboose, in the engine cab or in a box car, as his judgment might dictate. With respect to the information and instructions given him at the time of his employment appellant's then special agent, C.M. Barber, testified:

"I told him that we were having a great deal of trouble with a bad gang of train robbers robbing our trains en route and that I was looking for a man of sufficient ability to cope with them — a man who was not afraid to cope with them and a man who would shoot and use good judgment and watch things and if possible catch them, and after I had gone over the matter thoroughly with him he said, `I will take the job' or words to that effect... . I explained to him that they had been robbing the cars en route — throwing the stuff out en route and they were a large gang and a bad gang... . I told him that all of them were armed and that all of them would shoot him on sight and that he...