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

• Decision Date: 27 May 1932
• Docket Number: 29765
• Citation: 50 S.W.2d 127,330 Mo. 589
• Parties: Cora Elnora Demaray, Administratrix of the Estate of Theodore Charles Demaray, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

50 S.W.2d 127

330 Mo. 589

Cora Elnora Demaray, Administratrix of the Estate of Theodore Charles Demaray, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 29765

Supreme Court of Missouri

May 27, 1932

Rehearing Overruled April 2, 1932. Motion to Transfer to Banc Overruled May 27, 1932.

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge; Opinion filed at October Term, 1931, February 11 1932; motion for rehearing filed; motion overruled April 2 1932; motion to transfer to court en banc filed; motion overruled at April Term, May 27, 1932.

Affirmed.

Carl S. Hoffman and Montgomery & Rucker for appellant.

(1) The court erred in refusing to give defendant's peremptory instruction in the nature of a demurrer to the evidence. (a) The evidence wholly failed to show any actionable negligence on the part of the defendant. New Orleans & North East v. Harris, 247 U.S. 367; State ex rel. v. Ellison, 271 Mo. 470; Hunter v. Busy Bee Candy Co., 307 Mo. 673; Johnson v. Terminal Railroad Assn., 320 Mo. 844. (b) Suit is under the Federal Employers' Liability Act, and in such an action assumption of risk is a complete defense. From the entire record it appears that the death of Demaray was the result of injuries which he sustained due to dangers and risks ordinarily incident to his employment or to dangers which were so open and obvious that an ordinarily prudent person would have seen and appreciated them. Seabord Air Line v. Horton, 233 U.S. 492; Boldt v. Pa. Railroad Co., 245 U.S. 441; Sou. Pac. v. Berkshire, 254 U.S. 415; Jacobs v. Southern Ry. Co., 241 U.S. 229; C. & A. Railroad v. DeAtley, 241 U.S. 310; Quigley v. Hines, 291 Mo. 23; Hoch v. St. Louis-S. F. Ry. Co., 315 Mo. 1199; Flack v. A. T. & S. F. Ry. Co., 285 Mo. 28. (2) The court erred in giving, at the request of plaintiff, Instruction 1. (a) There was no evidence in the case upon which to base the instruction. State ex rel. v. Ellison, 272 Mo. 571; Allen v. Mo. Pac. Ry. Co., 294 S.W. 80; Authorities under Point 1, supra. (b) The instruction was misleading, and in conflict with instructions given for defendant. Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; Stid v. Railroad, 236 Mo. 382. (c) The instruction purports to cover the whole case and directs a verdict but omits essential facts and elements necessary to authorize a verdict. Among others, the instruction wholly ignores the element of assumption of risk. Wingfield v. Railroad, 257 Mo. 361; State ex rel. v. Trimble, 291 Mo. 235; Allen v. Mo. Pac. Ry. Co., 294 S.W. 80. (3) The court erred in refusing, upon motion of defendant, to require plaintiff to elect between inconsistent and conflicting specifications of negligence pleaded. Jordan v. St. Louis Transit Co., 202 Mo. 426. (4) The court erred in giving plaintiff's Instruction 3 because said instruction permitted the jury to find that the defendant had pleaded contributory negligence when no such issue was joined by the pleadings. Citation of authorities unnecessary. (5) The court erred in admitting, over the objection and exception of the defendant, evidence of a statement made by the deceased after his injury, for the reason that it did not appear the deceased was conscious and the statement was a mere recitation of a past event and threw no light on the issues.

W. W. McCanles for respondent.

(1) The court did not err in refusing to give defendant's peremptory instruction in the nature of a demurrer to the evidence. Crowl v. Am. Linseed Co., 255 Mo. 305, 164 S.W. 618; Thornberry v. Railroad, 178 S.W. 197; Carbaugh v. Railroad, 2 S.W.2d 195; Chulick v. Foundry Co., 199 S.W. 437; Sullivan v. Ry. Co., 12 S.W.2d 735; Martin v. Ry. Co., 30 S.W.2d 749; O'Donnell v. Baltimore & O. Railroad Co., 26 S.W.2d 929; Koonse v. Mo. Pac. Railroad Co., 18 S.W.2d 467; Chesapeake & Ohio Ry. Co. v. Mihas, 280 U.S. 102; Shaw v. Railroad Co., 282 S.W. 416; Laughlin v. Railroad Co., 248 S.W. 949; Potterfield v. Terminal R. Assn., 5 S.W.2d 447; Woodward v. Railroad Co., 295 S.W. 98; Reed v. Dir. Gen. of Railroads, 258 U.S. 92, 42 S.Ct. 191, 192, 66 L.Ed. 480; Oglesby v. Ry., 1 S.W.2d 172; Clift v. Ry., 9 S.W.2d 972. (2) The court did not err in giving plaintiff's Instruction 1. (a) There was evidence in the case upon which to base the instruction (see Points and Authorities under Point 1). (b) The instruction was not misleading and not conflicting with instructions given for defendant. Moran v. Kansas City Rys. Co., 232 S.W. 1111; Sparks v. Harvey, 214 S.W. 249; Evy v. Davis, 244 S.W. 954; Spencer v. Quincy Railroad Co., 297 S.W. 353; Baker v. Ry. Co., 122 Mo. 533; Seaboard Air Line v. Horton, 233 U.S. 492. (c) The instruction did not omit essential facts and elements necessary to authorize a verdict. Shaw v. Chicago & A. Railroad Co., 282 S.W. 416; State ex rel. Ambrose v. Trimble, 263 S.W. 840, 304 Mo. 533; Maurizi v. Western Coal & Mining Co., 11 S.W.2d 268. (3) The court did not err in refusing to require the plaintiff to elect between the specifications of negligence pleaded. Hanson v. Springfield Traction Co., 226 S.W. 3; Feil v. First Natl. Bank, 269 S.W. 936; Jordan v. St. Louis Transit Co., 202 Mo. 478. (4) The court did not err in giving plaintiff's Instruction 3. Spencer v. Quincy, O. & K. C. Railroad Co., 297 S.W. 353; Maurizi v. Western Coal & Mining Co., 11 S.W.2d 268. (5) The court did not err in admitting evidence of a statement made by the deceased after his injury. Nahorski v. St. Louis Electric Terminal Ry. Co., 271 S.W. 749; Woods v. Terminal Ry. Co., 8 S.W.2d 922.

OPINION

Gantt, P. J.

Action to recover damages under the Federal Employers' Liability Act for the death of Theodore C. Demaray, while he was working for defendant as a switchman in its yard at Kansas City, Kansas. Judgment for plaintiff for $ 15,000. Defendant appealed.

The case was submitted to the jury on the charge that defendant kicked and suddenly moved a car which deceased, in the course of his employment, was attempting to board and that it negligently did so without warning deceased of said intended movement, which was contrary to a long established custom existing in said yard and well known to defendant and its employees. The other charges of negligence were abandoned.

The answer was a general denial with pleas that the injury and death were caused by the negligence of deceased and that he assumed the risk of said injury. The reply was a general denial.

At the beginning of the trial, defendant moved to compel plaintiff to elect on which of several alleged inconsistent specifications of negligence she would proceed to trial. The motion was overruled. Thereafter and at the close of the evidence for plaintiff, the petition was amended without objection by striking therefrom certain parts thereof. Plaintiff contends that this amendment removed all inconsistency. Defendant did not think so and renewed its motion. The motion was overruled. Of this defendant complains and states "that a careful reading of the petition will disclose that plaintiff pleaded on the one hand that the deceased was unaware that any signal had been given to cut off and kick the car, and on the other hand that he was aware that such signals had been given." We have carefully read the petition several times and are unable to find a plea that deceased knew such signals had been given. The motion was well ruled.

The facts follow: The tracks in this part of the yard run northeast and southwest and curve to the east. A public street crosses them at about the center of the yard. On the day of the injury, the switch engine coupled to the south end of a string of six cars was standing some distance south of the crossing. At this time yardmaster Waddell directed the foreman, within the hearing of the switchman, to shove the cars on to the scale track and eat dinner. The engine and cars were several hundred feet south of the lead or switch to the scale track. And the lead to track No. 4 was between the engine and cars and the lead to the scale track. On this order of the yardmaster, the foreman and switchmen proceeded to assume their several positions. Custer, the field man walked northward toward the scale track; Cooper, the foreman, walked northward toward the crossing; Olson, the signal man, remained south of the crossing and some distance from the string of cars that he might receive signals from Cooper and relay them around the curve to the engineer; Demaray, the pin puller, walked in a southwest direction and toward the engine and cars. The empty oil tank car on the north end of the string was to be stored on track No. 4. It was known to the switchmen testifying that such cars were stored on said track. So while the men were assuming positions, Cooper decided to kick the tank car on to track No. 4 as they proceeded to the scale track. Thereupon, from the crossing, he gave a signal to shove north which was relayed by Olson to the engineer, who responded by moving northward. After moving a short distance, the engine and cars were stopped until another engine moved from said tracks. The engine and cars then started northward. About this time Cooper gave a signal to cut off one car and then gave the signal to kick. The witnesses do not agree on Demaray's exact location at the time the cut-off and kick signals were given by Cooper. Plaintiff contends that at about said time Demaray was attempting to board the oil tank car for the purpose of either uncoupling and switching it to track No. 4 or for the purpose of riding and relaying signals to the engineer as they proceeded to the scale track. And she further contends the "kick of the cars" without warning caused Demaray to miss or lose hold of the grab iron on the car, thereby causing him to fall across the rail and be injured. Defendant contends that...