Derrington v. Southern Ry. Co.

• Citation: 40 S.W.2d 1069,328 Mo. 283
• Parties: Mamie Lee Derrington, Administratrix of Estate of Arch Derrington, v. Southern Railway Company, Appellant
• Decision Date: 03 July 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 1069

328 Mo. 283

Mamie Lee Derrington, Administratrix of Estate of Arch Derrington, v. Southern Railway Company, Appellant

Supreme Court of Missouri

July 3, 1931

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

Kramer Kramer & Campbell and Samuel B. McPheeters for appellant.

(1) In determining all questions of substantive law in this case including the question of whether the court should have directed a verdict in favor of plaintiff, the amount and sufficiency of evidence to require submission of case to the jury, the questions of what constitutes negligence, assumed risk, proximate cause, and the negligence of decedent, this being a case under the Federal Employers' Liability Act, the court is bound by the Federal statute and by the decisions of the Federal courts applying common-law principles. Southern Railway Co. v. Gray, 241 U.S. 333; 2 Roberts, Federal Liability of Carriers (2 Ed.), 1578, 1579; Missouri Pac. Railroad Co. v. Aeby, 275 U.S. 426, 72 L.Ed. 351, 48 S.Ct. 177; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 79 L.Ed. 1041, 48 S.Ct. 564; Union Pacific Railroad Co. v. Huxoll, 245 U.S. 535, 62 L.Ed. 455, 38 S.Ct. 187; Spencer v. Ry. Co., 336 Ill. 560; Gulf Railroad Co. v. Wells, 275 U.S. 455, 72 L.Ed. 370; Atlantic Coast Line v. Davis, 279 U.S. 34, 48 S.Ct. 210. (2) Under the Federal rule a scintilla of evidence is not sufficient to permit the submission of the case to a jury. There must be reasonable and substantial evidence for plaintiff before the case can be submitted to the jury, and the evidence in favor of plaintiff must be of such a conclusive and substantial character that, if a verdict were returned for plaintiff, the court would not have to set it aside in the exercise of a sound judicial discretion. If the court, even with conflicting evidence, in the exercise of sound judicial discretion ought to set aside a verdict for plaintiff, then, under such circumstances, a verdict should be directed in favor of defendant, and a judgment for plaintiff should be reversed here. Hardy-Burlingham Mining Co. v. Baker, 10 F.2d 279; Norfolk & Western Railroad Co. v. Collingsworth, 32 F.2d 561; Kansas City Southern Railroad Co. v. Jones, 276 U.S. 303, 72 L.Ed. 583; Delaware Railroad Co. v. Koske, 279 U.S. 7, 49 S.Ct. 2021; Atlantic Coast Line v. Davis, 279 U.S. 34; Small Co. v. Lamborn & Co., 267 U.S. 248; 2 Roberts, Federal Liability of Carriers (2 Ed.), sec. 1028, p. 1970; C. M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; St. L. I. M. & S. Ry. Co. v. McWhirter, 229 U.S. 265; St. L. & S. F. Ry. Co. v. Mills, 271 U.S. 344; Atlantic Coast Line v. Driggers, 49 S.Ct. 490; W. & A. Railroad Co. v. Hughes, 73 U.S. L.Ed. 268; 2 Roberts, Federal Liability of Carriers (2 Ed.) sec. 830, p. 1605. (3) There is no liability in this case under the specifications of negligence concerning alleged custom for the reason that under the Federal rule there is an entire failure to prove that any custom existed which was certain, definite, uniform and known, or so notorious that it would have been known to any person of reasonable prudence who dealt with its subject with the exercise of ordinary care, and for the further reason that there are neither allegations nor proof in the case that, even if such a custom existed, plaintiff's decedent knew of it or relied upon it. There was neither legal evidence to prove a legal and binding custom upon defendant, nor was there any proof of knowledge of such custom if it existed by decedent, or that he relied upon it. 17 C. J. 522, 449 et seq.; 17 C. J. sec. 81, p. 518; Kirkland v. Bixby, 282 Mo. 462; C. & O. Railroad Co. v. Mihas, 50 S.Ct. 42; C. M. & St. P. Railroad Co. v. Lindeman, 143 F. 946; United States Shipping Board v. Levensaler, 290 F. 297; Federal Reserve Bank v. Malloy, 264 U.S. 160; N. & W. Ry. Co. Collingsworth, 32 F. 561; Baker v. Contracting Co., 282 Mo. 701. (4) There was no negligence on the part of defendant in regard to lights. T. St. L. & W. Ry. Co. v. Allen, 276 U.S. 165; B. & O. Railroad Co. v. Groeger, 226 U.S. 521; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 426; D. L. & W. Railroad Co. v. Koske, 279 U.S. 7, 73 L.Ed. 234, 49 S.Ct. 202; C. M. & St. P. Railroad Co. v. Coogan, 271 U.S. 474. (5) Even if the court should hold that there was negligence on the part of defendant in regard to lighting in the yards, yet, under the undisputed evidence in the case, decedent assumed the risk thereof as a matter of law. Osborn v. Railroad Co., 1 S.W.2d 181; Hoch v. Railroad Co., 315 Mo. 1199, 287 S.W. 1047; C. & O. Railroad Co. v. Nixon, 271 U.S. 218; C. & O. Ry. Co. v. Leitch, 276 U.S. 429; Southern Pac. Ry. Co. v. Berkshire, 254 U.S. 415, 65 L.Ed. 335; T. St. L. & W. Railroad Co. v. Allen, 276 U.S. 165; Tuttle v. Railroad Co., 122 U.S. 189, 30 L.Ed. 1114; D. L. & W. Railroad Co. v. Koske, 279 U.S. 7; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 426; Gilmer v. Railroad Co., 4 F.2d 963; N. & W. Ry. Co. v. Collingsworth, 32 F.2d 561; G. C. & S. F. Ry. Co. v. Jackson, 65 F. 48, 19 C. C. A. 672; Ft. Worth & D. C. Ry. Co. v. Miller, 201 S.W. 1049. (6) Decedent's negligence was the sole and proximate cause of his fatal injuries and his fatal injuries were primarily due thereto, and consequently there can be no recovery in the case, even though the defendant was secondarily negligent. Great Northern Railroad Co. v. Wiles, 240 U.S. 444; Frese v. Railroad Co., 263 U.S. 1; Atlantic Coast Line v. Davis, 279 U.S. 34; Pleasant v. Director General, 285 F. 342; Davis v. Kennedy, 266 U.S. 147; Kansas City Southern Railroad Co. v. Jones, 276 U.S. 303.

C. O. Inman and W. H. Douglass for respondent.

(1) The rule of the Federal courts as to the kind and amount of evidence that will justify the submission of a cause to the jury is the same as in Missouri, which is: "When a given set of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court." Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 417; Union Pacific Railroad Co. v. Huxoll, 245 U.S. 335; Western & A. Ry. v. Hughes, 278 U.S. 498; Railroad v. Wells, 275 U.S. 459; Railroad v. Harvey, 228 U.S. 319; Railroad v. Waid, 35 F.2d 367; Refining Co. v. Products Co., 29 F.2d 332. The use of the expression "substantial evidence" by the Federal courts in stating the amount of evidence required for the submission of a cause is in contra-distinction to the "scintilla of evidence" rule in force in some states. Norfolk & Western Railroad Co. v. Collingsworth, 32 F.2d 361; Small Co. v. Lamborn & Co., 267 U.S. 248. (2) Plaintiff's evidence established a general custom and practice to leave the crossover switch for the track 6B lined for the straight track or storage track, which was track 6B. Also that this was the special instructions of the yard-master to keep this switch on center, in which position the switch would be lined for track 6B and not the crossover. This evidence made a jury question as to whether such a custom and practice existed. Wells v. Davis, 303 Mo. 416; Pacheco v. Railroad, 15 F.2d 467; Detchemendy v. Wells, 253 S.W. 150; Holt v. Railroad, 279 S.W. 148, certiorari denied, 271 U.S. 668; Railroad v. Mangan, 278 F. 85; Railroad v. Jeffries, 276 F. 75; Railroad v. Zimmerman, 24 F.2d 23; Railroad v. Robertson, 300 F. 316, certiorari denied, 266 U.S. 614; Director General v. Templin, 268 F. 483, certiorari denied, 254 U.S. 656; Railroad v. Doktor, 290 F. 760; Stuart v. Dickinson, 290 Mo. 555; Tetwiler v. Railroad, 242 Mo. 178; Ostertag v. Railroad, 261 Mo. 457; Greenwall v. Railroad, 224 S.W. 404; Carbaugh v. Railroad, 2 S.W.2d 195. (3) It was negligence under the evidence in the case in failing to have a light where decedent could see this switch, for as the switch had no light on it, then in approaching it in the dark on a moving car decedent could not tell whether it was left lined for the crossover in violation of the custom and practice. The evidence made a jury question on the failure to have a light whereby the switch could be seen. Railroad v. Harvey, 228 U.S. 319; Insurance Co. v. Graves, 35 F.2d 706; Gunning v. Cooley, 30 F.2d 467. (4) Assumption of risk arising from the negligence of the defendant is not available to defendant as a defense for failure to plead it. The question of whether it should be pleaded is a question of state law. 2 Roberts Federal Liabilities (2 Ed.) 1951, sec. 1010; K. C. S. Ry. Co. v. Jones, 241 U.S. 181. Assumption of risk arising from the master's negligence must be pleaded in Missouri to be available as a defense. Halt v. Railroad, 279 S.W. 152; Adams v. Railroad, 229 S.W. 795. Defendant's answer pleads only those risks incident to the employment and this class of risks need not be pleaded to be available as a defense. Dakan v. Mercantile Co., 197 Mo. 266. The difference in risks ordinarily incident to the employment and those risks arising from the negligence of the master have been defined by this court in many cases, and also by the Federal court. Railroad v. Horton, 233 U.S. 503; Railroad v. Prurucker, 244 U.S. 324; Railroad v. McDade, 191 U.S. 67. The general rule is that a servant assumes only those risks ordinarily incident to the work, but there is an exception, which is that a servant assumes risks growing out of the master's negligence when he knows and appreciates the danger or it is so obvious he is presumed to know it. This character of risks must be pleaded. Railroad v. McDade, 191 U.S. 67.

OPINION

White, P. J.

This suit was brought by plaintiff, administratrix under the Federal...