Detmering v. St. L.-S.F. Ry. Co.

• Decision Date: 16 February 1931
• Docket Number: No. 17072.,17072.
• Citation: 36 S.W.2d 112
• Parties: ANNA DETMERING, ADMX., RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

36 S.W.2d 112

ANNA DETMERING, ADMX., RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.

No. 17072.

Kansas City Court of Appeals. Missouri.

February 16, 1931.

Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

AFFIRMED.

Trusty & Pugh and John F. Cook for respondent.

E.T. Miller, Conrad & Durham and Hale Houts for appellant.

ARNOLD, J.

This is an action in damages for the death of one George Detmering, a section laborer in the employ of defendant, a railroad company engaged in interstate traffic. Plaintiff is his widow and sues as administratrix of his estate, under the Federal Employers' Liability Act.

At the time of his death, Detmering, with other members of a track crew, was engaged in reconstructing cattle guards at a highway crossing on defendant's main line just south of the town of Fontana, Kansas, under direction of one Leonard T. Arnett, foreman of the crew. The record shows Detmering had been engaged as track laborer in the employ of defendant for a period of nine years next preceding his death which occurred on February 28, 1927, at about 2:40 to 2:45 o'clock P.M., of that day, when he was struck and killed, on defendant's main line track, by a northbound passenger train traveling at a speed of thirty to thirty-five miles per hour. At the place of the accident defendant's main line track runs in a southeast-northwest direction. About 1200 feet southeast of the point of the accident the track comes on a curve out of a cut. During the time a train was running through this cut, it was not always in view. At the point where the accident occurred there was the main line track with a passing track on each side thereof. Deceased was working on the east, or northeast, side of the main line track and between it and the southwest rail of the northeast passing track, astraddle of, and engaged in adzing off the top of a tie, with his heels about ten inches northeast of the northeast rail of the main track. The other members of the crew, including the foreman, were in the immediate vicinity, within a few feet of each other and to the southwest of decedent. The train which struck decedent approached from the southeast and while it was in the cut, the whistle sounded. It is in evidence that the whistle was sounded for the station at Fontana and again as an alarm when the engine was within about fifty feet of decedent. All other members of the crew, including the foreman, stepped to the southwest of the main line track in the clear of the passing train but decedent continued at work, in a stooping position, his right side toward the train until it was within a few feet of him, when he started across the main line track to the southwest and was struck. His body was thrown southwest of the main line track and from the injuries sustained, he subsequently died.

It is in evidence that decedent was not warned by the foreman or other members of the track crew either of the approach of the train or of its proximity. The day was clear and there was an unobstructed view of the track for a distance of approximately 1200 to 1600 feet to the southeast. It was a regular scheduled passenger train and was running on time.

The petition is formal, alleging plaintiff's due appointment as administratrix of decedent's estate; that plaintiff is the widow of decedent; that defendant is an interstate common carrier and that plaintiff's husband was employed by such carrier in interstate commerce; that on February 28, 1927, while plaintiff's husband was in the employ of defendant and within the scope of his employment "under the direct orders and directions of his foreman and defendant's servants and engaged with other employees in working upon the tracks of the defendant about one mile south of Fontana, Kansas," and while plaintiff's husband was engaged in what was commonly known as section work, defendant its agents and servants, caused a passenger train to run northbound over the track where plaintiffs said husband was working, striking him down and injuring him so as to cause his death. The charge of negligence is as follows:

"At said time and place the defendant was guilty of negligence in that it was a custom of defendant's track foreman upon which the plaintiff's husband and other employees relied to warn employees and others similarly situated as track workers of the approach of any engines or trains and warned the men to get out of the way in time to escape being struck thereby, but in this instance no warning of approach of said train was given by said foreman, or warning to leave the track.

"Defendant was further negligent in that the agents and servants of the defendant operating said train failed to have said train under reasonable control and negligently failed to maintain any or a reasonably sufficient lookout at said time and place for employees on said track, or so near thereto as to be in danger of being struck thereby, although defendant knew, or should have known, of the presence of plaintiff at said time and place.

"Defendant was further guilty of negligence in that the defendant's agents and employees knew that plaintiff and other employees were customarily upon said tracks and so near thereto as to be struck by cars traveling upon and over the same and that they needed and relied upon warning of the approach of trains and it was usual and customary to give reasonable warning of same, yet defendant negligently failed to give any warning of the approach of the engine and trains that struck and injured plaintiff's husband.

"Defendant was guilty of negligence in that plaintiff's husband was in a position of peril from the approach of said train and was unaware thereof in time to escape therefrom, by the exercise of ordinary care on his part, and defendant knew of such peril of plaintiff and yet drove said train forward when by the exercise of ordinary care and with the means at its command defendant could have safely slackened the speed of said train, or stopped the same, or given warning of the movement of said train before said train struck plaintiff's husband and so as to enable plaintiff's husband to escape being struck by it, and yet defendant negligently failed to do any of said things."

The petition alleges plaintiff's husband was an able-bodied man, capable of earning about $100 per month, and that he left surviving him the plaintiff and a minor daughter nineteen years of age; that before his death he endured intense pain and suffering. Judgment is sought in the sum of $20,000.

The answer is, first, a general denial, and as affirmative defense pleads contributory negligence in that decedent failed to keep a lookout for trains, failed to assure himself that no train was approaching, or failed to get out of the way of the train "which he knew or by experience and ordinary care could have known was approaching." There is also a plea of assumption of risk.

Upon the pleadings thus constituted the cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $12,500, and judgment was accordingly entered. Motions for a new trial and in arrest of judgment were duly filed.

In consideration of the motion for a new trial, the court required a remittitur of $6,000 from the amount of the verdict and judgment. The remittitur was made and judgment entered in plaintiff's favor for $6,597.50, which included interest. The motions for a new trial and in arrest were then overruled. Defendant has duly appealed.

Defendant contends the trial court should have directed a verdict in its favor because, as a matter of law, no liability on defendant's part was shown. Defendant also complains of the instructions and of the amount of the judgment finally entered.

Eleven assignments of error are presented, and argued under six headings, the first being that the court erred in not directing a verdict for defendant. This charge is treated under three sub-headings: (a) In order to recover it was necessary for plaintiff to establish a custom for the foreman to look out for, and warn the other men; (b) there was no substantial evidence of any custom upon which deceased had a right to rely, for the foreman to warn the section laborers; (c) even assuming the existence of such a custom as was alleged, it was a matter of pure speculation and conjecture whether the death of deceased was caused by a violation of the custom; the only inference supported by the evidence was that the sole cause of the death was decedent's own negligence.

It is argued plaintiff's evidence was directed to the allegations of a custom on behalf of the foreman to warn; that the allegations of the petition which plaintiff attempted to submit were those in respect to the custom of the foreman to warn, and the humanitarian doctrine; that instruction P-1 submitted the alleged custom and also submitted recovery upon the humanitarian doctrine, to-wit, that the foreman negligently failed to warn decedent after discovery of his peril. It is also pointed out that instruction P-3, proceeded upon the last named theory solely, and was refused by the court as offered. Plaintiff also requested instruction P-7, based upon the theory that the engineer saw, or by the exercise of ordinary care could have seen plaintiff in a position of peril in time to have averted the accident, and this also was refused. It is urged the humanitarian doctrine was not pleaded other than as to a failure to avert the accident after actual discovery of plaintiff's peril; that, as a matter of law, there was no duty on the part of the trainmen to keep a lookout for trackmen, absent a custom duly pleaded and proved; that instruction P-7, therefore, was properly refused, not being within the evidence insofar as it proceeded upon the theory that the engineer could have discovered decedent's peril, although he did not discover it. It is urged recovery cannot be had upon theories which are not within both the pleadings and the evidence. [...