O'Donnell v. B. & O. Railroad Co., 28070.

CourtUnited States State Supreme Court of Missouri
Citation26 S.W.2d 929
Docket NumberNo. 28070.,28070.
PartiesLOUISE O'DONNELL, Administratrix of Estate of THOMAS J. O'DONNELL, v. BALTIMORE & OHIO RAILROAD COMPANY, Appellant.
Decision Date02 April 1930
26 S.W.2d 929
LOUISE O'DONNELL, Administratrix of Estate of THOMAS J. O'DONNELL,
v.
BALTIMORE & OHIO RAILROAD COMPANY, Appellant.
No. 28070.
Supreme Court of Missouri.
Division One, April 2, 1930.

[26 S.W.2d 930]

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.

AFFIRMED.

Kramer, Kramer & Campbell and Fordyce, Holliday & White for appellant.

(1) Decedent was an experienced employee. There was no duty to warn him of a switching movement made in the railroad yard, and the instruction in the nature of a demurrer to the evidence should have been given. Nugent v. Kauffman M. Co., 131 Mo. 256; Ring v. Ry. Co., 112 Mo. 220; Hill v. Drug Co., 140 Mo. 433; C.B. & Q. Railroad Co. v. Shalstrom, 195 Fed. 729, 45 L.R.A. (N.S.) 387; Southern Pac. Railroad Co. v. Berkshire, 254 U.S. 415; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 426; Toledo, St. Louis & Western Railroad Co. v. Allen, 276 U.S. 165. (2) The kind and amount of evidence required to establish a case under the Federal Employers' Liability Act is governed by the Federal law and not by the laws of the several states, and the instruction in the nature of a demurrer to the evidence should have been given. Chicago, M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472; Gulf M. & N. Railroad Co. v. Wells, 275 U.S. 455; Toledo, St. Louis & Western Railroad Co. v. Allen, 276 U.S. 165; Delaware, L. & W. Railroad Co. v. Koske, 73 L. Ed. 234; Atlantic C.L. Railroad Co. v. Davis, 73 L. Ed. 230. (3) An experienced railroad man cannot be supposed to be ignorant of, and he assumes the risk of, what can be plainly seen. Southern Pac. Co. v. Berkshire, 254 U.S. 415. (4) The question whether or not respondent's decedent assumed the risk of his injury is governed by the Federal law. Pryor v. Williams, 254 U.S. 43. (5) There was no duty to ring the bell in making the switching movement in question. Toledo, St. Louis & Western Railroad Co. v. Allen, 276 U.S. 171; Aerkfetz v. Humphries, 145 U.S. 418; Rosney v. Railroad Co., 135 Fed. 315; Conley v. Railroad Co., 210 Fed. 57. (6) A custom to be binding must be shown to be uniform, general and of long existence. Baker v. McMurray C. Co., 282 Mo. 685; Chicago M. & St. P. Railroad Co. v. Lindeman, 143 Fed. 949; United States S. Bd. E.F. Corporation v. Levensaler, 290 Fed. 301; Kansas City Sou. Railroad Co. v. Jones, 276 U.S. 303. (7) Instructions numbered 2 and 3 should have been refused, because a servant assumes extraordinary risks incident to his employment, or risks caused by the master's negligence which are obvious or fully known and appreciated by him. Boldt v. Railroad Co., 245 U.S. 441; Jacobs v. Railroad Co., 241 U.S. 229; Kohn v. McNulty, 147 U.S. 238; Pryor v. Williams, 254 U.S. 43; Seaboard Air Line v. Horton, 233 U.S. 492; St. Louis etc. Ry. Co. v. Mills, 271 U.S. 344; Northern Ry. Co. v. Page, 274 U.S. 65; Delaware, L. & W. Railroad Co. v. Koske, 73 L. Ed. 234. (8) The Federal Employers' Liability Act provides that in an action such as this the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee, and therefore instruction lettered F should have been given, and instruction numbered 7 refused. U.S. Code, Title 45, Chap. 2, sec. 53. (9) In order to prevent a recovery under the Federal Employers' Liability Act, it is not necessary that the negligence of the employee be the sole and only cause of the accident. If a primary duty rest upon the employee and it be violated, he cannot recover because the injury might have been prevented by other employees in a secondary relation to the movement. Instruction numbered 4 was therefore erroneously given. Frese v. Railroad Co., 290 Mo. 501, 263 U.S. 1; Davis v. Kennedy, 266 U.S. 147.

Douglass & Inman for respondent.

(1) The undisputed evidence shows there was a rule and custom in the yard to ring the bell before moving the engine when it was stopped, and there is evidence that the engine and two cars which had stopped on track 12 moved without ringing the bell. This was evidence of negligence, for the violation of a rule or custom to ring the bell constitutes negligence. Pacheco v. Railroad, 15 Fed. (2d) 465; Detchemendy v. Wells, 253 S.W. 150; Halt v. Railroad, 279 S.W. 148; Railroad v. Doktor, 290 Fed. 760; Railroad v. Mangan, 278 Fed. 85; Railroad v. Jeffries, 276 Fed. 73; Railroad v. Zimmerman, 24 Fed. (2d) 73; Railroad v. Robertson, 300 Fed. 314; Director General v. Templin, 268 Fed. 483. (2) In the Federal court, as in the State court, "on a motion to direct a verdict for defendant, the rule is well settled that the evidence must be viewed in the light most favorable to plaintiff." Railroad v. Waid, 25 Fed. (2d) 367; Railroad v. Wells, 275 U.S. 459; Railroad v. Hughes, 73 L. Ed. 268; McGovern v. Railroad, 235 U.S. 401. (3) In the Federal courts, as in the State courts, where an inference may be drawn from the circumstances in evidence in a death case that the injury and death was caused by the negligence of the defendant, the cause should be submitted to the jury. Myers v. Railroad, 233 U.S. 184; Railroad v. Hughes, 240 Fed. 941; Railroad v. Rosenbloom, 240 U.S. 439; Railroad v. Effinger, 299 Fed. 950; Overstreet v. Railroad, 238 Fed. 565. (4) Defendant's answer did not plead either assumption of risk, or contributory negligence. (5) There is no assumption of risk in this case, as the act of negligence submitted to the jury was the failure of defendant's employees to comply with the rules of defendant to ring the bell when the engine was started and "the doctrine of assumption of risk could not be applied if the negligence of the engineer which O'Donnell could not have foreseen or expected was the proximate cause of the injury," (258 U.S. 95). Reid v. Director General, 258 U.S. 95; Davis v. Scroggins, 284 Fed. 760; Railroad v. DeAtley, 241 U.S. 315; Railroad v. Proffit, 241 U.S. 467; Director General v. Templin, 268 Fed. 483. (6) Contributory negligence is not a defense in this case as it was not pleaded, and no evidence, or even circumstances in evidence, that would indicate that decedent knew the engine and cars were being moved without ringing the bell in violation of the rule or custom in that yard, and "an employee is under no duty to exercise care to discover dangers not ordinarily incident to the employment but which result from the employer's negligence." Johnson v. Brick & Coal Co., 276 Mo. 50; Crawford v. Stock Yards, 215 Mo. 394; High v. Railroad, 300 S.W. 1104. (7) There was no error in plaintiff's Instruction 4 which told the jury that the negligence of decedent would not defeat a recovery unless it was the sole cause of the accident. This language has often been approved by the courts. Rigley v. Pryor, 233 S.W. 831; Railroad v. Lindley, 201 Fed. 844, affirmed, 233 U.S. 42; Koenig v. Railway Co., 243 S.W. 1213.

ELLISON, C.


This is an action under the Federal Employer's Liability Act (45 U.S.C.A. secs. 51-59) brought by Louise O'Donnell, administratrix of the estate of Thomas O'Donnell, deceased, for damages sustained by her, as widow, and by their minor daughter, Louise O'Donnell, as a result of said decedent's being run over and killed by a freight car in the defendant's yards at East St. Louis, Illinois, during a switching operation. The verdict was for plaintiff for $22,000, apportioned $17,500 to the widow and $4500 to the daughter. On motion for a new trial the court enforced a remittitur of $2500 to be taken wholly off the child's share. From the judgment on the verdict as thus reduced the defendant has appealed, assigning error in the giving and refusal of instructions, especially the refusal of demurrers to the evidence at the close of the plaintiff's case and the whole case. Complaint is made also of the size of the judgment.

The deceased was a car inspector. The casualty happened on July 19, 1925, about

26 S.W.2d 931

6:30 P.M. in broad daylight. The locus in quo was a part of the appellant's yards where tracks 11 and 12 are located. These lie parallel east and west, about eight feet apart. Track 11 is south of track 12, and both curve to the south at their east end into a lead track which runs north and south and feeds these and other tracks.

A freight train known as No. 92, consisting of about thirty-five cars, an engine and tender, was standing on track 11, headed east and ready to leave for points outside the State of Illinois. The deceased and plaintiff's sole eyewitness, Watt, another inspector, had just completed a light inspection of the train and were standing at the head thereof near the engine tender. They were on the north side of the train between tracks 11 and 12. It was the deceased's duty to record the number of the engine and to note the time of departure; and also to observe whether the air brakes were functioning as the cars moved past him while the train was pulling out. The brake cylinders and plungers were attached high up to the bottoms of the cars about midway of their length. To see them it was necessary either to stoop or kneel, or else to step back about as far as the next track, seven or eight feet, whence they would be in view to an average man standing erect.

Another freight train known as No. 90 had been made up on track 12. A switch engine headed in from the east and pulled two cars therefrom back toward the lead track, stopping at a point which left clearance for No. 92 to get out. This put the west end of these two cars on track 12 about fifty or sixty feet east of the point where the deceased was standing near track 11. The switch engine was to pull them on out over the lead track after No. 92 had gone. Just after the switch engine and two cars passed, going east, the witness Watt left the deceased and walked about seventy-five feet due north, crossing over track 12, to a drinking fountain near the corner of the yard office. No. 92 started to move out when he had travelled about half that distance. When Watt got to the drinking fountain...

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