Doyle v. St. Louis Merchants' Bridge Terminal Ry. Co.

• Decision Date: 13 October 1930
• Citation: 31 S.W.2d 1010,326 Mo. 425
• Parties: Hugh Doyle, Administrator of Estate of Peter Doyle, v. St. Louis Merchants Bridge Terminal Railway Company, Appellant
• Court: Missouri Supreme Court

31 S.W.2d 1010

326 Mo. 425

Hugh Doyle, Administrator of Estate of Peter Doyle, v. St. Louis Merchants Bridge Terminal Railway Company, Appellant

Supreme Court of Missouri

October 13, 1930

Appellant's Motion for Rehearing Overruled October 13 1930, Appellant's Motion to Stay Mandate Sustained. Ordered withheld 90 days. October 18, 1930.

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Affirmed.

J. L. Howell and Roy W. Rucker for appellant.

(1) Since this is an action under the Federal Employers' Liability Act, the Federal rule as to assumption of risk applies. Hoch v. Railroad, 315 Mo. 1199. (2) There was a total failure to prove that defendant had either actual knowledge or constructive prior notice of the location of the wire. The demurrer to the evidence should, therefore, have been sustained. Winslow v. Railroad, 192 S.W. 121; Hoch v. Railway 315 Mo. 1208; Boldt v. Railway, 245 U.S. 445; Gila Valley Railway v. Hall, 232 U.S. 101; Jacobs v. Railway, 241 U.S. 235; Railway v. De Atley, 241 U.S. 313; Erie Railway v. Purucker, 244 U.S. 324; Railway v. Berkshire, 254 U.S. 418. (3) The master is not an insurer of the safety of the place where employee works and fully discharges his duty when he exercises reasonable care to furnish the servant with a reasonably safe place in which to perform his work. (4) No warning of danger is required where the servant is aware of the peril to which he is about to be exposed or where it is obvious and appreciated. Knoles v. Bell Tel. Co., 218 Mo.App. 235. (5) Instructions G and H, offered by defendant and refused by the court, properly state the rule of assumption of risk applicable to this case. Hoch v. Railway, 315 Mo. 1208; Boldt v. Railway, 245 U.S. 445; Gila Valley Railway v. Hall, 232 U.S. 101; Jacobs v. Railway, 241 U.S. 235; Railway v. De Atley, 241 U.S. 313; Erie Railway v. Purucker, 244 U.S. 324; Railway v. Berkshire, 254 U.S. 418. (6) Testimony which is at variance with physical facts will not be considered even in passing on a demurrer. New York Tel. Co. v. Becker, 30 F.2d 579; Hickey v. Railway, 8 F.2d 130.

Mark D. Eagleton, John F. Clancy and Hensley, Allen & Marsalek for respondent.

(1) The court properly refused defendant's demurrer to the evidence. (a) In passing upon a demurrer to the evidence, it is the duty of the court to accept as true all evidence in favor of plaintiff, and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom, and the court cannot draw inferences in favor of defendant to countervail or overthrow inferences in plaintiff's favor. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom, considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Buesching v. Gas Light Co., 73 Mo. 219; Gratiot v. Railroad, 116 Mo. 466; Troll v. Drayage Co., 254 Mo. 332; Scherer v. Bryant, 273 Mo. 602; Caroline etc. Ry. Co. v. Stroup, 239 F. 75, 244 U.S. 649, 61 L.Ed. 1371; Bolton-Pratt Co. v. Chester, 210 F. 255; Goodwin v. Traction Co., 175 F. 63. (b) The jury had the right to find that a wire, of the character and in the position described by plaintiff, located in the space between defendant's tracks, habitually used by its employees as a pathway, rendered the place dangerous and not reasonably safe. This evidence was sufficient to support an inference of negligence. Baltimore Railroad Co. v. Flechtner, 300 F. 318, 266 U.S. 613; Lock v. Railroad, 281 Mo. 532; Holloway v. Ry. Co., 276 Mo. 490; Winslow v. Railroad (Mo. App.), 192 S.W. 121; Lancaster v. Fitch (Tex.), 239 S.W. 265; Barbee v. Davis, 187 N.C. 78. (c) From the evidence as to the appearance and condition of the wire, and the manner in which it was imbedded in the earth, the jury had the right to draw the reasonable conclusion that it had been there sufficiently long for the defendant, in the exercise of ordinary care, to have discovered and removed it. Gutridge v. Railroad, 105 Mo. 520; Dakan v. Merc. Co., 197 Mo. 254; Kramer v. Power & Light Co., 311 Mo. 369; Vordermark v. Lumber Co. (Mo.), 12 S.W.2d 501; Koonse v. Steel Works, 221 Mo.App. 1235; Ogan v. Railroad, 142 Mo.App. 248; Strobel v. Mfg. Co., 148 Mo.App. 22; Johnson v. Bolt & Nut Co., 172 Mo.App. 219; Bone v. Contracting Co. (Mo. App.), 191 S.W. 1062; Reese v. Biscuit Co. (Mo. App.), 224 S.W. 63; Brown v. Ry. Co. (Mo. App.), 227 S.W. 1069; Stewart v. Ry. Co. (Mo. App.), 262 S.W. 441. (d) Furthermore, the plaintiff testified pointedly, and without objection by defendant, that the condition of the wire showed that it had been there at least for several days. The jury had the right to consider said evidence on this issue. Riley v. City of Independence, 258 Mo. 681; Eyerman v. Sheehan, 52 Mo. 221; Taylor v. Jackson, 83 Mo.App. 649; Standley v. Railroad, 121 Mo.App. 543; Kirchof v. U. Rys. Co., 155 Mo.App. 83. The foregoing evidence, having been admitted without objection, its probative effect was for the jury. Farber v. Railroad, 139 Mo. 254; McVey v. Barker, 92 Mo.App. 506; Covell v. Tel. Co., 164 Mo.App. 635; Sullivan v. Railroad (Mo. App.), 211 S.W. 903; Stewart v. Ry. Co. (Mo. App.), 262 S.W. 443; Herrin v. Stroh Bros. (Mo. App.), 263 S.W. 875. (e) The defendant, having alleged in its answer that the plaintiff's injury was the result of a risk, hazard and danger which was open and obvious, it cannot, on appeal, be heard to contend that there was no danger incident to the location and position of the wire, and that defendant could not have discovered the wire, in the exercise of ordinary care. The defendant is bound by allegations of its answer. Grott v. Shoe Co. (Mo. App.), 2 S.W.2d 785; McKenzie v. U. Rys. Co., 216 Mo. 19; Jewell v. Mfg. Co., 143 Mo.App. 210. (f) In a case of this nature the account of the occurrence as given by plaintiff can be rejected as opposed to the physical facts only when that conclusion is so clear and irrefutable that no room is left for the entertainment by reasonable minds of any other. Benjamin v. Railroad, 245 Mo. 609; Kibble v. Railroad (Mo. Sup.), 227 S.W. 46; Kelly v. Rys. Co. (Mo. App.), 225 S.W. 133; Reisinger v. Rys. Co. (Mo. App.), 211 S.W. 909; Maloney v. U.S. Rys. Co., 237 S.W. 509. (2) The court properly refused defendant's Instruction G, on assumption of risk. Said instruction was merely a general statement of law, not in anywise applied to the facts of this case, and was properly refused for that reason, and for the further reason that it did not correctly state the law. Moran v. Railroad (Mo. App.), 255 S.W. 331; Young v. Railroad, 79 Mo. 341; Culbertson v. Railroad (Mo. App.), 178 S.W. 272. (3) The court properly refused defendant's Instruction H on assumption of risk. Said instruction directs a verdict for the defendant upon a finding that plaintiff was familiar with the yard and train movements, saw the wire and realized its position. The evidence tends to show that plaintiff tripped over the wire by reason of a sudden movement caused by the sharp whistle of a train approaching from his rear. As applying to such a situation, the instruction is obviously incorrect in failing to require the jury to find that plaintiff voluntarily encountered the risk with full appreciation of the danger. Dean v. Woodenware Works, 106 Mo.App. 180; Devitt v. Railroad, 50 Mo. 302; Lopez v. Hines (Mo.), 254 S.W. 37; Preston v. Railroad Co., 292 Mo. 442, 260 U.S. 753, 67 L.Ed. 496; Van Loon v. Ry. Co. (Mo.), 6 S.W.2d 587; Oregon etc. Railroad Co. v. Tracy, 66 F. 931; So. Railroad Co. v. Miller, 267 F. 376, 254 U.S. 646; Schlemmer v. Ry. Co., 205 U.S. 1, 51 L.Ed. 681; Seaboard Air Line v. Horton, 233 U.S. 492, 58 L.Ed. 1062; C. & O. Railroad Co. v. De Atley, 241 U.S. 310, 60 L.Ed. 1016; Montgomery v. Railroad Co., 22 F.2d 359; Burgess v. Ore Co., 165 Mass. 71; Sumner v. Railroad Co., 235 Mich. 293; 4 Thompson on Negligence (1 Ed.) 623, sec. 4608; Id. 628, sec. 4610. (4) The court properly refused defendant's withdrawal instructions. The court, by Instruction 1, given at plaintiff's request, having submitted the case to the jury on a definite theory of negligence, the other allegations of negligence are regarded as abandoned. Instructions to the jury withdrawing said other allegations of negligence are unnecessary, and at the best confusing to the jury, and their refusal cannot be considered reversible error. Deitzman v. Screw Co., 300 Mo. 196; Snyder v. Tel. Co., 277 S.W. 367; Roland v. Anderson, 282 S.W. 752.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

This is an action under the Federal Employers' Liability Act by an employee of defendant to recover against it damages for personal injuries. The jury returned a verdict in plaintiff's favor for $ 40,000, but as the court ordered a remittitur of $ 15,000 as a condition precedent to the overruling of defendant's motion for a new trial, plaintiff filed a remittitur in that sum, which resulted in the overruling of said motion. Thereupon judgment was entered for $ 25,000 in plaintiff's behalf, and defendant appealed.

The evidence adduced on behalf of plaintiff warrants the finding that the accident occurred about two-thirty o'clock in the afternoon on November 13, 1924. He was in the employ of defendant, and was then engaged in lighting switch lamps in the terminal yards of defendant at Venice, Illinois. His age was on said day forty-five years, and his wages $ 3.12 a day. There were about 150 switch lamps to be lighted, and, in order that all the lamps might be lighted before darkness came on, he began his duties in that regard on said day about twelve-thirty P. M. These lighted lamps were necessary to the handling of freight and traffic in the yards, and to provide signals for the main track over which interstate traffic...