Drew v. St. Louis-San Francisco Railway Co.

• Decision Date: 08 March 1927
• Citation: 293 S.W. 468,220 Mo.App. 720
• Parties: ROSS DREW, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT. Court of Appeals of Missouri, St. Louis
• Court: Missouri Court of Appeals

293 S.W. 468

220 Mo.App. 720

ROSS DREW, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.

Court of Appeals of Missouri, St. Louis

March 8, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. Erwin G. Ossing, Judge.

AFFIRMED.

Judgment affirmed.

E. T Miller, A. P. Stewart and C. H. Skinker, Jr., for appellant.

(1) The demurrer to the evidence should have been sustained and the peremptory instruction requested at the close of the whole case should have been given because: (a) The evidence showed conclusively that if plaintiff received any injury on the occasion in question it was directly caused by the sole negligence of plaintiff in failing to close the window on his side of the cab. Where the injuries are the result of the sole negligence of plaintiff there is no liability under the Federal Employers' Liability Act or under the Safety Appliance Acts. Imboden v. Frisco Ry., 272 S.W. 1092; Pankey v. Santa Fe Ry. Co., 168 S.W. 274; Virginian Ry. Co. v. Andrews, 87 S.E. 577; Wiles v. Great Northern Ry., 240 U.S. 444. (b) It was purely a matter of speculation and conjecture as to whether or not the defective vision of plaintiff's left eye was the result of injuries alleged to have been sustained on the occasion in question or the result of injuries admittedly sustained to this same eye on two prior occasions. Where it is a matter of speculation and conjecture as to whether plaintiff's injuries are the result of alleged negligence on the part of defendant or are the result of other causes or circumstances a verdict against the defendant cannot stand. Warner v St. L. & M. R. Ry. Co., 178 Mo. 125; McGrath v. St L. Transit Co., 197 Mo. 97 (2) Instruction numbered 1 given on behalf of plaintiff is erroneous because: (a) This instruction contained the following charge: "If you further believe from the evidence that ordinary care required that the defendant railway company, acting through its officers and agents in charge of said engine and train, provide and furnish another and different engine to haul said train to St. Louis." There was no charge in the petition upon which to base this portion of the instruction and it dealt with an issue not in the case. An instruction is erroneous if it is either broader than the petition or broader than the evidence. Degonia v. Railroad, 224 Mo. 564; State ex rel. v. Ellison, 270 Mo. 645; Perkins v. United Rys., 243 S.W. 224. (b) Instruction 1 concludes with the following language: "And if the jury further believe from the evidence that the injuries, if any, of plaintiff resulted in whole or in part from negligence, if any, of the defendant, then the plaintiff is entitled to recover and your verdict must be in favor of the plaintiff." This was erroneous because the term "negligence" was not restricted to the acts and omissions specified in the instruction, or to acts and omissions pleaded in the petition and supported by the evidence, but gave the jury a roving commission to find for plaintiff if they found defendant guilty of any negligence whatsoever that contributed to cause his injuries. Martin v. Railroad, 175 Mo.App. 464; Clark v. Motor Car Co., 177 Mo.App. 623; Miller v. United Rys., 155 Mo.App. 528; Duerst v. St. L. Stamping Co., 163 Mo. 607. (3) The court erred in refusing to give instructions B and D requested by defendant and covering the defense of assumption of risk. Kidd v. Railroad, 274 S.W. 1079.

Charles P. Noell, for respondent.

Glen Mohler of counsel.

(1) The demurrer to the evidence was properly overruled. (a) Proof of the defects in the locomotive brought the case within the Boiler Inspection Act, and the question whether plaintiff was himself negligent in failing to close the cab windows, the windows being dirty so that he could not look out for signals when they were closed, and the day being dry and hot, was for the jury, as was the question whether the injuries were due to the sole negligence of plaintiff in keeping the windows open. Baltimore and Ohio R. R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Lorton v. Missouri Pacific Ry. Co., 267 S.W. 385. (b) There was substantial evidence that the loss of vision was due to the accident in suit and not to previous accidents; the matter, therefore, not resting on speculation or conjecture, hence, this matter was properly submitted to the jury. Maginnis v. Missouri Pacific Ry. Co., 268 Mo. 667. (2) The giving of instruction No. 1 does not constitute reversible error, because (a) The instruction is in two parts, either of which authorize recovery. The jury, under the first part, were required to and did find sufficient facts to entitle plaintiff to recover as for a violation by defendant of the Federal Boiler Inspection Act. The jury having found the necessary elements warranting recovery as for its violation, it is immaterial that the last portion of the instruction authorizing a verdict on common-law negligence is too general. A violation of the Boiler Inspection Act is negligence per se. Baltimore and Ohio R. R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Lehigh Valley R. Co. v. Beltz, 10 Fed. (2nd), 74, 77; Kilburn v. Ry. Co. 232 S.W. 1017; Thornton v. Ry. Co., 175 N.W. 71; Hines v. Smith, 275 F. 766. (b) Where several elements are contained in an instruction, any one of which authorizes recovery, and they are stated in the conjunctive and connected by "and," error in one or more of such elements is not harmful if there is evidence to support a single one of them which is sufficient and complete in itself. Houston v. American C. & F. Co., 282 S.W. 170; Bauer v. Fahr, 282 S.W. 150; McIntyre v. Frisco, 227 S.W. 1047; Kendrick v. Ryus, 225 Mo. 168; Troutman v. E. St. Louis etc. Co., 224 S.W. 1014; Berry v. Railroad, 214 Mo. 604; Gibler v. Railroad, 129 Mo.App. 93; Harrington v. City of Sedalia, 98 Mo. 583; Crawford v. Doffler, 120 Mo. 362; Benham v. Taylor, 66 Mo.App. 314. (3) Defendant's instructions B and D were properly refused, as there can be no assumption of risk in a case for violation of the Boiler Inspection Act. Kilburn v. C. M. St. P. Ry. Co., 232 S.W. 1023; Lehigh Valley R. Co. v. Beltz, 10 Fed. (2nd) 74; B. & O. R. R. Co. v. Goeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Great Northern Ry. v. Donaldson, 246 U.S. 121, 38 S.Ct. 230, 62 L.Ed. 616.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.--

This is an action by plaintiff, a fireman on defendant's railroad, engaged in interstate commerce, and arising under the provisions of the Acts of Congress known as the "Boiler Inspection Act" (Act of Feb. 17, 1911, ch. 103, sec. 3, 36 Stat. 913; U.S. Comp. Stat. 1916, sec. 8631, as amended by the Act of March 4, 1915, ch. 169, sec. 1; U.S. Comp. Stat. 1916, sec. 8639a) and the Federal Employers' Liability Act (Act of April 22, 1908, 35 Stat. 66, ch. 149, sec. 3, ch. 149, sec. 4), on account of a defective locomotive furnished for his use by the defendant, the petition alleging that the cylinder cocks on the left side of the engine were broken, by reason of which steam escaped from the cylinder on the left side thereof, striking the ground and right of way of the defendant with great force, which caused small particles of dust, dirt and cinders to be, "violently, and with great force, blown through the air and into the cab of the engine and against the eyes and face of plaintiff, resulting in injury to plaintiff's left eye."

The answer was a general denial and a plea of assumption of risk.

The trial resulted in a verdict for plaintiff in the sum of $ 7500. In due course the defendant appeals.

One of the assignments of error here urged is that the demurrer to the evidence should have been sustained, and the peremptory instruction requested at the close of the whole case should have been given. In support of this contention it is argued that the evidence showed conclusively that if plaintiff received any injury on the occasion in question it was directly caused by the sole negligence of plaintiff in failing to close a window on the left side of the cab, and that there is therefore no liability under the Federal Employers' Liability, or under the Safety Appliance Acts. And it is further contended that the demurrer should have been sustained in that under the evidence it was purely a matter of speculation and conjecture as to whether or not the defective vision of plaintiff's left eye was the result of injuries alleged to have been sustained on the occasion in question, or the result of injuries admittedly sustained to this same eye on two prior occasions.

After reading the record before us we are of the opinion and so hold that plaintiff made out a case for the jury and therefore that the court correctly ruled the demurrer and the peremptory instruction requested at the close of the whole case. According to plaintiff's own testimony he had been a locomotive fireman for some six years prior to September 16, 1922, on which day he was working for the defendant as a fireman on a freight train between Newburg and St. Louis, in the State of Missouri; that on the occasion in question the train contained cars en route from Prairie Grove, Arkansas, and from Scullin, Oklahoma, to St. Louis, Missouri; that when the freight train had gotten three or four miles out of Newsburg, and distant about one hundred fifteen miles southwest of St. Louis, the cylinder cocks on the left side of the engine broke loose and allowed steam to come out and strike the ground and throw up dust and dirt which came back along the left side of the engine and through the window of the engine cab and was blown against the face and into the eyes of plaintiff; that when the train reached Rolla the engineer examined the cylinder cocks and finding that ...