Finley v. St. Louis-San Francisco Ry. Co.

• Decision Date: 26 February 1942
• Docket Number: 37602
• Parties: Elsa Finley, Administratrix of the Estate of Claud R. Finley, v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

160 S.W.2d 735

349 Mo. 330

Elsa Finley, Administratrix of the Estate of Claud R. Finley, v. St. Louis-San Francisco Railway Company, Appellant

No. 37602

Supreme Court of Missouri

February 26, 1942

Rehearing Denied April 16, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Affirmed (subject to remittitur).

M G. Roberts, 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 by defendant at the close of the whole case should have been given. (a) The evidence was insufficient to establish a causal connection between defendant's alleged negligence (alleged violation of blind shove rule) and the fatal injuries to Finley, except by resorting to speculation and conjecture. A., T. & S. F. Ry. Co. v. Toops, 281 U.S. 351; Kansas City So. Ry. v. Jones, 276 U.S. 303; Byrd v. Mo. Pac. R. Co., 226 Mo.App. 708, 46 S.W.2d 221; Norfolk & W. Ry. Co. v. Collingsworth, 32 F.2d 561; Mullen v. Lowden, 344 Mo. 40, 124 S.W.2d 1152; C., M. & St. P. Ry. v. Coogan, 271 U.S. 472; Penn. R. Co. v. Chamberlain, 288 U.S. 333; Cain v. Fort Worth & Denver City Ry. Co., 75 F.2d 103. (b) The fatal injuries to Finley were caused solely by his own negligence. Kansas City So. Ry. v. Jones, 276 U.S. 303; Robison v. Chicago & E. I. Ry. Co., 334 Mo. 81, 64 S.W.2d 660, certiorari denied, 291 U.S. 682. (c) In any event, under the circumstances in this case, Finley assumed the risk as a matter of law. Toledo, St. L. & W. R. v. Allen, 276 U.S. 165; Norfolk & W. Ry. Co. v. Collinsworth, 32 F.2d 561; Jones v. St. Louis-S. F. Ry. Co., 325 Mo. 1153, 30 S.W.2d 481; Hoch v. St. Louis-S. F. Ry. Co., 315 Mo. 1199, 287 S.W. 1047; Cain v. Fort Worth & Denver City Ry. Co., 75 F.2d 103. (2) The verdict of the jury is grossly excessive, and the judgment is still grossly excessive, notwithstanding the remittitur. Hancock v. Kansas City Term. Ry. Co., 146 S.W.2d 627; Sheehan v. Terminal R. Assn., 344 Mo. 586, 127 S.W.2d 657.

Mark D. Eagleton and Roberts P. Elam for respondent.

(1) There was no error in the trial court's action in overruling defendant's demurrer to the evidence, in refusing defendant's peremptory instruction requested at the close of all the evidence, and in submitting plaintiff's case to the jury, because: (a) There was ample proof to sustain the charge that defendant negligently violated its blind shove rule. That rule was concededly promulgated by defendant and in full force and effect, and violation of a rule promulgated by the master for the operation of the business in which he is engaged constitutes negligence. St. Louis & S. F. R. Co. v. Jeffries, 276 F. 73; Union Pacific R. Co. v. Fuller, 204 F. 45; Director General v. Templin, 268 F. 483; Lehigh Valley R. Co. v. Doktor, 290 F. 760; Baltimore & O. R. Co. v. Robertson, 300 F. 314; Pacheco v. New York, etc., R. Co., 15 F.2d 467; Montgomery v. Baltimore & O. R. Co., 22 F.2d 359; Norfolk & W. R. Co. v. Collingsworth, 52 F.2d 827; McClellan v. Pennsylvania R. Co., 62 F.2d 61; Gildner v. Baltimore & O. R. Co., 90 F.2d 635; Kurn v. Stanfield, 111 F.2d 469; Koonse v. Mo. Pac. R. Co., 322 Mo. 813, 18 S.W.2d 467; Case v. St. Louis-S. F. R. Co. (Mo.), 30 S.W.2d 1069; O'Donnell v. Baltimore & O. R. Co., 324 Mo. 1097, 26 S.W.2d 929; Brock v. Mobile & O. R. Co., 330 Mo. 918, 51 S.W.2d 100; Armstrong v. Mobile & O. R. Co., 331 Mo. 1224, 55 S.W.2d 460; West v. Kurn (Mo. Sup.), 147 S.W.2d 752. (b) There was ample evidence to establish causal connection between defendant's negligent violation of its blind shove rule and Finley's death, because: The evidence was such as to permit, if not compel, the conclusion that an injury such as occurred to Finley not only could have, but must have, been foreseen as the result of defendant's negligent violation of its blind shove rule, so as to constitute the sole proximate cause of Finley's death. Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; City of Winona v. Botzet, 169 F. 321; Diehl v. A. P. Green Fire Brick Co., 299 Mo. 641, 253 S.W. 984; McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 226; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982; Brainard v. Mo. Pac. R. Co., 5 S.W.2d 15; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509; Coble v. St. Louis-S. F. R. Co., 38 S.W.2d 1036; Kimberling v. Wabash R. Co., 337 Mo. 702, 85 S.W.2d 736; Mrazek v. Kurn, 345 Mo. 1027, 137 S.W.2d 558; Koonse v. Mo. Pac. R. Co., 332 Mo. 813, 18 S.W.2d 467; Authorities under Point (1), supra. If such negligence of defendant was not the sole proximate cause of Finley's death, it was at least a cause contributing thereto, which was sufficient causal connection under the Federal Employers' Liability Act. That act specifically fixes liability upon a carrier for any injury to or death of any employee which results "in whole or in part" from the negligence of the carrier or of any of its officers, agents or employees, and, in excluding concurring causes as a defense, the act goes so far as to specifically abolish contributory negligence of the employee injured or killed as a complete defense. Act of April 22, 1908, Chap. 149, Secs. 1, 3, 35 Stat. 65, 45 U.S.C. A., Secs. 51, 53; Union Pacific R. Co. v. Hadley, 246 U.S. 330, 38 S.Ct. 318, 62 L.Ed. 751; Baltimore & O. R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 492; Spokane & I. E. R. Co. v. Campbell, 241 U.S. 497, 36 S.Ct. 683, 60 L.Ed. 1125; Rocco v. Lehigh Valley R. Co., 288 U.S. 275, 53 S.Ct. 373, 77 L.Ed. 743; Moran v. Atchison, T. & S. F. R. Co., 330 Mo. 278, 48 S.W.2d 881; Alcorn v. Mo. Pac. R. Co., 333 Mo. 828, 63 S.W.2d 55; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585. Finley is presumed to have known of and relied upon the rules, customs and practices of the business in which he was engaged, and is presumed to have performed every duty which rested upon him in the circumstances attending his death. There is no evidence in the record, contrary to these presumptions, which would afford any basis for a finding that Finley committed any act or omission which in any wise affected the causal connection between defendant's negligence and his death. Kurn v. Stanfield, 111 F.2d 469; Pacheco v. New York, etc., R. Co., 15 F.2d 467; St. Louis-S. F. R. Co. v. Jeffries, 276 F. 73; Koonse v. Mo. Pac. R. Co., 322 Mo. 813, 18 S.W.2d 467; Derrington v. Southern R. Co., 328 Mo. 283, 40 S.W.2d 1069; West v. Kurn, 148 S.W.2d 752; Baltimore & P. R. Co. v. Landrigan, 191 U.S. 461, 24 S.Ct. 137, 48 L.Ed. 262; Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285; Sheehan v. New York, etc., R. Co., 93 F.2d 442; Erie R. Co. v. Lindquist, 27 F.2d 100; Burtch v. Wabash R. Co., 236 S.W. 338. (c) There was no evidence of any act of negligence on the part of Finley. Even had he been negligent, his negligence would have been no more than a concurring cause, with which defendant's negligence contributed to cause his death, and would not have relieved defendant of liability. Authorities under Points (1) b, supra; Union Pac. R. Co. v. Hadley, 246 U.S. 330, 38 S.Ct. 318, 62 L.Ed. 751; Moran v. Atchison, T. & S. F. R. Co., 330 Mo. 278, 48 S.W.2d 881. (d) Finley did not assume as a matter of law the risk of defendant's negligent violation of its blind shove rule, the defense of assumed risk not being applicable when an injury arises from an unknown or unexpected and unforeseen act of negligence creating an emergency without warning to the servant, or an opportunity for him to know, appreciate and judge the resulting danger so as to assume the risk thereof. The most that could be said of alleged assumption of risk by Finley is that it was a question for the jury. O'Donnell v. Baltimore & O. R. Co., 324 Mo. 1097, 26 S.W.2d 929; Brock v. Mobile & O. R. Co., 330 Mo. 928, 51 S.W.2d 100; Evans v. Atchison, T. & S. F. R. Co., 345 Mo. 147, 131 S.W.2d 604; Kurn v. Stanfield, 111 F.2d 469; Chicago, B. & Q. R. Co. v. Kelley, 74 F.2d 80; Halges v. Central R. Co. of N. J., 58 F.2d 169; Montgomery v. Baltimore & O. R. Co., 22 F.2d 359; Vorhees v. Central R. Co. of N. J., 14 F.2d 899; Reed v. Director General of Railroads, 258 U.S. 92, 42 S.Ct. 199, 66 L.Ed. 480; Chicago, R. I. & P. R. Co. v. Ward, 252 U.S. 18, 40 S.Ct. 275, 64 L.Ed. 430; Erie R. Co. v. Purucker, 224 U.S. 320, 37 S.Ct. 629, 61 L.Ed. 1166; Chesapeake & O. R. Co. v. Proffitt, 241 U.S. 462, 36 S.Ct. 620, 60 L.Ed. 1102; Chesapeake & O. R. Co. v. De Atley, 241 U.S. 310, 36 S.Ct. 564, 60 L.Ed. 1016. (2) The judgment entered below after remittitur is not in the least excessive and should not be disturbed, because: (a) When all elements of plaintiff's damage are considered, and reasonable allowance made for the earning power of money, the amount of the judgment is not only fair and reasonable, but it does not exceed the reasonable cash value of the pecuniary benefits of which Finley's surviving dependents were deprived by reason of his death. Chesapeake & O. R. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 633, 60 L.Ed. 1117; Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417; Norfolk & W. R. Co. v. Holbrook, 235 U.S. 625, 35 S.Ct. 143, 59 L.Ed. 392; Moran v. Atchison, T. & S. F. R. Co., 330 Mo. 278, 48 S.W.2d 881. (b) When compared with awards held not excessive in similar cases, the judgment for $ 30,000 in the case at bar is not in the least excessive. Moran v. Atchison, T. & S. F. R. Co., 330 Mo. 278, 48 S.W.2d 881; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Benner v. Terminal R. Assn. of St. Louis, 348 Mo. 928, 156 S.W.2d 657.

Bradley, C. Hyde, C., concurs; Dalton, C., not sitting.

OPINION

BRADLEY

Action under the Federal Employers' Liability Act, 45 U.S.C. A., Sec. 51 et seq. The verdict was for $...