Finnegan v. Missouri Pacific Railway Co.

• Decision Date: 13 October 1914
• Parties: MITCHELL FINNEGAN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

169 S.W. 969

261 Mo. 481

MITCHELL FINNEGAN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

October 13, 1914

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Affirmed (as per stipulation).

Martin L. Clardy and Edw. J. White for appellant.

(1) The trial court should have directed a verdict for the defendant. (a) The plaintiff was guilty of violating every positive and distinct rule of the company, the observance of any one of which would have prevented the accident. He was perfectly familiar with the rules; admitted that they were all in effect at the date of the collision, and he knew that they were adopted for greater safety in the operation of trains and his wilful failure to obey them caused the loss of life of his head brakeman and fireman, and constituted gross negligence on his part, and he should not be rewarded for the disastrous consequences of his own wrongful act. Finnegan v. Railroad, 244 Mo. 608; Schaub v. Railroad, 106 Mo. 92; Francis v. Railroad, 110 Mo. 395, 127 Mo. 658; Reagan v. Railroad, 93 Mo. 348; Brooks v. Railroad, 47 F. 687; Railroad v. Nickels, 50 F. 718; Railroad v. Dye, 70 F. 24; Railroad v Craig, 80 F. 488; Railroad v. Markee, 103 Ala 160; Railroad v. Williamson, 114 Ala. 131; Railroad v. Free, 97 Ala. 231; Pryor v Railroad, 90 Ala. 32; Railroad v. Hammond, 58 Ark. 324; Sloan v. Railroad, 86 Ga. 15; Fordyce v. Briney, 58 Ark. 206; Railroad v. Kitchens, 83 Ga. 83; Railroad v. Mapp, 80 Ga. 631; Railroad v. Bragonier, 119 Ill. 51; Abend v. Railroad, 111 Ill. 202; Railroad v. Kastner, 80 Ill.App. 670; Railroad v. Kerwick, 74 Ill.App. 670; Matchett v. Railroad, 132 Ind. 334; Railroad v. Utz, 133 Ind. 579; Railroad v. Lang, 118 Ind. 579; Sedgwick v. Railroad, 76 Iowa 340; Thoman v. Railroad, 92 Iowa 196; McAunich v. Railroad, 20 Iowa 338; Gorman v. Railroad, 78 Iowa 509; Railroad v. Kier, 41 Kan. 661; Alexander v. Railroad, 83 Ky. 589; Herman v. Railroad, 11 La. Ann. 5; Gordy v. Railroad, 75 Md. 297; Foss v. Railroad, 170 Mass. 168; Benage v. Railroad, 102 Mich. 72; Karrer v. Railroad, 76 Mich. 400; Lyon v. Railroad, 31 Mich. 429; White v. Railroad, 72 Mich. 12; Railroad v. Rush, 71 Miss. 987; Gorham v. Railroad, 113 Mo. 408; Zumwalt v. Railroad, 35 Mo.App. 661; Towner v. Railroad, 52 Mo.App. 648; La Croy v. Railroad, 132 N.Y. 570; Shields v. Railroad, 133 N.Y. 557; Mason v. Railroad, 114 N.C. 718; Bennett v. Railroad, 2 N.D. 112; Wolsey v. Railroad, 33 Ohio St. 227; Cypher v. Railroad, 149 Pa. St. 359; Railroad v. Wilson, 88 Tenn. 316; Railroad v. Smith, 89 Tenn. 114; Murry v. Railroad, 73 Tex. 2; Railroad v. Gray, 65 Tex. 32; Railroad v. Wallace, 76 Tex. 636; Railroad v. Lucado, 86 Va. 288; Darracott v. Railroad, 83 Va. 288; Robinson v. Railroad, 40 W.Va. 583; Eastburn v. Railroad, 34 W.Va. 681. (b) The conduct of the plaintiff was such criminally negligent conduct, inconsistent with the safety of the lives and limbs of the citizens of the State -- two of whom lost their lives as a result thereof -- that such wanton conduct could not be justified by any custom or practice of the defendant's employees, because such conduct would amount in law to criminal carelessness, constituting in the instant case the crime of manslaughter. Custom can never furnish authority for the doing of a grossly negligent act. Concurring opinion Justice Brown, Finnegan v. Railroad, 244 Mo. 647; 26 Cyc. 1273; McDermott v. Railroad, 87 Mo. 295; Whaley v. Coleman, 113 Mo.App. 599; Keegan v. Kavanaugh, 62 Mo. 232; Shartell v. St. Joe, 104 Mo. 120; Penney v. Stock Yards Co., 212 Mo. 328; U. P. R. Co. v. Brady, 161 F. 722; Gilbert v. Railroad, 128 F. 529; Zentz v. Chappell, 103 Mo.App. 208. (2) The court erred in admitting illegal and improper evidence on the part of plaintiff. The court committed error in permitting the plaintiff's witnesses to testify what the plaintiff's duty was when approaching Cole Junction, as this usurped the province of the jury, as the rules prescribed his duty and the rules were the best evidence. (a) The opinion of witness Hoffman to the effect that the plaintiff handled his train at Cole Junction in the proper and usual manner, was a mere conclusion of the witness in direct violation of the defendant's rules. (b) The plaintiff's testimony about the message that trains 15 and 16 had left, and also his conclusion about what the switch lights at Cole Junction meant at night, were his mere conclusions as to ordinary language, which the jury could understand, as well as the plaintiff and it was incompetent. (c) The plaintiff's statement that the way he came into Cole Junction was the usual and customary way of running into Cole Junction, was a mere conclusion of the witness. (d) The plaintiff's testimony about who usually threw the switches there for the river route was incompetent. (e) The blank register slip, defendant's form 319, providing that operators should have the same confirmed by the train dispatcher, as to correctness, before entering on the train register, for the reason that no such register slip was used by the plaintiff's train at the time of his injury, and such blank register slip was incompetent for any purpose. (f) The conclusions and opinions of the plaintiff's witness, the restaurant-keeper, McGinn, that at the time in question plaintiff's conduct in running into the freight train on the river track was a compliance with the time card and the defendant's rule No. 98, as this was the very issue the jury were called upon to decide, and the witness's opinion was in the teeth of the majority opinion of this court when the case was here before. 1 Wigmore on Evidence, sec. 97. The mere declaration of witnesses as to their opinion of a course of dealing, and the existence of a custom, is not evidence of the obligations resting upon them. Cotton Press Co. v. Stanard, 44 Mo. 71; Percell v. Railroad, 126 Mo.App. 43. (3) The court erred in giving illegal and improper instructions at the request of the plaintiff, over the defendant's objections and exceptions. (a) The plaintiff's first instruction submitted the case to the jury upon the plaintiff's right to proceed at Cole Junction because of the "orders to plaintiff and the signals displayed," as authority for him to proceed as he was, when no "orders" to proceed in such a manner were introduced in evidence at all, and all of the testimony showed that the switch signals, which amounted to a stop signal, were not "displayed," because of the freight train on the river route between the plaintiff and the switch lights, at the time of the collision, and the order board, under the circumstances, was not a "signal displayed," which would authorize the violation of the defendant's rules, and the conclusion that the plaintiff was exercising "ordinary care," at the time of running into the defendant's freight train on the river division was in direct violation of the opinion of this court in this case. Finnegan v. Railroad, 244 Mo. 608. (b) The court erred in giving the plaintiff's second instruction, because in this instruction the court told the jury that while the plaintiff would be barred of recovery if his injuries were contributed to by any violation of the defendant's rules, "in force at said time and which had not been abrogated or abandoned by defendant, still if you further believe and find from the evidence that at and before the time of the plaintiff's injuries it was the custom and usage among engineers of the defendant to disregard the rule or rules at the point in question, and that the defendant's superior officers and representatives in charge and control of said engineers knew of and acquiesced in said custom and usage, then said rule or rules would be abrogated at said point," as such rules could not be lawfully abandoned, and if they could there was no testimony to base any abrogation or abandonment of the defendant's rules upon, nor a scintilla of evidence that any of the defendant's officers or agents acquiesced in any custom at variance with the duties and proper enforcement of said rules. (4) The damages assessed by the jury, after the remittitur by the trial court, are grossly excessive. Finnegan v. Railroad, 244 Mo. 608; Dutcher v. Railroad, 241 Mo. 177; Partello v. Railroad, 217 Mo. 645; Lessenden v. Railroad, 238 Mo. 247; Cook v. Railroad, 94 Mo.App. 417; Chitty v. Railroad, 166 Mo. 435; Whalen v. Railroad, 60 Mo. 323.

Walsh, Aylward & Lee and E. R. Morrison for respondent.

(1) Under the former decision in this case the present judgment should be affirmed. Finnegan v. Railroad, 244 Mo 608. (2) (a) Plaintiff ran his train according to the customs and according to the rules as interpreted by him. If the rules should be interpreted otherwise, then they had been abrogated. Barry v. Railroad, 98 Mo. 62; Lowe v. Railroad, 89 Iowa 427; 20 Am. & Eng. Ency. Law, 109; Railroad v. Caraway, 77 Ark. 105; Haynes v. Railroad, 143 N.C. 154, 9 L. R. A. (N. S.) 972. (b) Whether the switch light at the junction point was a ruling signal as applied to plaintiff's train was a question of fact for the jury. (c) The testimony at the present trial was stronger than at the previous trial and the language of Kennish, J., in his opinion upon the former appeal is applicable here. Finnegan v. Railroad, 244 Mo. 660. (d) Plaintiff's case is strengthened by the definition of "full control" given at the request of the defendant. (e) The evidence shows that plaintiff complied with the rule as construed by him and his witnesses. Railroad v. Mortensen, 27 Tex. Civ. App. 106; Hall v. Railroad, 46 Minn. 439; Penn Co. v. Roney, 89 Ind. 453; Railroad v. Parker, 131 Ill. 557; Maehren...