Finnegan v. Missouri Pacific Railway Co.

• Decision Date: 02 July 1912
• Citation: 149 S.W. 612,244 Mo. 608
• Parties: MITCHELL FINNEGAN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

149 S.W. 612

244 Mo. 608

MITCHELL FINNEGAN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

July 2, 1912

Rehearing Denied 244 Mo. 608 at 662.

Appeal from Jackson Circuit Court. -- Hon. H. L. McCune, Judge.

Reversed and remanded.

Elijah Robinson, Martin L. Clardy, and E. J. White for appellant.

(1) The trial court should have directed a verdict for the defendant. The plaintiff was guilty of violating several positive and distinct rules of the company, the observance of any one of which would have prevented the accident. It is the duty of a railroad company to make rules for the operation of its trains, and a failure to do so has been held to be negligence on its part. Fletcher v. Railroad, 168 U.S. 135; Railroad v. Orr, 91 Ala. 548; Fordyce v Briney, 58 Ark. 206; Railroad v. McGraw, 22 Colo. 363; Zeigler v. Railroad, 52 Conn. 552; Murphy v. Hughes, 1 Penn. (Del.) 250; Railroad v. George, 19 Ill. 510; Railroad v. Powers, 74 Ill. 341; Railroad v. Holcomb, 9 Ind.App. 198; Cooper v. Railroad, 44 Iowa 134; Railroad v Salmon, 14 Kan. 512; Judkins v. Railroad, 80 Me. 417; Railroad v. State, 51 Md. 268; Reagan v. Railroad, 93 Mo. 348; Schrader v. Railroad, 108 Mo. 322; Rutledge v. Railroad, 110 Mo. 312; Foster v. Railroad, 115 Mo. 165; Rutledge v. Railroad, 123 Mo. 121; Francis v. Railroad, 127 Mo. 658; Doing v. Railroad, 151 N.Y. 579; Morgan v. Railroad, 133 N.Y. 670; Berrigan v. Railroad, 131 N.Y. 582; Railroad v. Lavalley, 36 Ohio St. 222; Nutt v. Railroad, 25 Ore. 294; Lewis v. Seifert, 116 Pa. 628; Railroad v. Hinzie, 82 Tex. 623; Pool v. Railroad, 20 Utah 210; Madden v. Railroad, 28 W.Va. 610; Luebke v. Railroad, 59 Wis. 127. Plaintiff was perfectly familiar with the rules and knew that they were adopted for greater safety in the operation of trains; and his wilful failure to obey them constituted such negligence on his part as to preclude a recovery for the injuries he sustained. 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; Fordyce v. Briney, 58 Ark. 206; Sloan v. Railroad, 86 Ga. 15; 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. 572; Railroad v. Zerwick, 74 Ill.App. 670; Matchett v. Railroad, 132 Ind. 334; Railroad v. Utz, 133 Ind. 265; Railroad v. Lang, 118 Ind. 579; Railroad v. Whitcomb, 111 Ind. 212; Sedgwick v. Railroad, 76 Iowa 340; Thoman v. Railroad, 92 Iowa 196; 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; White v. Railroad, 72 Miss. 12; Railroad v. Rush, 71 Miss. 987; Francis v. Railroad, 110 Mo. 387; Gorham v. Railroad, 113 Mo. 408; Schaub v. Railroad, 106 Mo. 74; Zumwalt v. Railroad, 35 Mo.App. 661; Towner v. Railroad, 52 Mo.App. 648; LaCroy v. Railroad, 132 N.Y. 570; Shields v. Railroad, 133 N.Y. 557; Mason v. Railroad, 114 N.C. 718; Wolsel v. Railroad, 33 Ohio St. 227; Railroad v. Wilson, 88 Tenn. 316; Railroad v. Smith, 89 Tenn. 114; Murray v. Railroad, 73 Tex. 2; Railroad v. Gray, 65 Tex. 32; Railroad v. Lucade, 86 Va. 390; Darracott v. Railroad, 83 Va. 288; Robinson v. Railroad, 40 W.Va. 583; Eastburn v. Railroad, 34 W.Va. 681. (2) The court committed error in permitting plaintiff's witness Hoffman to testify as to what plaintiff's duty was when approaching Cole Junction, for the reason that his duty was prescribed by the rules, and the rules were the best evidence. (3) The court committed error in permitting Hoffman to testify as to whether plaintiff handled his train at Cole Junction in the usual and customary manner, because no general custom was shown. (4) The court committed error in permitting Hoffman to testify as to what was usually done by engine men in approaching Cole Junction, because his testimony shows conclusively that he had no personal knowledge on the subject, never having seen a train approach Cole Junction. Hearsay testimony is always inadmissible. (5) The court committed error in giving plaintiff's instruction 4, for the reason that there was not a particle of evidence in the case tending to show that the rules applicable to operation of trains at Cole Junction had ever been abrogated or abandoned. Plaintiff's own evidence shows that he knew the rules were still in effect. (6) The court committed error in refusing defendant's instruction 4. If plaintiff approached Cole Junction in violation of the rules of the company, then in force, and the accident was caused by reason thereof, he was not entitled to recover. See authorities under point 1. (7) The court committed error in refusing defendant's instruction 7. See authorities above cited. (8) The amount of the damages was grossly excessive. Partello v. Railroad, 217 Mo. 645; Baker v. Stonebraker, 36 Mo. 338; Spohn v. Railroad, 87 Mo. 84; Ice Co. v. Tamm, 90 Mo.App. 202; Adams v. Railroad, 100 Mo. 555; Cook v. Railroad, 94 Mo.App. 425; Whalen v. Railroad, 60 Mo. 323; Adams v. Railroad, 100 Mo. 555; Nichols v. Glass Co., 126 Mo. 55; Furnish v. Railroad Co., 102 Mo. 438; Chitty v. Railroad, 166 Mo. 435.

Frank P. Walsh and E. R. Morrison for respondent.

(1) Plaintiff did not violate any rule of defendant. Rules requiring trains to be "under full control" or "prepared to stop unless switches and signals are right and track is clear," allow the employee the exercise of judgment and discretion, and whether under all the facts in this case such rules were violated was a question for the jury. Hall v. Railroad, 46 Minn. 439; Railroad v. Parker, 131 Ill. 557; Maehren v. Railroad, 98 Minn. 951; Yongue v. Railroad, 133 Mo.App. 141; Hunn v. Railroad, 78 Mich. 526. Five witnesses who saw the light at the time of the collision testified that it was clear white and therefore there was no "signal imperfectly displayed." The evidence was that the switch target at the junction switch did not govern an east-bound train and hence plaintiff was not required to notice its absence. The rules should be reasonably construed. Davis v. Railroad, 82 Vt. 24; Railroad v. Leighty, 88 Tex. 604. And are to be construed strictly against the company. Railroad v. Bussey, 95 Ga. 584; Railroad v. Hopkins, 161 F. 266. The "go ahead" signal from the rear end of the train, required by the rule was never given until the caboose reached the station. This caboose had not reached the station when the collision occurred. (2) If the rules should have been construed as appellant contends, then by habitual and customary violation with the knowledge, actual and constructive, of appellant, they had been abrogated. Lowe v. Railroad, 89 Iowa 427; 20 Am. & Eng. Ency. Law (2 Ed.), 109; Railroad v. Caraway, 77 Ark. 405; Haynes v. Railroad, 143 N.C. 154; Barry v. Railroad, 98 Mo. 624. Defendant by its own conduct in imposing inconsistent duties waived a compliance with the interpretation of the rules which it now seeks to enforce. Hayes v. Mfg. Co., 41 Hun 407; Brown v. Railroad, 111 Ala. 275; Railroad v. Roney, 89 Ind. 453; Boyle v. Railroad, 25 Utah 420. (3) Defendant's instructions 4, 5, 6 and 7, were properly refused. So far as they were proper they were fully covered by other instructions given for defendant. (4) The verdict was reasonable. Markey v. Railroad, 185 Mo. 365; Waldheir v. Railroad, 87 Mo. 37; Gordon v. Railroad, 222 Mo. 516; Hall v. Railroad, 46 Minn. 439; Railroad v. Shelton, 69 S.W. 653; Railroad v. Holland, 18 Ill.App. 418; Railroad v. Connally, 109 N.W. 368; Whitehead v. Railroad, 114 N.W. 254; Snell v. Oil Co., 106 S.W. 170. (5) The instruction on the measure of damages was not erroneous. Partello v. Railroad, 217 Mo. 645; Railroad v. Bannister, 195 Ill. 51; Coal Co. v. Strine, 217 Ill. 533; Railroad v. Cavanaugh, 35 Ind.App. 32.

GRAVES, J. Ferriss, J., concurs with the views expressed by Graves, P. J. LAMM, J., BROWN, J., concurring. KENNISH, J., dissenting. Valliant, C. J., concurs; Woodson, J., concurs, except that for reasons stated in a separate opinion he holds the judgment should be reversed and the cause remanded for a new trial.

OPINION

In Banc

GRAVES J.

-- Action for personal injuries sustained while in the employ of defendant as one of its locomotive engineers. On the night of June 21, 1903 (Sunday), plaintiff was running an engine which was pulling a freight train from Pleasant Hill to Jefferson City. This train was composed of twenty-four loaded cars and a caboose. The cars were principally loaded with live stock. At Cole Junction, three or four miles west of Jefferson City is the junction point of what is known as the river route and the main line of defendant's railroad. In other words, at Cole Junction the river route line leaves the main line of defendant's road and proceeds through Boonville, Marshall and Lexington, and thence to Kansas City. At the time named the train of the plaintiff, in passing through Cole Junction, ran into another freight train which was bound west over the river route, and which at the time of the collision was in motion and was partially off of the main line on the river route line. A good portion of it, however, was yet on the main line. In the wreck which followed the collision of plaintiff's engine, the fireman and head brakeman were killed, and the plaintiff quite seriously injured. The head brakeman appears to have been on the engine with the engineer and fireman. For the injuries sustained the plaintiff sued for $ 50,000, and recovered a verdict for $ 25,000, and from a judgment on such verdict...