Floyd v. Thompson

• Court: Missouri Supreme Court
• Writing for the Court: VAN OSDOL
• Citation: Floyd v. Thompson, 201 S.W.2d 390, 356 Mo. 250 (Mo. 1947)
• Decision Date: 21 April 1947
• Docket Number: 39952
• Parties: Leon Floyd, a Minor, by Ivena N. Floyd, Guardian and Curator, Appellant, v. Frank A. Thompson, Trustee for St. Louis-San Francisco Railway Company, Corporation

201 S.W.2d 390

356 Mo. 250

Leon Floyd, a Minor, by Ivena N. Floyd, Guardian and Curator, Appellant, v. Frank A. Thompson, Trustee for St. Louis-San Francisco Railway Company, Corporation

No. 39952

Supreme Court of Missouri

April 21, 1947

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Affirmed.

Granville L. Gamblin for appellant.

(1) Under the Federal Safety Appliance Act the duty was imposed upon the defendant-respondent to equip its cars with efficient hand brakes, and it had an unqualified, continuous absolute and mandatory duty to maintain such brakes in a secure condition. Federal Safety Appliance Act, Sec. 11, Title 45, U.S.C.A.; Henry v. Cleveland, C.C. & St. Louis Ry. Co., 61 S.W.2d 340, 332 Mo. 1072; Philadeplhia & R. Rd. Co. v. Eisenhardt, 6 F.2d 784. (2) The test of the observance of the duty imposed by the Federal Safety Appliance Act is the performance of the appliance, and proof of a failure of the appliance to work efficiently will sustain a charge that the Act has been violated. Wild v Pitcairn, 149 S.W.2d 800, 347 Mo. 915; Henry v. Cleveland, C.C. & St. Louis Ry. Co., 61 S.W.2d 340, 332 Mo. 1072; Cason v. Kansas City Ry. Co., 123 S.W.2d 133. (3) Defendant was liable for violation of Federal Safety Appliance Act resulting in death of Durace A. Floyd, although cars were on the Elayer Spur track not owned by Frisco. Hood v. Baltimore & O. Ry. Co., 259 S.W. 471, 302 Mo. 609; Brady v. Terminal Railroad Assn., 303 U.S. 10. (4) Defendant-respondent's duty to deceased was that of an employer to an employee. Stoutimore v. Atchison, T. & S.F. Ry. Co., 92 S.W.2d 658, 338 Mo. 463. (5) The Federal Safety Appliance Act is a substantive law and not a remedial one and imposes an absolute liability for damages for the death of Durace A. Floyd, in that the brake on the north car was defective and the failure of the brake to stop or slow down the cars created an unanticipated emergency which would not have arisen had the brake on the north car been in good operating condition, and therefore any prior omission, if any, on the part of Durace A. Floyd not connected with the failure of the brake to operate efficiently would not be a defense and would not be a concurring proximate cause of his death. Newkirk v. Los Angeles Junction Ry. Co., 123 P.2d 861. (6) The court erred in giving and reading to the jury instructions numbered 2 and 3, requested by defendant, for the reason that contributory negligence was not a defense under the evidence, and because there was no evidence that the moving of the coal cars down the grade to the north, without removing the dump truck from the side of the coal car or without replacing scotches or blocks of wood at a point at which the deceased desired to stop the movement of said car constituted negligence on the part of the deceased or was the proximate cause of his death, in that the deceased had right to presume that the Frisco would obey the law and furnish cars that were equipped with brakes as required by the Federal Safety Appliance Act and maintain them in an efficient condition. Weller v. Chicago, M. & St. P. Ry. Co., 64 S.W. 141, 164 Mo. 180; Gann v. Chicago, R.I. & P. Ry. Co., 6 S.W.2d 39, 319 Mo. 214. (7) Deceased was not required to be on the lookout for danger when he had no cause to anticipate it and was not required to anticipate that a dangerous situation would be created if the brake on the north car would not stop or slow down the cars in their movement to the north and, therefore, defendant's instructions 2 and 3 were peremptory. Cento v. Security Building Co., 99 S.W.2d 1; Crawford v. Kansas City Stock Yards Co., 114 S.W. 1057, 215 Mo. 394; State ex rel. Elliott's Department Store v. Haid, 51 S.W.2d 1015, 330 Mo. 959. (8) Deceased's negligence, if any, must have contributed to his death in order to defeat recovery and must have been a proximate cause of his death. Menard v. Goltra, 40 S.W.2d 1053, 328 Mo. 368; General Box Co. v. Missouri Utilities Co., 55 S.W.2d 442, 331 Mo. 845. (9) The test of proximate cause of the death of deceased is whether facts show, absent the violation of the Safety Appliance Act by the defendant, the death of Durace A. Floyd would not have occurred. Cable v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1031; Kane v. Mo. Pac. Railroad Co., 157 S.W. 644, 251 Mo. 13. (10) The court erred in refusing plaintiff's instructions C and D, in that the death of Durace A. Floyd was the direct and proximate result of defendant's violation of Section 11, Chapter 1, Title 45, of the United States Code, and the defense of contributory negligence was not available to the defendant. Page v. Payne, 240 S.W. 156, 293 Mo. 600; McAllister v. St. Louis Merchants Bridge Terminal Ry. Co., 25 S.W.2d 791, 324 Mo. 1005.

M. G. Roberts, E. G. Nahler, A. P. Stewart, and C. H. Skinker, Jr., for respondent.

(1) Contributory negligence was a proper defense. The prohibition against contributory negligence as a defense in actions involving the violation by a common carrier of the Safety Appliance Act is in the Federal Employers' Liability Act. Since the Federal Employers' Liability Act, by its specific terms, applies only to employees of common carriers while employed in interstate commerce, and deceased was admittedly not an employee, said Act is wholly inapplicable to the defense of contributory negligence in this case. 45 U.S.C.A., Secs. 51, 53. (2) The Safety Appliance Act does not bar or affect or even mention the defense of contributory negligence. Where an action for the violation of the Safety Appliance Act is bottomed upon the injury or death of an employee while employed in interstate commerce the defense of contributory negligence is barred by Section 53 of the Federal Employers' Liability Act, but where, as in the instant case, the action is bottomed upon the death of a non-employee the defense of contributory negligence is governed by the applicable state law. 45 U.S.C.A., Sec. 11; Moore v. C. & O. Ry. Co., 291 U.S. 205; Fairport R. Co. v. Meredith, 292 U.S. 589; Tipton v. Atchison Ry. Co., 298 U.S. 141. (3) Plaintiff's cause of action was instituted under and is governed by the Missouri wrongful death statute, which provides that the defendant railroad "may show as a defense that such death was caused by the negligence of the deceased." Sec. 3652, R.S. 1939. (4) The evidence as to negligence on the part of deceased fully warranted the instruction on contributory negligence.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action for $ 10,000 by plaintiff, an infant, for the wrongful death of his father, Durace A. Floyd. The cause was submitted on the theory of liability for an alleged violation of the Federal Safety Appliance Act, 45 U.S.C.A. sec. 1 et seq., in failing to equip a coal car with an efficient hand brake. 45 U.S.C.A. sec. 11. Verdict and judgment were for defendant; and plaintiff has appealed, herein contending the trial court erred in submitting issues of contributory negligence to the jury.

Plaintiff's decedent, Durace A. Floyd, and Ivena N. Floyd were partners doing business as Floyd Brothers, and were engaged in the business of salvaging "scrap" metal, which they shipped by rail to St. Louis. They had requested defendant an interstate carrier, to "spot" two coal cars for loading with scrap on the Elayer spur connected with defendant's railroad line at Salem. At Salem defendant's line runs in a general north-south direction and the Elayer spur is west of and extends in a northerly direction from defendant's line. The track level of the spur declines northwardly at a grade of about three per cent. An earthen loading dock is situate east of the spur, enabling the contents of trucks to be unloaded into open coal cars on the spur. On the day of the fatality, two coupled coal cars had been spotted on the spur by defendant, the north end of the north car being at the loading dock; and "junk" automobile motors (weighing an average of about 350 pounds) were being unloaded by Floyd Brothers and their employees from the elevated bed of a dump truck into the north car. The "B" ends (brake ends) of the two cars were together. The bed of the dump truck had been so elevated and extended that the "tail end . . . would stick over into the car." It was contemplated Floyd Brothers or their employees would move and reset the cars when necessary in loading. As the loading progressed and the north end of the north car had been filled with scrap motors, it became necessary to move the cars farther north. The deceased directed the movement, and he and an employee, Carl Parker, undertook to manipulate the brakes. Parker, with the assistance of deceased, released the brake on the south car, and the cars started moving. Deceased was then on the east side and near the north end of the south car. The elevated dump truck had not been moved away from the north coal car, and no scotches were placed on the rails at the point where it was planned the cars should be stopped. As stated, when the brake on the south car was released, the cars started moving, and Parker attempted to stop the cars by using the brake of the north car; but the cars moved too far. Parker has "an idea" that, when he moved to the brake platform of the north car, the deceased took a position on the brake platform of the south car. It was Parker's testimony that, when he was attempting to use the brake of the north car, "the brake didn't catch or slow the cars down." In the movement, the "tail end" of the elevated truck was struck by the south end of the north coal car, causing a scrap motor to roll (from the elevated bed of the dump truck) toward the deceased, and he and the employee, Parker, were obliged to leave their positions around, or upon and between the two cars;...