Ford v. Louisville & N. R. Co.

• Citation: 196 S.W.2d 163,355 Mo. 362
• Decision Date: 09 September 1946
• Docket Number: 39694
• Parties: Flossie Ford, Administratrix of the Estate of Bert Ford, Deceased, v. Louisville & Nashville Railroad Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

196 S.W.2d 163

355 Mo. 362

Flossie Ford, Administratrix of the Estate of Bert Ford, Deceased, v. Louisville & Nashville Railroad Company, a Corporation, Appellant

No. 39694

Supreme Court of Missouri

September 9, 1946

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed (subject to remittitur).

Wilton D. Chapman for appellant; Sidney Smith and James J. Donohue of counsel.

(1) There was no competent evidence proving negligence on the part of appellant as alleged in the petition on which the case was tried, or supporting the theory on which the case was submitted to the jury; and respondent failed to prove that the death of the decedent was the direct and proximate result of such negligence. Brady v. Southern Ry Co., 320 U.S. 476, 64 S.Ct. 232; A.T. & S.F. Ry. Co v. Toops, 281 U.S. 351, 74 L.Ed. 896, 50 S.Ct. 281; Patton v. T. & P. Ry. Co., 179 U.S. 658; K.C.S.R. Co. v. Jones, 276 U.S. 303, 48 S.Ct. 308; G.M. & N. v. Wells, 275 U.S. 455, 48 S.Ct. 151; A.C.L. v. Driggers, 279 U.S. 787, 49 S.Ct. 490. (2) This case should be reversed outright because under the Federal Employers' Liability Act (45 U.S.C.A., #51-60), on which the amended petition was predicated, recovery could be had against appellant only if respondent proved that the death of decedent was directly due to and proximately caused by appellant's negligence, and respondent wholly failed to make such proof; hence, appellant was entitled to a directed verdict in its behalf. Cogswell v. C. & E.S.R. Co., 153 F.2d 94; Northwest Pac. R. Co. v. Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 462; New York Central R. Co. v. Ambrose, Admx., 280 U.S. 486; Reding v. Boyer, 6 F.2d 185. (3) It was the duty of the trial judge to direct a verdict for appellant in this case where the testimony and all the inferences which the jury might reasonably draw therefrom were insufficient to support a finding for respondent. C.M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; McGivern v. Northern Pac. Ry. Co., 132 F.2d 213; Raudenbush v. B. & O.R. Co., 63 F.Supp. 329. (4) The verdict of the jury and judgment thereon having been based on conjecture and speculation and presumptions upon presumptions and not on substantial evidence of essential facts, or facts which would justify a reasonable inference of such substantial facts, cannot stand. Mere speculation cannot be allowed to do duty for probative facts. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458; Missouri Pac. R. Co. v. Davis, 186 S.W.2d 20. (5) A mere possibility of negligence is not a sufficient foundation for an inference of negligence which will justify submission of a case to a jury whose verdict may not be based on conjecture or speculation. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819; Hamilton v. St. Louis-S.F. Ry. Co., 318 Mo. 123, 300 S.W. 787; Mullen v. Lowden, 124 S.W. (2d), l.c. 1156; Federal C.S. Co. v. Pupillo, 346 Mo. 136, 139 S.W.2d 996. (6) Respondent failed to prove that the parties were engaged at the time in work which affected interstate transportation, hence failed to bring the case under the Federal Employers' Liability Act, which was a prerequisite to recovery of a judgment for respondent herein. Federal Employers' Liability Act, 45 U.S.C.A., #51-60. (7) The court erroneously gave and read to the jury Instruction 1, as said instruction improperly and erroneously instructed the jury with reference to "assumption of risk" which was not pleaded in the case nor a defense therein and which injected erroneously a foreign issue into the case and into the instructions to the jury, which was confusing and misleading to the jury and prejudicial to appellant. McCurry v. Thompson, 181 S.W.2d 529; Hickman v. St. L.D. Co., 90 S.W.2d 177; Tiller v. L.C.L.R. Co., 318 U.S. l.c. 72; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Willhauck v. C.R.I. & P.R. Co., 332 Mo. 1165, 61 S.W.2d 336; Silliman v. Munger L. Co., 44 S.W.2d 159; Francis v. Missouri Pac. T. Co., 85 S.W.2d 915; State ex rel. v. Allen, 124 S.W.2d 1080. (8) It was error to give and read to the jury Instruction 1 for respondent, which submitted to the jury for their determination a question of law in that it asked the jury to determine from the evidence whether it was the duty of the engineer to exercise ordinary care in the operation of his engine and train. Thompson v. St. Joe Ry., L.H. & P. Co., 131 S.W.2d 574; Bollmyer v. Eagle M. & E. Co., 206 S.W. 917. (9) The court erred in overruling appellant's objections made during the argument of the attorney for respondent with reference to "assumption of risk." (10) The court erred in permitting respondent's witness Montgomery to testify as to his deductions and conclusions as to what had taken place, based upon footmarks and tracks in the snow, the witness not being qualified properly, as an expert, the same not being a proper subject for expert testimony and the testimony invading the province of the jury. (11) The court erroneously admitted testimony as to the speed which a witness considered safe or dangerous in passing the platform mentioned in evidence, said witness having not properly qualified, said testimony not being of such character as to be the proper subject of expert testimony, and invading the province of the jury. (12) The verdict of $ 45,000 was excessive considering the circumstances, including decedent's age (51) and the fact that there was no element of conscious pain and suffering. Finley v. St. L. & S.F. Ry. Co., 160 S.W.2d 735; Miller v. Terminal Railroad Assn. of St. L., 163 S.W.2d 1034; Hancock v. K.C.T. Railroad Co., 146 S.W.2d 627; Benner v. Term. Railroad Assn. of St. L., 156 S.W.2d 657; Johnson v. Southern Ry. Co., 175 S.W.2d 802.

Mark D. Eagleton and Wm. H. Allen for respondent.

(1) On the question whether a submissible case was made, the evidence adduced is to be viewed, as a whole, in the light most favorable to plaintiff, giving plaintiff the benefit of every inference favorable to her that a jury might with any degree of propriety draw therefrom; evidence adduced by defendant is to be disregarded except where it aids plaintiff's case; and inferences in favor of the defendant will not be indulged to countervail or overthrow inferences favorable to plaintiff, since this would be to usurp the province of the jury. Gilliland v Bondurant, 332 Mo. 881, 59 S.W.2d 679; Bootee v. Kansas City Pub. Serv. Co., 183 S.W.2d 892; Wright v. Spieldoch, 354 Mo. 1076; Buesching v. The St. Louis Gas Light Co., 73 Mo. 219; Dodd v. M.K. & T.R. Co., 184 S.W.2d 454. (2) Though plaintiff's counsel read in evidence the deposition of defendant's fireman, Livesay, plaintiff is not bound by that witness's testimony insofar as it was contradicted by other testimony; the jury was at liberty to believe any part of the fireman's testimony and disbelieve any part thereof that conflicted with plaintiff's other evidence. Dodd v. M.K. & T.R. Co., 184 S.W.2d 454; McCall v. Thompson, 348 Mo. 795, 801, 155 S.W.2d 161; Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40, 159 S.W.2d 589. (3) The evidence plainly warranted a finding that, in operating the engine and train along and by the passenger station at Pineville, where it was Ford's duty, in the performance of his work as head brakeman, to alight from said engine, defendant's engineer negligently operated the same at a rate of speed that was unreasonably high and excessive under the conditions then and there prevailing, with the platforms and station grounds covered with ice and snow and slick, whereby the engineer negligently failed to afford Ford a reasonably safe opportunity to alight from said engine, and that Ford's injury and death proximately resulted from such negligence. Title 45, U.S.C.A., Sec. 51, Act of April 22, 1908, chap. 149, as amended August 11, 1939, chap. 685; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409; Cantley v. M.-K.-T. Ry. Co., 183 S.W.2d 123; Blair v. Baltimore & Ohio R. Co., 65 S.Ct. 545; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967. (4) There is no merit in appellant's contention in its brief that it was not shown that plaintiff was engaged in interstate commerce within the purview of the Federal Employers' Liability Act. Since the admissions in the record showed that a part of plaintiff's duties as defendant's employee was the furtherance of interstate commerce and directly, closely and substantially affected such commerce, by the express terms of the Act as amended in 1939, he is to be considered as having been employed by defendant in such commerce and entitled to the benefits of the Act. 40 U.S.C.A., Sec. 51, as amended August 11, 1939; Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S.W.2d 536; Prader v. Pennsylvania R. Co., 49 N.E.2d 387; Wright v. New York Central R. Co., 263 A.D. 461, 33 N.Y.S. (2d) 531, affirmed 288 N.Y. 719, 43 N.E.2d 97; certiorari denied 317 U.S. 668, 63 S.Ct. 73, 87 L.Ed. 47; Edwards v. Baltimore & Ohio R. Co., 131 F.2d 366; Southern Pacific Co. v. Industrial Acc. Comm., 113 P.2d 763, 19 Cal.2d 271, 120 P.2d 880. (5) There was no error in giving plaintiff's Instruction 1. While defendant did not plead assumption of risk, defendant, at the trial, adduced the testimony of its engineer that when Ford started to the rear of the engine preparatory to getting off he asked Ford if the speed was too high and Ford replied in the negative; by adducing such testimony defendant injected assumption of risk into the case and made it an issue to be treated as such in all respects as if it had been raised by the pleadings; and it was consequently proper for the court to so instruct the jury as to cause it not to be misled by such testimony. Sec,...