Francis v. Terminal Railroad Assn.
| Decision Date | 08 April 1946 |
| Docket Number | No. 39573.,39573. |
| Citation | 193 S.W.2d 909 |
| Parties | EVAN D. FRANCIS v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. F.E. Williams, Judge.
AFFIRMED (subject to remittitur).
Warner Fuller and Arnot L. Sheppard for appellant.
(1) Recovery under the Federal Employers' Liability Act necessarily depends upon proof showing an employer-employee relationship between appellant and respondent, respectively, and the former's causative negligence. As the existence of that relationship is the very foundation of respondent's case, it of necessity must be determined under principles of law recognized and applied by the federal courts. Seaboard Airline R. Co. v. Horton, 233 U.S. 492, 58 L. Ed. 1062, 34 S. Ct. 635; T. & P.R. Co. v. Rigsby, 241 U.S. 33, 60 L. Ed. 874; Central Vermont R. Co. v. White, 238 U.S. 507, 59 L. Ed. 1433; Southern R. Co. v. Gray, 241 U.S. 333, 60 L. Ed. 1030; New Orleans & N.E.R. Co. v. Harris, 247 U.S. 367, 62 L Ed. 1167. (2) Obviously, if respondent is to recover upon the alleged failure of the Wabash enginemen to ring the bell and give him a warning of the approach of the locomotive, he must prove that the relation of employee and employer existed between him and the Wabash Railroad Company, respectively, because the Federal Employers' Liability Act requires proof of negligence on the part of the employer in order to create liability. Moreover, that relationship must be a conventional one; i.e., "Formed by agreement or compact; stipulated; contractual; — opposed in law to legal and judicial." Webster's New International Dictionary. Robinson v. B. & O.R. Co., 237 U.S. 84, 59 L. Ed. 849; C. & A.R. Co. v. Wagner, 239 U.S. 452, 60 L. Ed. 379; Hull v. Philadelphia & Reading R. Co., 252 U.S. 475, 64 L. Ed. 67. (3) Originally the lessor-lessee rule was founded upon the theory that a state franchise to a railroad company, especially because it clothed it with the right of eminent domain, was a contract which obligated the company to render railroad service to the public, and that a lease by a railroad company of all of its property disabled it from rendering the public services enjoined upon it by its charter; and was, therefore, void as against public policy. Thomas v. West Jersey R. Co., 101 U.S. 71, 25 L. Ed. 950; North Carolina R. Co. v. Zachary, 232 U.S. 248, 58 L. Ed. 591. (4) For the purpose of applying the lessor-lessee rule the latter must be considered as the agent of the former, on the theory that the lessor is engaged, through the lessee, in performing its public duty. North Carolina R. Co. v. Zachary, 232 U.S. 248, 58 L. Ed. 591; Lee v. So. P.R. Co., 116 Cal. 97, 47 Pac. 932; Abbott v. Johnstown, G. & K.R. Co., 80 N.Y. 27; Murray v. Lehigh Valley R. Co., 66 Conn. 512, 34 Atl. 506. (5) But it has been established by the opinions of the Supreme Court of the United States that not only are the companies which use appellant's facilities the principals of appellant, but under pain of prosecution under the federal anti-trust statutes, appellant must act as the impartial agent of each company which uses its facilities. United States v. Terminal Railroad Assn. of St. Louis, 224 U.S. 383, 56 L. Ed. 810; United States v. Terminal Railroad Assn., 236 U.S. 194, 59 L. Ed. 535. (6) This record discloses that appellant not only was not shirking any of its franchise obligations by permitting Wabash Railroad Company to use its tracks, but was faithfully fulfilling the purpose of its incorporation and the duties cast upon it by its franchise, and the franchises of The Union Railway and Transit Company of St. Louis, The Terminal Railroad of St. Louis, and The Union Depot Company of St. Louis, Georgia Railroad & Banking Co. v. Friddell, 79 Ga. 489, 7 S.E. 214, 11 Am. St. Rep. 447. (7) Moreover, as a result of the opinions of the United States Supreme Court, supra, appellant must permit any trunk line railroad which chooses so to do, to use its facilities on exactly the same terms as does every other trunkline railroad. The granting of such permission, therefore, is involuntary rather than voluntary; and, consequently, it is without the lessor-lessee rule of liability. Smith v. Philadelphia, Baltimore & Washington R. Co., 46 App. Cas. 275. (8) The rights of both plaintiff and defendant under Federal Employers' Liability Act are determined exclusively by the decisions of the federal courts, without regard to any state statutes or decisions. C. & O.R. Co. v. Stapleton, 279 U.S. 587, 73 L. Ed. 861. (9) These Missouri statutes are declaratory of the common law principle which as we have seen creates responsibility on the owner for the user's acts solely upon the theory that the owner will not be permitted to escape performance of its duty to the public; whereas appellant is strictly performing the only and exact public duty cast upon it by its franchises. United States v. Terminal Railroad Assn. of St. Louis, 224 U.S. 383, 56 L. Ed. 810; State ex inf. v. Terminal Railroad Assn. of St. Louis, 182 Mo. 284. (10) This court has recognized that appellant is a union station company under the provisions of Secs. 5251 et seq., R.S. 1939; and, therefore, not subject to the provisions of those sections of the statutes. State ex inf. v. Terminal Railroad Assn. of St. Louis, 182 Mo. 284. (11) Men working in railroad yards, as was respondent here, are ordinarily not entitled to warnings of switching moves, but must look out for themselves. Mayfield v. K.C. So. R. Co., 337 Mo. 79, 85 S.W. (2d) 116; Sumney v. So. R. Co., 89 Ed. (2d) 437; Connelley v. Penn. R. Co., 201 Fed. 54; Cain v. Fort Worth & Denver City R. Co. 75 Fed. (2d) 103; Bruce v. Mo. Pac. R. Co., 271 S.W. 762; Gabal v. St. L. & S.F.R. Co., 251 Mo. 257, 158 S.W. 12. (12) A duty to warn under the above circumstances arises only upon proof of violation of a rule or custom so to do. Mayfield v. K.C., So. R. Co., supra. (13) Moreover, the evidence herein is wholly insufficient to prove that the bell of the Wabash locomotive was not rung. The sufficiency of this evidence to make a jury question on the ringing of the bell must be determined by the federal decisions. Brady v. Southern R. Co., 320 U.S. 476, 88 L. Ed. 239, 64 S. Ct. 232. (14) The federal cases hold that this character of evidence is not sufficient to create a jury question in this regard. Stephenson v. Grand Trunk R. Co., 110 Fed. (2d) 401; Pere Marquette R. Co. v. Anderson, 29 Fed. (2d) 479; Lehigh Valley R. Co. v. Mangan, 278 Fed. 85; C. & N.W.R. Co. v. Andrews, 130 Fed. 65. (15) Plaintiff's own evidence shows conclusively that his unintentionally stepping into a dangerous position was the sole proximate cause of his injury. Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787, 73 L. Ed. 957; Brady v. Southern R. Co., 320 U.S. 476, 88 L. Ed. 239, 64 S. Ct. 232. (16) Plaintiff and a steamfitter, Gastorf, were at the time of respondent's injury engaged in attempting to stop the escape of steam, the very steam which respondent claims made his place of work dangerous. Under these circumstances the safe place rule is not applicable, for the reason that respondent was engaged in the task of remedying the very defect which he now claims rendered his place of work unsafe. Kansas City So. R. Co. v. Billingslea, 116 Fed. 335, 340; Stone v. Mo. Pac. R. Co., 293 S.W. 367; Pritchard v. Thompson, 156 S.W. (2d) 652. (17) If the place as provided is reasonably safe, there can be no recovery under that doctrine, even though one is injured at a place which has been rendered dangerous by reason of the manner in which it was used or the way in which the work was done. Pennsylvania R. Co. v. Fishack, 123 Fed. 465; Union Pacific R. Co. v. Marone, 246 Fed. 916. (18) Respondent's Instruction 2, which predicates recovery upon failure to ring the bell, does not require the jury to find any facts creating a duty upon the enginemen so to do; but assumes the duty and requires a finding only that it was violated. It is, therefore, (1) broader than the petition, and (2) unwarrantedly assumes controverted facts. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Boland v. St. L.-S.F.R. Co., 284 S.W. 141. (19) Respondent's theory of negligence based upon failure to ring the bell is based exclusively upon paragraph VI, B, which pleads that the duty to ring the bell arose from a rule or custom so to do. But Instruction 2 fails to require the jury to find the existence of any such rule or custom. It is, therefore, erroneous because there is no legal basis for this predicate, and, therefore, the instruction is broader than the evidence. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (20) Instruction 3 is erroneous. Respondent and Gastorf were at the time of the former's injury engaged in doing the only thing, viz., cutting off the steam leak, which respondent says alone made the place dangerous. Consequently, they were making safe an unsafe place, and the safe place rule is inapplicable. See authorities under (16) supra. (21) The court erred in admitting over appellant's objections the evidence hereafter mentioned. Respondent was asked: "If that engine bell had been ringing could you have heard it?" Appellant objected on the ground that it called for the conclusion of the witness. This objection was overruled, and respondent answered in the affirmative. Johannes v. Edward G. Becht Laundry Co., 274 S.W. 377; Martin v. Kansas City, 224 S.W. 141; Barfoot v. White Star Line, 170 Mich. 349, 136 N.W. 437. (22) The verdict is so grossly excessive as to show conclusively that it was the result of prejudice against appellant.
Roberts P. Elam and Rene J. Lusser for respondent: Tautges, Rerat & Welch of counsel.
(1) Under the local Missouri statute law, appellant, by permitting another railroad to use appellant's tracks and facilities, remains liable as if it...
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