Frese v. Chicago, Burlington & Quincy Railroad
| Decision Date | 30 November 1921 |
| Citation | 235 S.W. 97,290 Mo. 501 |
| Parties | JOHANNA FRESE, Administratrix of Estate of JOSEPH J. FRESE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.
Reversed.
H. J Nelson, E. M. Spencer and M. G. Roberts for appellant.
(1) The instruction in the nature of a demurrer to the evidence should have been given. No substantial evidence was introduced tending to establish that the negligence of the fireman caused the collision. Plaintiff's evidence does establish that the fireman was at his post of duty, keeping a lookout through the front window of the cab, but nowhere in the record is there a semblance of testimony that he failed to exercise ordinary care. This court has never ruled that from proof of a collision the jury may infer or presume that it was due to negligence and not to an accident, and further, that it was caused by the negligence of a particular one of the two train crews. Whitesides v. Chicago B. & Q. R. Co., 186 Mo. 619; Hamilton v. K. C. So. Ry Co., 250 Mo. 722; Removich v. Bambrick Const. Co., 264 Mo. 54; Coin v. Talge Lounge Co., 222 Mo. 508; Patton v. Texas & P. R. Co., 179 U.S. 658, 45 L.Ed. 361; Warner v. Railroad, 178 Mo. 125; Looney v. Met. Ry. Co., 200 U.S. 488; New Orleans & N. E. Railroad v. Harris, 247 U.S. 367; Seaboard A. L. R. Co. v. Horton, 233 U.S. 502, 58 L.Ed. 1062. (b) The sole circumstance relied upon to show that Savage did not keep a lookout is McGee's testimony to the effect that he was looking ahead through the front window of the cab and not, as plaintiff contends he should have done, through the side window. It is argued, therefore, that he did not see the Wabash train. There is no evidence in the record that a person looking ahead through the front window of the cab could not see down the transfer track west of the depot. To properly perform his duty, he had to look along the Q track as well as to the side in front of him. Looking, therefore, through the front window was the proper course, especially as the train was moving to the southeast. In that way the line of vision was narrow enough to enable him to see on both sides of the depot for an approaching train. The fireman is at all times subject to the orders and commands of the engineer. In the absence of evidence that he disobeyed the instructions of his superior, the law will place the blame for the accident on him whose duty it was to "positively ascertain." The facts of record show conclusively that he failed so to do. Great Northern Ry. v. Wiles, 240 U.S. 444, 448. (2) Defendant's refused Instruction F which declared that the duty of the engineer under the statute was a personal one which the law cast upon him and which he could not delegate or place upon another, should have been given. Just how the court could refuse to give this instruction and at the same time admit the Illinois statute in evidence, is difficult to see. The Illinois law clearly placed upon the engineer the responsibility of positively ascertaining that the way was clear and the crossing safe before proceeding thereon with his train. That such an obligation so imposed is a personal one, there can be no question. If it be personal, then a man so situated cannot delegate that duty to anyone else, or rely upon anyone else for its performance. He must himself personally do what the law personally commands him to do. (3) Defendant's refused Instruction E should have been given because if the accident was due to Frese's own negligence, his personal representative cannot recover. If it was due to the negligence of the engineer of the Wabash, Frese's personal representative could not recover as against the Burlington. Likewise, if it was due to the negligence of both Frese and the engineer of the Wabash, there could be no recovery against this defendant. (4) Defendant's refused Instruction C should have been given. There was a statutory obligation upon Frese to positively ascertain that the crossing was safe before he attempted to pass over it. If therefore, his failure to observe the statute caused the collision, defendant was entitled to a verdict. (5) The testimony of the Alton engineer as to the usual manner and custom of ascertaining whether a crossing is clear and as to the nature of the duties of an engineer, should not have been admitted in evidence. The statute of Illinois plainly designates the nature and character of the duty of an engineer when approaching a grade crossing. The statute cannot be changed by a custom. Proof of the usual manner does not excuse negligence arising from a violation of the statute. Evidence of a custom was not admissible. Clark v. St. Joseph T. Ry. Co., 242 Mo. 570.
Mytton & Parkinson for respondent.
(1) Railroad tracks in and of themselves suggest danger, and everyone having reached the age of reasonable discretion is presumed to know this fact, and the law therefore enjoins the duty upon one approaching a railroad track and crossing to exercise ordinary care by looking and listening for approaching trains, and the action of the fireman Savage in approaching the Wabash track and crossing with his head outside of the side cab window and looking through the front window in the direction in which he was going, and not to the side, was, if not negligence as a matter of law, gross negligence as a matter of fact. Dyrez v. Mo. Pac. Ry Co., 238 Mo. 33, 46; Holland v. Mo. Pac. Ry. Co., 210 Mo. 338; Connor v. Wabash R. R. Co., 149 Mo.App. 675, 686; McNeil v. Mo. Pac. Ry. Co., 182 S.W. 762. (2) The failure of a party to call witnesses in its employ and under its control, who know vital facts affecting the issue upon which the case is tried, is a strong circumstance against such party. McCord v. Schaaf, 216 S.W. 320; Willitts v. Railroad Co., 221 S.W. 65; Schooler v. Schooler, 258 Mo. 83, 95; Phillips v. Tel. Co., 194 Mo.App. 470; Van Ness v. Ry. Co., 181 Mo.App. 379; McClanahan v. Railroad, 147 Mo.App. 412. (3) In an action for negligent death, decedent is presumed to have used reasonable care for his own safety in the absence of evidence to the contrary. Grant v. Kansas City So. Ry. Co., 190 S.W. 586; Bueshing v. St. Louis Gas Light Co., 73 Mo. 219; Capp v. St. Louis, 251 Mo. 345, 373; Tibbels v. Ry. Co., 219 S.W. 109; Wack v. Railroad, 175 Mo.App. 122. Except for the admissions in the pleadings and during the trial there is not one scintilla of evidence concerning the conduct of the decedent Frese as locomotive engineer except that he brought his train to a stop and whistled in compliance with the law within 800 feet of the crossing, and at a point 249 feet from the grade crossing. It is not pointed out anywhere in appellant's brief in what particular the engineer failed to comply with the statutory law of Illinois, or in what particular he was negligent. The evidence unquestionably showed he could not see trains approaching from the fireman's side on the Wabash track, and that he was running six or seven miles an hour. What he failed to do that he should have done, or what he did that he should not have done, is nowhere pointed out. It is not pretended that he could have left the throttle of his engine. It cannot be pretended that he would have heard the Wabash train approaching with the noises of his own train about him. He did nothing that he should not have done and he did not fail to do anything that he could or should have done to see that the way was clear and that it was safe for him to make the crossing. (4) Defendant's refused Instructions C, D, E, F and G were properly refused. (a) Instruction C does not follow in its terms the duties imposed by the Illinois statute pleaded, but enlarges the duty of an engineer in approaching a grade crossing. The instruction eliminated the engineer's duty to stop and positively ascertain the crossing was clear before proceeding and misstated the duty devolved upon him by the statute by requiring him absolutely to know that the crossing was clear and he could proceed over the same in safety, although the statute made no such requirements, but simply required him to bring his train to a stop and to positively ascertain that the way was clear, and that the train could safely resume its course before proceeding to pass the crossing. Further, the instruction disregards the provisions of the Federal Employers' Liability Act which permits the plaintiff a recovery even though he were negligent in violating the statute if the negligence of the fireman contributed to and caused his death. The instruction authorizes a verdict for defendant upon mere proof of negligence of the deceased without any regard to the fact of whether or not his negligence was the sole negligence. Further, there is absolutely no evidence upon which to base an instruction that the engineer Frese in any way violated the statutory provision or was guilty of any negligence whatsoever. (b) Instruction D is objectionable for the same reasons urged against Instruction C. (c) Instruction E is faulty for the reasons urged against C and D. (d) Instruction F contains all of the objections urged to the preceding instructions and is objectionable for the further reason that there was no evidence upon which to base it. There is no evidence in the record of any attempt by the decedent Frese to delegate the duty devolved upon him by the law. (e) Instruction G indulges a presumption in favor of the defendant, which it is not even pretended here should be allowed. When evidence of facts appear, presumptions disappear. The evidence clearly showed exactly what Savage did and what his conduct was in approaching this crossing. No presumption of law attended his acts and determined them to be the acts of a person in the exercise of ordinary care. The facts were...
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