Fryer v. St. Louis-San Francisco Ry. Co.

• Citation: 63 S.W.2d 47,333 Mo. 740
• Decision Date: 24 August 1933
• Docket Number: 30892
• Parties: Lena M. Fryer, Administratrix of the Estate of Hilry N. Fryer, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

63 S.W.2d 47

333 Mo. 740

Lena M. Fryer, Administratrix of the Estate of Hilry N. Fryer, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 30892

Supreme Court of Missouri

August 24, 1933

Motion for Rehearing Overruled August 3, 1933.

Motion to Transfer to Banc August 24, 1933.

Appeal from Christian Circuit Court; Hon. Robert Gideon Judge.

Reversed.

E. T Miller and Mann, Mann & Miller for appellant.

(1) No case was made for the jury on either count. Defendant's demurrer offered at the close of all the evidence should have been sustained. (a) The petition alleges both negligence at common law and the violation of the Safety Appliance or Boiler Inspection Acts of Congress. No common law negligence was proven. Plaintiff asked no instructions based upon common law negligence and submitted her case solely on the question of whether there was negligence in the violation of the Boiler Inspection Act. Plaintiff is bound by and the case must be tried on appeal upon the theory presented in the trial court. Pinell v. Railroad Co., 263 S.W. 186; Degonia v. Railroad Co., 224 Mo. 588; O'Hara v. Laclede G. L. Co., 244 Mo. 403. Where the petition contains several allegations of negligence and, as here, the case is submitted to the jury on but one of these, all others will be considered as having been waived and no longer in the case. Nahorski v. Railroad Co., 274 S.W. 1027; Crossno v. Railroad Assn., 41 S.W.2d 800; Wallace v. Burkhardt M. Co., 3 S.W.2d 390; Denkman v. Prudential F. Co., 289 S.W. 596. (b) While under the Boiler Inspection Act the railway company is required to have its locomotive and all parts and appurtenances thereof in proper condition and safe to operate, the burden is upon the plaintiff to prove that the same was defective and that this defect was the proximate cause of the injury. Riley v. Railroad Co., 328 Mo 910, 44 S.W.2d 141; Railroad Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 521; Frederick v. Railroad Co., 36 F.2d 718; Ford v. Railroad Co., 54 F.2d 342, certiorari denied, 285 U.S. 549, 76 L.Ed. 939; Watkins v. Railroad Co., 315 N.H. 319, 138 A. 322; Mahutga v. Railroad Co., 234 N.W. 474; Anschwitz v. Railroad Co., 178 N.E. 403; O'Dea v. Byram, 222 N.W. 519. (c) The railway company is not required to furnish appliances which insure absolute safety under all conditions or the newest and best mechanical appliances or inventions. Railroad Co. v. Groeger, 266 U.S. 529, 69 L.Ed. 424; Crismer v. Bell Telephone Co., 194 Mo. 208; Coyne v. John H. Talge L. Co., 222 Mo. 505. (d) The question of whether the type or kind of appliance with which the locomotive is equipped is a safe or proper one is within the exclusive jurisdiction of the Interstate Commerce Commission, to which the Congress delegated exclusive authority to determine that question. Watkins v. Railroad Co., 315 N.H. 319, 138 A. 321. (e) Such questions are not to be left to the varying and uncertain opinions and verdicts of juries. Railroad Co. v. Groeger, 266 U.S. 531, 69 L.Ed. 425; Railroad Co. v. Berkshire, 254 U.S. 415, 65 L.Ed. 337; Railroad Co. v. Koske, 279 U.S. 11, 73 L.Ed. 582; Railroad Co. v. Allen, 276 U.S. 165, 72 L.Ed. 516; Chrismer v. Bell T. Co., 194 Mo. 208. (f) The undisputed evidence is that the type of reverse lever and valve gear as used upon this engine is safe. Engines so equipped are in general use upon most railroads. Their use generally and upon this engine in particular was approved by the inspectors of the Interstate Commerce Commission. Mechanism upon a locomotive which has been in constant use for years without causing injury must be considered proper and safe until some notice or occasion indicates its danger and insufficiency. Negligence must be proven, it cannot be established by building inference upon inference. In no other way were the facts necessary to plaintiff's right of recovery established. Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 428; State ex rel. City of Macon v. Trimble et al., 12 S.W.2d 734; State ex rel. Public Utilities Co. v. Cox et al., 298 Mo. 433, 250 S.W. 552; Hamilton v. Railroad, 250 Mo. 722; Thompson v. Railroad Co., 274 S.W. 531; Layton v. Chinberg, 282 S.W. 436; Strother v. Railroad Co., 188 S.W. 1102; Webber v. Milling Co., 242 S.W. 989; Wilson v. Railroad Co., 5 S.W.2d 22; Haggard v. McGrew Coal Co., 200 S.W. 1075; Railroad Co. v. Burton, 50 F.2d 730; Railroad Co. v. Payne, 8 F.2d 332; Hatton v. Railroad Co., 261 F. 667. Where the proof, though consistent with the existence of some defect is equally consistent with the existence of some other cause for which the defendant would not be liable, there is no question for submission to the jury. Burnett v. Railroad Co., 33 F.2d 580; Lynch v. Railroad Co., 58 F.2d 178; Mockowik v. Railroad Co., 196 Mo. 571; Burge v. Railroad Co., 244 Mo. 94; Dyrcz v. Railroad Co., 238 Mo. 33; George v. Railroad Co., 213 Mo.App. 668, 251 S.W. 732. (2) Fryer's death was not proven to have been caused by the accident received in which his ankle was injured, but on the contrary the evidence shows that his death was the result of a diseased kidney not caused or aggravated by the injury. For that reason the demurrer to the first count of the petition should have been sustained. Coble v. Railroad, 38 S.W.2d 1036; Oates v. Street Railroad, 168 Mo. 548; Kane v. Railroad, 251 Mo. 27; Shelton v. Rudd, 242 S.W. 153; Norman v. Bakery Co., 298 S.W. 1037; Conrad v. Hannah, 253 S.W. 811; Robinson v. Loose-Wiles Biscuit Co., 285 S.W. 129.

Hamlin & Hamlin and Sizer & Gardner for respondent.

(1) It is not necessary under the Boiler Inspection Act to show any actual, physical, or mechanical defects; that the parts fail to properly function and are inoperative is sufficient evidence of defects. B. & O. v. Groeger, 69 L.Ed. 419, 266 U.S. 521; Riley v. Railroad, 44 S.W.2d 141; Drew v. Frisco, 220 Mo.App. 720, 293 S.W. 468; Kidd v. Railroad, 274 S.W. 1079; Hines v. Smith, 275 F. 766; U.S. v. Railroad, 1 F.2d 487; Thornton v. Railroad, 175 N.W. 71. The same rule obtains in coupler cases. Railroad v. Brown, 229 U.S. 320, 51 L.Ed. 1204; Railroad v. Wagner, 241 U.S. 484, 60 L.Ed. 1110; Railroad v. Gotschall, 244 U.S. 66, 61 L.Ed. 995; Railroad v. Eisenhart, 280 F. 271. (a) That the reverse lever went violently forward, behaved in an unusual manner, was inoperative, was sufficient evidence that it was defective. Railroad v. Groeger, supra; Riley v. Wabash, supra. (b) The facts in this case clearly disclose the manner and cause of deceased's injury. There is no room for surmise, speculation or conjecture. Neither was the verdict reached by basing inference upon inference but each inference drawn has evidentiary facts upon which to rest. McAllister v. Railroad, 25 S.W.2d 791, 324 Mo. 1005; Schulz v. Railroad, 319 Mo. 821; Kelly v. Railroad, 125 S.W. 820; Boggess v. Railway, 229 S.W. 406; Fairclough v. Fidelity & Casualty Co., 297 F. 683. (2) Under the first count, Fryer's death was sufficiently shown to have resulted from his injury. The cause of death is peculiarly a jury question in this State. Fetter v. Fidelity & Casualty Co., 174 Mo. 256; Volker v. Hill-O'Meara Const. Co., 131 S.W. 907; Marriott v. Railroad, 126 S.W. 233; Briskell v. Ins. Co., 172 Mo.App. 368; Robyn v. Casualty Co., 257 S.W. 1067; Wheeler v. Casualty Co., 298 Mo. 640; Driskell v. Ins. Co., 117 Mo.App. 362; Schulz v. Railroad, 319 Mo. 8; Sharp v. Railroad, 213 Mo. 531; DeMaet v. Storage Co., 231 Mo. 615; MacDonald v. Railroad, 219 Mo. 480; Seckinger v. Manufacturing Co., 129 Mo. 605; Patterson v. Traction Co., 178 Mo.App. 259; Neff v. City of Cameron, 213 Mo. 364; Kuenzel v. City of St. Louis, 212 S.W. 876.

Hyde, C. Ferguson, C., concurs; Sturgis, C., dissents.

OPINION

HYDE

This is an action based upon violation of the Federal Boiler Inspection Act, U.S.C. A., Title 45, Chapter 1, Section 23. Plaintiff's petition was in two counts, the first, for damages for the death of her husband, the second, for damages for his conscious pain and suffering. Plaintiff's petition pleaded the facts concerning his injuries, as follows:

"3. Plaintiff's said husband, in the line of his duties and in the course of his employment, left the defendant's terminal at Springfield, Missouri, for Muskogee, Oklahoma, as engineer on locomotive engine No. 384 then and there being used and operated by defendant in pulling its westbound passenger train No. 1 between Springfield and Muskogee aforesaid; that said engine No. 384 was a large passenger engine, and was equipped with a reverse lever located near the engineer's seat box, for use by the engineer in handling and controlling said engine and the speed and power thereof; that said lever was a large steel bar, four or five feet in height, set in a perpendicular position, with a quadrant with notches thereon for holding said lever in proper position, so that when it became necessary for said lever to be moved either forward or backward on said quadrant it was necessary for the engineer to release the catch on said lever and the attachments thereto from the notches in said quadrant, by taking hold of said lever with his hand or hands, at the top end thereof; that said lever was located immediately back of the head of the boiler, and was so constructed that the same could be moved either backward from, or forward towards the head of the boiler, and had to be so moved in the operation of said locomotive.

"4. Plaintiff further states that said locomotive was equipped with a Baker valve, which was attached to said reverse lever at the lower end thereof and which was a part of the appurtenances and appliances of said locomotive and boiler that said Baker valve was attached directly to the valve stem, and connected with said reverse lever, so that when said locomotive engine was in...