Gill v. Baltimore & Ohio R. Co.
| Decision Date | 11 February 1924 |
| Docket Number | 23480 |
| Parties | ANNA W. GILL, Administratrix of Estate of GLENN C. GILL, v. BALTIMORE & OHIO RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court; Hon. Franklin Miller, Judge.
Affirmed.
Fordyce Holliday & White, and Kramer, Kramer & Campbell for appellant; Morrison R. Waite and William A Eggers of counsel.
(1) In proceedings brought under the Federal Employers' Liability Act the rights and obligations depend upon that act and the applicable principles of common law as interpreted and applied in the Federal courts. New Orleans & N. E Railroad Co. v. Harris, 247 U.S. 367, 371; Southern Railway Company v. Gray, 241 U.S. 333, 339. (2) The Federal Employers' Liability Act should be construed in the light of the decisions of the Federal courts. Central Vermont Ry. Co. v. White, 238 U.S. 507, 512. (3) The negligence of a defendant cannot be inferred from a presumption of care on the part of a person killed. A presumption in the performance of a duty attends the defendant as well as the person killed; it must be overcome by direct evidence, one presumption cannot be built upon another. Looney v. Metropolitan Railroad Co., 200 U.S. 480, 488; Yarnell v. Ry. Co., 113 Mo. 570, 579. (4) The rule is in cases of this character that if the accident might have resulted from more than one cause, for one of which the master is liable and for the other he is not liable, it is necessary for the plaintiff to prove, in the first instance, that the injury arose from the cause for which the master is liable. The court or jury cannot speculate or guess from which cause the accident happened. Goransson v. Riter-Conley Mfg. Co., 186 Mo. 300, 307; Giles v. Mo. Pac. Ry. Co., 169 Mo.App. 24, 34; Fink v. K. C. Southern Ry-Co., 161 Mo.App. 314, 325; Patton v. Tex. & Pac. Ry Co., 179 U.S. 658, 663; St. Louis, Iron Mountain & Southern Ry. Co. v. McWhirter, 229 U.S. 265, 282; New Orleans & N. E. Railroad Co. v. Harris, 247 U.S. 367, 371. (5) When the plaintiff alleges specific acts of negligence on the defendant's part, his evidence and his right of recovery will be limited to the specific acts charged. Chitty v. Iron Mountain & Southern Ry. Co., 148 Mo. 64, 75; Evans v. Wabash Railroad Co., 222 Mo. 435, 453; McGrath v. Transit Co., 197 Mo. 97, 105; Roscoe v. Met. Street Ry. Co., 202 Mo. 576, 587. (6) If in the trial of civil cases it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such a verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court. Barrett v. Virginian Ry. Co., 250 U.S. 473, 476. (7) An instruction must be based upon the evidence; it cannot be broader than the facts proven. State ex rel. v. Ellison, 270 Mo. 645, 653; Dalton v. Ry. Co., 187 Mo.App. 691, 697; Hearon v. Lbr. Co., 224 S.W. 67, 69. (8) The expectancy of the plaintiff was less than that of the deceased. It, therefore, was vital to a just verdict that the damages be based upon the expectancy of the plaintiff instead of upon that of the deceased. McCord v. Schaff, 279 Mo. 558, 566; McIntyre v. Ry. Co., 286 Mo. 234, 259. (9) The damages assessed in this case are excessive. Burtch v. Wabash Ry. Co., 236 S.W. 338, 347; Crecelius v. Ry. Co., 284 Mo. 26, 43. (10) The Federal decisions must be looked to, to determine whether enough facts have been introduced for the jury to infer negligence, as that question involves matters of substantive law and not procedure. 1 Roberts' Federal Liability of Carriers, p. 950; Illinois Central Railroad Co. v. Johnston, 87 So. 866; Southern Railroad Co. v. Prescott, 240 U.S. 632. (11) The burden of proof that the deceased was engaged at the time in question in interstate commerce is upon the plaintiff. Southern Ry. Co. v. Lloyd, 239 U.S. 496, 501. (12) In order that the Federal Employers' Liability Act may apply, the work of the employee must constitute a real or substantial part of the interstate commerce in which the carried is engaged, or be so clearly related to it as to be practically a part of it. Illinois Central Railroad Co. v. Behrens, 233 U.S. 473; Erie Railroad Co. v. Welch, 242 U.S. 303; L. & N. Railroad Co. v. Parker, 242 U.S. 13. (13) Contradictory statements of witnesses can have no legal tendency to establish the truth of such matter. Southern Ry. Co. v. Gray, 241 U.S. 333, 337; Donaldson v. Railroad, 188 Mass. 484, 486; McDonald v. Railroad, 186 Mass. 474; Commonwealth v. Starkweather, 10 Cush. 59; Purdy v. People, 140 Ill. 46. (14) The damages should be limited to compensation for the deprivation of the reasonable expectation of the pecuniary benefits that would have resulted from the continued life of the deceased. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485.
Sidney Thorne Able and Charles P. Noell for respondent.
(1) The trial court did not err in refusing to direct a verdict for the defendant. (a) Under the practice in Missouri a trial court may not direct a verdict merely because the weight of the evidence was such that a verdict contrary thereto ought not in his opinion to stand, but he may, under our practice acts, grant one new trial on such ground, but in the case at bar the weight of the believable testimony was with the plaintiff and the trial court refused to grant defendant a new trial. Roscoe v. Met. St. Ry., 202 Mo. 576; R S. 1919, secs. 1424, 1454; Southern Ry. Co. v. Lloyd, 239 U.S. 496; Overstreet v. N. & W. R. Co., 238 F. 565. (b) All matters of practice in a case under the Employer's Liability Act being tried in a state court are governed by the practice in such state courts. 2 Roberts' Federal Employer's Liability, p. 1238; C. & O. Railroad v. Kelly's Admr., 161 Ky. 655, 241 U.S. 485; Gibson v. Railway, 213 F. 488. (c) Plaintiff does not have to conclusively prove her case by excluding all possibilities inconsistent with liability. Buesching v. Gas Light Co., 73 Mo. 219, 230. (d) If the plaintiff assumed an unnecessary burden in her pleading, proof and instruction, it is not binding upon her upon appeal, as she is not the appellant or complaining party, and all that is necessary is that enough was alleged, proven and required to be found by the jury to entitle her under the law to recover. Callicotte v. Railway, 274 Mo. 689; Moore v. Railroad Co., 268 Mo. 31. (e) The engineer of a switch engine, who backs a train without having received any signal to do so, whereby another servant is injured, is guilty of negligence. Black v. Mo. Pac. Ry. Co., 172 Mo. 177, 190. (2) A carrier whose lines lie wholly within a state is engaged in interstate commerce when handling one or more cars loaded with merchandise enroute from one state to another state, and an employee switching cars among which there are one or more such cars loaded with interstate shipments is within the protection of the Federal Employer's Liability Act. 1 Roberts' Federal Liability of Carriers, sec. 432, p. 742; Richey on Federal Employer's Liability (2 Ed.) secs. 34-35, p. 63. (a) An instruction which requires the "jury to find that the deceased was in the employ of the defendant as a member of one of its crews and that one or more of the cars in the train of cars contained one or more shipments originating in one state and destined to another state, and that the defendant was at such times a common carrier by railroad and that the crew were engaged in switching this train of cars" is all that was necessary in fact under the evidence in this case. The court would have been warranted in instructing the jury as a matter of law that deceased was at the time employed in the interstate commerce work of the defendant. Payne v. Bearden, 266 F. 879; Bolch v. Ry. Co., 90 Wash. 47, 155 P. 422, 242 U.S. 616; Erie Railroad Co. v. Downs, 250 F. 415; Delk v. Railroad Co., 220 U.S. 580, 55 L.Ed. 590; Chicago, Milwaukee & St. Paul Ry. Co. v. Voelkerk, 129 F. 522; Erie Railroad Co. v. Winfield, 244 U.S. 170; Vandalia Railroad Co. v. Holland, 183 Ind. 438, 443; Snyder v. Great Northern Ry. Co., 88 Wash. 49, 152 P. 703; Hester v. Railroad, 254 F. 788; Wagner v. Ry. Co., 277 Ill. 114. (3) Life insurance tables are not binding on the jury in deciding the probable duration of life of a particular individual. C. & O. Railroad v. Kelly, 241 U.S. 485. (4) An instruction which tells the jury that the widow can only recover "the pecuniary loss sustained" by reason of "her husband's death," "by his widow" "and in determining such loss the jury should base its findings on the present cash value of the support lost to her by reason of his death," clearly requires the jury to find every necessary element. C. & O. Railroad v. Kelly, 241 U.S. 485; Crecelius v. Railway, 284 Mo. 26, L. & N. Railroad v. Holloway, 246 U.S. 525. There would have been no harm done and no reversible error, if the plaintiff's instruction had told the jury to base the damages on the expectancy of Gill (it required them to base same on the present cash value of the loss to her), for according to life insurance standards the expectancy of Gill, twenty-four years of age employed in operation of railroad and his wife thirty-two years of age (thirty-three at time of trial a year later) were both the same. R. S. 1919, secs. 1276, 1513; Jones v. Railroad Co., 78 So. 568, 241 U.S. 181; McIntyre v. Frisco Ry. Co., 286 Mo. 234. (5) The trial court did not err in refusing the instruction in the form requested by defendant which put the burden of proof on the issue of deceased's contributory negligence on the plaintiff. Central Vermont Ry. Co. v. White, 238 U.S. 507, 59 L.Ed. 1433; Roscoe v. Met. St. Ry., 202 Mo. 576. The instruction as modified stated the law correctly. (6) "The question of...
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