Ginnochio v. Illinois Cent. R. Co.

• Decision Date: 24 January 1911
• Citation: 134 S.W. 129,155 Mo. App. 163
• Parties: GINNOCHIO v. ILLINOIS CENT. R. CO.
• Court: Missouri Court of Appeals

134 S.W. 129

155 Mo. A. 163

GINNOCHIO v. ILLINOIS CENT. R. CO.

St. Louis Court of Appeals. Missouri.

January 24, 1911.

Rehearing Denied February 7, 1911.

1. APPEAL AND ERROR (§ 639) — RECORD — ABSTRACT — OMISSIONS.

Where an appeal is in the short form authorized by statute, and the certified copy of the judgment of the lower court was filed in time, giving the Supreme Court jurisdiction in the first instance, on a failure to recite the judgment in the printed abstract, it will be read into the abstract by the Supreme Court in the interests of justice.

2. EVIDENCE (§ 35) — JUDICIAL NOTICE — LAWS OF SISTER STATE.

In an action under the Illinois statute giving a right of action for wrongful death of a section hand, the Missouri courts cannot take judicial notice of the state of the Illinois law as to the reciprocal duties of the decedent and the railroad company, his employer, but the law and precedents adjudged must be pleaded and proved as facts, even though the statute giving the right of action was given in evidence.

3. EVIDENCE (§ 80) — PRESUMPTION — LAW OF OTHER STATES.

Unless it is known as a historical fact that a foreign state was settled from countries other than those which are the source of the common law and were subject to organized and civilized communities emanating from jurisdictions other than those from which the common law is obtained, the presumption is that the law of a foreign state is the same as that in Missouri except as to statute.

4. MASTER AND SERVANT (§ 137) — INJURY TO SERVANT — SECTION HAND — NEGLIGENCE — DUTY TO KEEP LOOKOUT.

A section hand, working on the track in a railroad yard, stepped aside to let a switch engine and cars pass, and immediately went back to work by order of the foreman, who then went away. The engine went up a short distance and came back pushing a car in front of it, without signals or lookout, and struck and killed the section hand, who was at work with his back to the danger. Held that, there being no showing that any of the train crew actually saw the danger of deceased in time to prevent the accident, the railroad company was not liable for his death; the company owing no duty to a section hand except to avoid injuring him after discovering his peril.

5. MASTER AND SERVANT (§ 236) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE.

The decedent also was negligent in failing to look out for his own safety when he must have known that the switch engine was at work near him.

6. MASTER AND SERVANT (§ 236) — INJURY TO SERVANT — SECTION HANDS — ASSUMPTION OF RISK.

So far as section hands are concerned, the railroad is regarded, under the law, as entitled to a clear track, and the sectionmen are required to look out for their own safety.

7. MASTER AND SERVANT (§ 137) — INJURY TO SERVANT — SECTION HANDS — WARNING — APPROACHING TRAINS.

A railroad company assumes no obligation to warn section hands of approaching trains, or otherwise look out for their well-being, except where they are actually seen to be in peril and oblivious to threatened danger.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Domenico Ginnochio, administrator of ____ Finnazzo, deceased, against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Watts, Williams & Dines and Wm. R. Gentry, for appellant. Joseph Wheless, for respondent.

NORTONI, J.

This is a suit for damages alleged to have accrued to plaintiff, administrator for the use and benefit of the widow of his deceased, under the wrongful death statute of the state of Illinois. Plaintiff recovered a judgment in the amount of $5,000, and defendant prosecutes the appeal.

Before looking into the merits of the controversy, it is essential to first dispose of a matter preliminary to the right of the court to review the appeal. It is argued by plaintiff that, as defendant's abstract of the record on file here omits to recite the fact of the judgment given against it in the court below, we are precluded from reviewing the merits of the case for the reason defendant has not complied with the statute by filing an abstract of the entire record in this court. It is true the printed abstract is deficient in the matter suggested. But the appeal is in the short form authorized by the statute, and a duly certified copy of the judgment itself, together with the order granting the appeal, is on file here. The certified copy of the judgment and order referred to appear to have been filed in due time, and the filing of such judgment and order conferred jurisdiction on this court in the first instance. This being true, we ought not to decline to review the merits of the case because of the omission of the printed abstract to recite the fact that a judgment was given in the cause when it conclusively appears from the record on file that such judgment was had. It has been ruled several times that, though the abstract of record omits to recite the fact of the judgment, the court will look to the short transcript on file and supply the deficiency by reading it into the abstract in the interests of justice. Bank v. Hutton, 224 Mo. 42, 51, 123 S. W. 47; Coleman v. Roberts, 214 Mo. 634, 114 S. W. 39; Booth v. St Louis, I. M., etc., R. Co., 217 Mo. 710, 117 S. W. 1094; Alt v. Dines, 227 Mo. 418, 126 S. W. 1035. See, also, Stone v. St. Louis Union Trust Co., 130 S. W. 825.

The suit is prosecuted by the administrator of one Finnazzo, deceased, who came to his death while in the employ of defendant as a section hand, engaged in the performance of his duties in defendant's switching yards at Du Quoin, Ill. It proceeds under the wrongful death statute of the state of Illinois, which was pleaded and proved in the case, and authorizes a suit by such administrator for the use and benefit of the widow of deceased, who it appears resides in Italy. Deceased was a resident of the state of Illinois, where he entered into the contract of hire with defendant and afterward came to his death. In view of these facts, it is argued by plaintiff the question pertaining to the reciprocal duties of defendant and the deceased touching the right of recovery, aside from the wrongful death statute itself, is to be considered and determined under the adjudicated law of the state of Illinois pertaining to the relation of master and servant and especially reflecting the view of the courts of that state as to the reciprocal rights and duties of section men and railroads when the injury or death occurs in circumstances similar to those involved here. The proposition is entirely sound when it is made to appear in the case what the adjudicated law of the foreign state is. Such was the case relied upon by plaintiff in support of the argument put forward. See Fogarty v. St. Louis Transfer Co., 180 Mo. 490, 79 S. W. 664. In that case the reported decisions of the Supreme Court of Illinois were introduced in evidence at the trial and therefore properly before our own Supreme Court for consideration. But in the case now in judgment, though plaintiff introduced in evidence the wrongful death statute of the state of Illinois to the end of showing the transmission to the administrator of a right of recovery in circumstances where the deceased himself might have maintained an action had death not ensued, he omitted to introduce any evidence of the state of the law of Illinois touching the reciprocal duties of the deceased and his employer to the end of disclosing under what circumstances a cause of action might have accrued to the deceased had death not ensued from his injury. In this situation, the question of liability or nonliability is to be determined as it arises under the law of the forum defining and fixing the rights and duties of the parties, for we are not permitted to take judicial notice of the law of a sister state. If a party relies upon the law of a sister state for his right of recovery or defense, such law and the adjudicated precedents thereon are a matter of fact which the rule of practice requires to be both pleaded and proved. Morton v. Supreme Council, etc., 100 Mo. App. 76, 89, 73 S. W. 259; Garrett v. Conklin, 52 Mo. App. 654. Unless it be where it is known as a historical fact that the foreign state was peopled by countries other than the source of the common law and were subject to organized and civilized communities emanating from jurisdictions other than those from whence the common law obtained, the presumption goes to the effect that the law of a foreign state is identical with that which obtains in Missouri except as to statute. In this view, nothing appearing in evidence to the contrary, the law of Illinois touching the rights and obligations of defendant and deceased, aside from the statute referred to, is presumed to be the same as that of this state. Tennent v. Insurance...