Ginnochio v. Illinois Central R. Co.
| Decision Date | 24 January 1911 |
| Citation | 134 S.W. 129,155 Mo.App. 163 |
| Parties | DOMENICO GINNOCHIO, Admr., etc., Respondent, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
Judgment reversed.
Watts Williams & Dines and Wm. R. Gentry for appellant; John G Drennan of counsel.
(1) The court erred in overruling defendant's demurrer to the evidence. (a) Because the plaintiff's evidence show that the death of the deceased was caused by his own negligence in failing to look out for approaching trains, as it is the duty of section hands to do when working upon a track where they know trains are liable to pass and because defendant violated no duty which it owed deceased. Davies v. Railroad, 159 Mo. 1; Evans v. Railroad, 178 Mo. 512; Wheat v. Railroad, 179 Mo. 572; Clancy v. Railroad, 192 Mo. 615; McGrath v. Railroad, 197 Mo. 97; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; Riccio v. Railroad, 189 Mass. 358. (b) The demurrer to the evidence should have been sustained because it affirmatively appeared from the testimony offered by the plaintiff himself that he had no right to maintain this action. Vawter v. Railroad, 84 Mo. 679; Oats v. Railroad, 104 Mo. 514; Wilson v. Tootle, 55 F. 211; McGinness v. Car Co., 174 Mo. 225; Jones v. Railroad, 178 Mo. 526; Lee v. Railroad, 195 Mo. 400; Casey v. Hoover Bridge Co., 197 Mo. 62; Woodward v. Railroad, 10 Ohio St. 14; Lyon v. Railroad, 107 F. 386; Railroad v. Cragin, 71 Ill. 177; Mackay v. Railroad, 14 Blatch. 65; McCarthy v. Railroad, 18 Kans. 46; Taylor v. Railroad, 78 Ky. 348; Richardson v. Railroad, 98 Mass. 85. (2) The court erred in giving the instruction asked by plaintiff. The vice of it is that it permits the jury to find that deceased was in the exercise of ordinary care at the time of his injury, when the undisputed evidence offered by plaintiff shows that he was guilty of negligence which caused his death. Degonia v. Railroad, 123 S.W. 807.
Joseph Wheless for respondent.
(1) The record, as shown by appellant's abstract, is fatally defective in that it nowhere appears that any judgment was rendered against it in the court below. Neither the abstract of record proper nor the bill of exceptions anywhere shows a judgment. This is fatal. Ins. Co. v. Hurst, 129 Mo.App. 627; Cross v. Henderson, 129 Mo.App. 537; Redd v. Railroad, 122 Mo.App. 93; Williams v. Harris, 110 Mo.App. 538; R. S. Mo. 1909, sec. 2038; Harding v. Bedoll, 202 Mo. 630. (2) Appellant failed to make any objection to the refusal of its peremptory instruction or to the giving of the instruction for plaintiff--hence, the action of the trial court cannot be reviewed here. Sheets v. Insurance Co., 226 Mo. 617. (3) Suit for death damages may be brought and maintained in Missouri by any person empowered by the laws of the state where the death occurred to sue in a representative capacity. R. S. Mo. 1909, secs. 1736-1737; Vawter v. Railroad, 84 Mo. 679; Oates v. Railroad, 104 Mo. 514; Wilson v. Tootle, 55 F. 211; McGinniss v. Car & Foundry Co., 174 Mo. 225; Jones v. Railroad, 178 Mo. 528; Lee v. Railroad, 195 Mo. 400; Casey v. Hoover and Bridge Co., 197 Mo. 62; Charlton v. Railroad, 200 Mo. 413; Newlin v. Railroad, 222 Mo. 375; Gibson v. Railroad, 125 S.W. 453; Riley v. Grand Island Receivers, 72 Mo.App. 280; Railroad v. Cragin, Admr., 71 Ill. 177; Hanna, Admr. v. Railroad, 41 Ill.App. 116; Railroad v. Schroeder, 18 Ill.App. 328; Railroad v. Shacklett's Admr., 105 Ill. 364; Dennick v. Railroad, 103 U.S. 11. (4) The right of recovery in this case and the question of contributory negligence of deceased are to be determined by the laws of Illinois. Fogarty v. St. Louis Transfer Co., 180 Mo. 502; Newlin v. Railroad, 222 Mo. 391. (5) Contributory negligence is question for jury under laws of Illinois. Railroad v. Haskins, 115 Ill. 300; Railroad v. O'Connor, 115 Ill. 254; Railroad v. Kane, 70 Ill.App. 676; Railroad v. Otstott, 212 Ill. 429; Railroad v. Eggman, 161 Ill. 155.
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 $ 5000 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 in this court an abstract of the entire record. 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 interest of justice.
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 DuQuoin, Illinois. 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 decedent, who it appears resides in Italy. Decedent, 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 decedent 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 were 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 non-liability 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. Ins. Co., 133 Mo.App. 345, 112 S.W. 754.] The case will therefore be disposed of and determined in accord with the decisions of our court which purport to interpret and apply the principles of the common law pertaining to...
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