Godsy v. Thompson

Citation179 S.W.2d 44,352 Mo. 681
Decision Date06 March 1944
Docket Number38628
PartiesSherman S. Godsy v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, Appellant
CourtUnited States State Supreme Court of Missouri

Rehearing Denied April 3, 1944.

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.

Affirmed.

Thomas J. Cole, L. J. Bishop, D. C. Chastain and Patterson Chastain & Smith for appellant.

(1) There was no negligence with respect to the ringing of the bell. Sumney v. So. Ry. Co., 89 F.2d 437; Union Pacific R. Co. v. Owens, 129 F.2d 1013; Deere v. Southern Pac. R. Co., 123 F.2d 438; Karr v. C., R.I. & P. Ry. Co., 341 Mo. 536, 108 S.W.2d 44. (2) Nor was the failure to ring the bell or to warn the plaintiff the proximate cause of the injury. Wagner v. St. L.-S.F. Ry. Co., 19 S.W.2d 518. (3) Nor was it negligence for the tracks to be close together. Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215; Martin v. Wabash R. Co., 325 Mo. 1107, 30 S.W.2d 735; Jones v. St. L.-S.F. Ry. Co., 325 Mo. 1153, 30 S.W.2d 481; Ingram v. M. & O.R. Co., 326 Mo. 163, 30 S.W.2d 989; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835; Reese v. P. & R. Ry. Co., 239 U.S. 463, 36 S.Ct. 134. (4) Under the evidence the plaintiff's own voluntary act was the proximate cause of the injury. Peters v. Wabash R. Co., 328 Mo. 924, 42 S.W.2d 588; Davis v. Hand, 290 F. 73; A., T. & S.F. Ry. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281; Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210. (5) Plaintiff was employed in violation of the rules of the company and was not entitled to sue under the Act. Minn., St. P. & S.S.M. Ry. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363; C. & O. v. Bryant, 280 U.S. 404, 50 S.Ct. 167; Minn., St. P. & S.S.M. Ry. Co. v. Borum, 286 U.S. 447, 52 S.Ct. 612; Lloyd v. N.C.R. Co., 151 N.C. 536, 45 L.R.A. (N.S.) 378; Fitzmaurice v. N.Y., N.H. & H.R. Co., 78 N.E. 418, 6 L.R.A. (N.S.) 1146; Brown v. M., K. & T. Ry. Co., 64 Mo. 536; Stafford v. B. & O., 262 F. 807; Norfolk & W. Ry. Co. v. Bondurant, 107 Va. 515, 15 L.R.A. (N.S.) 443; Hull v. P.R.R. Co., 252 U.S. 475, 40 S.Ct. 358; Berry v. Mo. Pac. R. Co., 124 Mo. 223; McFarland v. Dixie Mach. & Eq. Co., 346 Mo. 341, 153 S.W.2d 67; Taggart v. School District No. 52, 96 S.W.2d 335. (6) Furthermore, the hours of service of any person who uses a telephone are limited to nine hours in each twenty-four. This Act applied to the plaintiff. 45 U.S.C.A., Sec. 62; C. & A.R. Co. v. U.S., 247 U.S. 197, 38 S.Ct. 442. (7) Where there is an excess, the relation of master and servant does not exist. Brown v. Pere Marquette Ry. Co., 237 Mich. 530, 213 N.W. 179; Lloyd v. N. Car. R. Co., supra; Melville v. Butte-Balaklava Copper Co., 130 P. 441; Smith v. A., T. & S.F. Ry. Co., 87 S.W. 1052. (8) Neither was there proof of knowledge of plaintiff's employment nor waiver of the rules by any one having authority. Oatman v. St. L., S.W. Ry. Co., 263 S.W. 139, 304 Mo. 38; 35 Am. Jur., Master and Servant, sec. 282. (9) The plaintiff, even though considered an employee, is not entitled to recover for an injury received while in the violation of the law and the rules of the company. Authorities under Points (5) and (6). (10) The court erred in admitting the testimony of the plaintiff as to conversations with the yard clerk and E. H. Campbell concerning his working at outside employment, because neither of said persons had authority to waive the rules of the company and notice to them was not notice to the company. (11) The court erred in refusing to discharge the jury because of the injection by the plaintiff of the element of sexual damage and because of the injection by plaintiff's counsel of the operation upon the plaintiff's wife. (12) The court erred in giving plaintiff's Instruction I. (13) The court erred in refusing to give defendant's Instruction C, because the failure to ring the bell was not the proximate cause of the injury. (14) The court erred in refusing to give defendant's Instruction D (because the alleged failure to furnish the plaintiff a safe place to work due to the closeness of the track was not the proximate cause of the injury. (15) The court erred in refusing to give defendant's Instruction E, because the plaintiff was not an employee of the defendant and not entitled to recover under the Federal Employers' Liability Act. (16) The court erred in failing to grant the defendant a new trial because the verdict of the jury is grossly excessive. Donley v. Hamm, 98 S.W.2d 966; Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W.2d 906; Clark v. Miss. R. & B.T.R. Co., 324 Mo. 406, 23 S.W.2d 174; Brashears v. Rogers Foundry & Mfg. Co., 11 S.W.2d 1060; Green v. Boehm, 66 S.W.2d 570.

Crouch & Crouch, James G. Kimbrell, Cowgill & Popham and Sam Mandell for respondent.

(1) Plaintiff having proved that he was injured through defendant's violation of its rule 30, on which he relied, was entitled to go to the jury. Mech v. Terminal Railroad Assn., 332 Mo. 937, 18 S.W.2d 510; Moran v. Atchison, T. & S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881; Jones v. St. L.-S.F. Ry. Co., 333 Mo. 802, 63 S.W.2d 94; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Clark v. Chicago, R.I. & P.R. Co., 318 Mo. 453, 300 S.W. 758; Derrington v. So. Ry. Co., 328 Mo. 283, 40 S.W.2d 1069; Brock v. Mobile & O.R. Co., 330 Mo. 918, 51 S.W.2d 100; Oglesby v. St. L.-S.F. Ry. Co., 318 Mo. 79, 1 S.W.2d 172; Perry v. M., K.T.R. Co., 340 Mo. 1052, 104 S.W.2d 332; Rowe v. M., K.T.R. Co., 339 Mo. 1145, 100 S.W.2d 480; McDaniel v. Chicago, R.I. & P.R. Co., 338 Mo. 481, 92 S.W.2d 118. (2) Proximate cause was for the jury. Cases under (1). (3) Plaintiff did not assume the risk of defendant's violation of rule 30. Cases under (1). (4) Defendant's rule 30 was in evidence and appellant's Point (12) preserves no point for review by this court. Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284; Kleinschmidt v. Globe Democrat Publishing Co., 165 S.W.2d 620; Aulgur v. Strodtman, 329 Mo. 738, 46 S.W.2d 172; Pfotenhauer v. Ridgeway, 307 Mo. 529, 271 S.W. 50. (5) Requiring the plaintiff to work in a dark, unlighted, 17-inch clearance between moving trains, where plaintiff did not know or fully appreciate the extremely narrow clearance, was actionable negligence and properly submitted. Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215. (6) Defendant's given Instruction K made plaintiff's case submissible if any negligence was present. (7) Plaintiff was entitled to recover because he was a bona fide employee of defendant. Plaintiff's status as an employee was properly submitted to the jury. Mech v. Terminal Railroad Association, supra; Finnegan v. Mo. Pac. R. Co., 261 Mo. 481, 169 S.W. 969. (8) Defendant's Instruction L was a judicial admission that the record contained evidence sustaining the submission of waiver. Neosho City Water Co. v. City of Neosho, 136 Mo. 498, 38 S.W. 89; Taylor v. Cleveland, C., C. & St. L. Ry. Co., 333 Mo. 650, 3 S.W.2d 69; Williams v. St. L. Public Service Co., 335 Mo. 335, 73 S.W.2d 199; West v. West, 110 S.W.2d 398. (9) Section 62, Title 45, U.S.C.A., has no application. (10) Plaintiff's Instruction 1 was a proper submission. (11) There was no error in refusing to discharge the jury. Hancock v. K.C. Terminal Ry., 347 Mo. 166, 146 S.W.2d 627; Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813. (12) The verdict was not excessive. Hoelzel v. Chicago, R.I. & P.R. Co., 337 Mo. 61, 85 S.W.2d 126; Feltz v. Terminal Railroad Assn. of St. L., 336 Mo. 790, 81 S.W.2d 616; Carpenter v. Wabash Ry. Co., 335 Mo. 130, 71 S.W.2d 1071; Zichler v. St. L. Public Service Co., 332 Mo. 902, 59 S.W.2d 654; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION
BRADLEY

Action under the Federal Employers Liability Act, 45 U.S.C.A., Secs. 51-60, to recover for personal injury. Verdict and judgment for $ 10,000 went for plaintiff and defendant appealed.

Plaintiff was a switch tender, and, at the time of injury, was working in defendant's West Bottoms or Kaw Bridge Yards, Kansas City. The tracks in these yards extend generally east and west, and plaintiff was injured while between two trains moving in opposite directions. The negligence relied upon was the alleged violation of defendant's rule 30, which required, in switching movements, the ringing of the engine bell before starting up, and insufficient clearance between the two tracks.

The answer denied generally, and alleged that plaintiff did outside work, was not a bona fide employee, and for that reason should not recover, and that his own negligence was the sole cause of his injury. The reply was a general denial and an allegation that "defendant at all times had full knowledge of any work being done by plaintiff outside of his rairoad duties and fully acquiesced therein."

Error is assigned: (1) On the refusal of a demurrer to the evidence; (2) on instructions given and refused; (3) on the admission of evidence; (4) on the refusal to discharge the jury because of alleged prejudicial occurrences; and (5) on an alleged excessive verdict.

The demurrer to the evidence raised four questions: (1) Should plaintiff's outside work bar recovery? (2) Was plaintiff's negligence the sole cause of his injury? (3) Was the violation of rule 30 a proximate cause of plaintiff's injury? and (4) Was the clearance insufficient?

We shall first dispose of the question on the outside work. Plaintiff's hours with defendant were from 12:01 a.m. to 8:01 a.m. He was also employed by the A.J. Stevens Company as a wood finisher and on the day prior to his injury and for three weeks prior, he had worked for the Stevens Company from 8:30 a.m. to 4:30 p.m., for which he received $ 1.00 per hour. Defendant introduced in evidence railroad rules 700 and 703, which follow:

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