Good v. Missouri-Kansas-Texas R. Co.

• Decision Date: 20 August 1936
• Citation: 97 S.W.2d 612,339 Mo. 330
• Parties: Melvin M. Good, Administrator of the Estate of Robert M. Good, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

97 S.W.2d 612

339 Mo. 330

Melvin M. Good, Administrator of the Estate of Robert M. Good, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

Supreme Court of Missouri

August 20, 1936

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

Carl S. Hoffman, W. H. Martin and Montgomery, Martin & Montgomery for appellant.

(1) Where a plaintiff's case rests upon circumstantial evidence, the burden is upon him to prove a state of facts which, if accepted by the jury as true, would point with certainty to the pleaded negligence as a proximate cause of his injury. Lutgen v. Standard Oil Co., 221 Mo.App 773; Atchison, T. & S. F. Railroad Co. v. Saxton, 284 U.S. 458, 76 L.Ed. 397; Brainard v. Railroad Co., 319 Mo. 890, 5 S.W.2d 15; Hasenjaeger v. Railroad Co., 227 Mo.App. 413, 53 S.W.2d 1083. (2) Where the question as to whether the negligence charged was the proximate cause of the injuries complained of is left to surmise, guesswork and speculation, the plaintiff may not recover. New York Central Railroad Co. v. Ambrose, 280 U.S. 486, 74 L.Ed. 563; Chicago, M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041. (3) Where the evidence shows that an employee's injuries flow directly as a result of his disobedience of a rule promulgated by the company as a protection against an accident of the character which ensues, and where his injuries result primarily from his failure to act as required, and as the result of his disobedience of such rule, then such employee may not recover on the ground that a subordinate employee might have done something which would have prevented the accident. Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 225; Frese, Admx., v. Railroad Co., 263 U.S. 1, 68 L.Ed. 131; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; Great Northern Ry. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732. (4) Under the Federal rule an employee, in entering upon a contract of employment, assumes all the risks and dangers ordinarily incident to his employment and those extraordinary risks caused by the employer's negligence which are obvious and fully known to the employee and appreciated by him or are so plainly observable that he must be presumed to know them. Boldt v. Railroad Co., 245 U.S. 441, 38 S.Ct. 139, 62 L.Ed. 385; Southern Pac. Railroad Co. v. Berkshire, 254 U.S. 415, 41 S.Ct. 162, 65 L.Ed. 335; Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202, 73 L.Ed. 578; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; Pyor v. Williams, 254 U.S. 43, 41 S.Ct. 36, 65 L.Ed. 120; Gila Valley Ry. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; N. Y. C. & St. L. Railroad Co. v. Bouldin, 63 F.2d 917; McIntyre v. Ry. Co., 286 Mo. 234, 227 S.W. 1047; Osborn v. Ry. Co., 1 S.W.2d 181; O'Donnell v. Railroad Co., 324 Mo. 1097, 26 S.W.2d 929; York v. Ry. Co., 333 Mo. 105, 62 S.W.2d 475. (5) If the hazard is such as would be plainly apparent to a reasonably prudent person in like situation, the servant cannot be supposed to be ignorant of it, and knowledge thereof and appreciation of the dangers therefrom will be presumed. Southern Pacific Co. v. Berkshire, 254 U.S. 415, 41 S.Ct. 162, 65 L.Ed. 335; Butler v. Frazee, 211 U.S. 459; Jacobs v. Railroad Co., 241 U.S. 229, 36 S.Ct. 588, 60 L.Ed. 970; N. Y. C. & St. L. Railroad Co. v. McDougall, 15 F.2d 283; N. Y. C. & St. L. Railroad Co. v. Bouldin, 63 F.2d 917; Osborn v. Ry. Co., 1 S.W.2d 181; O'Donnell v. Railroad Co., 324 Mo. 1097, 26 S.W.2d 929; York v. Ry. Co., 333 Mo. 105, 62 S.W.2d 475. (6) In determining whether an instruction is proper or improper, the court must look to the interpretation which would be placed upon its terms by the average men who compose juries. Knapp v. Hanley, 153 Mo.App. 169, 132 S.W. 747; Landon v. United Rys., 237 S.W. 496. (7) The violation of a rule promulgated by an employer which amounts to nothing more than an admonition, direction or command as to the general mode of carrying on the work does not constitute negligence. Rutledge v. Railroad Co., 123 Mo. 121, 24 S.W. 1053, 27 S.W. 327. (8) It is generally held that a rule promulgated by an employer requiring some specific act to be done or setting up some specific standard of care is admissible in evidence as a circumstance to be considered by the jury in determining the requirements of ordinary care in the doing of the work, but the violation of such rule is not to be regarded as negligence per se. Chicago, St. Paul M. & O. Ry. Co. v. Henkel, 52 F.2d 313; Southern Ry. Co. v. Gad, 207 F. 277; Yazoo & M. V. Railroad Co. v. Wright, 207 F. 281; American Locomotive Co. v. White, 205 F. 260; Schenkemeyer v. Tusek, 210 F. 151; Grady v. St. L. Transit Co., 169 F. 400; Frizzell v. Ry. Co., 124 F. 176; Bond v. Ry. Co., 315 Mo. 987, 288 S.W. 777; Case v. Ry. Co., 30 S.W.2d 1069; Foster v. Kansas City Rys. Co., 235 S.W. 1070. (9) There is one exception to this general rule and that has to do with company rules requiring the giving of warning signals before a dangerous instrumentality is set in motion and upon the observance of which other employees have the right to rely in determining their course of conduct. Baltimore & Ohio Railroad Co. v. Robertson, 300 F. 314; Bacheco v. Railroad Co., 15 F.2d 467; McClelland v. Railroad Co., 62 F.2d 61; Case v. Ry. Co., 30 S.W.2d 1069. (10) An allowance of $ 3500 as compensatory damages for the death of a bridge foreman 70 years of age who contributed $ 25 to $ 35 per month to his surviving daughter is excessive. (11) The approved measure of recovery is the present cash value of the future benefits of which the beneficiary was deprived by the death, making adequate allowance, according to the circumstances, for the earning power of money. Chesapeake, etc., Railroad Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 360, 60 L.Ed. 1117; Chesapeake, etc., Railroad Co. v. Gainey, 241 U.S. 494, 36 S.Ct. 633, 60 L.Ed. 1124.

W. W. McCanles for respondent.

(1) The court did not err in failing to give the peremptory instruction offered by defendant at the close of the evidence. (a) There was substantial evidence to show that the negligence complained of was the direct and proximate cause of the deceased's injury and death. Brainard v Railroad Co., 319 Mo. 890, 5 S.W.2d 15; Conner v. Ry. Co., 181 Mo. 411, 81 S.W. 158; Solomon v. Light & Power Co., 303 Mo. 640, 262 S.W. 367; Thompson v. Lamar, 322 Mo. 538, 17 S.W.2d 960; Fox v. Railroad Co., 74 S.W.2d 611; Clift v. Railroad Co., 9 S.W.2d 972; Hook v. Railroad Co., 227 P. 531; Jambor v. Ry. Co., 201 N.W. 321. (2) The court did not err in giving plaintiff's Instruction A. Porterfield v. St. Louis Term. Assn., 58 S.W. 447; Demaray v. Railroad Co., 50 S.W.2d 127; Hunt v. Railroad Co., 303 Mo. 107; Kirkland v. Bixby, 220 S.W. 462; Rigley v. Prior, 233 S.W. 828; Dixon v. Ry. Co., 109 Mo. 413; Woods v. Ry. Co., 187 S.W. 11; Torantolla v. K. C. Rys. Co., 226 S.W. 617; Case v. Railroad Co., 30 S.W.2d 1069; Foster v. Ry. Co., 235 S.W. 1070; Bond v. Ry. Co., 315 Mo. 987, 288 S.W. 777; Kinney v. Ry. Co., 261 Mo. 113, 169 S.W. 26. (3) The verdict is not excessive. Talbert v. Ry. Co., 15 S.W.2d 762; Berry v. Ry. Co., 26 S.W.2d 988. (4) The courts of other states have permitted recovery on similar facts and where the same questions of law were involved. Jambor v. Ry. Co., 161 Minn. 195, 201 N.W. 321; N. Y., C. & St. L. Railroad Co. v. Biermacher, 28 Ohio App. 421, 162 N.E. 720; Hook v. Ry. Co., 116 Kan. 556, 227 P. 531; Imbler v. Ry. Co., 164 Wash. 299, 2 P.2d 895. (5) Where, as here, two charges of negligence are submitted in the conjunctive, a verdict for plaintiff will be upheld if either charge is sustained by the evidence. La Pierre v. Kinney, 19 S.W.2d 306; Allen v. Purvis, 30 S.W.2d 196; Corbin v. Ry. Co., 41 S.W.2d 832; Gittemeyer v. Thies, 51 S.W.2d 868; Tash v. Ry. Co., 76 S.W.2d 690; Rigg v. Railroad Co., 212 S.W. 878; Moyer v. Railroad Co., 198 S.W. 839. (6) The violation of a written rule or of an established or well-known practice or custom makes a submissible case of negligence for damages resulting from such violation. Case v. Ry. Co., 30 S.W.2d 1071; Weed v. Am. Car. & Foundry Co., 14 S.W.2d 652; Kelso v. Ross Const. Co., 85 S.W.2d 527; State ex rel. Kroger Gro. & Bak. Co. v. Haid, 323 Mo. 9, 18 S.W.2d 478; Gettys v. Am. Car & Foundry Co., 322 Mo. 787, 16 S.W.2d 85; Adams v. Railroad Co., 199 S.W. 969; Demaray v. Railroad Co., 330 Mo. 589, 50 S.W.2d 127; Potterfield v. Terminal Railroad Assn., 319 Mo. 619, 5 S.W.2d 447; Hunt v. Railroad Co., 303 Mo. 107, 259 S.W. 481; Hughes v. Ry. Co., 309 Mo. 560, 274 S.W. 703; Brock v. Railroad Co., 330 Mo. 918, 51 S.W.2d 100; Martin v. Wabash, 325 Mo. 1107, 30 S.W.2d 735; Armstrong v. Railroad Co., 331 Mo. 1234, 55 S.W.2d 460; O'Donnell v. Railroad Co., 324 Mo. 1097, 26 S.W.2d 929; Jones v. Railroad Co., 325 Mo. 1153, 30 S.W.2d 481; Koonse v. Railroad Co., 322 Mo. 813, 18 S.W.2d 467; 3 Labatts, Master & Servant (2 Ed.), p. 2422; Balt. & Ohio Railroad Co. v. Camp, 65 F. 960; Montgomery v. Railroad Co., 22 F.2d 360. (7) Even if the timber bar was loaded in the usual manner (which we deny) such custom will not excuse the failure to exercise ordinary care or nullify a rule for the protection of employees. Smith v. Railroad Co., 321 Mo. 960, 15 S.W.2d 794; Johnson v. Coal Co., 276 Mo. 42, 205 S.W. 615; Wabash Ry. Co. v. McDaniel, 107 U.S. 454, 27 L.Ed. 605; Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 47 L.Ed. 905; Hook v. Ry. Co., 116 Kan. 556, 227 P. 531; Jambor v. Ry. Co., 161 Minn. 195, 201 N.W. 321; Haskins v. So. Pac. Co., 39 P.2d 895; Wigmore on Evidence (2 Ed.) 561; Roberts Fed. Liab. of Carriers, sec. 809. (8) The deceased was not guilty of contributory negligence; his duty was to watch the track ahead; he was performing that duty; he had...