Goslin v. Kurn

• Decision Date: 06 July 1943
• Docket Number: 38477
• Citation: 173 S.W.2d 79,351 Mo. 395
• Parties: H. F. Goslin v. J. M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, Appellants
• Court: Missouri Supreme Court

173 S.W.2d 79

351 Mo. 395

H. F. Goslin v. J. M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, Appellants

No. 38477

Supreme Court of Missouri

July 6, 1943

Appeal from Newton Circuit Court; Hon. Emory E. Smith Judge.

Affirmed (subject to remittitur).

E G. Nahler, A. P. Stewart and Mann & Mann for appellants.

(1) The petition charges generally that the public crossing was in a defective, narrow, rough and not reasonably safe condition. This general allegation is, however, followed by specific allegations as to the particular defects claimed to have existed. The issue is, therefore, limited to the specific defects alleged. Zasemowich v. American Mfg. Co., 213 S.W. 799; Burneson v. Zumwalt Co., 349 Mo. 94 159 S.W.2d 605. (2) Specific acts of negligence alleged but not submitted will be treated as abandoned. Nahorski v. St. Louis E. T. R. Co., 310 Mo. 227, 274 S.W. 1025; Crossno v. Terminal R. Assn., 328 Mo. 826, 41 S.W.2d 796; Denkman v. Prudential F. Co., 289 S.W. 591; Wallace v. Burkhart M. Co., 319 Mo. 52, 3 S.W.2d 387. (3) Plaintiff must establish by proof, and not merely by speculation, that defendants were negligent and the causal connection between such negligence and the injury. Coble v. St. Louis-S. F. R. Co., 38 S.W.2d 1031; Kimberling v. Wabash R. Co., 337 Mo. 702, 85 S.W.2d 736. (4) Proof of the existence of the ruts at the time of the accident will not alone constitute proof of actionable negligence on the part of appellants. To convict appellants of negligence, plaintiff must establish that appellants had actual or constructive knowledge of such condition for such length of time prior to the injury as to have afforded them an opportunity in the exercise of ordinary care to have remedied the condition before the injury occurred. Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236; Robinson v. Great A. & P. T. Co., 347 Mo. 421, 147 S.W.2d 648; Brum v. Wabash R. Co., 335 Mo. 876, 74 S.W.2d 566; Winslow v. Missouri, K. & T. R. Co., 192 S.W. 121; Uelentrup v. Switzerland Stores, 164 S.W.2d 650. (5) Under the present testimony, proof of the condition at the time of the injury raises no presumption as to the length of time it had existed prior to the injury. Conduitt v. Trenton G. & E. Co., 326 Mo. 133, 31 S.W.2d 21; Swartz v. Frank, 183 Mo. 438; and cases cited above. (6) Since there was no duty to dim the headlight until the train stopped, the burden was on plaintiff to establish not only that it was stopped but that it had been stopped for such length of time as to have given the enginemen a reasonable opportunity thereafter and prior to the injury to have dimmed the headlight. A finding of these facts cannot be based on speculation, guesswork or conjecture. State ex rel. City of Macon v. Trimble, 12 S.W.2d 727; Grant v. Kansas City S. R. Co., 190 S.W. 586; Pointer v. Mountain R. C. Co., 269 Mo. 104; Sabol v. St. Louis Cooperage Co., 31 S.W.2d 1041; Hamilton v. St. Louis-S. F. R. Co., 318 Mo. 123, 300 S.W. 787. (7) There was no evidence of probative force warranting the jury in finding that there was a custom prevailing in the Enid yards to dim the headlights on all engines moving through the yard. Before any act or conduct of appellants can ripen into a custom the violation of which would constitute actionable negligence, the proof must establish that such custom has been so general, uniform, certain and notorious, known to the parties, or so general and universal in its character that knowledge must be presumed. McMiens v. United Rys., 274 Mo. 326, 202 S.W. 1082; Baker v. J. W. McMurry Const. Co., 282 Mo. 685, 223 S.W. 45; Shane v. Lowden, 106 S.W.2d 956, 232 Mo.App. 360; Shields v. Kansas City S. B. R. Co., 87 Mo.App. 637; Smith v. Chicago, B. & Q. R. Co., 321 Mo. 960, 15 S.W.2d 794. (8) Plaintiff's Instruction 1 submitted only the alleged negligent condition of the public crossing as an independent ground for recovery. This instruction gave the jury a roving commission to find appellants negligent because of some defective, rough or not reasonably safe condition, other than that alleged or shown to have proximately caused the injury. Carlisle v. Tilghmon, 159 S.W.2d 663; Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Waller v. Graff, 251 S.W. 733; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Allen v. Mo. Pac. R. Co., 294 S.W. 80; Edmonston v. Kansas City, 57 S.W.2d 690, 227 Mo.App. 817. (9) The verdict and judgment of $ 15,000 is grossly excessive. Neff v. City of Cameron, 213 Mo. 350.

Justin Ruark and Sizer & Myres for respondent.

(1) Under the Federal Employers' Liability Act, the employer owes the employee the duty to furnish him a reasonably safe place in which to perform his duties, which duty is continuous and nondelegable. Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Bird v. St. Louis-S. F. Ry. Co., 336 Mo. 316, 78 S.W.2d 389; Markley v. Kansas City So. Ry. Co., 338 Mo. 436, 90 S.W.2d 409; Williams v. Terminal Railroad Assn. of St. Louis, 339 Mo. 594, 98 S.W.2d 651; Tash v. St. Louis-S. F. Ry. Co., 76 S.W.2d 690. (2) The evidence prevents the defendants from making any contention with merit that they did not have actual knowledge of the condition of the crossing in ample time to have remedied the same and prevented the plaintiff's serious injury. The law only requires constructive notice. This court will impose upon the defendants the care which the dangerous conditions described by the testimony should impose. Brum v. Wabash Ry. Co., 335 Mo. 876, 74 S.W.2d 566; Holloway v. M., K. & T. Ry. Co., 276 Mo. 490, 208 S.W. 27; Winslow v. M., K. & T. Ry. Co., 192 S.W. 121; Cooper v. A. T. &. S. F. R. Co., 148 S.W.2d 773, 313 U.S. 591, 85 L.Ed. 1546. (3) The violation of the defendants' Rule 17, which required the dimming of the headlights on running engines "While standing in yards where yard engines are employed; approaching stations at which stops are to be made," constituted negligence. Grosvener v. New York Cent. R. Co., 123 S.W.2d 173; Kurn v. Stanfield, 111 F.2d 469; Gildner v. Baltimore & O. R. Co., 90 F.2d 635; Wyatt v. New York, O. & W. R. Co., 45 F.2d 705; Pacheco v. New York, N. H. & H. R. Co., 15 F.2d 467. (4) The defendants not only owed the plaintiff the duty of promulgating rules for his safety, but they should and must enforce the rules adopted. Rules of the transportation Dept., Plaintiff's Ex. 10, taking effect Nov. 1, 1927. Case v. St. Louis-S. F. R. Co., 30 S.W.2d 1069, certiorari denied 75 L.Ed. 787. (5) The violation of a well-established custom for enginemen to dim the headlights on running engines moving or standing within the yards constituted negligence. Clark v. Terminal Railroad Assn. of St. Louis, 343 Mo. 625, 111 S.W.2d 168; Brock v. Mobile & O. R. Co., 51 S.W.2d 100. (6) The existence of the defendants' written Rule 17, since November 1, 1927, gives great probative force that there existed a custom to dim the headlights in conformity to the rule. Owen v. Kurn, 347 Mo. 516, 148 S.W.2d 519; Koonse v. Mo. Pac. R. Co., 18 S.W.2d 467. (7) It was not incumbent on the plaintiff to show such a custom as would make it a rule of the common law. O'Donnell v. Baltimore & O. R. Co., 26 S.W.2d 929; Armstrong v. Mobile & O. R. Co., 55 S.W.2d 460. (8) The evidence even if considered as conflicting as to whether there was or was not a custom to dim the headlight on standing or moving engines within the yards made it one for the jury. See cases cited under (5), (6), and (7). (9) No error was committed in the giving of plaintiff's Instruction 1. (10) The appellants cannot complain of plaintiff's Instruction 1, where defendants' Instruction 12 submitted the issue of the negligent maintenance of the crossing in the same form as used in the plaintiff's instruction that it "was rough and not reasonably safe." Evans v. A. T. & S. F. Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Carle v. Akin, 87 S.W.2d 406; Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413; Johnson v. Chicago & E. I. Ry. Co., 334 Mo. 220, 64 S.W.2d 674. (11) All allegations of negligence are treated as abandoned when they are not submitted under the plaintiff's Instructions, and the defendants cannot now complain of such abandonment. Backman v. Quincy, O. & K. C. R. Co., 274 S.W. 761; Guthrie v. St. Charles, 152 S.W. 91; Crossno v. Terminal Railroad Assn., 328 Mo. 826, 41 S.W.2d 796; Wallace v. Burkhart M. Co., 319 Mo. 52, 3 S.W.2d 787. (12) The verdict was not excessive considering all of the testimony and the favorable inferences to be drawn therefrom. Dr. Crego's testimony, as given, clearly shows that it would be mere conjecture as to what length of time the plaintiff could have continued to perform his labors as he had done for more than twenty years. Hatton v. Sidam, 169 S.W.2d 91; Manley v. Wells, 292 S.W. 67.

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

OPINION

BRADLEY

This cause is under the Federal Employers Liability Act (45 U.S.C. A., Secs. 51-59), and was commenced against the Frisco trustees and the Atchison, Topeka & Santa Fe Railway Company to recover for personal injuries received about 5:30 a. m., December 20, 1940, by plaintiff, a member of a Frisco switching crew, in the Frisco yards at Enid, Oklahoma. The jury found for the Santa Fe, but returned a verdict in favor of plaintiff and against the Frisco trustees for $ 15,000, upon which judgment was entered. The trustees filed motion for a new trial which was overruled, and they appealed. Plaintiff filed no motion for a new trial as to the Santa Fe and that company went out of the case.

The tracks in the Frisco yards in Enid run east and west. The eastbound mainline track on which plaintiff was injured was the south track. Van Buren street runs north and south and crosses the yards about midway. Kentwood boulevard...