Graham v. Thompson

• Decision Date: 27 May 1948
• Docket Number: 39898
• Parties: Zona Graham, Administratrix of Estate of Thomas Graham, v. Frank A. Thompson, Trustee of and for the St. Louis-San Francisco Railway Company, a Corporation, and the Kansas City Terminal Railway Company, a Corporation, Appellants
• Court: Missouri Supreme Court

212 S.W.2d 770

357 Mo. 1133

Zona Graham, Administratrix of Estate of Thomas Graham, v. Frank A. Thompson, Trustee of and for the St. Louis-San Francisco Railway Company, a Corporation, and the Kansas City Terminal Railway Company, a Corporation, Appellants

No. 39898

Supreme Court of Missouri

May 27, 1948

Rehearing Denied July 12, 1948.

Appeal from Jackson Circuit Court; Hon. Emory Wright Judge.

Reversed as to appellant Frank A. Thompson, trustee and affirmed as to appellant Kansas City Terminal Railway Company.

M. G Roberts, E. G. Nahler, Thos. E. Deacy and Milligan, Kimberly & Deacy for appellant Frank A. Thompson, Trustee.

(1) Under all of the evidence the deceased, Thomas Graham, at the time of his fatal injury and death was not employed by this defendant within the meaning of the Federal Employers' Liability Act and plaintiff was not entitled to recover judgment against this defendant under said act. Sec. 51, Title 45, United States Code Annotated; Hull v Philadelphia Ry. Co., 252 U.S. 475, 40 S.Ct. 358; Robinson v. Baltimore & Ohio, 237 U.S. 84, 35 S.Ct. 491; Stevenson v. Lake Terminal Ry. Co., 42 F.2d 357; Chicago, R.I. & Pac. R. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403; Schlappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Giesking v. Litchfield & M. Ry. Co., 339 Mo. 1, 94 S.W.2d 375; Chicago & Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135; Friedman v. Vandalia R. Co., 254 F. 292; 51 C.J., sec. 1167, pp. 1105-6. (2) Under all of the evidence it was not established that this defendant was engaged in interstate commerce at the time of the casualty and that at such time the deceased, Thomas Graham, was an employee of this defendant any part of whose duties as such would be the furtherance of interstate or foreign commerce or in any way directly or closely and substantially affecting such commerce. Sec. 51, Title 45, United States Code Annotated; Hull v. Philadelphia Ry. Co., 252 U.S. 475, 40 S.Ct. 358; Robinson v. Baltimore & Ohio, 237 U.S. 84, 35 S.Ct. 491; Stevenson v. Lake Terminal Ry. Co., 42 F.2d 357; Chicago, R.I. & Pac. R.R. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403; Schlappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Giesking v. Litchfield & M. Ry. Co., 339 Mo. 1, 94 S.W.2d 375; Chicago & Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135; Friedman v. Vandalia R. Co., 254 F. 292; 51 C.J., sec. 1167, pp. 1105-6. (3) The deceased, Thomas Graham, was an employee of the Kansas City Terminal Railway Company and not an employee of this defendant, the Kansas City Terminal Railway Company, in moving and transporting the Pennsylvania and Southern Pacific cars over its line of railroad was acting as an independent contractor and connecting carrier. Its employee, Thomas Graham, did not become an employee of this defendant merely because at, or immediately prior, to his death he was engaged in assisting in the movement of said cars, and plaintiff by reason thereof was not entitled to recover against this defendant under the Federal Employers' Liability Act. Sec. 51, Title 45, United States Code Annotated; Hull v. Philadelphia Railway Co., 252 U.S. 475, 40 S.Ct. 358; Robinson v. Baltimore & Ohio, 237 U.S. 84, 35 S.Ct. 491; Stevenson v. Lake Terminal Ry. Co., 42 F.2d 357; Chicago, R.I. & Pac. R. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403; Schlappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Giesking v. Litchfield & M. Ry. Co., 339 Mo. 1, 94 S.W.2d 375; Chicago & Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135; Friedman v. Vandalia R. Co., 254 F. 292; 51 C.J., sec. 1167, pp. 1105-6. (4) Thomas Graham was not an employee of this defendant by reason of the fact that this defendant was operating a passenger train over track 2 of the Kansas City Terminal Railway Company as lessee, or licensee, and plaintiff was not entitled to recover under the Federal Act by reason thereof. Chicago & Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135; Friedman v. Vandalia R. Co., 254 F. 292. (5) Plaintiff was not entitled to recover under the Federal Employers' Liability Act from this defendant by reason of Section 5163, R.S. Mo. 1939, and the deceased was not an employee of this defendant under the terms and provisions of said section. The Federal Act controls over any state statute and decision which may be contrary to the provisions of the Federal Act. Francis v. Terminal R. Assn. of St. Louis, 193 S.W.2d 909; Schlappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Mooney v. Terminal R. Assn., 176 S.W.2d 605; Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6. (6) Plaintiff's evidence failed to establish a submissible humanitarian case. There was no substantial evidence to establish that the deceased was oblivious of his peril and plaintiff's own evidence established that he was not oblivious; Pentecost v. St. Louis Merchants Bridge Terminal R.R. Co., 334 Mo. 576, 66 S.W.2d 533; Jordan v. St. Joseph Ry., L., H. & P. Co., 335 Mo. 319, 73 S.W.2d 205; Crawford v. Byers Trans. Co., 186 S.W.2d 754. (7) An alarm by whistle was promptly given as soon as Graham's peril was actually discovered by this defendant's fireman and engineer. There was no duty on the part of the fireman and engineer to warn the deceased until he was actually seen to be in a position of peril and oblivious thereof. Rashall v. St. Louis, I.M. & S. Ry. Co., 249 Mo. 509, 155 S.W. 426; Evans v. Wabash Ry. Co., 178 Mo. 408, 77 S.W. 515; Mayfield v. K.C. Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Goodwin v. Mo. Pac., 335 Mo. 398, 72 S.W.2d 988; Martin v. Wabash, 325 Mo. 1107, 30 S.W.2d 735. (8) Plaintiff's Instruction No. 1 imposed a greater duty on the defendants than that imposed by law. Goodwin v. Mo. Pac., 335 Mo. 398, 72 S.W.2d 988; Martin v. Wabash, 325 Mo. 1107, 30 S.W.2d 735; Evans v. A., T. & S.F., 345 Mo. 145, 131 S.W.2d 604; Degonia v. Railroad, 224 Mo. 564, 123 S.W. 807; Jones v. Railway Co., 325 Mo. 1153, 30 S.W.2d 481. (9) The instruction did not require the jury to find facts which would entitle plaintiff to recover under the Federal Employers' Liability Act and that the deceased, Thomas Graham, at the time of his death, was in the employ of this defendant. Giesking v. Litchfield & Madison Ry. Co., 339 Mo. 1, 94 S.W.2d 375. (10) There was no evidence that the deceased was oblivious to his peril. (11) Plaintiff's Instruction 4 charged the jury that if the jury found the issues for the plaintiff a verdict against both defendants should be returned. Said instruction unlawfully assumed that the deceased was an employee of this defendant under the Federal Employers' Liability Act and required the jury to return a verdict against this defendant without first finding any facts which would entitle the plaintiff to recover under the act and denied unto this defendant the right to a determination of its liability under the act by the jury. Giesking v. Litchfield & Madison Ry. Co., 339 Mo. 1, 94 S.W.2d 375. (12) Plaintiff's Instruction 5 and in overruling defendant's objections thereto was in direct conflict with plaintiff's Instruction 2 and did not provide for diminution of damages by reason of the contributory negligence of deceased. (13) The court erred in refusing to ive defendants' Instruction lettered D and in sustaining plaintiff's objections thereto. Clark v. Santa Fe, 319 Mo. 865, 6 S.W.2d 954. (14) The court erred in refusing to give defendants' Instruction lettered F as offered by defendants and in sustaining plaintiff's objections thereto for the reason that if the deceased saw, or was aware of the approach of the train in time to have avoided entering a position of peril, or to have extricated himself therefrom, there was no duty to warn. Clark v. Santa Fe, 319 Mo. 865, 6 S.W.2d 954; Jordan v. St. Joseph Ry., Light, H. & P. Co., 335 Mo. 319, 73 S.W.2d 205; Pentecost v. St. Louis Merchants Bridge Term. R. Co., 334 Mo. 576, 66 S.W.2d 533. (15) The court erred in allowing plaintiff to introduce into evidence various rules of the two defendants which were not pleaded in plaintiff's petition. Nivert v. Wabash, 232 Mo. 637, 135 S.W. 33; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462; Evans v. Santa Fe, 345 Mo. 147, 131 S.W.2d 604; Jones v. Railway Co., 325 Mo. 1153, 30 S.W.2d 481.

S. W. Sawyer, John H. Lathrop, James F. Walsh and Sam D. Parker for appellant Kansas City Terminal Railway Company.

(1) Deceased Graham was, under the undisputed facts, an employee of the Frisco within the meaning of the Federal Employers' Liability Act by virtue of the Missouri Lessor Statute, so that the case was properly submitted against both defendants under the Federal Act. 45 U.S.C.A., Sec. 51; Sec 5163, R.S. 1939; Spaw v. Kansas City Term. Ry. Co., 198 Mo.App. 552, 201 S.W. 927; Smith v. Thompson, 182 S.W.2d 63; Armstrong v. Chicago, W. & I.R. Co., 350 Ill. 426, 183 N.E. 478; North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305; Miller v. Terminal R. Assn., 349 Mo. 944, 163 S.W.2d 1034; Francis v. Terminal R. Assn., 193 S.W.2d 909. (2) There is no substantial evidence to support a finding that deceased was oblivious of his peril. Pentecost v. St. Louis Merchants Bridge Term. R. Co., 334 Mo. 576, 66 S.W.2d 533; Jordan v. St. Joseph Ry., etc., Co., 335 Mo. 319, 73 S.W.2d 205; Crawford v. Byers Transportation Co., 186 S.W.2d 756. (3) An alarm warning was promptly given when deceased's peril was actually discovered and therefore defendants were not as a matter of law guilty of any negligence. Rashall v. St. Louis, I.M. & S. Ry. Co., 249 Mo. 509, 155 S.W. 426; Evans v. Wabash Ry. Co., 178 Mo. 508, 77 S.W. 515; Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Goodwin v. Mo. Pac. Ry. Co., 335 Mo. 398, 72 S.W.2d 988; Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735. (4) The court erred in giving plain...