Griffith v. Gardner, 40409.

• Decision Date: 14 February 1949
• Docket Number: No. 40409.,40409.
• Parties: MANERVA GRIFFITH, Administratrix of the Estate of THOMAS M. GRIFFITH, Deceased, Respondent, v. HENRY A. GARDNER, Trustee of ALTON RAILROAD COMPANY, a Corporation, and KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, Appellants.
• Court: Missouri Supreme Court

217 S.W.2d 519 MANERVA GRIFFITH, Administratrix of the Estate of THOMAS M. GRIFFITH, Deceased, Respondent,
v.
HENRY A. GARDNER, Trustee of ALTON RAILROAD COMPANY, a Corporation, and KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, Appellants. No. 40409. Supreme Court of Missouri. Court en Banc, February 14, 1949.

[217 S.W.2d 521]

Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.

REVERSED AS TO KANSAS CITY TERMINAL RAILROAD COMPANY AND AFFIRMED AS TO HENRY A. GARDNER, TRUSTEE OF ALTON RAILROAD COMPANY.

Charles M. Miller for appellant and defendant Gardner, Trustee.

(1) The trial court erred in overruling and refusing defendant Gardner, Trustee's motions for directed verdict requested at the close of plaintiff's evidence in chief, and at the close of all the evidence, for the reasons plaintiff made no case for a jury as alleged in the motions, and that the cause of Griffith's death was due solely to his act in attempting to alight from a moving train, and was not engaged in interstate commerce. Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S. Ct. 564; Peck v. St. Louis Transit Co., 178 Mo. 617, 77 S.W. 736; Straus v. Railroad, 75 Mo. 185; Delegardner v. Wells, 258 S.W. 7; Craig v. Wabash R. Co., 142 Mo. App. 314, 126 S.W. 771; Kirby v. United Rys., 242 S.W. 79; Neville v. Railroad Co., 158 Mo. 293, 59 S.W. 123; Fowler v. Western & A.R. Co., 42 S.W. (2d) 499; Sassaman v. Penn., 144 F. (2d) 950; Taylor v. Lamaghi Coal Co., 352 Mo. 1212, 181 S.W. (2d) 536. (2) The trial court erred in giving plaintiff's Instruction 1 for reasons as follows: (a) Because the evidence did not warrant said instruction. (b) The instruction did not properly declare the law. (c) Improperly incorporated in the instruction as an element of negligence excessive speed and that the locomotive gave off excessive amounts of black smoke (Boyd v. Jones Dry Goods Co., 340 Mo. 1100, 104 S.W. (2d) 348, 351), was suddenly and abruptly stopped, causing a violent and unusual jerk and lurch of the train causing Griffith to be jerked and thrown under the train (Feeback v. Mo. Pac. Rd. Co., 167 Mo. 206, 66 S.W. 965, 967), and (d) submitting whether Griffith was performing a duty in interstate commerce. Neville v. Railroad Co., 158 Mo. 293, 59 S.W. 123; Sevedge v. K.C., St. L. & C. Rd. Co., 331 Mo. 312, 53 S.W. (2d) 284; Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S. Ct. 564; Brady v. So. Ry. Co., 320 U.S. 476, 64 S. Ct. 232; Fowler v. Western & A.R. Co., 42 S.E. (2d) 499; Sassaman v. Penn. Rd. Co., 144 F. (2d) 950. (3) The trial court erred in giving plaintiff's Instruction No. 2 for the reasons as follows: (a) The instruction was not warranted by the evidence. (b) Did not properly declare the law. (c) Improperly referred to Griffith's negligence as "contributory" negligence. (d) Makes no reference to the alleged negligence of the other defendant. (4) The trial court erred in giving plaintiff's Instruction 3 for reasons as follows: (a) Did not properly declare the law. (b) Improperly submitted to the jury negligence of Griffith and further instructing the jury such did not prevent recovery if the defendant was negligent in any respect as submitted in plaintiff's given Instruction 1. (c) Was misleading, confusing, repetitious and stressed the alleged negligence of defendant, and did not set out the negligence referred to of Griffith. Feeback v. Mo. Pac. Rd. Co., 167 Mo. 206, 66 S.W. 965; Kirby v. United Rys. Co., 242 S.W. 79; Neville v. Railroad Co., 158 Mo. 293, 59 S.W. 123. (5) The trial court erred in admitting over the objections of this defendant Terminal Company Rules 836, 961, and 972, pertaining to speed and smoke and further erred in denying defendant's motion to withdraw same requested at the close of all the evidence for the reasons given in the objections and because such pertained to no actionable negligence of this defendant. Boyd v. Jones Dry Goods Co., 340 Mo. 1100, 104 S.W. (2d) 348; Zitzmann v. Glueck Box Co., 276 S.W. 23; Neville v. Railroad Co., 158 Mo. 293, 59 S.W. 123. (6) The trial court erred in refusing this defendant's Instruction A to the effect Griffith was negligent in alighting from the moving train for the reason the same properly declared the law. Peck v. St. Louis Transit Co., 178 Mo. 617, 77 S.W. 736; Straus v. Rd. Co., 75 Mo. 185; Delegardner v. Wells, 258 S.W. 7. (7) The trial court erred in refusing this defendant's Instruction B to the effect that the alleged jerking of the train was not actionable negligence against this defendant, for the reason said instruction properly disclosed the law. Feeback v. Mo. Pac. Rd. Co., 167 Mo. 206, 66 S.W. 965; Neville v. Rd. Co., 158 Mo. 293, 59 S.W. 123. (8) The trial Court erred in refusing this defendant's Instruction C to the effect the train negligently emitted smoke for the reason such was not actionable negligence against this defendant. Boyd v. Jones Dry Goods Co., 340 Mo. 1100, 104 S.W. (2d) 348; Sisk v. Burlington Rd. Co., 67 S.W. (2d) 830; Zitzmann v. Glueck Box Co., 276 S.W. 23; Neville v. Rd. Co., 158 Mo. 293, 59 S.W. 123. (9) The trial Court erred in refusing this defendant's Instruction D to the effect that the train was being operated at a negligent rate of speed, for the reason such was not actionable negligence. Delegardner v. Wells, 258 S.W. 7; Peck v. St. Louis Transit Co., 178 Mo. 617, 77 S.W. 736; Sisk v. Burlington Rd. Co., 67 S.W. (2d) 830; Zitzmann v. Glueck Box Co., 276 S.W. 23; Feeback v. Mo. Pac. Rd. Co., 167 Mo. 206, 66 S.W. 965. (10) The trial Court erred in refusing this defendant's Instructions E and F to the effect that the rules of the Terminal Company limiting speed of trains to 8 miles per hour and pertaining to smoke for the reason such were immaterial and incompetent to any issue. Boyd v. Jones Dry Goods Co., 340 Mo. 1100, 104 S.W. (2d) 348; Zitzmann v. Glueck Box Co., 276 S.W. 23; Neville v. Rd. Co., 158 Mo. 293, 59 S.W. 123. (11) The trial court erred in refusing this defendant's Instruction G to the effect Griffith was not at the time employed in interstate commerce. Fowler v. Western & A. Co., 42 S.W. (2d) 499; Sassaman v. Penn. Rd. Co., 144 F. (2d) 950; Taylor v. Lamaghi Coal Co., 352 Mo. 1212, 181 S.W. (2d) 536. (12) The trial Court erred in refusing this defendant's Instruction H to the effect the engineer and fireman on the engine were not negligent in failing to perform any duty owing by them to Griffith while attempting to alight from a moving train for the reason such properly declared the law as applicable. Feeback v. Mo. Pac. Rd. Co., 167 Mo. 206, 66 S.W. 965; Neville v. Rd. Co., 158 Mo. 293, 59 S.W. 123. (13) The trial court erred in giving of its own motion Instruction O for the reason such did not properly declare the law and in submitting Griffith's negligence in alighting from the moving train, and informing the jury it could be considered only in determining plaintiff's damages. Plaintiff was also bound to prove negligence on the part of this defendant, which she did not do. Seaboard Air Line v. Horton, 233 U.S. 492, 34 S. Ct. 635. (14) The trial court erred in permitting Mr. Robertson, counsel for plaintiff, to make the improper and prejudicial argument to the jury. Munroe v. Chicago & Alton R. Co., 297 Mo. 633, 249 S.W. 646; Dodd v. M., K. & T.R. Co., 353 Mo. 799, 184 S.W. (2d) 454; New York Central v. Johnson, 279 U.S. 310, 49 S. Ct. 300.

Samuel W. Sawyer, John H. Lathrop, James F. Walsh and Horace F. Blackwell, Jr., for appellant and defendant Kansas City Terminal Railway Company.

(1) The trial court erred in refusing to direct a verdict for this defendant for the following reasons: Thomas Griffith was not employed by this defendant in interstate transportation at the time of his injury and death and plaintiff was not entitled to recover under the Federal Employers' Liability Act. Graham v. Thompson, 357 Mo. 1133, 121 S.W. (2d) 770. (2) There was no proof of negligence against defendant Kansas City Terminal Railway Company. Graham v. Thompson, 357 Mo. 1133, 121 S.W. (2d) 770. (3) Griffith's death was due solely to his own negligence in attempting to alight from a moving passenger train and he was not engaged in interstate commerce. Chi., M. & St. P.R.R. Co. v. Coogan, 271 U.S. 472, 46 S. Ct. 564; Brady v. Southern Ry. Co., 320 U.S. 476, 64 S. Ct. 232; Neville v. Rd., 59 S.W. 123, 158 Mo. 293; Peck v. St. Louis Transit Co., 77 S.W. 736, 178 Mo. 617; Straus v. Rd., 75 Mo. 185; Delegardner v. Wells, 258 S.W. 7; Craig v. Wabash R. Co., 126 S.W. 771, 142 Mo. App. 314; Kirby v. United Ry. Co., 242 S.W. 79; Fowler v. Western & A.R. Co., 42 S.E. (2d) 499; Sassman v. Penn. R. Co., 144 F. (2d) 950; Taylor v. Lamaghi Coal Co., 181 S.W. (2d) 536, 352 Mo. 1212; Diamond v. Mo. Pac. R. Co., 181 S.W. 12.

Robert L. Robertson, Frederick J. Freel and Walter A. Raymond for respondent.

(1) The trial court properly overruled the separate motions of the defendants for directed verdicts. A submissible case of negligence was made against both defendants. Jacobs v. Reading Co., 130 F. (2d) 612; Terminal R. Assn. of St. Louis v. Schorb, 151 F. (2d) 361; Tennant v. Peoria & Pekin Union Ry. Co., 134 F. (2d) 860; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409; Keith v. Wheeling & L.E. Ry. Co., 160 F. (2d) 654; Griswold v. Gardner, 155 F. (2d) 333; Boston & M.R.R. v. Meech, 156 F. (2d) 109; Lavender v. Kurn, 327 U.S. 740, 66 S. Ct. 740; Sec. 5163, R.S. 1939; 45 U.S.C.A., Sec. 51; 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. & L.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 Railroad Assn., 349 Mo. 944, 163 S.W. (2d) 1034; Francis v. Terminal Railroad Assn., 193 S.W. (2d) 909. (2) A submissible case of deceased's employment in interstate commerce was made by the evidence. Kach Monessen v. Southwestern Ry. Co., 151 F. (2d) 400; Shoenfelt v...