Hampton v. Wabash R. Co.

• Decision Date: 08 September 1947
• Docket Number: 40021
• Parties: Ocie Hampton, Administratrix of the Estate of John Leo Hampton, Deceased, v. Wabash Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

204 S.W.2d 708

356 Mo. 999

Ocie Hampton, Administratrix of the Estate of John Leo Hampton, Deceased, v. Wabash Railroad Company, a Corporation, Appellant

No. 40021

Supreme Court of Missouri

September 8, 1947

Rehearing Denied October 13, 1947.

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed.

Joseph A. McClain, Jr., J. H. Miller, John S. Marley and Sebree, Shook, Hardy & Hunter for appellant.

(1) The sufficiency of the evidence to make a submissible case for the jury is to be determined by federal law. Brady v Southern Ry. Co., 320 U.S. 476, 88 L.Ed. 239; Mooney v. Terminal R. Assn. of St. Louis, 352 Mo. 245, 176 S.W.2d 605. (2) The burden of proof was on the plaintiff to establish that the defendant was guilty of some negligence which was a proximate cause of the casualty. Evidence to make a submissible case must be more than a scintilla and must not leave the question a matter of speculation and conjecture. Brady v. Southern Ry. Co., 320 U.S. 476, 88 L.Ed. 239; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 88 L.Ed. 520; Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44, certiorari denied, 323 U.S. 719. (3) Deceased's violation of the order requiring him not to operate the compressor unless he had a watchman on the bank was the primary and sole cause of his death and there can be no recovery under the Federal Employers' Liability Act for his death. Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 224; Unadilla Valley Ry. Co. v. Dibble, 31 F.2d 239, certiorari denied, 280 U.S. 565, 74 L.Ed. 618; Frese v. Chicago, B. & Q.R. Co., 263 U.S. 1, 68 L.Ed. 131; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; Willis v. Penn. R. Co., 122 F.2d 248, certiorari denied, 314 U.S. 684. Southern Ry. Co. v. Hylton, 37 F.2d 843, certiorari denied, 281 U.S. 745; Van DerVeer v. Delaware, L. & W.R. Co., 84 F.2d 979, certiorari denied, 299 U.S. 595; Williamson v. Wabash R. Co., 196 S.W.2d 129; Yoakum v. Lusk, 223 S.W. 53. (4) The evidence left it to conjecture and speculation as to whether sounding the whistle around the curve would have prevented the accident. McNeil v. Mo. Pac. Ry. Co., 182 S.W. 762; Armstrong v. Denver & R.G.R. Co., 195 Mo.App. 83, 190 S.W. 944; Mullen v Lowden, 334 Mo. 40, 124 S.W.2d 1152; Kilmer v. Norfolk & W.R. Co., 45 F.2d 532, certiorari denied, 283 U.S. 824; Bergman v. Northern Pac. Ry. Co., 14 F.2d 580; Union Pacific v. Gaede, 110 F.2d 931; Pere Marquette Ry. Co. v. Anderson, 29 F.2d 479, certiorari denied, 279 U.S. 851; Stephenson v. Grand Trunk Western R. Co., 110 F.2d 401; Hamilton v. St. Louis-S.F. Ry. Co., 318 Mo. 123, 300 S.W. 786; Robison v. Chicago & E.I. Ry. Co., 344 Mo. 81, 64 S.W.2d 660, certiorari denied, 291 U.S. 682; Doyle v. M.K. & T. Ry. Co., 185 S.W. 1175; Little v. Manufacturers Ry. Co., 123 S.W.2d 220; Crossno v. Terminal R. Assn., 328 Mo. 826, 41 S.W.2d 796; Connole v. Illinois Central R. Co., 21 S.W.2d 907; Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824. (5) The court erred to the prejudice of the appellant in refusing to give defendant's requested Instruction 7. The violation by plaintiff's decedent of the order not to operate the compressor without a watchman on the bank constituted negligence as a matter of law and defendant was entitled to an instruction so informing the jury. The refusal of this instruction erroneously placed on defendant the illegal burden of convincing the jury that violation of this order constituted negligence when such violation constituted negligence as a matter of law. Yoakum v. Lusk, 223 S.W. 53; Biddlecom v. Nelson Grain Co., 178 S.W. 750; Atchison, T. & S.F. Ry. Co. v. Ballard, 108 F.2d 768, certiorari denied, 310 U.S. 646; Henry v. Cleveland, C.C. & St. L.R. Co., 322 Mo. 1072, 61 S.W.2d 340; Sheehan v. Terminal R. Assn. of St. Louis, 336 Mo. 709, 81 S.W.2d 305. (6) Plaintiff's given Instructions 3 and 12 are in direct conflict with defendant's given Instruction 9 and are confusing, misleading and constitute prejudicial and reversible error because of their confusion of contributory negligence and sole negligence. Seithel v. St. Louis Dairy Co., 300 S.W. 280; Nagy v. St. Louis Car Co., 37 S.W.2d 513; Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Smithers v. Barker, 341 Mo. 1017, 11 S.W.2d 47. (7) The verdict is grossly excessive. Finley v. St. Louis-S.F. Ry. Co., 349 Mo. 330, 160 S.W.2d 735; Hancock v. Kansas City Term. R. Co., 347 Mo. 166, 146 S.W.2d 627; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Ford v. Louisville & Nashville R. Co., 196 S.W.2d 163; Kidd v. Chicago, R.I. & P. Ry. Co., 310 Mo. 1, 274 S.W. 1079, certiorari denied, 269 U.S. 582.

Trusty & Pugh, Guy W. Green, Jr., and Raymond Falzone for respondent.

(1) The testimony of both plaintiff and defendant positively proved that a rule and custom of defendant required the train to whistle short blasts all the way around the curve for the protection of trackmen, and that such whistles were not given. Owen v. Kurn, 148 S.W.2d 519; Brock v. M. & O. Ry. Co., 330 Mo. 918, 51 S.W.2d 100, certiorari denied, 53 S.Ct. 87, 287 U.S. 638, 77 L.Ed. 552; Evans v A.T. & S.F. Ry. Co., 345 Mo. 147, 137 S.W.2d 604; Smith v. C.B. & Q. Ry Co, 321 Mo. 960, 15 S.W.2d 794; St. L. & S.F. Ry. Co. v. Jeffries, 276 F. 73. (2) The evidence was sufficient to permit the jury to find that sounding the whistle around the curve would have prevented the death of ten men. Preston v. U.P.R. Co., 239 S.W.2d 1080, certiorari denied, 33 S.Ct. 14, 260 U.S. 735, 67 L.Ed. 496; Kidd v. Chicago, R.I. & P. Ry. Co., 274 S.W. 1079, certiorari denied, 26 S.Ct. 119, 269 U.S. 682, 70 L.Ed. 424; Rigley v. Pryor, 290 Mo. 10, 238 S.W. 828; Brown v. Chicago, R.I. & P. Ry. Co., 286 S.W. 45; Unrein v. Oklahoma Hide Co., 295 Mo. 353, 244 S.W. 924; Hubbard v. Wabash Railroad Co., 193 S.W. 579. (3) Defendant's testimony that deceased was given a verbal order to have a watchman on the bank at all times the compressor was operating could not defeat recovery for defendant's negligent violation of rule and custom to whistle, because: The alleged order was a verbal one appearing only in defendant's evidence, which the jury had a right to and did disbelieve and on review this Court will only consider evidence favorable to plaintiff and defendant's evidence will be disregarded except insofar as it aids plaintiff's case. Wiener v. Mutual Life Ins. Co., 179 S.W.2d 39; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558; State ex rel. v. Cox, 325 Mo. 901, 30 S.W.2d 462; Laughlin v. Boatmen's Natl. Bank, 163 S.W.2d 761; Thomas v. Butler, 147 S.W.2d 437; Franz' Estate, 127 S.W.2d 401; Dempsey v. Horton, 64 S.W.2d 651; Young v. Wheelock, 64 S.W.2d 950, certiorari denied, 291 U.S. 676, 54 S.Ct. 527, 78 L.Ed. 1064; Connole v. East St. Louis Bridge Co., 102 S.W.2d 581; Ford v. L. & N.R. Co., 196 S.W.2d 163; Seago v. N.Y.C.R. Co., 164 S.W.2d 336; Gray v. Kurn, 137 S.W.2d 558; Poe v. I.C.R. Co., 73 S.W.2d 779; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 905, certiorari denied, 54 S.Ct. 527, 291 U.S. 676, 78 L.Ed. 1064; Lavender v. Kurn, 326 U.S. 713, 90 L.Ed. 692, 66 S.Ct. 740; Brock v. Mobile & O.R. Co., 51 S.W.2d 100. (4) Violation of a company rule is assumption of risk and no longer a defense under the Federal Employers' Liability Act. Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 87 L.Ed. 610. (5) There was evidence from which the jury could infer that a watchman was on the bank. Lavender v. Kurn, 66 S.Ct. 740; Ford v. L. & N.R. Co., 196 S.W.2d 163; Lloyd v. Alton R. Co.; Seago v. N.Y.C.R. Co.; Poe v. I.C.R. Co. and Young v. Wheelock, all cited supra. (6) Even if it be conceded that the alleged order was given (which is denied), the failure to have a watchman on the bank (which is denied) could not be the sole proximate cause of the death because the admitted negligence of the engineer was at last a concurring proximate cause and a watchman was merely a means "to give that much more protection." Rocco v. Lehigh Valley R. Co., 288 U.S. 275, 53 S.Ct. 343; Brock v. Mobile & O.R. Co., 51 S.W.2d 100, certiorari denied, 287 U.S. 638, 53 S.Ct. 87, 77 L.Ed. 552; U.P.R. v. Hadley, Admr., 246 U.S. 331, 38 S.Ct. 318, 62 L.Ed. 750. (7) The defendant by voluntarily tendering and having given Instruction 9, treated the issue as one of fact for the jury and cannot claim it was a question of law. Burgsted v. Waldbauer, 88 S.W.2d 377; Gayle v. Mo. Car & Foundry Co., 177 Mo. 427, 76 S.W. 987. (8) The court properly refused to give defendant's Instruction 7 because: It placed a positive duty on decedent not to operate the compressor unless a watchman was placed on the bank, while the issue was one for the determination of the jury. See authorities cited under Point (3), supra. (9) If the jury found that deceased had been given the order testified to in defendant's evidence, his disobedience would have constituted assumption of risk and not contributory negligence. See authorities cited under Point (4), supra. (10) The instruction assumes that no watchman was posted and that a watchman was the sole means of warning, thus withdrawing these issues from the consideration of the jury. See authorities cited under Points (3) and (4), supra. (11) Plaintiff's Instructions 3 and 12 cannot constitute reversible error because: The objections raised in this court were not made in the court below and there is nothing for this court to review. Secs. 847.105, 847.122, Mo. R.S.A. Civil Code of Missouri, Secs. 105, 22; Rule 3.21, Supreme Court of Missouri; Ford v. L. & N. Ry. Co., 196 S.W.2d 163; Goggin v. Schoening, 199 S.W.2d 87; Millaway v. Brown, 197 S.W.2d 987. (12) Both instructions were necessary to explain and supplement defendant's erroneous Instruction 9. Stanich v. Western Union Telegraph Co., 153 S.W.2d 54; Seago v....