Hardwick v. Wabash R. Co., No. 10868.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtEllison
Citation181 Mo. App. 156,168 S.W. 328
PartiesHARDWICK v. WABASH R. CO.
Decision Date17 November 1913
Docket NumberNo. 10868.
168 S.W. 328
181 Mo. A. 156
HARDWICK
v.
WABASH R. CO.
No. 10868.
Kansas City Court of Appeals. Missouri.
November 17, 1913.
Rehearing Denied February 28, 1914.
On Motion to Transfer to Supreme Court, June 13, 1914.

1. MASTER AND SERVANT (§ 285)—INJURIES TO SERVANT — ACTIONS — QUESTIONS FOR JURY.

Whether the death of a railroad sectionman was caused by his being struck without warning by an engine held under the evidence for the jury.

2. EVIDENCE (§ 54) — PRESUMPTIONS — GROUNDS.

Reasonable inferences drawn from affirmative facts proven are evidence and not presumptions built upon other presumptions.

3. MASTER AND SERVANT (§ 228)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE— STATUTE.

The contributory negligence of the servant of an interstate carrier did not bar an action for his death while engaged in interstate commerce, but only affected the amount of damages, the federal Employers' Liability Act (Act April 22, 1908, c. 149, § 3, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1323]), so providing in express terms.

4. COMMERCE (§ 8) — REGULATION OF EMPLOYMENT —POWER OF CONGRESS—JURISDICTION —STATE COURTS AND UNITED STATES COURTS.

While the authority of Congress over interstate carriers is paramount, a state court having jurisdiction of the class of actions embraced within the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]) may enforce claims arising thereunder; the relief being governed by the rulings of the federal courts, and an appeal lying from the state court of last resort to the United States Supreme Court.

5. COMMERCE (§ 27)—INJURIES TO SERVANT — FEDERAL EMPLOYERS' LIABILITY ACT— "ENGAGED IN INTERSTATE COMMERCE."

A railroad sectionman, who was killed while sweeping snow from the switches by a train engaged in both interstate and intrastate commerce because certain cars were going from one point to another in the state and others to points outside the state, was engaged in interstate commerce within the federal Employers'

[168 S.W. 329]

Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, and amendment of April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]); it being necessary to the carrying on of such commerce that the tracks should be kept free from ice and snow at connecting switches.

6. MASTER AND SERVANT (§ 286)—INJURIES TO SERVANT — ACTIONS — QUESTIONS FOR JURY.

Evidence, in an action for the death of a sectionman struck by a train while sweeping snow from the switches, held sufficient to make a question for the jury whether defendant's servants actually saw him and could have observed that he was oblivious to his danger in time to have saved him.

7. MASTER AND SERVANT (§ 137)—INJURIES TO SERVANT—ORDINANCES.

Railroad employés as well as others are protected by ordinances, general in terms, as to speed or ringing the bell.

8. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—ACTIONS—PLEADING.

One suing for the death of a railroad sectionman could not claim the benefit of an ordinance as to speed or ringing the bell where none was pleaded.

9. MASTER AND SERVANT (§ 137)—INJURIES TO SERVANTS—CARE REQUIRED—OPERATION OF TRAINS.

Regardless of statute, common prudence as well as humanity requires those in charge of a railroad train to be on the lookout in running through populous localities at high speed.

10. TRIAL (§ 306)—DELIBERATION OF JURY —MATTERS CONSIDERED—EFFECT OF FAILURE TO CALL WITNESS.

In an action against a railroad company for the death of a sectionman, the failure of the defendant to call the engineer of the train which struck deceased, to testify, was an omission of such significance as to require consideration.

11. MASTER AND SERVANT (§ 137)—INJURIES TO SERVANT—OPERATION OF RAILROAD.

A railroad company was liable for the death of a sectionman who was struck while sweeping snow from the switches at night, by a train running at 35 miles an hour through a town of 2,000 population, if those in charge of the train, who knew men would be so engaged, could have seen him, and that he was oblivious to his peril, in time to have warned him, had they been on the lookout.

12. DEATH (§ 105)—INJURIES TO SERVANT— ACTIONS—VERDICT.

A verdict for the plaintiff in an action for the killing of a railroad sectionman by a train, while engaged in interstate commerce within the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]), should have shown the sum allowed each beneficiary, since, the amount recoverable being the pecuniary loss, children of different ages would not suffer the same.

13. APPEAL AND ERROR (§ 218)—REVIEW— HARMLESS ERROR—VERDICT.

Failure of the verdict, in an action within the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]), to state the sums allowed each beneficiary, was not reversible error, where no instruction to require it to so state was asked, and no objection was made or exception taken to the verdict.

On Motion to Transfer to Supreme Court.

14. COURTS (§ 231)—APPELLATE COURTS— MISSOURI.

The Court of Appeals was not ousted of jurisdiction because, after its decision had been made and announced, it was suggested that it conflicted with the Constitution, where no question involving the construction of the state or United States Constitution had been presented or passed on, since otherwise every losing litigant could oust the court of jurisdiction.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action by Emma Hardwick, administratrix of the estate of John Hardwick, against the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. A. Collet, of Salisbury, and J. L. Minnis, of St. Louis, for appellant. Phillips & Phillips, of Moberly, and Gilbert Lamb, of Salisbury, for respondent.

ELLISON, P. J.


John Hardwick was an employé of the defendant and was killed by one of its trains running upon him. Plaintiff is his widow and was appointed administratrix of his estate. She brought this action for damages, charging defendant with negligence, and recovered judgment in the circuit court. There are several living children.

Hardwick was struck at a switch about 200 feet east of defendant's station building at Salisbury, Mo., at about 5 o'clock on the morning of November 28, 1911; that being before daylight at that time of the year. The night was cold, with a high wind drifting the falling snow. Witnesses described it as a "stormy morning; awful bad." Deceased was a sectionman and had been engaged through the night, with others, in sweeping snow from the switches connecting with the main track about this station. At about 5 o'clock, he and one Givens left the

168 S.W. 330

station; the latter going to a coalhouse to get a shovel, while deceased went on to the switch with his short-handled broom, salt bucket, and lantern. That was the last he was seen in a conscious condition. Defendant's train was more than a half hour late, and it approached the station, through the storm, at a speed of about 35 miles an hour, and did not stop. The track was straight for a long distance and the headlight was burning. Defendant's engineer and fireman knew that on such nights sectionmen endeavored to keep the switches at stations cleared of drifting snow. No whistle was blown except at the whistling board before reaching the station, and no bell was rung, as the cord was wrapped around the engine valve. A light could be seen that night a distance of 900 or 1,000 feet; the fireman testified that he saw the semaphore light at the station that far off. Deceased was found 10 or 12 feet from the switch, not dead, but unconscious. His broom was found, and blood was seen between 2 and 3 feet of the track, and his lantern was near by. He was struck in the forehead, perhaps by the end of the front crossbeam of the engine as, too late, he raised his head; other parts of his body did not appear to have been injured. Without going further, we will say that there can be no serious question that a case was made for the jury on the disputed point whether deceased was struck without warning by the engine. Circumstances alone frequently will suffice to make a case. Kelly v. Railroad, 141 Mo. App. 490, 125 S. W. 818; Pittsburg, C., C. & St. L. Ry. Co. v. Scherer, 205 Fed. 356, 123 C. C. A. 484. Reasonable inferences drawn from affirmative facts proven are evidence, and not presumptions built upon other presumptions, as suggested by defendant.

A great deal has been said in argument about deceased's contributory negligence, in that there was no reason, short of heedlessness, why he did not observe the approach of the train on a straight track with a brilliant headlight, even if he was stooping over with his head down. But that part of defendant's insistence is outside the case, except as it may lessen the amount of damages. In other words, whatever contributory negligence deceased may have been guilty of connot be considered as affecting plaintiff's right of recovery, though it may influence the amount. This for the reason that defendant is an interstate carrier and the case is founded on the act of Congress known as the Employers' Liability Act (35 Stat. 65, c. 149, and amendment of April 5, 1910, 36 Stat. 291, c. 143), which, as against an interstate carrier, abrogates the rules of law obtaining in this state allowing an employé's contributory negligence to bar a recovery of damages, and only allows such negligence to diminish the damages allowed. See section 3 of such statutes as set out in Second Employers' Liability Cases, 223 U. S. 7, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. And of this the jury should be informed by appropriate instructions. Though the...

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44 practice notes
  • Hasenjaeger v. Railroad Co., No. 21948.
    • United States
    • Court of Appeal of Missouri (US)
    • November 8, 1932
    ...c. 149, and Amended April 5, 1910, 36 Stat. 291, c. 143; Norfolk & W.R.R. Co. v. Earnest, 33 S. Ct. 654, 229 U.S. 114; Hardwick v. R.R., 181 Mo. App. 156; Penderson v. Delaware, L. & N.R. Co., 229 U.S. 146. (2) Under the Federal Employers' Liability Act, the contributing negligence of deced......
  • Evans v. Santa Fe Ry. Co., No. 35790.
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1939
    ...to his peril. [Hinzeman v. Railroad, 182 Mo. 611, 81 S.W. 1134; Hinzeman v. Railroad, 199 Mo. 56, 94 S.W. 973; Hardwick v. Railroad, 181 Mo. App. 156, l.c. 167, 168 S.W. 328.] "It has been frequently held by the Supreme Court of this State in cases where those in charge of the engine saw an......
  • Schuppenies v. Oregon Short Line Railroad Co.
    • United States
    • United States State Supreme Court of Idaho
    • March 6, 1924
    ...N. R. Co., 24 Idaho 652, 135 P. 838; Kinzell v. Chicago, M. & St. P. R. Co., 33 Idaho 1, 190 P. 255; Hardwick v. Wabash R. Co. (Mo.), 168 S.W. 328; Rockhold v. Chicago, R.I. & P. Ry. Co., 97 Kan. 715, 156 P. 775; Olthoff v. Great N. R. Co., 135 Minn. 72, 160 N.W. 206; Tober v. Pere Marquett......
  • Louisville & N.R. Co. v. Blankenship, 6 Div. 381
    • United States
    • Supreme Court of Alabama
    • April 12, 1917
    ...139 C.C.A. 150); one engaged in sweeping snow from a track used for both inter and intra state traffic ( Hardwicke v. Wabash R. Co., 181 Mo.App. 156); and a switch repairer was also held to be within its protection ( Cent. R. Co. of New Jersey v. Colasurdo, 192 F. 901, 113 C.C.A. 379). The ......
  • Request a trial to view additional results
44 cases
  • Hasenjaeger v. Railroad Co., No. 21948.
    • United States
    • Court of Appeal of Missouri (US)
    • November 8, 1932
    ...c. 149, and Amended April 5, 1910, 36 Stat. 291, c. 143; Norfolk & W.R.R. Co. v. Earnest, 33 S. Ct. 654, 229 U.S. 114; Hardwick v. R.R., 181 Mo. App. 156; Penderson v. Delaware, L. & N.R. Co., 229 U.S. 146. (2) Under the Federal Employers' Liability Act, the contributing negligence of deced......
  • Evans v. Santa Fe Ry. Co., No. 35790.
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1939
    ...to his peril. [Hinzeman v. Railroad, 182 Mo. 611, 81 S.W. 1134; Hinzeman v. Railroad, 199 Mo. 56, 94 S.W. 973; Hardwick v. Railroad, 181 Mo. App. 156, l.c. 167, 168 S.W. 328.] "It has been frequently held by the Supreme Court of this State in cases where those in charge of the engine saw an......
  • Schuppenies v. Oregon Short Line Railroad Co.
    • United States
    • United States State Supreme Court of Idaho
    • March 6, 1924
    ...N. R. Co., 24 Idaho 652, 135 P. 838; Kinzell v. Chicago, M. & St. P. R. Co., 33 Idaho 1, 190 P. 255; Hardwick v. Wabash R. Co. (Mo.), 168 S.W. 328; Rockhold v. Chicago, R.I. & P. Ry. Co., 97 Kan. 715, 156 P. 775; Olthoff v. Great N. R. Co., 135 Minn. 72, 160 N.W. 206; Tober v. Pere Marquett......
  • Louisville & N.R. Co. v. Blankenship, 6 Div. 381
    • United States
    • Supreme Court of Alabama
    • April 12, 1917
    ...139 C.C.A. 150); one engaged in sweeping snow from a track used for both inter and intra state traffic ( Hardwicke v. Wabash R. Co., 181 Mo.App. 156); and a switch repairer was also held to be within its protection ( Cent. R. Co. of New Jersey v. Colasurdo, 192 F. 901, 113 C.C.A. 379). The ......
  • Request a trial to view additional results

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