Hardwick v. Wabash Railroad Co.
| Decision Date | 02 March 1914 |
| Citation | 168 S.W. 328,181 Mo.App. 156 |
| Parties | EMMA HARDWICK, Administratrix, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 181 Mo.App. 156 at 177.
Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.
AFFIRMED.
Judgment affirmed.
J. L Minnis and J. A. Collet for appellant.
(1) At the close of plaintiff's case, the court should have directed a verdict for defendant. The evidence wholly failed to show any violation of any duty owed by the train men to the deceased, hence there was nothing upon which to predicate negligence. Cahill v. Railroad, 205 Mo. 393; Evans v. Railroad, 178 Mo. 508; Degonia v Railroad, 224 Mo. 564; Van Dyke v. Railroad, 230 Mo. 259. (2) Defendant's refused instructions, numbered 5 and 6, which directed the jury that the operators of defendant's train had a right to expect Hardwick to look out for the approach of the train and protect himself, and that they were not bound to look out for said Hardwick or give him warnings of the approach of the train until they saw him in a place of danger, and under such circumstances as indicated that he was oblivious of his danger. Aerkfetz v. Humphreys, 145 U.S. 419; Degonia v. Railroad, 224 Mo. 564; Nivert v. Railroad, 232 Mo. 626; Ginnochio v. Railroad, 155 Mo.App. 163. (3) Defendant's refused instruction No. 7 should have been given. Dickson v. Railroad, 109 Mo. 413; Schlereth v. Railroad, 115 Mo. 87; Swadley v. Railroad, 118 Mo. 268; Sullivan v. Railroad, 97 Mo. 113; Moore v. Railroad, 85 Mo. 588.
Phillips & Phillips and Gilbert Lamb for respondent.
At the time deceased Hardwick received the injury which resulted in his death, he was engaged in interstate commerce, within the meaning of the Federal Employer's Liability Act, as amended in 1910. Pederson v. Railroad, U. S. S.Ct. Rep., Advance Sheets, July 1, 1913, p. 648; Colasurdo v. Railroad, 180 F. Rep. 832; Darr v. Railroad, 197 F. Rep. 665; Railroad v. Maerkl, 198 F. Rep. 1; Mondou v. Railroad, 223 U.S. 327; Johnson v. Railroad, 178 F. 643; Zikes v. Oregon R. & Nav. Co., 179 F. 893. (2) Under the Federal Employer's Liability Act, the contributing negligence of the deceased Hardwick, if any, would not be a bar to plaintiff's recovery. U. S. Comp. Stat. Supp., 1910, p. 1171; 36 Stat. at L. 291, chap. 143. (3) The evidence of the cause of decedent's death and that it was the result of defendant's negligence, in this case, is sufficient to sustain the finding of the jury, and is not speculative. Cahill v. Railroad, 205 Mo. 403; Rine v. Railroad, 100 Mo. 228; Settle v. Railroad, 127 Mo. 341.
John Hardwick was an employee 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 two hundred feet east of defendant's station building at Salisbury, Missouri, at about five 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 section man 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 five o'clock, he and one Givens left the station, the latter going to a coal house 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 thirty-five 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 section men 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 nine or ten hundred feet; the fireman testified that he saw the semaphore light at the station that far off. Deceased was found ten or twelve feet from the switch, not dead, but unconscious. His broom was found and blood was seen between two and three 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; Pittsburgh C. C. & St. L. Ry. Co. v. Scherer, 205 F. 356.] 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 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 cannot 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 Employer's Liability Act (35 Stat. 65, c. 149, and amended 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 employee'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. 1, 56 L.Ed. 327, 32 S.Ct. 169. And of this the jury should be informed by appropriate instructions. Though the authority of Congress as it relates to interstate carriers, is paramount to that of the State, yet where a state court has jurisdiction of the class of actions embraced within the Federal statute, resort may be had to such courts for the enforcement of claims arising on such statute. Second Employers' Liability Cases, 223 U.S. 1, 59, 56 L.Ed. 327, 32 S.Ct. 169; Penderson v. Deleware, L. & W. R. Co., United States Supreme Court, 229 U.S. 146. It being understood that relief to be had or denied will be governed in such courts by the rulings of the Federal courts in the construction of such statute, appeal lying to the United States Supreme Court from the judgment of the courts of last resort which have jurisdiction of such cases in the State where the action is instituted. [M., K. & T. Ry. Co. v. Elliott, 184 U.S. 530; Gulf, Colorado & C. Ry. Co. v. McGinnis, 228 U.S. 173, 57 L.Ed. 785, 33 S.Ct. 426.]
It is, then, of the first importance to ascertain if deceased was engaged in interstate commerce in sweeping the snow from the switch connections in defendants' tracks. It was shown that defendant is a railway carrier extending from Illinois, through Missouri into Iowa. It was, as we have already said, an interstate carrier as defined by the Federal statute; but it was likewise an intrastate carrier; and the record here shows that the train in controversy was engaged in both capacities. It was passing through Missouri from St. Louis on the east, to Kansas City on the west border of that State, and some of the cars in the train were to be attached at a divisional station to another engine and perhaps other cars to be thence taken to a point in Iowa, and others at another station were to be attached to an engine and other cars to be taken to another point in Iowa. The place involved in this controversy was between those points. The train was, therefore, actually engaged in both inter and intrastate commerce.
In these circumstances, deceased, though in a sense, a local employee doing only local work in Missouri, was engaged in interstate commerce. [Penderson v. Delaware, L. & W. R. Co., supra.] In that case the defendant carrier was doing both interstate and intrastate commerce, though the particular train which injured plaintiff was engaged in the latter service only. The plaintiff in that case was carrying some bolts or rivets to one of the carrier's bridges then being repaired and while walking across another bridge was negligently run down and injured by the intrastate train. It was held that the plaintiff was engaged in interstate commerce. In the course of the opinion Justice VAN DEVENTER asked and answered these questions: "Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier?
The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the...
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