Hasenjaeger v. Missouri-Kansas-Texas R. Co.

• Decision Date: 08 November 1932
• Parties: ALICE HASENJAEGER alias ALICE STERNBERG, ADMINISTRATRIX OF ESTATE OF FRED H. STERNBERG, DECEASED, RESPONDENT, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

53 S.W.2d 1083

227 Mo.App. 413

ALICE HASENJAEGER alias ALICE STERNBERG, ADMINISTRATRIX OF ESTATE OF FRED H. STERNBERG, DECEASED, RESPONDENT, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

November 8, 1932

Rehearing denied November 23, 1932.

Writ of certiorari denied by Supreme Court December 31, 1932.

Appeal from Circuit Court of Warren County.--Hon. William C. Hughes Judge.

AFFIRMED.

Judgment affirmed.

Carl S Hoffman, Alvin H. Juergensmeyer and B. H. Dyer for appellant.

(1) The Federal Employers' Liability Act took possession of the field of liability of carriers by railway for injuries sustained by their employees while engaged in interstate commerce and suspended state laws on that subject. Chesapeake & Ohio Ry. Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 442; New Orleans & N.E. R. Co. et al. v. Harris, 247 U.S. 367, 38 S.Ct. 535; Martin v. Wabash Ry. Co. (Mo. Sup.), 30 S.W.2d 735. (2) Under the Federal Employers' Liability Act an employee, in entering upon a contract of employment, assumes all the risks and dangers ordinarily incident to the employment and also assumes the extraordinary risks which are so plainly obvious and observable that he must be presumed to know them. Chesapeake & Ohio Ry. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495; Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202; Southern P. Co. v. Berkshire, 254 U.S. 415, 41 S.Ct. 162; Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215; Chesapeake & O. R. Co. v. Leitsch, 276 U.S. 429, 48 S.Ct. 336; Boldt v. Pennsylvania R. Co., 245 U.S. 441, 38 S.Ct. 139; Pryor v. Williams, 254 U.S. 43, 41 S.Ct. 36; Missouri P. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177; Osborn v. Chicago, R. I. & P. Ry. Co. (Mo. Sup.), 1 S.W.2d 181; Hock v. St. Louis-San Francisco Ry. Co., 315 Mo. 1199, 287 S.W. 1047; Martin v. Wabash Ry. Co. (Mo. Sup.), 30 S.W.2d 735. (3) It is the duty of the trial judge to direct a verdict for one of the parties when the testimony, and all the inferences which the jury reasonably may draw therefrom, would be insufficient to support a different finding. Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564; Missouri P. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177; Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215; Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210. (4) There is no duty on the part of a railway employer in interstate commerce to look out for trackmen, section men, switch tenders, car checkers and like employees. Chesapeake & O. R. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495; Missouri P. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 836; Jones v. St. Louis-San Francisco Ry. Co., 30 S.W.2d 481; Salisbury v. Quincy, O. & K. C. Ry. Co., 175 Mo.App. 334; Martin v. Wabash Ry. Co. (Mo. App.), 30 S.W.2d 735; Evans v. Wabash R. Co., 178 Mo. 508, 517; Louisville & N. R. Co. v. Seeley, 180 Ky. 308, 202 S.W. 638, L.R.A. 1918D 925; Rashall v. St. Louis, I. M. & R., 249 Mo. 509; Bruce v. Missouri P. R. Co. (Mo. Supp.), 271 S.W. 762; Gabal v. Railroad, 251 Mo. 257, 158 S.W. 12. (5) Plaintiff must prove negligence, the proximate cause of the injury. A verdict in favor of plaintiff cannot be based upon speculation and conjecture. New York Cent. R. Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198; Patton v. Texas & Pacific R. Co., 179 U.S. 658, 21 S.Ct. 275; Atchison, T. & S. F. Ry. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281; Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210; Kansas City Southern Ry. Co. v. Jones, 276 U.S. 303, 48 S.Ct. 308; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564; Warner v. Railway, 178 Mo. 125; Johnson v. Terminal R. R., 8 S.W.2d 891.

Jesse H. Schaper, Randolph H. Schaper and Emil Roehrig for respondent.

(1) At the time decedent Sternberg received the injury which resulted in his death, both he and the defendant were engaged in interstate commerce. Employers' Liability Act, 35 Stat. 65, 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 decedent Sternberg, if any, would not be a bar to plaintiff's recovery. U. S. Comp. Stat. Supp. 1910, p. 1171; 36 Stat. at L. 291, c. 143; Norfolk & W. R. R. Co. v. Earnest, 229 U.S. 114. The petition upon which this cause was tried, seeks to recover damages under the Federal Employers' Liability Act, upon the ground that the death of Sternberg was caused in whole or in part by the negligence of the defendant's servants from the violation of, or a failure to observe a rule, custom or practice of the defendant to keep a lookout for him as night watchman, and for his signals, for the protection of the trains against bad track conditions in the locality in question, and to warn him of the approach of the train, and in not managing the train so as to avoid injuring him, under the peculiar, dangerous track conditions in the locality in question. Martin v. Wabash Ry. Co., 308 S.W.2d 735; Chesapeake & Ohio Ry. Co. v. Mihas, 280 U.S. 102; O'Donnell v. Balt. & Ohio Rd. Co., 26 S.W. 929; Pacheco v. Y. N., N.H. & H. R. Co., 15 F. 467. The defendant's evidence is silent as to the manner of the death of Sternberg. There was no eyewitness to the scene of the catastrophe. The law presumes, under such circumstances, that Sternberg was in the exercise of ordinary care for his own safety, and this presumption is not overthrown by the mere fact of the injury. Buesching v. The St. Louis Gas Light Co., 73 Mo. 219; Cahill v. R. R., 205 Mo. 393; Sing v. St. Louis-San Francisco R. R. Co., 30 S.W.2d 37, 41. "And reasonable certainty is all that is required. The fact that the catastrophe which happened to deceased was unseen, will no more cut out a right to show by circumstances the cause of its occurring, than would the unseen commission of a crime prevent conviction upon circumstantial evidence." Kelley v. Railroad, 141 Mo.App. 490. In the Federal court, as in the state court, on motion to direct a verdict for defendant, the rule is well settled, that the "evidence must be viewed in the light most favorable to plaintiff." 25 F.2d 367; Railroad v. Wells, 275 U.S. 455, 459; Railroad v. Hughes, 73 L.Ed. 268, Advance Sheets, March 1, 1929; McGovern v. Railroad, 235 U.S. 389, 401; Railroad v. Waid, 25 F.2d 366. In the Federal courts, as in the state courts, where an inference may be drawn from the circumstances in evidence in a death case, that the injury and death was caused by the negligence of the defendant, the cause should be submitted to the jury. Myers v. Railroad, 233 U.S. 184; Railroad v. Hughes, 240 F. 941; Railroad v. Rosenbloom, 240 U.S. 439; Railroad v. Effinger, 299 F. 950; Overstreet v. Railroad, 238 F. 565. While it is true that the rule is well settled by the decisions of the United States courts that under the Federal statute, a servant assumes extraordinary risks incident to his employment, or risks caused by the master's negligence which are obvious or fully known and appreciated by him, and further that the general rule is that a railroad company rests under no duties to employees working in its yards, to sound bell or whistle, yet the same decisions of the United States courts have allowed an exception to the doctrine in such cases, in instances where the movement of the train which produced the injury was covered by a rule or custom to give warning signals, established and observed for the protection of employees, and the employees shown to have been working in the line of duty at the time. O'Donnell v. Balt. & Ohio Rd. Co., 26 S.W.2d 929, and cases cited; Martin v. Wabash Ry. Co., 30 S.W.2d 735. A servant working for a master is engaged in the same business as the master, and as between them, the custom need not be proven with such fullness as would make it a rule of the common law. O'Donnell v. Balt. & Ohio Rd. Co., 26 S.W.2d 929; Koonse v. Mo. P. R. R. Co., 18 S.W.2d 467. There is substantial evidence in the case, direct and inferential, of the existence of the rule or custom of the defendant in question, and that Sternberg knew of it, that he had a right to and did rely on it, and that he was engaged in the line of his duties when he was struck and killed. O'Donnell v. Railroad, 26 S.W.2d 929, 934; Oglesby v. Railroad Co., 318 Mo. 79, 1 S.W.2d 178; Kidd v. Railroad, 310 Mo. 1, 37. Unless deceased was negligent, and unless his negligence, as a matter of law, was the sole proximate cause of his death, his contributory negligence, if any, was a question for the jury to be taken in connection with the assessment of damages under proper instructions. Kidd v. Railroad, 310 Mo. 1, 37. Duty of watchman--concurrent duty of defendant to prevent injury. While it was primarily the duty of Sternberg as watchman on the railroad of defendant, between Bernheimer and the "sink-hole" to be on the lookout and keep out of the way of moving trains, there was a concurrent or secondary duty, independent of statute or rule, on the part of defendant's servants in operating said train, to keep such lookout as was reasonably necessary to avoid injury to deceased Sternberg, who may have neglected to protect himself, and the extent of such duty was measured by the peculiar circumstances in this case. Southern Railway Co. v. Smith, 205 F. 360; Hardwick v. Railroad Co., 181 Mo.App. 156. "Where there is a duty to use diligence, those facts which diligence will discover are presumed to be known under the law of notice; and that what one knows and what he ought to know is regarded in law as equivalent." Norton v. Wheelock, 23 S.W.2d 142, 147; ...