Hegberg v. St. Louis & San Francisco Railroad Company

• Citation: 147 S.W. 192,164 Mo.App. 514
• Parties: A. G. HEGBERG, Administrator, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Decision Date: 06 May 1912
• Court: Court of Appeal of Missouri (US)

147 S.W. 192

164 Mo.App. 514

A. G. HEGBERG, Administrator, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

May 6, 1912

[Copyrighted Material Omitted]

Appeal from Polk Circuit Court.--Hon. C. H. Skinker, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

W. F Evans and John H. Lucas for appellant.

(1) The evidence is insufficient to convict the appellant of the error assigned. 3 Elliot on Railroads (2 Ed.), sec. 1296, p. 720; Furber v. Bolt & Nut Co., 185 Mo. 301; Conovski v. Transit Co., 207 Mo. 263; Willikin v. Com. Co., 202 Mo. 637; Kennedy v. Railroad, 128 Mo.App. 297. (2) The evidence convicts the respondent of contributory negligence so as to preclude a recovery herein. Moore v. Railroad, 146 Mo. 582; 1 Bailey on Personal Injuries, sec. 1121; Brady v. Railroad, 206 Mo. 531; Pierson v. Railroad, 127 Iowa 13; Montgomery v. Railroad, 109 Mo.App. 88; Matthews v. Railroad, 227 Mo. 250; Neel v. Ryus, 130 S.W. 78; Railroad v. Kane, 118 F. 223; Rail road v. Caraway, 77 Ark. 405; Railroad v. Meyers, 95 Ill.App. 578; Fluhrer v. Railroad, 121 Mich. 212; Railroad v. Duwees, 153 F. 56; Van Camp v. Wabash, 141 Mo.App. 344. (3) The court erred in admitting incompetent evidence, viz: that of A. C. Hegberg, father of the deceased. Barker v. Railroad, 91 Mo. 91; Tetherow v. Railroad, 98 Mo. 84. (4) The court erred in giving instructions of its own motion herein and instructions on behalf of respondent, the same being erroneous, misleading, unsupported by evidence and calculated to confuse the jury. Instruction No. 2 enlarges the issues. Roscoe v. Railroad, 202 Mo. 587; Gibler v. Railroad, 148 Mo.App. 487; Gibson v. Bridge Co., 112 Mo.App. 594; Tinkle v. Railroad, 110 S.W. 1094; Wellmeyer v. Transit Co., 198 Mo. 544; Manser v. Botts, 80 Mo. 651. Is misleading: Belt v. Goode, 31 Mo. 130; Clark v. Kitchen, 52 Mo. 316; Waddington v. Hullett, 92 Mo. 535.

Rechow & Pufahl, Hamlin & Seawell for respondent.

(1) There was no error in overruling the demurrer and refusing the peremptory instruction. Smith v. Fordyce, 190 Mo. 1; Edge v. Railroad, 206 Mo. 471; Trust Co. v. Railroad, 87 F. 133; Au v. Railroad, 29 F. 72; 4 Thompson on Negligence (2 Ed.), secs. 4525, 4742; Railroad v. Johnson, 24 Tex. Civ. App. 180, 58 S.W. 622; Jones v. Railroad, 178 Mo. 528; Koenner v. Car Co., 209 Mo. 157; Browning v. Railroad, 124 Mo. 55. (2) The court did not err in refusing to declare deceased guilty of contributory negligence as a matter of law, nor was there any assumption of risk. Kennedy v. Railroad, 190 Mo. 442; Trust Co. v. Railroad, 87 F. 134; Brady v. Railroad, 205 Mo. 510; Francis v. Railroad, 127 Mo. 658; Barry v. Railroad, 98 Mo. 62; Hunter v. Railroad, 149 Mo.App. 243; Heine v. Railroad, 144 Mo.App. 443; Hamilton v. Coal Co., 118 Mo. 364; Eddington v. Railroad, 204 Mo. 61; Burdict v. Railroad. 123 Mo. 222; Murphy v. Railroad, 115 Mo. 111; Brannock v. Railroad, 147 Mo.App. 301; McGuire v. Railroad, 128 Mo.App. 677. (3) There was no error in the reception of evidence. Boyd v. Railroad, 236 Mo. 54, 139 S.W. 561; Williams v. Railroad, 141 Mo.App. 631; Philpott v. Railroad, 85 Mo. 164; King v. Railroad, 98 Mo.App. 235; Marsh v. Railroad, 104 Mo.App. 577; McKenzie v. Railroad, 216 Mo. 17; Schlereth v. Railroad, 115 Mo. 102; 4 Suth. Dam., sec. 1273, p. 3741; Johnson v. Railroad, 150 Mo.App. 322. (4) The instructions were squarely within the issues presented by the pleadings and evidence. Chouquette v. Railroad, 152 Mo. 263; Clowers v. Railroad, 21 Mo.App. 213; Smith v. Fordyce, 190 Mo. 213; Dutro v. Railroad, 111 Mo.App. 259; McDermott v. Railroad, 87 Mo. 286; Robinson v. Railroad, 133 Mo.App. 101; Browning v. Railroad, 124 Mo. 55; Boyd v. Railroad, 139 S.W. 570; Johnston v. Railroad, 150 Mo.App. 322; Murphy v. Railroad, 228 Mo. 86; McKenzie v. Railroad, 216 Mo. 14; McCarty v. Railroad, 192 Mo. 400; Lee v. Railroad, 195 Mo. 428; Tetherow v. Railroad, 98 Mo. 86.

NIXON, P. J. Gray, J., concurs in the result. Cox, J., concurs in the result and files separate opinion. Gray, J., concurs in paragraphs 2 and 3.

OPINION

NIXON, P. J.

This is an action by the administrator of the estate of John Hegberg, deceased, for damages for the alleged negligent killing of his intestate (who was his brother). The deceased was in the employ of the defendant company as a brakeman on one of its freight trains and was killed in a collision which occurred at Willow Springs, Missouri, on the 12th day of July, 1910. This action is maintained to recover damages for the wrongful killing of the deceased under chapter 38 of the Revised Statutes of 1909 concerning damages in actions for torts. A trial was had in the circuit court of Polk county which resulted in a judgment for the plaintiff in the sum of $ 7500. The defendant has appealed.

The petition contains four counts. The second, third and fourth counts were eliminated as grounds of recovery by the instructions of the trial court and it is therefore unnecessary to set them forth in this opinion.

The first count of the petition (the one on which the trial was had) is as follows (formal parts omitted):

"The plaintiff for cause of action states that on the 27th day of August, 1910, he was by the probate court of Greene county Missouri, duly appointed administrator of the estate of John Hegberg, deceased, and that he qualified as such and is now the duly and legally qualified and acting administrator of the estate of John Hegberg, deceased.

"That the defendant, St. Louis & San Francisco Railroad Company, is and was on the date hereinafter mentioned, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and owning and operating a railroad in said state and particularly through and into the counties of Wright and Webster of said state.

"That on the 12th day of July, 1910, the said John Hegberg was in the employment of the defendant as a brakeman, on one of its freight trains running from Springfield to Thayer, Missouri. That upon the arrival of said freight train at Willow Springs, Missouri, the said John Hegberg, together with the other members of the said train crew were ordered to make up a train at said place and run the same to Springfield, Missouri.

"That at said place in addition to the main track there is a side track and at said time there were six loaded and unloaded cars standing on the side tracks west of the main line track. That in making up said train for Springfield it was necessary to place a car from said side track onto the main line and in performing this work on account of the position of the car desired on the side track it was necessary to couple three of said cars to the engine and convey them to a switch south of the station house and kick the car desired onto the main track and the remaining cars, not desired for said train, would be run over the switch and kicked back on the side track.

"Plaintiff says that said side track west of the main line track upon which said loaded and unloaded cars were standing had a downward grade south and toward the switchstand and that it was the duty of the defendant and its agents, servants and employees who placed said cars on said track to see that the brakes on each of said cars were securely set and to securely set the brakes thereon and if there were any of the brakes that could not be so set to securely block the cars and each of them so that said cars nor any of them could break loose and escape and that it was the duty of the defendant and its conductor who was in charge of the train that was being made up after certain cars were released or taken away to see that the brakes with the remaining cars were still securely set and if any of the brakes were not in good condition to see that such car or cars were securely blocked or otherwise fastened so that they could not break loose and escape and run over the side track south to the switch stand aforesaid:

"Plaintiff says that the defendant, its agents, servants, and employees disregarded their duty in this behalf and that prior to the injury to the deceased, six freight cars had been placed on the side track aforesaid and that the defendant, its agents, servants and employees negligently and carelessly failed to see that said cars were securely fastened and negligently and carelessly failed to securely fasten said cars and each of them negligently and carelessly failed to set the brakes on said cars and each of them and negligently and carelessly failed to securely block said cars and each of them and that the defendant and its conductor in charge of the train that was being made up as aforesaid and after certain cars were released to be taken away negligently and carelessly failed to see that the brakes on the remaining cars and each of them were still securely set and negligently and carelessly failed to see that said remaining cars and each of them were securely blocked or otherwise fastened so that they would be reasonably safe and not break loose and escape and run over the side track south to the switchstand aforesaid.

"Plaintiff says that after the cars aforesaid had been released the three remaining cars on said side track were not securely fastened nor securely blocked and that by reason thereof said side tracks with the remaining loaded cars thereon became unsafe and dangerous and said cars were likely to escape and run down southward to the switchstand and injure the employees of the defendant engaged at work at said place.

"Plaintiff says that in making up said train the deceased, John Hegberg, was ordered by the defendant, its agents and employees and it was his duty to assist in kicking cars onto the main line and back to the side track aforesaid and that while he...