Hoch v. St. Louis-San Francisco Railway Company

• Citation: 287 S.W. 1047,315 Mo. 1199
• Decision Date: 15 November 1926
• Docket Number: 25511
• Parties: Mary Hoch, Administratrix of Estate of Oscar Hoch, Appellant, v. St. Louis-San Francisco Railway Company
• Court: Missouri Supreme Court

287 S.W. 1047

315 Mo. 1199

Mary Hoch, Administratrix of Estate of Oscar Hoch, Appellant, v. St. Louis-San Francisco Railway Company

No. 25511

Supreme Court of Missouri

November 15, 1926

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

Grover Tipton & Graves for appellant.

(1) The evidence in this case shows that the train crew knew that there were stationary cars ahead at the time when they shunted the last two cars down track number 35. The train crew also knew that the deceased's very duty required him to be around and between the cars of the yard. The instruction tells the jury "that there is no evidence that any employee of the defendant at the time or prior to the injury of Oscar Hoch, referred to in the evidence, knew that he was in a position of peril." (a) This is error for it excludes any constructive knowledge that the deceased was in a position of peril. (b) It is a comment upon the evidence and is, therefore, erroneous. Young v Lusk, 268 Mo. 625; Williams v. Wabash, 175 S.W 903; Kame v. Railroad, 254 Mo. 175; Keppler v. Wells, 238 S.W. 428. (2) The second instruction tells the jury that the defendant owed him no duty unless actually seen in a position of peril. These two instructions are the same as a peremptory instruction for the defendant. (3) Instruction D-3 in effect tells the jury there is no evidence of any rule, practice or custom to warn the employee that the engine and cars were being moved in the yards. This instruction is erroneous for the reason that regardless of rule, practice or custom, if said rule, practice or custom is negligent, then the master cannot relieve himself of said liability by hiding behind said rule, practice or custom. Tetweiler v. Railroad, 242 Mo. 187. (a) This instruction is further erroneous for the reason there is evidence of Rule 30, which requires a bell to be rung as the engine was about to move. (b) It is erroneous because it directs a verdict and fails to include every issue in the case. It ignores the proposition that the deceased was in a position of peril and that the same was known to the defendant, or should have been known to the defendant. Cassin v. Lusk, 210 S.W. 902; Daniel v. Pryor, 227 S.W. 102; State v. Slusher, 256 S.W. 817.

E. T. Miller, Henry S. Conrad, L. E. Durham and Hale Houts for respondent.

The judgment should be affirmed because plaintiff failed to make a case. Quinn v. Railroad, 218 Mo. 545. (1) Failure of deceased to put out a blue flag was the sole proximate cause of his injury and death. Francis v. Railroad, 110 Mo. 395; Yoakum v. Lusk, 223 S.W. 53; Flack v. Railroad, 285 Mo. 49; Great Northern Ry. v. Wiles, 240 U.S. 44; State ex rel. v. Ellison, 271 Mo. 472; Matthews v. Railway, 227 Mo. 205; Central Ry. Co. v. Young, 200 F. 359; Ry. v. Conway, 98 S.W. 1072; Davis v. Kennedy, 266 U.S. 147; Car Co. v. Mill Co., 285 Mo. 695; Arnovitz v. Arley, 219 S.W. 622. (2) There was no evidence that deceased's injury was caused by acts of negligence charged by the petition. It was a matter of speculation as to what he was doing and what caused his injury. Swearingen v. Railroad, 221 Mo. 659; State ex rel. v. Cox, 298 Mo. 432; Yarnell v. Railway, 113 Mo. 579; Bank v. Simpson, 152 Mo. 656; State ex rel. v. Ellison, 271 Mo. 468; Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257; Rittenhouse v. Frisco, 252 S.W. 945; Aerkfetz v. Humphrey, 145 U.S. 418. (3) In any event, deceased assumed the risk. Quigley v. Railroad, 291 Mo. 33; Boldt v. Railroad, 245 U.S. 441; Southern Pacific v. Berkshire, 254 U.S. 415; Gilmer v. Railroad, 4 Fed. (2nd) 964.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action by Mary Hoch, widow of Oscar Hoch, as administratrix of her deceased husband's estate, to recover damages for his death, which she claims to have been caused by defendant's negligence. The action is brought under the Federal Employers' Liability Act of April 22, 1908 (U.S. Comp. Stat., secs. 8657-8665), and plaintiff seeks to recover damages in the sum of $ 15,624.91. The amended petition, upon which the action was tried below, alleges:

"That on or about the 6th day of March, 1922, Oscar Hoch was in the employ of defendant as air inspector; particularly inspecting and repairing Federal appliances on freight cars in defendant's switch yards in Kansas City, Missouri;

"That on said date, said deceased while performing his duties as such employee of defendant, was inspecting cars on switch-tracks in Kansas City yards in West Bottoms; that while deceased was thus engaged, attending to the discharge of his said duties on Track No. 35, the defendant, its agents, servants, and employees, carelessly and negligently caused a car, or cars, to be shunted against the string of cars on or among which deceased was working, thereby causing him to be crushed and injured, so seriously as to cause his death on the 9th day of March, 1922.

"That the aforesaid injuries to deceased were caused by the negligence and carelessness of the defendant, its agents, servants and employees, to-wit:

"That deceased was working on or among a string of cars on Track No. 35, in said switch yards, and that the defendant, its agents, servants and employees ran a car or cars on switch Track No. 35, and against the cars that deceased was working on or among without any warning to deceased when the defendant, its agents, servants and employees knew, or by the exercise of ordinary care might have known, that the deceased was working on said track and in a position of peril and danger while discharging his said duties as an employee of the defendant by reason of switching and running of said car or cars on said track;

"That deceased was inspecting said cars on defendant's Track No. 35, in said switch yards, and that he was oblivious of danger, and the defendant, its servants, agents and employees, operating said switch engine and cars saw, or could have seen and observed, deceased's position of peril and his obliviousness thereto, in time to have exercised ordinary care by ringing the bell, sounding the whistle, or to have stopped the cars moving on said track, or to have kept said car or cars off of said track, or to have warned deceased of the movement of said car or cars on said track, and thus prevented striking and injuring plaintiff, which they failed to do, but that said defendant, its agents, servants, and employees carelessly and negligently failed to exercise ordinary care to prevent injuring deceased after such discovery, or by the exercise of ordinary care to have discovered the position of peril in which deceased was, and by reason thereof deceased received the aforesaid injuries."

The answer is a general denial, coupled with pleas of assumed risk and contributory negligence on the part of deceased. The answer furthermore pleads that, at all times mentioned in the petition, there was in full force and effect in defendant's railroad yard at Kansas City, Missouri, a certain rule referred to in the record as the "blue-flag rule," and charges "that deceased had full knowledge of said rule at the time and place mentioned in plaintiff's petition; that if deceased was in a position in which he could not look out for movements of cars and trains and was in peril of being injured by movements of cars and trains upon the track mentioned in plaintiff's petition at the time and place mentioned in plaintiff's petition, it was the duty of deceased to place on the track or upon the car mentioned in plaintiff's petition a blue flag; that no blue flag was so placed by deceased at the time and place mentioned in plaintiff's petition; that if deceased was injured by reason of the movement of cars while in a position in which he could not observe the movements of cars and trains, and was in peril of being injured by movement of cars and trains upon said track, his injuries were caused solely by his failure to put out a blue flag as provided in said Rule 26."

The reply is a general denial and, by way of further reply, plaintiff "states that if defendant had a rule known and numbered as Rule 26, requiring that a blue flag should be placed on the track or at the end of a car upon which workmen were engaged, and that by the terms of said rule employees should not work at such places unless blue flags were so placed by them, then plaintiff further states that at the time and long prior to the injury to deceased mentioned in plaintiff's petition, said blue-flag rule was non-observed and non-enforced by the defendant in said yards, and that the switching in said yards at the time of and long prior to deceased's injuries was carried on without the use of blue flags by deceased and other workmen, and the fact that said blue-flag rule was non-observed and non-enforced in said yards was at the time of deceased's injuries and long prior thereto known to the defendant or by the exercise of ordinary care might have been so known to defendant; and plaintiff denies that it was deceased's duty to see that said blue flag was placed at or on or in front of the cars in question before going upon said track or working in connection with said cars, as alleged in defendant's answer."

Deceased was fifty-six years of age at his death and had been in defendant's employ for about twenty-five years. On and for several years prior to March 6, 1922, the date of his injury, deceased had been employed in defendant's Nineteenth Street, or West Bottom, railroad yard in Kansas City, Missouri, as a car inspector and light-repair man. His duties consisted of the inspection of the air equipment and safety appliances on freight cars in defendant's railroad yard and the making of minor, or light, repairs, such as coupling the air-hose, putting in new gaskets, tightening bolts and nuts, putting on new...