Honea v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 14 November 1912
• Citation: 151 S.W. 119,245 Mo. 621
• Court: Missouri Supreme Court
• Parties: HONEA v. ST. LOUIS, I. M. & S. RY. CO.

151 S.W. 119

245 Mo. 621

HONEA v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

November 14, 1912.

On Motion for Rehearing.

1. MASTER AND SERVANT (§§ 278, 281)—INJURIES TO SERVANT—ACTIONS—EVIDENCE.

In an action against a railroad company for the death of a servant, evidence held to establish the company's negligence and to show the deceased's freedom from contributory negligence.

2. MASTER AND SERVANT (§ 216)—INJURIES TO SERVANT—ASSUMPTION OF RISK.

Where a section hand riding on a hand car under the direction of a railway company's foreman, who was given a schedule of regular trains and required to keep a timepiece so that he might ditch the hand car 10 minutes before any train was due, was killed by a passenger train which, while on its regular schedule, ran down the hand car, there was no assumption of the risk of injury; a servant assuming only those risks incident to his employment after the master has exercised ordinary care.

3. MASTER AND SERVANT (§ 291)—INJURIES TO SERVANT — INSTRUCTIONS—APPLICABILITY TO PLEADING.

In an action against a railroad company for the wrongful death of a section hand, the petition alleged that the passenger train which collided with the hand car on which deceased was riding, was on time; that it was the duty of the foreman to have caused deceased and his associates to take the hand car from the track before traintime, but failed to observe the time of the passenger train and negligently required deceased to remain on the hand car until too late to prevent a collision. This issue was presented in an instruction that the defendant was liable if it was the duty of its foreman to cause deceased and his associates to leave the track before the train could collide with them, and that he negligently caused deceased to remain on the car and track too long to prevent the collision. Held, that the instruction was not inapplicable to the pleading, though not submitting the question of whether the foreman negligently failed to observe the time of the train; the ultimate negligence being the failure of the foreman to cause deceased to leave the track in time to avoid the collision.

4. APPEAL AND ERROR (§ 1066) — REVIEW— HARMLESS ERROR.

In view of Rev. St. 1909, §§ 1850, 2082, providing that the court shall at every stage of the action disregard any error not affecting the substantial rights of the parties, and that the Supreme Court or Courts of Appeal shall not reverse the judgment of any court unless it shall believe that error was committed against the appellant, and materially affecting the merits of the action, the error, if any, in the above instruction was harmless where the evidence clearly showed that the accident was the result of the foreman's negligence in failing to note the time of the train and remove the car from the tracks in time to avoid it.

5. DEATH (§ 99)—DAMAGES—EXCESSIVENESS.

In an action by a wife against a railroad company for damages for the wrongful killing of her husband, who was a section hand earning only $1.25 a day, an award of $10,000 damages will not be held excessive as a matter of law, in the absence of any evidence by the railroad company showing the excess; there being no presumption that decedent's earning power would never have been increased, or that the widow's damage was not equal to $10,000.

On Motion for Rehearing.

6. APPEAL AND ERROR (§ 835)—PRESENTATION OF GROUNDS OF REVIEW IN APPELLATE COURT—NECESSITY.

Under Supreme Court rule No. 15 (73 S. W. vi), providing that all briefs shall contain separate and apart from the argument and discussion of authorities a statement of the points relied on, together with the citation of authorities appropriate under each point, a railroad company whose motion for new trial in an action for wrongful death had been granted cannot, on the hearing in banc, attempt to sustain the granting of the motion on the ground of excessive award of damages, where that point was not made in its brief in its first hearing in the separate division of the court.

Graves, Woodson, and Ferriss, JJ., dissenting.

In Banc. Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Mary Honea against the St. Louis, Iron Mountain & Southern Railway Company. From an order granting defendant a new trial after verdict for plaintiff, plaintiff appeals. Order reversed.

David W. Hill, of Poplar Bluff, for appellant. N. A. Mozley, of Bloomfield, J. F. Green and R. T. Railey, both of St. Louis, for respondent.

LAMM, J.

Suing in the Butler circuit court for the alleged wrongful death of her husband, John Honea, plaintiff had judgment for $10,000 on a jury's verdict. From an order granting a new trial on defendant's motion, she appealed.

The specific allegation of negligence put to the jury will be set forth in the words of the pleader in connection with a discussion of plaintiff's instruction No. 1. For the present, as a foreword, a mere outline of the petition will do, viz.: On the theory that Honea was a sectionman about his master's business on a hand car in charge of defendant's foreman and was run down and killed by a passenger train, the petition, in one specification, counted on the negligence of the operatives of the train and asked recovery under the humanity doctrine. This specification was not supported by proof, and hence, was not put to the jury. There was another which may be summed up in the charge of the petition thus: The train was on time, and it was the duty of the section foreman to clear the track by causing and permitting sectionmen to take the hand car from it in time to avoid a collision, but that the foreman, failing to observe the time of the train and its approach, negligently required and caused Honea to remain on the hand car and track too long to prevent a collision, whereby he was killed. Defendant answered as follows: It admitted its incorporation; it denied generally other allegations; and then set up two defenses — assumption of risks and contributory negligence. It may be as well said at this point as at any other that defendant, as to testimony, stood mute at the trial, making no effort to put in proof on its defenses or to cut down the damages.

In brief the case on the facts as developed by plaintiff is this: Honea was an experienced sectionman in defendant's employ in Wayne county, say 35 years of age, and earning at the time $1.25 a day. He was under a foreman named Joe Daniels, who, in turn, was in charge of the hand car presently mentioned. Defendant ran a regular south-bound passenger train, known as the "Mexican Special," on Tuesdays and Fridays of each week. Its name and days returning north are blind. Its time at Piedmont en route to the south is some after 1 o'clock p. m., but the exact schedule time is not disclosed. A bit after 1 o'clock of a winter's afternoon in 1908, John Honea and a fellow workman named Pearson were ordered on a hand car by Daniels, their foreman, in the railroad yards at Piedmont and they, including the foreman (and with him in charge), started south on the car on an inspection trip over the section. Besides the three men, the hand car was equipped with some iron and steel tools — a jack, lining bars, claw bar, shovels, spike mauls, and tamping bars — and the trip was partly because a place in the track needed fixing. At about two miles south of Piedmont, the hand car was overhauled by said Mexican Special running 50 or 60 miles an hour, and Honea was killed. In that region defendant's road runs on sharp curves in the hills, amid trees and through cuts, and the look ahead or back is not far. Under the proof, the train was on time. The men on the hand car faced south, away from the train; Honea working its rear and the foreman and Pearson its front lever. In running round a very sharp curve, Pearson got a premonition from what he thought was the echo of a whistle that a train was coming behind them. At the same instant the foreman and Pearson turned their heads and discovered the Mexican Special two telegraph poles, say 350 feet, bearing down on them from their rear. At that time the hand car was rolling about six or eight miles an hour. We have only a confused account, giving a somewhat blurred picture, of the scene; for the drama was played out in a moment. To use the vernacular of Pearson, he "hollered": "The car will kill us, Joe. My goodness!" The foreman "hollered": "She's got us, boys!" Thereat the foreman "jumped" on the brake, and witness saw Honea jump off at the rear, and the hand car then either rolled or slid seven or eight feet when the foreman and Pearson jumped off before it came to a dead stop. We gather that the first impulse of the foreman was to run, but, changing his mind in a flash and in great excitement, he and Pearson grabbed the handles of the hand car and got one end of it from the track, when the locomotive was on them, striking it a slanting blow, and tumbled it and the two men, or at least one of them, down the dump. The foreman was present at the trial as defendant's witness, but, as said, did not testify for defendant, and was not called to testify for plaintiff, so that the case stands on material points on the testimony of Pearson, and he got (what we take as) merely a glimpse of Honea. As said, he saw him jump off the car after the brake was set; he remembers seeing him about the center of the track, apparently with his right side somewhat towards the train, stooped over and in the act, as witness thought, of taking a step towards the car as if to take hold of it, but the car had rolled on, and the next he saw of Honea, a moment afterwards, his lifeless body lay at the foot of the dump and 60 feet south of where he was struck. This bit of the record tells at one stroke enough of the story on that head: "Q. What was the last you saw him doing? A. When he stepped down off of the car was the last thing I saw him doing; and I realized the danger that I was in, and I stuck my head down to keep...