Hough v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 14 December 1936
• Parties: Herbert L. Hough v. Chicago, Rock Island & Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

100 S.W.2d 499

339 Mo. 1169

Herbert L. Hough v. Chicago, Rock Island & Pacific Railway Company, Appellant

Supreme Court of Missouri

December 14, 1936

Appeal from Clinton Circuit Court; Hon. Guy B. Park, Judge.

Order granting a new trial affirmed.

Luther Burns and Culver, Phillip, Kaufmann & Smith for appellant.

(1) The court did not err in giving defendant's instructions E and G. Instructions E and G told the jury that if the plaintiff's injury was caused solely by the plaintiff's negligence, he was not entitled to recover. Plaintiff's instructions 2 and 4 told the jury that if the defendant alone was negligent, or if the plaintiff and defendant were both negligent, plaintiff could recover. This is not a case where the negligence of a third person might be imputed to the plaintiff, nor is it a case arising under the humanitarian rule. It is only in such cases that the instructions criticized are misleading and erroneous. Gould v. Railroad Co., 290 S.W. 135; Peppers v Ry. Co., 295 S.W. 757; Shumate v. Wells, 9 S.W.2d 633; Boland v. Ry. Co., 284 S.W. 141; Millhouser v. K. C. Pub. Serv. Co., 55 S.W.2d 673; Cross v. Wears, 67 S.W.2d 517. (2) The court did not err in giving defendant's Instruction F. 39 C. J., p 726, sec. 933; Boldt v. Railroad Co., 245 U.S. 441 62 L.Ed. 385; Jacobs v. So. Ry. Co., 241 U.S. 229 62 L.Ed. 970; Bigham Mines Co. v. Blanco, 276 F. 513; C., B. & Q. Railroad Co. v. Shalstron, 195 F. 725; Hallstein v. Railroad Co., 30 F.2d 594. (a) In cases arising under the Federal Employers' Liability Act, the court must follow the interpretation of that act and the law as applied by the Federal courts. Chesapeake & O. Railroad Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 157; Jacobs v. So. Ry. Co., 241 U.S. 229, 60 L.Ed. 971; Bingham v. Railroad Co., 241 U.S. 237, 60 L.Ed. 979; Martin v. Wab. Ry. Co., 30 S.W. 735. (3) The common law of assumption of risk applies in all cases except where the violation of a statute enacted for the safety of the employee is involved. Boldt v. Railroad Co., 245 U.S. 441, 62 L.Ed. 385; Cases under Point (2). (4) In cases arising under the Federal Employers' Liability Act, the employee assumes not only the risks normally incident to the occupation in which he engages, but also assumes the risks incident to the employer's negligence which are either known to him in fact or which are so obvious as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence and experience. Authorities under Point (2). (5) The court should have sustained the defendant's demurrer to the evidence. If this is true, then even if the court erred in giving instructions, the error is immaterial. In determining whether the court should have sustained a demurrer to the evidence, the rule applied by the Federal courts and not the rule of this court must govern. The rule in the Federal court is that the demurrer should have been sustained if the trial court should not have permitted a verdict in favor of the plaintiff to stand. A., T. & S. F. Ry. Co. v. Wyer, 8 F.2d 32. (6) Defendant was not guilty of negligence in failing to warn plaintiff of the exact location of the switch stand in question, because it was known to him. Ford v. Rock Island Ry. Co., 280 Mo. 206; A., T. & S. F. Railroad Co. v. Wyer, 8 F.2d 32; Traffic Motor Truck Co. v. Claywell, 12 F.2d 419. (7) The court should have sustained a demurrer to the evidence. Even though there is a scintilla of evidence which might take the case to the jury under the State rule, the entire record so conclusively shows that the plaintiff's injury was due solely to his own negligence that no court should permit a verdict rendered in his favor to stand. (8) The evidence does not justify a finding that the switch in question was located so near the track as to be dangerous because, under the circumstances shown by the evidence, it was necessary to so locate it. McIntyre v. Railroad Co., 286 Mo. 248; Morris v. Pryor, 272 Mo. 350; Ford v. Dickinson, 280 Mo. 206, 217 S.W. 294.

Prince & Beery and E. H. Gamble for respondent.

(1) In that its first element directs a verdict for defendant unless the jury finds every fact mentioned in plaintiff's No. 2 though some of them are nonessential. Berry v. Railroad Co., 43 S.W.2d 782; Chambers v. Hines, 208 Mo.App. 222, 233 S.W. 949; Shirley v. Railroad Co., 298 S.W. 125; La Pierre v. Kinney, 19 S.W.2d 306; Gibler v. Railroad Co., 129 Mo.App. 93, 107 S.W. 1021; Lampe v. Express Co., 266 S.W. 1009; Houston v. Car Co., 282 S.W. 170; Webster v. International Shoe Co., 18 S.W.2d 131; Jackson v. Railroad Co., 171 Mo.App. 430, 156 S.W. 1005; Troutman v. Oil Co., 224 S.W. 1014. (a) The error of the first element is not cured by the second, which says that the facts which the jury must find must include all that "would entitle him to recover a verdict," without stating what part or how much of said facts are or are not "necessary" to entitle plaintiff to a verdict, so that it constitutes a "roving commission" and renders the verdict responsive to nothing. Allen v. Transit Co., 183 Mo. 411, 81 S.W. 1142; Owens v. McCleary, 281 S.W. 682; Schide v. Gottschick, 43 S.W.2d 777; Lunsford v. Macon Produce Co., 260 S.W. 781; Eastridge v. Lumber Co., 174 S.W. 462; Smith v. Anderson, 273 S.W. 741; Ward v. Fuel Co., 264 S.W. 80. (2) Instruction E directing a verdict for defendant on three findings, (a) that plaintiff negligently stepped onto the track, (b) that he negligently failed to step off, and (c) that such acts of negligence were the sole cause of his injuries, is erroneous as follows: Elements (a) and (b), supra, are repugnant and self-destructive. Raming v. Railroad Co., 157 Mo. 508, 57 S.W. 268; Crane v. Railroad Co., 246 Mo. 393, 152 S.W. 24; Gardis v. Railroad Co., 161 Mo.App. 225, 143 S.W. 565; Burns v. Piano Co., 296 S.W. 239. They present issues of plaintiff's negligence not tendered by the answer, hence not submissible to the jury. Benjamin v. St. Ry. Co., 245 Mo. 598, 151 S.W. 91; Kleinlen v. Foskin, 13 S.W.2d 648; Hamilton v. Standard Oil Co., 19 S.W.2d 679; Schide v. Gottschick, 43 S.W.2d 777; Heinrichs v. Royal, 292 S.W. 1054; Heyde v. Patten, 39 S.W.2d 813; Irwin v. McDougal, 274 S.W. 923. There is no evidence that plaintiff stepped onto the track "directly in front of the engine" or directly behind it. Element (a) is deficient in that it does not require a finding that when plaintiff stepped onto the track the engine was in motion, nor that he had reason to expect it would move before he could get onto it or out of its pathway, nor that his stepping onto the track put him in peril of injury. Element (c) on "sole cause" is erroneous in that there is no evidence to support it; there is no proof that would support a finding that plaintiff's injury was due to his sole act, independently of and not concurring with the acts of the engine crew. Gould v. Railroad Co., 290 S.W. 135. Element (c) not only does not cure the errors in elements (a) and (b), but it is erroneous within itself, and is alone sufficient to vitiate the instruction. Banks v. Morris, 257 S.W. 482; Boland v. Railroad Co., 284 S.W. 141; Gould v. Railroad Co., 290 S.W. 135; Peppers v. Railroad Co., 295 S.W. 757; Shumate v. Wells, 9 S.W.2d 632; Green v. Railroad Co., 30 S.W.2d 784. (3) Instruction F is erroneous because: (a) Its first element submits assumption of risk of injury from proximity of stand to track as a complete defense, whereas the evidence is that the injury was caused by multiple risks, some of which were not assumed, for which reason the whole defense of assumption of risk should have been eliminated from the case. 2 Roberts, Federal Liabilities of Carriers, p. 1622, sec. 832; Railroad Co. v. De Atley, 241 U.S. 310, 36 S.Ct. 564; Railroad Co. v. Purucker, 244 U.S. 320, 37 S.Ct. 629; West v. Railroad Co., 179 F. 801. (b) Its second element tells the jury that the closeness of the stand to the track alone will not authorize a verdict for plaintiff, thus ignoring the question of whether such circumstance in combination with others, such as the negligence of the engine crew, would entitle plaintiff to a verdict, and violates the rule against "singling" or "isolating." Rose v. Spies, 44 Mo. 20; Barr v. Kansas City, 105 Mo. 550, 16 S.W. 483; Littig v. Heating Co., 237 S.W. 779; Zumwalt v. Railroad Co., 266 S.W. 717; Causey v. Wittig, 11 S.W.2d 11; Leeser v. Boekhoff, 33 Mo.App. 222; McAllister v. Irvine, 69 Mo.App. 442; Lux v. Bank, 148 Mo.App. 376, 128 S.W. 19, 46 S.W.2d 849. (4) Plaintiff did not, as a matter of law, assume the risk of the switch being too close to the track. Choctaw, etc., Railroad Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24; Hawley v. Railroad Co., 133 F. 150; Railroad Co. v. Beckett, 163 F. 479; Harvey v. Railroad Co., 166 F. 384; West v. Railroad Co., 179 F. 801; Railroad Co. v. Conley, 187 F. 949; Railroad Co. v. Rogers, 196 F. 286; Railroad Co. v. Morland, 239 F. 1; Tabor v. Director Gen., 280 F. 612; Davis v. Crane Co., 12 F.2d 355; Railroad Co. v. Garey, 47 F.2d 142; Charleton v. Railroad Co., 200 Mo. 413; Fish v. Railroad Co., 263 Mo. 106; McIntyre v. Railroad Co., 227 S.W. 1047; Westover v. Railroad Co., 6 S.W.2d 843; Railroad Co. v. Robins, 23 S.W.2d 461; Colf v. Railroad Co., 58 N.E. 408; Paddock v. Railroad Co., 19 P. 191; Railroad Co. v. Michaels, 46 P. 938; Bonner v. Railroad Co., 15 S.W. 803; Vickory v. Railroad Co., 89 A. 277; Harve v. Railroad Co., 166 F. 384; West v. Railroad Co., 179 F. 801; Hawley v. Ry. Co., 133 F. 150; Railroad Co. v. Berkshire, 254 U.S. 415, 41 S.Ct. 162; Ford v. Railroad Co., 217 S.W. 294. (5) The evidence proved a case under the Federal Employers' Liability Act. Sullivan v. Railroad Co., 12 S.W.2d 735; Jarvis v. Railroad Co., 37 S.W.2d 602; Hilderbrand v. Railroad Co., 298 S.W. 1069; Torrance v....