Ingram v. Mobile & O. R. Co.

• Citation: 30 S.W.2d 989,326 Mo. 163
• Parties: Daisy Ingram, Administratrix of Estate of J. G. Ingram, v. Mobile & Ohio Railroad Company, Appellant
• Decision Date: 04 September 1930
• Court: United States State Supreme Court of Missouri

30 S.W.2d 989

326 Mo. 163

Daisy Ingram, Administratrix of Estate of J. G. Ingram, v. Mobile & Ohio Railroad Company, Appellant

Supreme Court of Missouri

September 4, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Victor Falkenhainer, Judge.

Reversed.

Carl Fox and R. P. & C. B. Williams for appellant.

(1) The demurrer to the evidence should have been sustained, because the evidence was insufficient to submit the case to the jury on plaintiff's allegation of negligence that the bell was not rung on starting the engine and cars and kept ringing while said engine and cars were moving in the yards. This was the only allegation of negligence submitted. Norfolk & W. Ry. Co. v. Collingsworth, 32 Fed. (C. C. A.) 561; Small Co. v. Lamborn & Co., 267 U.S. 250, 69 L.Ed 597; Gulf Railroad Co. v. Wells, 275 U.S. 455, 72 L.Ed. 370; C. M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1095; K. C. So. Railroad Co. v Jones, 276 U.S. 303, 72 L.Ed. 583; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34; Delaware L. & W. Railroad Co. v. Koske, 279 U.S. 7; Chesapeake & Ohio Railroad Co. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; Chicago Ry. Co. v. Sellars, 5 F.2d 31; Lehigh V Ry. Co. v. Mangan, 278 F. 88. (2) The demurrer to the evidence should have been sustained because the rule requiring the engine bell to be rung when the engine is about to move and while approaching and passing public crossings at grade, and the custom and practice thereunder, were, under the undisputed evidence, not intended for the benefit of employees, but for the protection of the traffic at the public crossings. Chesapeake & Ohio Ry. Co. v. Mihas, 50 Sup. Court Rep. 42; Norfolk & Western Railroad Co. v. Collingsworth, 32 F.2d 561; Norfolk Railroad Co. v. Gesswine, 144 F. 56; Randall v. Railroad Co., 109 U.S. 478, 27 L.Ed. 1003; Sullivan v. Railroad Co., 36 N. E. (Mass.) 751; Reynolds v. Railroad Co., 69 F. 808, 16 C. C. A. 435; Roback v. Railroad Co., 43 Mo. 187; Anderson v. Wells, 273 S.W. (Mo. App.) 233; Degonia v. Railroad Co., 224 Mo. 564; L. & N. Railroad Co. v. Hyatt, 229 S.W. 101; C. N. & O. Railroad Co. v. Howard, 132 Ky. 445; Cincinnati Railroad Co. v. Brown, 234 S.W. 455. (3) The alleged negligent failure to warn the deceased by ringing the bell on the engine was not the proximate cause of the injury and death, but the sole and only proximate cause was the deceased's own negligence in stepping upon track No. 1 immediately after he had signalled the engineer to move the cars upon that track, fully knowing they were coming. Pleasant v. Director General, 285 F. 342; Great Northern Ry. Co. v. Wiles, 240 U.S. 444, 60 L.Ed. 732; Atlantic Coast Line v. Davis, 279 U.S. 34; Frese v. Chicago & Burlington Railroad Co., 263 U.S. 1, 68 L.Ed. 131; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; Kansas City Southern Railroad Co. v. Jones, 276 U.S. 303, 72 L.Ed. 583; Hines v. Kesheimer, 198 Ky. 580, 249 S.W. 1001; Virginia Ry. Co. v. Linkaus, 230 F. 88, 248 U.S. 630, 61 L.Ed. 537; Director General v. Temple, 268 F. 483.

C. O. Inman and W. H. Douglass for respondent.

(1) The rule of the federal courts as to the kind and amount of evidence that will justify the submission of a cause to the jury is the same as in the State of Missouri, which is: "When a given set of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court." Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 417; Union Pacific Railroad Co. v. Huxoll, 245 U.S. 335; Western & A. Ry. v. Hughes, 278 U.S. 496; Railroad v. Wells, 275 U.S. 455; Railroad v. Harvey, 228 U.S. 319, 324; Railroad v. Waid, 35 F.2d 367; Refining Co. v. Products Co., 29 F.2d 332. (2) Plaintiff's evidence showed a custom and practice of the defendant to ring a bell, and keep it ringing, while an engine and cars were being moved in its yards, and also a rule of the defendant which required it to sound a whistle and ring the bell when the engine was about to move. Plaintiff's evidence showed a violation of this custom and practice, and also a violation of the rule in moving its engine and cars that struck decedent, without ringing the bell and keeping it ringing while moving in the yards, and in failing to sound the whistle and ring the bell when the engine was moved. This constituted negligence on the part of the defendant. Wells v. Davis, 303 Mo. 388, 416; Pacheco v. Railroad, 15 F.2d 467; Detchemendy v. Wells, 253 S.W. 150; Holt v. Railroad, 279 S.W. 148, 271 U.S. 668; Railroad v. Mangan, 278 F. 85; Railroad v. Jeffries, 276 F. 75; Railroad v. Zimmerman, 24 F.2d 23; Railroad v. Robertson, 300 F. 314, 266 U.S. 614; Director General v. Templin, 268 F. 483, 254 U.S. 656; Railroad v. Doktor, 290 F. 760; Stuart v. Dickinson, 290 Mo. 516, 555; Tetwiler v. Railroad, 242 Mo. 178; Ostertag v. Railroad, 261 Mo. 457; Greenwall v. Railroad, 224 S.W. 404; Carbaugh v. Railroad, 2 S.W.2d 195. (3) There is no evidence that decedent had knowledge of the movement of the engine and cars, for the evidence shows that the engine and cars should not be moved except decedent had given a signal to move them. There is no credible evidence that he gave such a signal. Wells v. Davis, 303 Mo. 388, 417.

OPINION

Ragland, J.

John Q. Ingram, an employee of defendant, was killed through its alleged negligence in its railroad yard at Corinth, Mississippi, in the early morning of February 18, 1927, while employed in interstate commerce. This action is to recover for his death, and was brought by his administratrix for the benefit of his widow and minor children. The casualty happened while a train crew of which deceased was a member was engaged in switching a cut of twelve freight cars from the main line to a switch track. A brief description of the yard and tracks is necessary to an understanding of the train movement, and Ingram's connection therewith, which caused his death.

Defendant's main line runs north and south through its yard at Corinth; there is a passenger station on the east side of the track, and in its immediate vicinity a restaurant; just across from the station, there is a water plug where engines take water; a short distance west of the water plug there is a small building used by defendant as a yard office. The main line track is crossed 687 feet south of the station by Tate Street, a public thoroughfare running east and west; it is crossed again "a short block," approximately 421 feet, south of Tate Street by Fleming Street, another east-and-west street; Tate Street is 30 feet wide.

Ten feet south of Tate Street a switch track called the "lead" connects by means of a switch, the "lead switch," with the main line on the east side and extends from thence in a southeasterly direction; the main line, the lead and a base at some indefinite distance south form a right-angle triangle of which the lead is the hypotenuse. Inside the triangle and connecting with the lead by means of "Switch No. 1," 132 feet south of the lead switch, switch track No. 1 extends south along and paralleling the main track, on the east side thereof; immediately east of that switch track and paralleling it switch track No. 2 takes off from the lead at "switch No. 2," 110 feet south of switch No. 1, and extends south. Both switch tracks extended beyond Fleming Street. To recapitulate as to distances: from the water plug to the north boundary of Tate Street is 687 feet; from the north to the south boundary of Tate Street is 30 feet; from the south boundary of Tate Street to the lead switch is 10 feet; from the lead switch to switch No. 1 is 132 feet; from switch No. 1 to switch No. 2 is 110 feet; and from switch No. 2 to the Fleming Street crossing is approximately 169 feet. There were no electric lights in the vicinity of either street crossing.

The freight train in question arrived at Corinth at about 12:05 A. M.; it was in charge of a crew, consisting of Ingram, rear brakeman, Jimerson, head brakeman, and a conductor, engineer and fireman; it had come from the south and was headed north. Before the train reached Corinth the entire crew knew that twelve cars, the forward end of the train, were to be cut out and left at that place, but they did not know the particular disposition that was to be made of them. The train was accordingly stopped and cut at or just south of the Fleming Street crossing; the engine to which the twelve cars were attached then proceeded on north until the engine came alongside the water plug in position to receive water. The rear car of the cut was a tank car, and when the engine and cut came to a stop this car was about a car-length north of the Tate Street crossing. On arrival in the yard the conductor went across to the yard office and there received instructions to shove the twelve cars south on switch track No. 1, beyond the Fleming Street crossing; he communicated these instructions to brakeman Jimerson, and probably also to the engineer. He then went back to the yard office to check his way bills. Presently brakeman Ingram came to the restaurant where Jimerson was. Jimerson repeated the instructions he had received from the conductor and both then started south to the switches, walking along the east side of the train. It was raining and the night was very dark.

(The facts stated in the preceding paragraph are conceded. Those now to be narrated are gathered from the testimony of plaintiff's witnesses, and principally that of Jimerson.)

When they reached the lead switch, Jimerson threw it, lining the lead with the main track; Ingram said, "I will line No 1," he...