Jenkins v. Kurn

• Citation: 144 S.W.2d 76
• Decision Date: 31 October 1940
• Docket Number: No. 36340.,36340.
• Parties: H.J. JENKINS v. JAMES M. KURN and JOHN G. LONSDALE, Trustees of the ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellants.
• Court: United States State Supreme Court of Missouri

144 S.W.2d 76

H.J. JENKINS v. JAMES M. KURN and JOHN G. LONSDALE, Trustees of the ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellants.

No. 36340.

Supreme Court of Missouri.

Division One, October 31, 1940.^*

Appeal from Dade Circuit Court. — Hon. Thomas W. Martin, Judge.

REVERSED.

J.W. Jamison and Mann, Mann & Miller for appellants.

The demurrer to the evidence should have been sustained. The charge of negligence is that after notice of the danger ahead the engineer failed immediately to apply his brakes in emergency. In fact, it is alleged, he "refused to put on the emergency brakes." Plaintiff wholly failed to prove notice to the engineer of the danger in time for him, by the application of the emergency brake, to have averted the collision. Respondent's violation of appellants' rules, promulgated for his safety, in failing to discover and notify the engineer of the danger, as was his duty under the rule, was the sole proximate cause of his injuries and defeats his right of recovery. Frese v. C., B. & Q. Ry. Co., 263 U.S. 1, 68 L. Ed. 131; Davis v. Kennedy, 266 U.S. 147, 69 L. Ed. 212; Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 73 L. Ed. 224; Van Deveer v. Delaware L. & W. Ry. Co., 84 Fed. 981; Paster v. Pennsylvania Ry. Co., 43 Fed. (2d) 910; Hylton v. Southern Ry. Co., 87 Fed. (2d) 395. Knowing the impending danger, and taking no steps to avert it, appellant assumed the risk of his injury. Toledo St. L. & W. Railroad Co. v. Allen, 276 U.S. 171, 72 L. Ed. 516; Jones v. St. L.-S.F. Ry. Co., 325 Mo. 1153, 30 S.W. (2d) 482; Mullen v. Lowden, 124 S.W. (2d) 1152; Webber v. Term. Railroad Assn., 335 Mo. 11, 70 S.W. (2d) 866; Hylton v. Southern Ry. Co., 87 Fed. (2d) 394.

Sizer & Myres for respondent.

(1) The verdict and judgment of the trial court were correct and should be affirmed. (a) A prima facie case of negligence under the pleadings and evidence is made, and the plaintiff does not assume the risks caused by the employer's negligence, unless such risks are obvious or fully known and appreciated by him. Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W. (2d) 735; McDaniel v. C., R.I. & P. Ry. Co., 92 S.W. (2d) 118; O'Donnell v. B. & O. Ry. Co., 26 S.W. (2d) 929; Rowe v. M.-K.-T. Ry. Co., 100 S.W. (2d) 480; Hackney v. M.-K.-T. Ry. Co., 149 Pac. 421; Johnson v. C. & E.I. Ry. Co., 64 S.W. (2d) 674; Schlueter v. Connecting Ry. Co., 316 Mo. 1266; Westover v. Wabash Ry. Co., 6 S.W. (2d) 843; Laughlin v. Mo. Pac. Ry. Co., 297 Mo. 345; Baltimore & O.S.W. Railroad Co. v. Berdon, 145 N.E. 2, 266 U.S. 633, 69 L. Ed. 479; Hasenjaeger v. M.-K.-T. Ry. Co., 53 S.W. (2d) 1083; Koukouris v. Union Pac. Ry. Co., 193 Mo. App. 495; Southern Ry. Co. v. Mays, 239 Fed. 41; Grybowski v. Erie Ry. Co., 98 Atl. 1085, 89 N.J.L. 361; Reed v. Director General of Railroads, 258 U.S. 92, 66 L. Ed. 480; Chesapeake & Ohio Ry. Co. v. DeAtley, 241 U.S. 310, 60 L. Ed. 1016; Montgomery v. B. & O. Ry. Co., 22 Fed. (2d) 359; St. Louis.-S.F. Ry. Co. v. Norman, 169 Ark. 1062, 277 S.W. 524; Graber v. Duluth Ry. Co., 159 Wis. 414, 150 N.W. 489; Osborn v. Chicago, I. & P. Ry. Co., 1 S.W. (2d) 181. (b) The doctrine of assumption of risk does not apply where injury occurs from a negligent act of the employer creating a sudden emergency without warning. Summer v. Ann Arbor Ry. Co., 209 N.W. 184; Chapman v. U.S. Express Co., 159 N.W. 308; Chesapeake & O. Railroad Co. v. Proffitt, 241 U.S. 462, 69 L. Ed. 1102; Chicago, R.I. & P. Ry. Co. v. Ward, 252 U.S. 18, 64 L. Ed. 430; Webb v. C. & O. Ry. Co., 144 S.E. 100. (c) The 76th United States Congress by amendment of the Federal Employers' Liability Act abolished the defense of assumption of risk. (2) The contentions made by the appellants in this case are without foundation in law and are not supported by the record, and should be overruled. (a) The court did not err in refusing to give defendants' demurrer at the close of all of the evidence. Sec. 1099, R.S. 1929; State ex rel. United Brick & Tile Co. v. Wright, 339 Mo. 160, 95 S.W. (2d) 804; Weber v. Term. Railroad Assn., 20 S.W. (2d) 601; Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W. (2d) 846, 6 A.L.R. 448; Phillips v. East St. Louis & S. Ry. Co., 226 S.W. 863; Winn v. Kansas City Belt Railroad Co., 245 Mo. 406, 151 S.W. 98; Rogers v. Crown Coach Co., 68 S.W. (2d) 729; Harrison v. Slaton, 49 S.W. (2d) 31; Brock v. Mobile & O. Ry. Co., 330 Mo. 918, 51 S.W. (2d) 100, 287 U.S. 638, 77 L. Ed. 552.

BRADLEY, C.

This is an action under the Federal Employers' Liability Act (45 U.S.C.A. 51 et seq.) to recover for injuries received when plaintiff, a locomotive fireman, jumped from a moving freight train. The jury returned a verdict in favor of plaintiff for $12,000; motion for a new trial was overruled and defendants appealed.

It is conceded that the cause is properly under the Federal Employers' Liability Act. Plaintiff resided at Enid, Oklahoma, and his run was from Enid to Beaumont, Kansas. July 20, 1937, plaintiff was fireman on a northbound mixed train, No. 630, consisting of 32 freight cars and two coaches. The crew consisted of the conductor, engineer, fireman, and two brakemen. Plaintiff jumped from his engine and was injured in the railroad yards at Winfield, Kansas, about 7:10 P.M. Train No. 630 left Arkansas City, Kansas, 14 miles south of Winfield, about 30 minutes behind freight train No. 1229, and plaintiff knew this. The Santa Fe crosses the Frisco at Winfield, and No. 1229 stopped in the yards at Winfield, and south (we may say) of the Santa Fe tracks. The engine was cut loose and moved over north of the Santa Fe tracks to get water. The freight cars and caboose, belonging to 1229, were left on the main track, and train No. 630 ran into the caboose. The engineer of 630 was killed and plaintiff, as stated, jumped from the engine and was injured.

Plaintiff alleged five grounds of negligence, but the cause went to the jury on the charge that the engineer on No. 630 was negligent "in that after he was notified by plaintiff that the extra train (No. 1229) was standing on said track ... he failed to immediately apply the air in the emergency to stop said train, which negligence ... forced plaintiff to jump from said train in order to save his life or some bodily harm." The answer, except admissions, was a general denial, contributory negligence, and assumption of risk. The reply was a general denial.

Error is assigned (1) on the refusal, at the close of the case, of a demurrer to the evidence; (2) on given and refused instructions; and (3) on an alleged excessive verdict.

Throughout the trial the track, upon which the collision occurred, was referred to, for the most part, as extending north and south. According to plats in evidence, this was not accurate, but it will be more convenient to assume that the track so extended. The track crosses Walnut river about 2500 feet south of the point of collision, and from the river to the Santa Fe crossing (about 1200 feet north of the point of collision), the track is, in form, a reverse S curve. Between the river bridge and the point of collision, west side, were a light plant and a race track. Also, there were several trees along the way, on the west side, and especially in the area between the race track and the railroad track. There was a public road crossing about 500 feet south of the point of collision, and the collision point was at or near the easternmost extension of the second curve of the reverse S.

According to the evidence, the speed of the train, from the river bridge, was 6 miles per hour. The engineer, from his side (right), could not see train No. 1229, especially after train No. 630 entered upon the second curve of the reverse S, and plaintiff testified that he looked all the time straight up the track, and that, because of the first curve, and the obstructions west of the track, he did not see train No. 1229 until within 10 or 15 car lengths (400 to 600 feet) of it. He testified that he first saw the caboose of train No. 1229 when his engine was at or near the public road crossing, which, as stated, is about 500 feet south of the point of collision.

With some omissions and a few supplied words, plaintiff's evidence may be stated as follows: "When I came around there and got away from those trees where I could see around the curve, I saw the caboose, and I then hollered to him (engineer) to push that brake valve over in emergency; that the train was down there in front of us. When you yelled to an engineer to pull the brake valve over, that means danger and to stop. I yelled loud at the engineer. Q. Did he hear you? A. Well, he looked around; he didn't do anything. He looked like he thought I was joking with him or something (this statement stricken). He turned around and looked at me, but he did not throw on the brake valve, and made no effort to do so. Q. What did you do after you yelled at him? A. I got down off my seat box and went on his side; we were drifting on down toward the caboose; I was kind of waiting on him to see what he was going to do. Q. From the time you yelled, how far did you travel until the engineer put on the brake valve? A. Well, we was about, when I got down, when we had traveled down the distance within two or three cars, the best I can judge, we got in about two or three cars of the caboose, and I started — I went around in the gangway behind him, and started down on the steps, and he pulled the brake valve over in emergency and I went on down the steps and jumped off. Q. Tell me how many car lengths you traveled from the time you gave the signal to throw the brake valve in until you jumped, until the engineer did put on the brake valve? A. Well, I judge that was ten or fifteen cars from where I saw it there to the caboose; looked to me like it was about two or three cars down to the caboose when I jumped off."

Cross-examination: "Q. Now you say that when you first saw the caboose you were about at the road crossing or ten or fifteen car lengths...