Jenkins v. Wabash Ry. Co.

• Decision Date: 17 July 1934
• Docket Number: 31307
• Citation: 73 S.W.2d 1002,335 Mo. 748
• Parties: James Jenkins, Administrator de bonis non of the Estate of Wilbur F. Jenkins, v. Wabash Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 1002

335 Mo. 748

James Jenkins, Administrator de bonis non of the Estate of Wilbur F. Jenkins, v. Wabash Railway Company, a Corporation, Appellant

No. 31307

Supreme Court of Missouri

July 17, 1934

Motion for Rehearing Overruled June 12, 1934.

Motion to Transfer to Court en banc July 17, 1934.

Appeal from Livingston Circuit Court; Hon. Ira D. Beals Judge.

Reversed and remanded.

S J. Jones, Frank W. Ashby and Homer Hall for appellant.

(1) This suit is brought under the Federal Employers' Liability Act, and the rights and obligations of the parties are to be determined by the provisions of that act, and by the applicable principles of the common law as interpreted and applied in the Federal courts. Martin v. Wabash Ry Co., 30 S.W.2d 735; Second Employers' Liability Cases, 223 U.S. 55, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44; Seaboard Air Line Ry. v. Horton, 233 U.S. 501, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Southern Ry. Co. v. Gray, 241 U.S. 339, 36 S.Ct. 558, 60 L.Ed. 1030; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 474. 46 S.Ct. 564, 70 L.Ed. 1041; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 168, 48 S.Ct. 215, 72 L.Ed. 513; Quigley v. Hines, 291 Mo. 33, 235 S.W. 1050; Hoch v. Ry. Co., 315 Mo. 1209, 287 S.W. 1047. (2) The Federal Employers' Liability Act creates the right of action and designates the persons for whose benefit damages may be recovered and the order in which the rights of such persons accrue. Next of kin dependent upon the employee are not entitled to damages if there is a surviving parent, and as the mother of the deceased employee survived, the brother of the deceased is not entitled to damages and the court erred in admitting evidence and argument in support of his claim, and in giving plaintiff's instructions P-1 and P-2. Federal Employers' Liability Act, Sec. 1, U.S. Code, Title 45, Chap. 2, Sec. 51; Chicago, B. & Q. Railroad Co. v. Wells-Dickey Trust Co., 275 U.S. 161. (3) The Federal courts hold that, in cases arising under the Federal Employers' Liability Act, an employee, in entering upon a contract of employment, assumes all the risks and dangers ordinarily incident to his employment, and also the extraordinary risks caused by the employer's negligence which are obvious and fully known to the employee and appreciated by him, or so plainly observable that he must be presumed to know them. Boldt v. Railroad Co., 245 U.S. 445, 38 S.Ct. 139, 62 L.Ed. 385; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 169, 48 S.Ct. 215, 72 L.Ed. 513; Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 11, 49 S.Ct. 202, 73 L.Ed. 578; McIntyre v. Ry. Co., 286 Mo. 256, 227 S.W. 1047; Osborn v. Ry. Co., 1 S.W.2d 188. (4) The plaintiff was not entitled to recover because he assumed the risk, and the court erred in refusing to give defendant's instructions D-16, D-19 and D-22, and in giving to the jury plaintiff's Instruction P-1, which wholly ignores this defense pleaded in the answer. The risk was so open and obvious that an ordinarily prudent person would have observed and appreciated it, and plaintiff therefore assumed the risk, even though defendant was negligent. Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 426; Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 504; Pryor v. Williams, 254 U.S. 43; Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 11, 73 L.Ed. 578, 49 S.Ct. 202; Boldt v. Railroad Co., 245 U.S. 441, 62 L.Ed. 385; C. & O. Railroad Co. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; Hoch v. Railroad Co., 315 Mo. 1199, 287 S.W. 1047; Osborn v. Railroad Co., 1 S.W.2d 181; Martin v. Wabash Ry. Co., 30 S.W.2d 735. (5) Plaintiff's Instruction P-1 purports to cover the entire case and authorize a verdict without requiring the jury to find that the deceased employee did not assume the risk under the rule in Federal courts. This defense was specifically pleaded and was not covered by any instruction given for plaintiff or defendant. The giving of the instruction was therefore erroneous. Stack v. General Baking Co., 283 Mo. 423; Wingfield v. Wabash Ry. Co., 257 Mo. 360; McIntyre v. Ry. Co., 286 Mo. 234; Bowman v. Rahmoeller, 55 S.W.2d 456; Cases cited under point 4. (6) The Federal Employers' Liability Act permits a recovery upon the basis of negligence only, and, therefore, the burden is on plaintiff to adduce reasonable and substantial evidence to show a breach of duty owed by defendant to him in respect of the place of his injury, and that, in whole or in part, his injuries resulted proximately and directly therefrom. Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 11, 49 S.Ct. 202, 73 L.Ed. 578; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 169, 48 S.Ct. 215, 72 L.Ed. 513; Seaboard Air Line v. Horton, 233 U.S. 501, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Southern Ry. Co. v. Gray Co., 241 U.S. 339, 36 S.Ct. 558, 60 L.Ed. 1030. (7) The court erred in admitting evidence relating to the leaving of the switch open and the Rule 104 relating thereto and in permitting the amendment of the petition setting up that new issue and in refusing to grant a continuance. Sec. 819, R. S. 1929; State ex rel. v. Reynolds, 277 Mo. 21; Neville v. D'Oench, 327 Mo. 66.

Arch B. Davis, Dean H. Leopard, Prince & Beery and Hume & Raymond for respondent.

(1) Rights under the Federal Employers' Liability Act must be preserved by appropriate action in the trial court otherwise they are waived. Osborne v. Gray, 241 U.S. 16, 36 S.Ct. 486; Central Vermont Railroad Co. v. White, 238 U.S. 507, 35 S.Ct. 865; Atlantic Coast Line Railroad Co. v. Mims, 242 U.S. 532, 37 S.Ct. 189; Illinois Cent. Railroad Co. v. Porter, 207 F. 311; Hild v St. Louis Car Co., 259 S.W. 841; Weil v. Richardson, 35 S.W.2d 372; Neal v. Curtis & Co. Mfg. Co., 41 S.W.2d 552; Clark v. Ry. Co., 300 S.W. 763; Gratiot St. Warehouse v. Railroad Co., 124 Mo.App. 545, 102 S.W. 18; Osagera v. Schaff, 293 Mo. 333, 240 S.W. 126. (a) Any error with respect to the assessment of damages in favor of James Jenkins, was invited error, hence not reversible error, for the reason that plaintiff's instruction on the measure of damages was adopted by reference. Quinn v. Ry. Co., 193 S.W. 934; Conley v. Rys. Co., 259 S.W. 154; Kincaid v. Birt, 29 S.W.2d 98. (b) The claim for damages on behalf of James Jenkins appeared on the face of plaintiff's petition. By joining in issue without challenging this allegation by demurrer, motion or answer, the defendant waived its right to complain of a recovery under such allegation. Atlantic Coast Line Railroad v. Mims, 242 U.S. 532, 37 S.Ct. 189; Secs. 770, 774, 785, R. S. 1929; Fisher v. St. Louis Transit Co., 198 Mo. 562, 95 S.W. 924; Buckman v. Mtg. Co., 263 S.W. 1048; Kuether v. Kansas City L. & P. Co., 220 Mo.App. 442, 276 S.W. 107; McAdow v. Ry. Co., 164 S.W. 190; Sec. 1061, R. S. 1929; Jackson v. Johnson, 248 Mo. 680, 154 S.W. 762; Powers v. Elliott, 296 S.W. 831; Mississippi Co. v. Byrd, 4 S.W.2d 812; Garrett v. Ry. Co., 235 U.S. 312, 35 S.Ct. 32; Johnson v. Mining Co., 187 S.W. 1; Lyons v. Ry. Co., 190 S.W. 859; Sec. 1099, R. S. 1929. (c) No specific objection having been made to evidence with respect to the pecuniary loss to James Jenkins, on the ground he was not entitled to recover because his mother, a representative of a higher class, was living, the point is waived, and the trial court may not be convicted of error on an objection not brought to its attention. Kinlen v. Met. St. Ry., 216 Mo. 145, 115 S.W. 533; State ex rel. West v. Diemer, 255 Mo. 336, 164 S.W. 521; Williams v. Williams, 259 Mo. 242, 168 S.W. 618; Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1127; Berry v. St. Louis-S. F. Ry. Co., 26 S.W.2d 996; Rockenstein v. Rogers, 31 S.W.2d 801; Lederer v. Real Estate Title Co., 273 F. 934. (d) Appellant's motion for new trial contained no specific assignment of error in regard to the admission of testimony as to damages to James Jenkins, as a beneficiary. The objection to the evidence having been general, the general assignment in the motion for a new trial, is insufficient to preserve the point. Sec. 812, R. S. 1929; State v. Noland, 111 Mo. 473, 19 S.W. 719; Collier v. Lead Co., 208 Mo. 246, 106 S.W. 973; State v. Baldwin, 297 S.W. 11; Polski v. St. Louis, 264 Mo. 458, 175 S.W. 198; Greer v. Carpenter, 19 S.W.2d 1046. (e) Appellant, here for the first time, makes the contention that James Jenkins is not entitled to recover because his mother, representing a preferred class, is living and takes to the exclusion of other classes. This was not the trial theory and appellant may not shift positions and now be heard to urge such objection. Chinn v. Naylor, 182 Mo. 583, 81 S.W. 1111; Deschner v. Railroad Co., 200 Mo. 310, 98 S.W. 743; Britt v. Crebo, 199 S.W. 158; McMurtrey v. Kopke, 250 S.W. 401; City of Springfield v. Smith, 19 S.W.2d 9. (2) The issue of assumption of risk was properly submitted to the jury. No error was committed with respect to the giving and refusal of instructions on this issue. Rys. Co. v. Finke, 190 S.W. 1143, 245 U.S. 656, 38 S.Ct. 13; Pope v. Terminal Ry. Co., 254 S.W. 44; Anderson v. Ry. Co., 138 S.W. 108; Oglesby v. Ry. Co., 1 S.W.2d 178; State ex rel. v. Cox, 46 S.W.2d 851. (a) The court committed no error in giving plaintiff's Instruction P-1. Chicago & E. Railroad Co. v. Ponn, 191 F. 688; Ry. Co. v. Thompson, 236 F. 11; Ry. Co. v. Proffitt, 241 U.S. 462, 36 S.Ct. 622. (b) The court committed no error in refusing defendant's instructions D-16 and D-19. Coal & Mining Co. v. McCallum, 237 F. 1008; Westover v. Wabash Ry. Co., 6 S.W.2d 847. (3) The admission of testimony of witness Harrington, tending to show his negligence in leaving the switch open, and the admission in evidence of Rule 104 relating to the matter, do not constitute...