Johnson v. Southern Railway Co., No. 38571.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHyde
Citation175 S.W.2d 802
PartiesMINNIE E. JOHNSON, Administratrix of the Estate of SAMUEL R. JOHNSON, Deceased, v. SOUTHERN RAILWAY COMPANY, a Corporation, Appellant.
Decision Date04 October 1943
Docket NumberNo. 38571.
175 S.W.2d 802
MINNIE E. JOHNSON, Administratrix of the Estate of SAMUEL R. JOHNSON, Deceased,
v.
SOUTHERN RAILWAY COMPANY, a Corporation, Appellant.
No. 38571.
Supreme Court of Missouri.
Division One, October 4, 1943.
Rehearing Denied, November 1, 1943.
Motion to Transfer to Banc Overruled, December 6, 1943.

Appeal from Circuit Court of City of St. Louis.Hon. David J. Murphy, Judge.

[175 S.W.2d 803]

AFFIRMED.

Kramer, Campbell, Costello & Wiechert, Fordyce, White, Mayne, Williams & Hartman and Norman J. Gundlach for appellant; S.R. Prince and H.G. Hedrick of counsel.

(1) Under the provisions of the Federal Employers' Liability Act, upon which this suit is predicated, there must be proof of negligence on the part of appellant acting by and through its employees before there can be a recovery. 45 U.S.C.A., Sec. 51. (2) Respondent's suit having been instituted under the provisions of the Federal Employers' Liability Act respondent has the burden of proving that the appellant was negligent in the manner alleged in her amended petition and that such negligence was the proximate cause of her intestate's fatal injury. New Orleans & N.E.R. Co. v. Harris, 247 U.S. 367; Patton v. Texas & Pac. Ry. Co., 179 U.S. 658; Chicago, Milwaukee & St. P. Ry. Co. v. Coogan, 271 U.S. 472. (3) Under the federal rule a scintilla of evidence is not sufficient. There must be substantial evidence adduced by respondent proving the charge of appellant's alleged negligence before there can be a recovery. B. & O.R. Co. v. Groeger, 266 U.S. 521; New Orleans & N.E.R. Co. v. Harris, 247 U.S. 367; Patton v. Texas & Pac. Ry. Co., 179 U.S. 658; Gulf M. & N.R. Co. v. Wells, 275 U.S. 455; Mo. Pac. R. Co. v. Aeby, 275 U.S. 426; Arnall Mills v. Smallwood, 68 Fed. (2d) 57. Furthermore, in a jury trial when the evidence with all its reasonable inferences does not constitute sufficient basis for a verdict so that such a verdict, if returned, would have to be set aside by the court a verdict should be directed. Gunning v. Cooley, 281 U.S. 90; Labor Board v. Columbian Co., 306 U.S. 292. (4) The liability of appellant railroad company, under the Federal Employers' Liability Act, cannot rest on speculation, conjecture or surmise. It means such supstantial evidence as a reasonable mind might accept as adequate to support a conclusion. There must be substantial affirmative proof of the negligence charged before there can be a recovery. Patton v. Texas & Pac. Ry. Co., 179 U.S. 658; C.M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; New Orleans & N.E.R. Co. v. Harris, 247 U.S. 367; Gunning v. Cooley, 281 U.S. 90; Atchison, Topeka & S. Fe Ry. Co. v. Toops, 281 U.S. 351; Labor Board v. Columbian Co., 306 U.S. 292; Looney v. Metropolitan R. Co., 200 U.S. 480; N.Y.C.R. Co. v. Ambrose, 280 U.S. 486. This is also the rule in Missouri. State ex rel. Mo. Public Utility Co. v. Cox, 298 Mo. 427; State ex rel. City of Macon v. Trimble, 321 Mo. 671, 12 S.W. (2d) 727. (5) If the negligence of respondent's intestate was the sole cause of his fatal injury, then there can be no recovery. B. & O.R. Co. v. Berry, 286 U.S. 272; Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787. (6) The testimony of Minnie E. Johnson relative to words spoken by the deceased, Samuel R. Johnson, while unconscious and in a severe shocked condition was incompetent and improperly admitted by the trial court. 20 Am. Jur., sec. 594, pp. 504, 505; State v. Reed, 137 Mo. 125; State v. Vaughn, 223 Mo. 149; Bennette v. Hader, 337 Mo. 977, 87 S.W. (2d) 413; Roach v. Kansas City Public Serv. Co., 141 S.W. (2d) 800; Tracy v. The People, 97 Ill. 101; Mayfield v. The State, 25 S.W. (2d) 833; Martinez v. People, 55 Colo. 51, 132 Pac. 64; State v. Meek, 107 W. Va. 324, 148 S.E. 208; Steurer v. Ried, 56 Ill. App. 245; State v. Hayes, 249 S.W. 49; Landau v. Travelers Ins. Co., 305 Mo. 563, 267 S.W. 376; Woods v. So. Ry. Co., 73 S.W. (2d) 374. (7) The verdict and judgment in this case is excessive. Finley v. Frisco R. Co., 160 S.W. (2d) 735; Sibert v. Litchfield & Madison R. Co., 159 S.W. (2d) 612; Holman v. Frisco R. Co., 312 Mo. 342; Porterfield v. Terminal, 5 S.W. (2d) 447.

Mark D. Eagleton, James A. Waechter and William H. Allen for respondent.

(1) The inferences favorable to the plaintiff which reasonable minds could draw from the testimony alone of the eyewitnesses to this casualty fully justified the jury in finding that the deceased came to his death by reason of the negligence of another servant of defendant as charged in the petition. It was the province of the jury, in the performance of its functions as an integral part of the tribunal below, to determine what inferences were to be drawn from the evidence adduced and to pass upon the credibility of the witnesses and the weight and effect to be given to their testimony. Bailey v. Central Vermont Ry., Inc., 63 Sup. Ct. 1062; Tiller v. Atlantic Coast Line R. Co., 63 Sup. Ct. 444; Jones v. East Tennessee, etc., R. Co., 128 U.S. 443; Myers v. Pittsburgh Coal Co., 233 U.S. 184; New York Central R. Co. v. Marcone, 281 U.S. 345; Texas & Pacific R. Co. v. Harvey, 228 U.S. 319; Western & Atlantic R. Co. v. Hughes, 278 U.S. 496; Hayes v. Michigan Central R. Co., 111 U.S. 228; Line v. Erie Railroad Co., 62 Fed. (2d) 657; Young v. Wheelock, 333 Mo. 992. (2) And the testimony of Mrs. Johnson that when she arrived at the hospital almost immediately after her husband had been taken there, she spoke to him, saying, "Honey, it is me," and he said to her, "Joe, why did you pull that cut lever and knock me off?" — which we contend was properly admitted as part of the res gestae — constituted very potent evidence to establish the negligence charged and that such negligence was the proximate cause of the injury. Travelers Insurance Co. v. Mosley, 8 Wall. 397; Chesapeake & Ohio R. Co. v. Mears, 64 Fed. (2d) 291. (3) It is a trite rule that negligence need not be established by direct evidence, but may be sufficiently shown by inferences from the surrounding facts and circumstances. And this rule is particularly applicable in death cases. Tiller v. Atlantic Coast Line R. Co., 63 Sup. Ct. 444; Myers v. Pittsburgh Coal Co., 233 U.S. 184; Baltimore & Potomac R. Co. v. Landrigan, 191 U.S. 461; Line v. Erie R. Co., 62 Fed. (2d) 657; Laughlin v. Kansas City So. Ry. Co., 275 Mo. 459. (4) And it is well settled that what is the proximate cause of an injury is ordinarily a question of fact for the jury, to be determined as a fact in view of the circumstances of fact attending it. It is so here. Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469; Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555; State ex rel. City of St. Charles v. Haid, 325 Mo. 107; Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601. (5) It is not necessary to adduce evidence such as to exclude the possibility of accident or of a cause for which the defendant would not be liable; for to require this of a plaintiff would be to require him to prove his case beyond a reasonable doubt. Stewart v. Laclede Gas Light Co., 241 S.W. 909; Terminal Railroad Ass'n. v. Farris, 69 Fed. (2d) 779; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601. (6) The trial court did not err in admitting in evidence the testimony of Mrs. Johnson that when she arrived at the hospital, almost immediately after her husband had been taken there, she spoke to him, saying, "Honey, it is me," and he said to her, "Joe, why did you pull that cut lever and knock me off." The testimony showed that what the injured man said was a natural and spontaneous utterance directly connected with and arising out of the main event; that it was the event itself speaking through the man, and not the man speaking about the event. The words were uttered shortly after casualty, when the injured man was suffering great agony and under the stress of great mental and physical shock as the result of his injuries, and under circumstances such as to exclude any idea of design or fabrication on his part. Such utterances are a part of the res gestae. Travelers Ins. Co. v. Mosley, 8 Wall. 397; Chesapeake & Ohio R. Co. v. Mears, 64 Fed. (2d) 291; Somogyi v. Cincinnati, N.O. & T.P. Ry. Co., 101 Fed. (2d) 480; Bennette v. Hader, 337 Mo. 977; State v. Stallings, 334 Mo. 1; Smith v. Southern Illinois & Mo. Bridge Co., 326 Mo. 109; Woods v. St. Louis Merchants Bridge Terminal Ry. Co., 8 S.W. (2d) 922; Harriman et al. v. Stowe, 57 Mo. 93; State v. Taylor, 330 Mo. 1036; Goucher v. Woodmen Accident Co. of Lincoln, Nebraska, 104 S.W. (2d) 289; Roach v. Great Northern Ry. Co., 133 Minn. 257, 158 N.W. 232. (7) Appellant's contention that the admission of this testimony was prejudicial error because Mrs. Johnson, on cross-examination, said that her husband was "unconscious" when he uttered the words in question, is without merit. (8) Whether testimony is to be admitted to show the utterance of words claimed to be a part of the res gestae is a matter resting very largely within the sound discretion of the trial court, whose duty it is to pass upon the preliminary facts bearing upon the propriety of receiving such testimony under the particular circumstances of the case, to determine whether the utterance was spontaneous or whether there was opportunity for fabrication or a likelihood of it, the element of lapse of time, the mental and physical condition of the declarant, and such other circumstances as may be of importance on the question of the admissibility of the proffered testimony. The instant case is one peculiarly within the rule that the admission of such testimony is a matter within the trial court's discretion, whose ruling thereon will not be disturbed unless there is a manifest abuse thereof, which does not here appear. Landau v. Travelers Ins. Co., 305 Mo. 563, 267 S.W. 376; Roach v. Great Northern Ry. Co., 133 Minn. 257, 158 N.W. 232; St. Clair v. United States, 154 U.S. 134; Fourth Street Union Depot Co. v. Hillen,...

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5 practice notes
  • Walsh v. Table Rock Asphalt Const. Co., No. 9679
    • United States
    • Missouri Court of Appeals
    • April 3, 1975
    ...and dead at time of trial, a liberal application has sometimes resulted as evidenced by Johnson v. Southern Ry. Co., 351 Mo. 1110, 175 S.W.2d 802 (1943), which was criticized in 163 A.L.R., at p. 156. If the statement qualifies as a spontaneous exclamation (or constitutes a part of the res ......
  • Gough v. General Box Co., No. 45208
    • United States
    • Missouri Supreme Court
    • May 13, 1957
    ...application of the res gestae exception has sometimes resulted. For example, see Johnson v. Southern Railway Company, 351 Mo. 1110, 175 S.W.2d 802. But also see the criticism of this case in 163 A.L.R. at page 156. In any event, there was no necessity in this case of resorting to the hearsa......
  • Burrows v. County Court of Carter County, No. 7638
    • United States
    • Missouri Court of Appeals
    • December 2, 1957
    ...Nichols v. State Social Security Commission, 349 Mo. 1148, 1153, 164 S.W.2d 278, 280(5); Johnson v. Southern Ry. Co., 351 Mo. 1110, 175 S.W.2d 802, 806(3)], and certainly such opinions had no probative value where the factual evidence given by the same witnesses affirmatively established th......
  • Springer v. Security Nat. Bank Savings & Trust Co., No. 38591.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...the debit balance. On the contrary, it is alleged that plaintiff had an "equity" of $54,350.47 in the brokerage account on October 6th. 175 S.W.2d 802 Notwithstanding the allegation of the petition that plaintiff's loss "was sustained as a direct and proximate result of the negligence of th......
  • Request a trial to view additional results
5 cases
  • Walsh v. Table Rock Asphalt Const. Co., No. 9679
    • United States
    • Missouri Court of Appeals
    • April 3, 1975
    ...and dead at time of trial, a liberal application has sometimes resulted as evidenced by Johnson v. Southern Ry. Co., 351 Mo. 1110, 175 S.W.2d 802 (1943), which was criticized in 163 A.L.R., at p. 156. If the statement qualifies as a spontaneous exclamation (or constitutes a part of the res ......
  • Gough v. General Box Co., No. 45208
    • United States
    • Missouri Supreme Court
    • May 13, 1957
    ...application of the res gestae exception has sometimes resulted. For example, see Johnson v. Southern Railway Company, 351 Mo. 1110, 175 S.W.2d 802. But also see the criticism of this case in 163 A.L.R. at page 156. In any event, there was no necessity in this case of resorting to the hearsa......
  • Burrows v. County Court of Carter County, No. 7638
    • United States
    • Missouri Court of Appeals
    • December 2, 1957
    ...Nichols v. State Social Security Commission, 349 Mo. 1148, 1153, 164 S.W.2d 278, 280(5); Johnson v. Southern Ry. Co., 351 Mo. 1110, 175 S.W.2d 802, 806(3)], and certainly such opinions had no probative value where the factual evidence given by the same witnesses affirmatively established th......
  • Springer v. Security Nat. Bank Savings & Trust Co., No. 38591.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...the debit balance. On the contrary, it is alleged that plaintiff had an "equity" of $54,350.47 in the brokerage account on October 6th. 175 S.W.2d 802 Notwithstanding the allegation of the petition that plaintiff's loss "was sustained as a direct and proximate result of the negligence of th......
  • Request a trial to view additional results

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