Johnson v. Terminal R. Ass'n of St. Louis

• Decision Date: 03 December 1945
• Docket Number: 39471
• Citation: 191 S.W.2d 676,354 Mo. 800
• Parties: Max Johnson and the Pullman Company, a Corporation, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

191 S.W.2d 676

354 Mo. 800

Max Johnson and the Pullman Company, a Corporation, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 39471

Supreme Court of Missouri

December 3, 1945

Rehearing Denied January 7, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Affirmed.

Warner Fuller and Arnot L. Sheppard for appellant.

(1) According to the testimony of both respondent and Reed, the latter did not actually see respondent in a position of peril. Consequently there is no question that appellant had no actual notice of respondent's peril. (2) Respondent must recover, then, if at all, upon the theory of constructive notice to appellant of the former's perilous position. Appellant must have acquired this notice through switch foreman Reed, for the reason that no other Terminal employee's actions are questioned. (3) Recovery upon constructive notice is conditioned upon proof that it was Reed's duty to have seen respondent's danger. Mayfield v. K.C. So. R. Co., 337 Mo. 79, 85 S.W.2d 116. There are two reasons why no such duty rested upon Reed. (4) Under the rules of The Pullman Company, it was respondent's duty to place his ladder on track 7 so that it was clear of track 6; or if he could not practicably do that, then he should have blue flagged track 6. (5) Because respondent's injury occurred in appellant's switchyard, which is neither a public place nor a place where the public had by user acquired a right to be, it was his duty under the law to look out for his own safety, in the absence of special circumstances transferring that duty from him to appellant. Mayfield v. K.C. So. R. Co., 337 Mo. 79, 85 S.W.2d 116. (6) Under the facts here there is but one method of transferring from respondent to appellant the duty of looking out for the former's safety, viz., proof of a custom followed by appellant to do so. Mayfield v. K.C So. R. Co., supra. (7) To be effective such a custom must supersede the ordinarily controlling principle of law that one working in a switchyard must look out for his own safety. Obviously, to supersede the law, the custom must have the force and effect of law. C., M. & St. P.R. Co. v Lindeman, 143 F. 946; Federal Reserve Bank v. Malloy, 264 U.S. 160, 68 L.Ed. 617; 17 C.J., sec. 1, p. 446; Hansen v. Standard Oil Co. of Indiana, 44 P. 709. (8) Because such a custom necessarily supersedes the law, evidence to establish it must show that the custom was definite, certain, uniform and universal. C., M. & St. P.R. Co. v. Lindeman, 143 F. 946; McClellan v. P.R. Co., 62 F.2d 61; Magyer v. P.R. Co., 144 A. 765; Shane v. Lowden, 106 S.W.2d 956. (9) The most which may be said of respondent's evidence is that if it proves anything respecting a custom, it proves no more than a "loose and variable practice, depending upon surrounding circumstances and the caprice of the individual actor." By this no one is bound and no one may rely or act upon it. Sickelco v. Union Pacvic R. Co., 111 F.2d 746; In re Green Milling Co., 132 F.2d 279; Porterfield v. American Surety Co., 210 S.W. 119. (10) No humanitarian duty is created unless and until a situation of imminent peril arises. Then "the doctrine seizes upon the situation as it then exists and requires the one operating the dangerous instrumentality to exercise ordinary care . . . to make timely discovery of the peril". State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798; Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784; Hutchison v. Thompson, 167 S.W.2d 96. (11) Therefore, if at the time respondent's position became perilous, Reed was not in a position to discover respondent's perilous position, no case was made under the humanitarian doctrine; because the failure to have a man in a position to discover the peril, if negligence at all, is primary negligence. Mayfield v. K.C. So. R. Co., 337 Mo. 79, 85 S.W.2d 116; Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784; Hutchison v. Thompson, 167 S.W.2d 96. (12) Moreover, if there were, and respondent proved, a duty under the humanitarian doctrine to have a man in a position to discover the peril, he must go further and show that the man in such position had at that time the ability to avoid the injury after he discovered or should have discovered respondent's peril. Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784. (13) Respondent cannot now rely upon Reed's testimony to prove his presence there; because Reed's testimony is contrary to respondent's theory of recovery, to respondent's own evidence, and affirms facts which respondent denies. Meese v. Thompson, 344 Mo. 177, 129 S.W.2d 847; Trower v. M.-K.-T. R. Co., 347 Mo. 900, 149 S.W.2d 792; Draper v. L. & N.R. Co., 348 Mo. 886, 156 S.W.2d 626. (14) Respondent's principal instruction nowhere requires the jury to find either generally that the custom relied upon by respondent was violated, or specifically any facts showing a violation of the custom. (15) It assumes the violation of the custom and requires the jury to find only that upon the assumption of its violation, appellant's "employees . . . saw and knew, or by the exercise of ordinary care on their part would have seen and known" respondent's perilous position. Zini v. Term. Railroad Assn. of St. L., 235 S.W. 86; Boland v. St. L.-S. F.R. Co., 284 S.W. 141. (16) It broadens the issues made by the evidence, and becomes a roving commission to the jury to base its verdict upon a finding by the jury without any evidential support that some other member of the switching crew might possibly have seen respondent in time to have stopped the train. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (17) The trial court erred in admitting over appellant's objections, incompetent and prejudicial evidence. (18) Over appellant's motion to strike, the trial court permitted respondent to argue the case to the jury, by saying he could not watch for the train and do his work at the same time, but that he made every attempt to descend (the record incorrectly says "ascend") the ladder after he saw what was happening. Beitling v. S.S. Kresge Co., 232 Mo.App. 1195, 116 S.W.2d 522; Brown v. Adams Transfer & Storage Co., 31 S.W.2d 117. (19) The trial court erred in permitting respondent, over appellant's objection, to state his conclusion and pass upon a jury question, that while on the ladder, he depended for his safety on appellant's servants' sounding a bell or whistle, or shouting a warning to him. Unrein v. Oklahoma Hide Co., 295 Mo. 353, 244 S.W. 924; Marshall v. Taylor, 168 Mo.App. 240; Jackson v. City of Malden, 72 S.W.2d 850. (20) Again respondent was permitted, and again over appellant's objection, to state his conclusion that he did not realize there was any danger that his ladder might be struck. This was a conclusion directly contrary to the remainder of his testimony, and invaded the province of the jury. Unrein v. Oklahoma Hide Co., 295 Mo. 353, 244 S.W. 924; Marshall v. Taylor, 168 Mo.App. 240; Jackson v. City of Malden, 72 S.W.2d 850. (21) The evidence shows conclusively that respondent's gross negligence was the sole cause of his injuries. (22) Respondent's counsel criticized The Pullman Company for taking statements from respondent respecting his injury. The court erred in refusing to rebuke counsel for respondent. The argument was unfair to appellant which was not responsible for the acts of The Pullman Company. (23) After putting the switch foreman on the witness stand, the trial court erroneously permitted respondent's counsel to charge him with perjury. Draper v. L. & N.R. Co., 348 Mo. 886, 156 S.W.2d 626; Summa v. Morgan R.E. Co., 350 Mo. 205, 165 S.W.2d 390. (24) The verdict is grossly excessive.

Henry A. Freytag and Chelsea O. Inman for respondents.

(1) The section-hand rule has no application to this case since plaintiff was not in a position upon the track where he could immediately step to a place of safety. Hughes v. M.R. & B.T.R. Co., 309 Mo. 560, 274 S.W. 703; Goodwin v Mo. Pac. R. Co., 355 Mo. 398, 72 S.W.2d 988. (2) If it did apply, the jury could well have found that the switch foreman Reed actually saw plaintiff in peril. Rogers v. M. & O.R. Co., 337 Mo. 140, 85 S.W.2d 581; Armstrong v. M. & O.R. Co., 331 Mo. 1224, 55 S.W.2d 460. (3) The petition pleaded a user of the tracks by Pullman employees and others. Plaintiff as an employee of The Pullman Company was not a trespasser but an invitee. Defendant was aware of the fact that Pullman employees were working almost constantly on and about the tracks every day. Therefore, defendant could not expect a clear track, but was under a legal duty to keep a reasonable lookout and to anticipate the presence of these employees. Sublett v. Terminal Railroad Assn., 316 Mo. 1082, 294 S.W. 718; Hilton v. Term. R. Assn., 345 Mo. 987, 137 S.W.2d 520. (4) The evidence established a uniform custom of the switchmen to look out for and protect Pullman employees. O'Donnell v. B. & O.R. Co., 324 Mo. 1097, 26 S.W.2d 929; Wellinger v. Terminal Railroad Assn., 183 S.W.2d 908. (5) Where there is a custom to look out for employees a recovery may be had upon discoverable as well as discovered peril. Mayfield v. Kansas City So. R. Co., 337 Mo. 79, 85 S.W.2d 116; Clark v. Terminal Railroad Assn., 111 S.W.2d 168; Mooney v. Terminal Railroad Assn., 176 S.W.2d 605, 186 S.W.2d 450. (6) Plaintiff is entitled to the benefit of the testimony of switch foreman Reed that he was riding on the steps at the leading end of the cars in a position to see. Smith v. K.C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Gould v. C., B. & Q.R. Co., 315 Mo. 713, 290 S.W. 135; March v. Pitcairn, 125 S.W.2d 972. (7) He is not bound by his testimony that he did not see Reed, since plaintiff was in an emergency and may have been mistaken. Golden v. Onerem, 123...