Joice v. Missouri-Kansas-Texas R. Co.
| Decision Date | 04 September 1945 |
| Docket Number | No. 39366.,39366. |
| Citation | 189 S.W.2d 568 |
| Parties | JOICE v. MISSOURI-KANSAS-TEXAS R. CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court, Division No. 6; William S. Connor, Judge.
Action by Benjamin B. Joice against Missouri-Kansas-Texas Railroad Company to recover under the Federal Employers' Liability Act. Judgment for plaintiff, and defendant appeals.
Affirmed on condition of entry of a remittitur, otherwise reversed and remanded for a new trial.
Everett Paul Griffin and Carl S. Hoffman, both of St. Louis, for appellant.
Mark D. Eagleton, and Wm. H. Allen, both of St. Louis, for respondent.
BARRETT, Commissioner.
The Missouri-Kansas-Texas Railroad Company appeals from a verdict and judgment finding that Benjamin B. Joice's injuries were caused by its negligence within the meaning of the Federal Employer's Liability Act, 45 U.S.C.A. §§ 51-60.
Joice was the appellant's section foreman between Porter and Wybark in Oklahoma. J. A. Wilson was the foreman of the Coweta section, immediately to the north. Under the direction of the roadmaster the two crews had been engaged in cleaning up oil that had escaped from storage tanks in the Muskogee yards onto private property. On April 27, 1943, the two crews were returning from the Muskogee yards to their respective sections on motorcars. Wilson's motorcar was towing Joice's motorcar with a rope. About a mile south of Porter as the motorcars were going around a curve, through a cut, they were struck by an extra train traveling in the opposite direction.
The acts pleaded and hypothesized as constituting negligence were (1) that Joice "was required to have his said motorcar towed by the said motorcar ahead by reason and on account of the fact, * * * that the defendant provided the plaintiff with a motorcar that was inadequate and insufficient to do the job intended of it * * * that said motorcar did not have adequate or sufficient power to climb the hills and inclines upon the aforesaid trip, and that by reason thereof, * * * the said motorcar thus furnished to the plaintiff, * * * was not a reasonably safe appliance with which to do said work; and * * * that plaintiff and his said motorcar were required to be towed by the motorcar ahead and were thus and thereby placed in close and dangerous proximity to said motorcar ahead, * * * and in such close and dangerous proximity to the aforesaid southbound train, * * * that plaintiff's place of work was thus and thereby made unsafe and dangerous and not reasonably safe, * * * and * * * defendant did fail to exercise ordinary care to furnish plaintiff with a reasonably safe motorcar, * * * and * * * a reasonably safe place of work * * * and (2) defendant through its officers, agents, and employees did fail to give proper instructions and advices to the plaintiff so as to make him aware of the location of said train, * * * and did give the plaintiff improper and erroneous advice as to the location and whereabouts of said train, * * *."
The railroad contends that there was no evidence of any negligence on its part which was a proximate cause of the collision and, therefore, its demurrers to the evidence should have been sustained. In this connection it is argued that as to a section foreman, whose duties required his presence on the track on a motorcar, there was no duty on those in charge of the train to take any action until the presence of the employee on the track in a place of peril was actually discovered. It is said that a section foreman on the tracks on a motorcar must rely on his own watchfulness and keep out of the way of trains. It is contended that there was no evidence of any negligence in the giving of the "sight" (information, instructions and proper advice as to the location and movements of the extra train) by the towerman at Muskogee. It is urged that the sole proximate cause of the collision was Joice's violation of the printed rules which required him to call a dispatcher at every opportunity, to flag cuts and curves and to keep in the clear of trains. It is urged that if there was a defect in the motorcar such defect was not the proximate cause of the accident and injuries. It is contended that the court erred in submitting, in Joice's main instruction, the condition of the motorcar as a proximate cause of the accident, or as an unsafe place to work, and failure to give proper advice as to the location of the train as negligence. It is argued that the court erred in refusing its instructions hypothesizing Joice's failure to remove the motorcar from the tracks and his operating it within six hundred feet of another motorcar, in violation of company rules, as contributory negligence. It is argued that the court erred in refusing its instruction hypothesizing failure to call a dispatcher at Tullahassee for further advice as to the location of the train and failure to flag the cut, in violation of the rules, as the sole proximate cause of the collision. These objections by the appellant and the questions they pose are interrelated and for that reason are grouped together.
It may be that in some circumstances there is an obligation upon a section foreman, whose duties require his presence upon the tracks on a motorcar, to look out for his own safety, particularly so when the risk or hazard complained of is one that is ordinarily incident to his employment. Thomson v. Downey, 7 Cir., 78 F. 2d 487, 489. Here, however, Joice did not rely upon the railroad's breach of its duty to maintain a lookout as negligence and neither was his view of the track through the cut and curve unobscured. Compare in these respects Chesapeake & O. Ry. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L. Ed. 914; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758, and Rocco v. Lehigh Valley R. Co., 288 U.S. 275, 278, 53 S.Ct. 343, 344, 77 L.Ed. 743, 745. He did not rely upon being in oblivious and inescapable peril and the railroad's having the last clear chance to avoid hitting him. Compare Deere v. Southern Pac. R. Co., 9 Cir., 123 F.2d 438, and Dodd v. M. K. T. R. Co., Mo., 184 S.W.2d 454. It may be assumed that these contrasting obligations and lack of obligations existed and yet it does not follow that Joice may not recover in this action if certain other factors and circumstances are made to appear.
He did not rely upon and submit as negligence any of these duties or obligations and they are involved in this action but incidentally. As indicated, he relied upon and submitted as negligence the failure of the railroad's employees to give him correct and proper information as to the location of the extra train and furnishing him an unsafe place to work, consisting of a defective motorcar. And, if the railroad was negligent in either of these respects, within the meaning of the act, it is possible for him to recover irrespective of his or the railroad's duties or obligations in other respects. Under the act, the railroad is liable to its employee "for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, * * * or other equipment" (45 U.S.C.A. § 51), which is a substantial right under the act, protected and governed by the federal rather than local rules of law. Bailey v. Central Vermont Ry., 319 U.S. 350, 352, 63 S.Ct. 1062, 1063, 87 L.Ed. 1444, 1447. The act and its amendments Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610, 617, 143 A.L.R. 967. In this connection it should be noted that the act now releases "the employee from the burden of assumption of risk by whatever name it [is] called." Tiller v. Atlantic Coast Line R. Co., 318 U. S. loc. cit. 64, 63 S.Ct. loc. cit. 449, 87 L.Ed. loc. cit. 616; Blair v. Baltimore & O. R. Co., 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. ___. The employee was always relieved of this burden as to negligence on the part of other employees. Boldt v. Pennsylvania R. R. Co., 245 U.S. 441, 38 S.Ct. 139, 62 L. Ed. 385. Furthermore, as is well known, under the act contributory negligence is not a complete defense and does not bar recovery by an employee who has been negligent — his negligence merely diminishes the recoverable damages in proportion as the jury finds the negligence attributable to the employee. Godsy v. Thompson, 352 Mo. 681, 689, 179 S.W.2d 44, 48.
In view of these principles the decisive question is whether there was evidence that the railroad was negligent in either of the particulars submitted and whether that negligence proximately caused the injuries complained of. If there was proof from which the jury could find either one of the acts of negligence complained of and submitted, conjunctively, it is not necessary to determine whether there was also proof of the other submitted act. Wilday v. Missouri-Kansas-Texas R. Co., 347 Mo. 275, 280, 147 S.W.2d 431, 434; Tash v. St. Louis-San Francisco Ry. Co., 335 Mo. 1148, 76 S.W.2d 690. And whether the railroad was negligent in either of these particulars "may be determined by viewing its conduct as a whole." Blair v. Baltimore & O. R. Co., supra [323 U.S. 600, 65 S.Ct. 547].
As we have pointed out in the beginning, Joice had been assisting in cleaning up oil in the Muskogee yards and...
To continue reading
Request your trial