Jones v. Railway Co.

• Decision Date: 09 July 1930
• Docket Number: No. 28165.,28165.
• Parties: ANNA JONES, Administratrix of Estate of GEORGE W. JONES, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

30 S.W.2d 481

ANNA JONES, Administratrix of Estate of GEORGE W. JONES, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 28165.

Supreme Court of Missouri. Division One.

July 9, 1930.

Appeal from Phelps Circuit Court. — Hon. W.E. Barton, Judge.

REVERSED.

E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.

(1) The demurrer to the evidence should have been sustained and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) The evidence wholly failed to show the particular duty, if any, which deceased was performing at the time of the accident, and wholly failed to show that deceased on the occasion in question was engaged in interstate commerce. Poindexter v. Ry. Co., 4 S.W. (2d) 1065; Martin v. Railway, 302 Mo. 506; Illinois Central R. Co. v. Behrens, 233 U.S. 473; Erie Railroad Co. v. Welsh, 242 U.S. 303; Minneapolis & St. Louis Railroad Co. v. Winters, 242 U.S. 353; Philadelphia & R. Ry. Co. v. Cannon, 296 Fed. 302; Railway v. Harrington, 241 U.S. 177. (b) The evidence wholly failed to establish negligence on the part of defendant. Defendant was not required to give warning signals in switching movements, nor was defendant required to prescribe and promulgate rules covering switching movements. K.C. Son. Ry. Co. v. Jones, 48 S. Ct. 308; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 165, 170; Brill v. Reading Co., 16 Fed. (2d) 461; Severn v. Ry. Co., 281 Fed. 784; Houpy v. Railroad, 119 So. 750. (c) Even if plaintiff's evidence were sufficient to establish that deceased's employment was interstate, and that defendant was guilty of negligence in the respects charged, still, under the undisputed testimony, deceased assumed the risk as a matter of law and there can be no recovery in the case. Hoch v. Railway Co., 287 S.W. 1047; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 165; Boldt v. Pennsylvania Railroad Co., 245 U.S. 445; Gilmer v. Railroad, 4 Fed. (2d) 963; Morris v. Prior, 272 Mo. 361; Quigley v. Hines, 291 Mo. 33. (2) The court erred in giving Instruction 1 for the plaintiff. (a) The instruction authorizes the jury to return a verdict for plaintiff on a finding of general negligence on the part of defendant in running and operating a certain car upon and against the deceased. Where, as here, the petition alleges specific acts of negligence, an instruction authorizing a recovery against defendant bottomed upon general negligence is erroneous. Humphreys v. Railroad, 191 Mo. App. 710; Hall v. Coal Co., 260 Mo. 351; State ex rel. v. Ellison, 272 Mo. 571; Orcutt v. Century Bldg. Co., 201 Mo. 424. (b) Instruction 1 is further erroneous in that the jury are instructed on the measure of damages to consider the "pecuniary loss" sustained by the widow, basing its findings "on the present cash value of the support." There is no evidence as to the contributions, if any, from deceased to the widow; no evidence as to the expectancy of deceased; no evidence as to the earning power of money, and no direction to the jury to consider the earning power of money, resulting in failure both in the proof and the instruction to follow the law as laid down in the controlling cases covering the measure of damages. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 491; C. & O. Ry. Co. v. Gainey, 241 U.S. 494; Gulf, C. & S.F. Ry. Co. v. Moser, 275 U.S. 133.

Watson & Allison, Lorts & Breuer and Barton & Moberly for respondent.

(1) The demurrer was properly overruled. (a) This crew was working in an interstate yard, making up an interstate train, and there is evidence that the cars in question were for interstate traffic. Note, 49 A.L.R. 1354; B. & O. Railroad Co. v. Fletcher, 300 Fed. 318, 69 L. Ed. 468; Mellon v. Weber, 152 N.E. 753. (b) "While it is primarily the duty of employees in railroad yards to take precaution for their own safety in passing over and along the tracks, there is a concurrent or secondary duty independent of statute or rule on the part of those in charge of moving engines or cars to take such precaution and give such warnings as are reasonably necessary to avoid injury to an employee who may neglect to protect himself." 39 C.J. 462 and Note 30; Koennecke v. Seaboard A.L. Railroad Co., 85 S.E. 374, 239 U.S. 352; Washington T. Co. v. Callahan, 276 Fed. 334, 260 U.S. 760. "Thus it is held that it is the duty of the railroad to see that reasonable precautions are taken and warnings given by those in charge of the movements of trains, cars or engines to those assisting in such movements as involve switching." 39 C.J. 462 and note 31; Kanawha etc. Railroad Co. v. Kerse, 239 U.S. 576, 6 L. Ed. 448; Young v. Lusk, 268 Mo. 625, 636; Laughlin v. Mo. Pac., 297 Mo. 345. (c) "According to the great weight of authority an employee does not assume the risk of injury caused by the negligence of a railroad company or its employees unless he knows of the danger, or unless the danger is so open and obvious that he is presumed to know it." Vaughn v. Term. Ry. Co., 18 S.W. (2d) 65; Reed v. Director General, 258 U.S. 92, 66 L. Ed. 480; Railroad v. Swearingen, 196 U.S. 51, 49 L. Ed. 382; Railroad v. McDade, 191 U.S. 64, 48 L. Ed. 96; Railroad v. Horton, 233 U.S. 492, 58 L. Ed. 1062; Railroad v. Hall, 232 U.S. 94, 58 L. Ed. 521; Railroad v. Ward, 252 U.S. 18, 64 L. Ed. 430; Railroad v. DeAtley, 241 U.S. 310, 60 L. Ed. 106. (2) Appellant does not contend for a failure of proof as was true in its leading case, State ex rel. v. Ellison, 272 Mo. 571, 582; but contends that the kind of negligence predicated in the first instruction was not necessarily the sort pleaded in the petition — in other words a variance. To this there are several answers each adequate and sufficient. (a) No timely objection having been made and no affidavit of surprise having been filed the variance is conclusively presumed to be immaterial. Sec. 1272 et seq., R.S. 1919; Bank v. Phillips, 179 Mo. App. 488; Litten v. Railroad, 11 Mo. App. 145. (b) There was no evidence of any negligence except those specifically pleaded. "It will be presumed that the jury considered only such grounds of negligence as were supported by the evidence." Bourland v. Baker, 20 A.L.R. 527; Stocker v. Stocker, 36 A.L.R. 1068. (c) Under the evidence, when instructions one and two are read together, the jury could not have been misled. Bourland v. Baker, 20 A.L.R. 528. The cases cited by appellant under this head do not justify its conclusion. (d) Instructions on the measure of damages in substantially the same form have been approved. L. & N. Ry. v. Holloway, 246 U.S. 525; Davis v. Mathews, 263 U.S. 687; Holman v. Railroad, 278 S.W. 1007; Pope v. Term. Railroad Assn., 254 S.W. 47. (e) "Under the Federal Employers' Liability Act substantial damages will be presumed in favor of the widow and children without special averment or proof other than a showing of the pecuniary value of the life of the deceased to his family." 17 C.J. 1350; McCullough v. Chicago etc., Co., 47 L.R.A. (N.S.) 29. (f) Courts take judicial notice of mortality tables. Lincoln v. Power, 151 U.S. 436; Chauchers v. Railroad Co., Ann. Cas. 1918C 954 and note. They also judicially know the fair value or earning power of money at a certain time. Simpson v. United States, 252 U.S. 547; State v. Hughes, 253 S.W. (Mo.) 229, 28 A.L.R. 1305. It is not necessary to prove facts which are judicially known. 15 R.C.L. 1056.

ELLISON, C.

Action under the Federal Employers' Liability Act (45 U.S.C.A., secs. 51-59) for damages caused by the negligent killing of the plaintiff's intestate while he was employed as a switchman making up an interstate train in the defendant's switch yards at the city of St. Louis. From an adverse verdict and judgment for $10,000 the defendant has appealed.

The negligence charged in the petition is that the agents and servants of the appellant carelessly ran a locomotive and train of cars against the deceased while he was standing at the end of a freight car in the performance of his duties trying to adjust a coupler; that the movement was made with great force and violence at the unusual speed of fifteen miles per hour, and without signal or warning; that appellant had negligently failed to prescribe any rules, signals or system for the orderly switching of cars in the yard; that the deceased was unaware of the approach of the cars that killed him and had given no signal for them to be switched toward him. The petition does not plead any custom to give warning signals and a violation thereof. The answer was a general denial coupled with a plea of contributory negligence and assumption of risk.

The evidence was that in the appellant's switch yard a connecting or lead track ran in a northerly and southerly direction. From it some fifteen parallel tracks led off to the west on a slightly descending grade. About seven o'clock in the evening of December 26, 1925, a crew was engaged in switching operations on these tracks. Certain cars were standing on track 9. Another car was shunted to that track. It moved westward about five car-lengths from the lead track, but stopped some distance short of the cars already there, and of course did not couple with them. About ten minutes later still another car was run in on track 9 by a flying switch. It rolled until it struck the standing car, and the latter, moving forward from the impact, ran over the deceased, who must have been at or beyond the west end thereof. Both legs were cut off just below the knee. He died a few minutes later, unable to give an account of how the accident had occurred.

Just what the deceased was doing when injured is not definitely known. It was dark and the other members of the crew did not see him. One of his duties was to set the brakes on cars left standing, and to scotch the wheels when he thought that necessary to keep them from rolling out of place on the sloping track. Respondent says he may have been doing this latter. Also, from the fact that h...