Kidd v. Chicago, Rock Island & Pacific Railway Company

• Citation: 274 S.W. 1079,310 Mo. 1
• Decision Date: 30 July 1925
• Docket Number: 24957
• Parties: NELLIE KIDD, Administratrix of Estate of CLYDE KIDD, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

274 S.W. 1079

310 Mo. 1

NELLIE KIDD, Administratrix of Estate of CLYDE KIDD, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 24957

Supreme Court of Missouri

July 30, 1925

Motion for Rehearing Denied July 1, 1925.

Motion to Transfer to Court en Banc Denied July 30, 1925.

Appeal from Grundy Circuit Court; Hon. Leonidas B. Woods Judge.

Affirmed (upon condition).

Luther Burns, Conrad & Durham and Hale Houts for appellant.

(1) Plaintiff failed to make a case. The record fails to disclose any actionable negligence on the part of defendant, or any negligence which was the proximate cause of the death of plaintiff's intestate; but, on the contrary, shows that deceased's negligence was the sole proximate cause of his fatal injury. Relyea v. Railway, 112 Mo. 96; Degonia v. Railroad, 224 Mo. 594; State ex rel v. Ellison, 271 Mo. 468; American Brewing Co. v. Talbott, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 652; Cook v. Railroad, 162 Mo. 659; Flack v. Railroad, 285 Mo. 49; McColmont v. Railway, 233 F. 231. (2) The court erred in overruling defendant's objection to a panel of more than eighteen jurors, and in requiring the selection of the jury from a panel of twenty. Sec. 6630, R. S. 1919; Clark v. Railroad, 234 Mo. 416; Reese v. Railroad, 156 Mo.App. 586. (3) The court erred in refusing defendant's several requested instructions numbered 2, 6, 8 and 9, by which defendant sought to have excluded from the consideration of the jury various specific charges of negligence. (4) The court erred in giving plaintiff's instruction 3, which broadened the issues. Beave v. Transfer Co., 212 Mo. 331. (5) Instruction number 4 was erroneous in that it submitted false issues and the instructions as a whole were erroneous in that by reason of their length and fullness of detail and repetition they were confusing to the jury and prejudicial to the defendant. (6) The court erred in giving plaintiff's instruction numbered 4 for the reason that it assumed that the alleged negligence on the part of defendant's employees was the proximate cause of the fatal injury. Zini v. Railway, 235 S.W. 87; Stark v. Bingiman, 223 S.W. 946; McLaughlin v. Marlatt, 228 Mo. 877. (7) The verdict was excessive. Midway Bank & Trust Co. v. Davis, 288 Mo. 585; Crecelius v. Railway, 284 Mo. 26; Burtch v. Railway, 236 S.W. 335.

A. G. Knight, Platt Hubbell and Geo. H. Hubbel for respondent.

(1) The appellant was negligent in (a) failing to sound the locomotive whistle of the passenger train, in accordance with its own rules, and the exercise of reasonable care, in the circumstances; and (b) in operating the passenger train at excessive speed in violation of its own rules, the city ordinance, and the exercise of reasonable care, in the circumstances; and, all of said acts and omissions of negligence predicated in respondent's instruction numbered four united and combined at the time with the negligence of the appellant in the use of defective engine 3002 as proximate causes of the death of the deceased. Greenwell v. Ry. Co., 224 S.W. 407; St. Louis Railway Co. v. Jeffries, 276 F. 75; Hubbard v. Wabash Ry. Co., 193 S.W. 582; Southern Ry. Co. v. Smith, 205 F. 360; Norfolk & W. Ry. Co. v. Holbrook, 215 F. 689, 59 L.Ed. 392, 235 U.S. 625; Norfolk Ry. Co. v. Earnest, Ann. Cas. 1914C, 172, 57 L.Ed. 1096, 229 U.S. 114; Delaware L. & W. R. Co. v. Hughes, 240 F. 941. (2) The use of the defective locomotive, at the time and place of the death, was a violation of the Federal Locomotive Boiler Act of February 17, 1911, as amended March 4, 1915, the violation of said act was one of the proximate and contributing causes of the death. In such circumstances, the Federal Employers' Liability Act eliminates any issue of assumption of risk or contributory negligence from the case. 8 U.S. Comp. Stat. Ann. (1916) sec. 8631; 8 Fed. Stat. Ann. (2 Ed.) 1200, 1205; Haas v. Erie Ry. Co., 254 Pa. 235; L. & N. Railroad Co. v. Layton, 243 U.S. 617; Wolfe v. Payne, 294 Mo. 170; Central Ry. Co. v. White, 238 U.S. 507. (3) In addition to the negligent use of defective engine eliminating any issue of contributory negligence or assumption of risk in this case, the record and the facts eliminate any claim of contributory negligence or assumption of risk. Davis v. Slocum, 288 F. 354; Adams v. Railroad Co., 287 Mo. 552; Yazoo & Miss. V. Ry. Co. v. Wright, 235 U.S. 376; Cheaspeake & O. Ry. Co. v. De Atley, 241 U.S. 310, 60 L.Ed. 1016; Erie Ry. Co. v. Puruker, 244 U.S. 320, 61 L.Ed. 1166. (4) The verdict of thirty thousand dollars in this case is not excessive. Beaumont Ry. Co. v. Sterling, 260 S.W. 320; Hines v. Mills, 218 S.W. 780; Texas Ry. Co. v. Herrington, 241 S.W. 250; Rigley v. Pryor, 290 Mo. 10; Page v. Payne, 293 Mo. 600. (5) In the empaneling of the jury, there was no error committed. Stevens v. Union Ry. Co., 66 L. R. A. (O. S.) 469, 26 R. I. 90; State v. Faulkner, 175 Mo. 578; Bank v. Durrill, 61 Mo.App. 546. (6) The work reports are legal evidence for the purpose of showing notice of the three steam leaks, and the defective condition of the grates and grate shaker, thus rendering the use of the humming blower necessary. B. & O. Ry. Co. v. Flechtner, 300 F. 318; 8 U.S. Comp. Stat. (1916) p. 9249, sec. 8592; Vicksburg Railroad Co. v. Putnam, 30 L.Ed. 257, 118 U.S. 545; Anchor Milling Co. v. Walsh, 108 Mo. 277; Robinson v. Smith, 111 Mo. 205; Stuyvaert v. Arnold, 122 Mo.App. 421; 1 Wigmore on Ev. (2 Ed.) 524; Swadley v. Mo. Pac. Ry. Co., 118 Mo. 268.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action by plaintiff, the widow of Clyde Kidd, as administratrix of her late husband's estate, for the benefit of herself and deceased's minor children, to recover damages for the death of said Clyde Kidd by reason of the alleged negligence of defendant. Plaintiff seeks recovery under the Federal Employers' Liability Act of April 22, 1908, as amended on April 5, 1910 (U.S. Compiled Statutes, secs 8657-8665), and also under the Federal Locomotive Boiler Act of February 17, 1911, as amended on March 4, 1915 (U.S. Compiled Statutes, secs. 8631 and 8639-a).

Decedent was instantly killed by passenger train number 57 on one of defendant's main tracks in the city of Trenton, Missouri about 6:35 o'clock on the morning of October 24, 1922. Defendant's double-track railroad enters Trenton from the north, and runs south and southeasterly from the north city limits for a distance of slightly less than one mile to defendant's depot and switch-yards, with their incident yard office, round-house and engineer's washroom, Trenton being a terminal or division point of defendant railway. In order the better to visualize the scene and surroundings of the fatality, it is necessary to bear in mind certain physical objects adjacent to defendant's right-of-way and their relative distances with respect to each other. Approaching Trenton from the north, the station post, which is exactly one mile north of defendant's depot, is located on the west side of the right-of-way adjacent to the west track. This station post marks the point at which the usual station whistle, consisting of one long blast, is customarily given by all south-bound trains approaching Trenton. Two semaphores, or electric block signal posts, are located, one on each side of the right-of-way, 135 feet south of the station post. An overhead street crossing or bridge, used for vehicular and pedestrian traffic, known as Rainbow Bridge, bridges defendant's right-of-way east-and-west at 22nd Street, and is the central object used by the witnesses in fixing the relative distances of other physical objects with respect to the locus in quo. Rainbow Bridge is 2480 feet south of the station post, and 2800 feet north of the Rock Island depot, and the two semaphores above referred to are 2345 feet north of Rainbow Bridge. The northern city limit or corporate boundary line of Trenton is 600 feet south of the station post, and 1880 feet north of Rainbow Bridge. The double-track railroad of defendant enters a deep cut, having embankments on the east and west sides, the north end of this cut being 1200 feet south of the station post and 1280 feet north of Rainbow Bridge. This cut is about 2280 feet long, the south end of the cut being approximately at Mable Street crossing, a grade crossing across the right-of-way, 1000 feet southeasterly from Rainbow Bridge. The steepest place or depth of the embankment on the east side of the cut is 66 feet at a point 100 feet north of Rainbow Bridge, and the steepest place or depth of the embankment on the west side of the cut is 48 feet at a point 125 feet north of Rainbow Bridge. The two parallel tracks of defendant run north and south for some considerable distance north of the city of Trenton, and continue to run in a north and south direction for a distance of about 800 feet south of the north entrance to the cut. The two parallel tracks then curve to the southeast. The curve in the tracks is 1020 feet in length. It begins 2000 feet south of the station post and 480 feet north of Rainbow Bridge, and ends 3020 feet south of the station post and 540 feet south of Rainbow Bridge. The curvature of the tracks is a three per cent curve, and the most westward point in the curve is 100 to 125 feet north of Rainbow Bridge. Mable Street (a north-and-south street) and 18th Street (an east-and-west street) intersect at right angles, and cross defendant's right-of-way on grade at approximately, or very near, their intersection. This crossing is known as Mable Street crossing, and is the only grade crossing across the railroad tracks between defendant's depot and the north city limit of Trenton. Mable Street crossing is 1000 feet southeasterly from Rainbow Bridge, and the south end of the curve in the tracks is 459 feet northerly of...