Koonse v. Mo. Pac. Railroad Co.

• Decision Date: 05 April 1929
• Docket Number: No. 27609.,27609.
• Citation: 18 S.W.2d 467
• Parties: FERNIA KOONSE, Administratrix of Estate of MELBOURNE M. KOONSE, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

18 S.W.2d 467

FERNIA KOONSE, Administratrix of Estate of MELBOURNE M. KOONSE, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 27609.

Supreme Court of Missouri, Division No. 2.

April 5, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

AFFIRMED.

Edward J. White, Thomas J. Cole and Merritt U. Hayden for appellant.

(1) This judgment should be reversed outright, for the reason that there is a total failure of that substantial proof required by the law, as declared by the Federal courts in cases of this character, of the following essential elements constituting the negligence, alleged in the petition, relied upon by respondent and submitted to the jury by Instruction 2 at her instance. (a) That, at the time of the accident, it was the duty of deceased to alight from the train to throw a switch; that, at said time, he was off the train for any such purpose or that he was off the train for the purpose of performing any duty pertaining to his employment. Commrs. Marion Co. v. Clark, 94 U.S. 278; Hardy-Burlingham Co. v. Baker, 10 Fed. (2d) 277; Patton v. Railway Co., 179 U.S. 658; Railroad v. Harris, 247 U.S. 368; Seaboard Air Line v. Horton, 233 U.S. 492; Railroad v. Wells, 275 U.S. 456; Ry. Co. v. Bartsch, 9 Fed. (2d) 858; Ry. Co. v. Allen, 9 Fed. (2d) 854; Ry. Co. v. Thirouin, 9 Fed. (2d) 856; Hobbs v. Railway Co., 142 Pac. 20; Elliott v. Payne, 293 Mo. 581. (b) That there was a well-established, certain, definite, uniform custom, method of operating trains, or rule, applicable to switching operations, in a switching district, to ring the bell of an engine which was backing before starting the engine from a stationary position, as a warning to the conductor of the train, who was in full charge of the train and crew, who had alighted from the train and was walking ahead of it for the purpose of throwing a switch. Ry. Co. v. Lindeman, 143 Fed. 946; Curtis v. Railroad, 267 Pa. 227; Carlo v. Ry. Co., 143 Atl. 5; Aerkfetz v. Humphreys, 145 U.S. 418. (c) That, as averred in the petition, such alleged custom was known to deceased or that its observance was relied upon by him or that his conduct immediately before his injury was, in anywise, influenced thereby. Kirkland v. Bixby, 282 Mo. 462, authorities cited under subdivision (e) of this point. (d) That there was any failure on the part of appellant's employees to observe such alleged custom or that there was any failure on their part to ring the bell of the engine either before or at the time of starting said engine. (e) That, if such custom existed, if deceased knew and relied upon it, and if it were violated by starting the engine and train without sounding the bell thereon, such violation was the proximate cause of the injury to deceased. Railway Co. v. Coogan, 271 U.S. 472; Lang v. Railroad Co., 255 U.S. 455; McCalmont v. Railroad, 283 Fed. 736; Warner v. Railway Co., 178 Mo. 125; Strother v. Railway Co., 188 S.W. 1102; Patton v. Railway Co., 179 U.S. 658. (2) Under respondent's theory, as alleged in her petition and as she attempted to and in some particulars did prove, deceased, at the time of his injury, was engaged in a switching operation in a switching district, where many trains were being moved in each direction. He was, therefore, within the "sectionman" rule, as applied by the Federal courts, in cases coming within the provisions of the Federal Employers' Liability Act, and as also applied by this court, and it was his duty to protect himself from being struck by the approaching train. He was not entitled to warning of the approach of the train unless and until those in charge of the movement of the train actually saw him in a position of peril and, before respondent can recover, it is incumbent upon her to show that he was actually seen in such a position and that, thereafter, the crew were negligent in failing to warn him or stop the train. No such evidence appears in this record. Aerkfetz v. Humphreys, 145 U.S. 418; Ry. Co. v. Nixon, 271 U.S. 218; Reading Co. v. Haldeman, 20 Fed. (2d) 53; Severn v. Ry. Co., 281 Fed. 784; Degonia v. Railway Co., 224 Mo. 564; Evans v. Railway Co., 178 Mo. 508; Gabal v. Railway Co., 251 Mo. 257; Bruce v. Railway Co., 271 S.W. 762; Hammontree v. Payne, 296 Mo. 487; Riddell v. Railroad, 316 Mo. 960. There being no substantial evidence of the negligence charged, deceased assumed the risk. Authorities, supra. (3) Deceased's injuries and death were caused solely by his own carelessness, unaffected by and independent of any negligence of appellant. Ry. Co. v. Wiles, 240 U.S. 444; Frese v. Railroad Co., 263 U.S. 1; Davis v. Kennedy, 266 U.S. 147. (4) The purpose for which deceased alighted from the train, if he did so, was known only to him. He did not, by word or act, indicate that purpose to anyone at the time of or immediately before getting off the train. That purpose was not the proper subject of expert testimony and could not be legitimately established by the opinion of one who was not present and who had no conversation with him at any time about the matter. It was error to admit expert testimony upon that subject. Meily v. Railroad, 215 Mo. 567; Ry. Co. v. Cannon, 296 Fed. 302. (5) It was material, prejudicial and, therefore, reversible error, to admit, over objection, testimony of statements of deceased made more than an hour before and several miles away from the accident about setting cars out at Howard's as tending to prove the purpose of deceased in being off the train at the time of the accident, and at another place. Such statements were self-serving and were not under any definition, thus far announced, part of the res gestae. 22 C.J. 220, secs. 198, 226, 230; sec. 199; Preston v. Ry. Co., 132 Mo. 111; Redmon v. Railroad, 185 Mo. 1; Grant v. Railroad, 172 Mo. App. 339; State ex rel. v. Trimble, 315 Mo. 166. (6) The giving of Instruction 2, at the instance of respondent, was reversible error. The facts submitted to the jury, as a basis for a verdict in favor of respondent, were not within the scope of either the petition or the proof. It submitted facts not proved and omitted facts under respondent's theory which she deemed essential by alleging them very specifically in her petition. Hall v. Coal Co., 260 Mo. 351; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. 902.

Charles P. Noell and Hensley, Allen & Marsalek for respondent.

(1) The so-called "sectionman rule" or trackmen's or switchmen's rule has no application where a railway employee is injured by the movement of cars in violation of a rule of the company or of a custom or practice in effect at the place of such injury. The defendant company is liable for the death of plaintiff's husband proximately caused by the movement of its cars without warning, in violation of a rule of defendant and of a custom and practice then and there in effect. Railroad v. Doktor, 290 Fed. 763; Director-General v. Templin, 268 Fed. 485; Pacheco v. Railroad, 15 Fed. (2d) 468; Montgomery v. Railroad, 22 Fed. (2d) 360; Railroad v. Robertson, 300 Fed. 314; Ry. Co. v. Jeffries, 276 Fed. 75; Railroad v. Mangan, 278 Fed. 85; Hines v. Knehr, 266 Fed. 340; Fletcher v. Railroad, 168 U.S. 135; Railroad v. Bartley, 172 Fed. 82; Voorhees v. Railroad, 14 Fed. (2d) 899; Halt v. Ry. Co., 279 S.W. 148; DeClue v. Mo. Pac. Ry. Co., 264 S.W. 995; Taber v. Mo. Pac. Ry. Co., 186 S.W. 688; Ry. Co. v. Earnest, 229 U.S. 114; McGovern v. Ry. Co., 235 U.S. 389; Briscoe v. Railroad, 200 Mo. App. 691; Penny v. Stock Yards Co., 212 Mo. 309; Black v. Ry. Co., 172 Mo. 177. (2) In addition to proof of an explicit rule of defendant that "the engine bell must be rung when engine is about to move," there was abundant proof of an established, uniform custom and practice, of long standing, in effect at the time, under which it was the duty of defendant's employees in charge of its train not to move it forward from its stationary position without receiving a signal from the deceased or without giving warning signals. Ry. Co. v. Jeffries, 276 Fed. 75; Director General v. Templin, 268 Fed. 484; Pacheco v. Railroad, 15 Fed. (2d) 467; Halt v. Ry. Co. (Mo.), 279 S.W. 148; DeClue v. Mo. Pac. Ry. Co. (Mo.), 264 S.W. 992; Montgomery v. Railroad, 22 Fed. (2d) 359; Fletcher v. Railroad, 168 U.S. 135; Hines v. Knehr, 266 Fed. 340. (3) The deceased is presumed to have known the above-mentioned rule and said custom and practice shown to have been in effect for many years, and to have relied upon the observance thereof. Director General v. Templin, 268 Fed. 485; Erie Railroad v. Healy, 266 Fed. 342; Pacheco v. Railroad, 15 Fed. (2d) 467; DeClue v. Mo. Pac. Ry. Co., 264 S.W. 996; Halt v. Ry. Co., 279 S.W. 148; Mockowik v. Railroad, 196 Mo. 550; Railroad v. Landrigan, 191 U.S. 461; Railroad v. Allen, 72 L. Ed. 269; Fletcher v. Railroad, 168 U.S. 135. (4) The facts and circumstances in evidence, and the inferences inevitably arising therefrom, amply sufficed to warrant the jury in finding that the deceased was acting in the line of his duty at the time of his injury and death. Crucible Steel Co. v. Moir, 219 Fed. 153; Worthington v. Elmer, 207 Fed. 309; Washington Term. Co. v. Callahan, 276 Fed. 336; Ry. Co. v. Marland, 239 Fed. 1; Norfolk v. Ry. Co., 211 Fed. 567; Buesching v. Gas Light Co., 73 Mo. 219; Briscoe v. Railroad, 200 Mo. App. 691; Stewart v. Gas Co. (Mo.), 241 S.W. 909; Hatchett v. U. Rys. Co. (Mo.), 175 S.W. 878; Burtch v. Wabash, 236 S.W. 338; Lynch v. Railroad, 208 Mo. 1, 21. (5) That the deceased, who, as conductor, had charge of this work train containing cars presently to be set out, was "on duty" when he stepped from the caboose and walked down the track cannot be denied. Whatever was his immediate purpose in going forward on the track, the act was obviously an incident of his work, and in performing it he was engaged in interstate commerce, was within the protection of the Federal Employers' Liability Act, and was...