Lepchenski v. Mobile & O. R. Co.

• Citation: 59 S.W.2d 610,332 Mo. 194
• Decision Date: 03 March 1933
• Docket Number: 29616
• Parties: William Lepchenski v. Mobile & Ohio Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

59 S.W.2d 610

332 Mo. 194

William Lepchenski v. Mobile & Ohio Railroad Company, a Corporation, Appellant

No. 29616

Supreme Court of Missouri

March 3, 1933

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed (upon condition).

R P. & C. B. Williams for appellant; Carl Fox of counsel.

(1) The demurrer to the evidence should have been sustained because there was no substantial evidence of the alleged custom to sound the whistle on the locomotive upon approaching the curve in question, to warrant the submission of the case. Jones v. St. Louis & S. F. Ry. Co., 30 S.W.2d 481; Atchison, Topeka & Santa Fe Railroad Co. v. Mabel Toops Admx., 281 U.S. 351, 50 S.Ct. 281; Chicago Ry. Co. v. Lindeman, 143 F. 946; Staroski v. Pulitzer Pub. Co., 235 Mo. 67; Martin v. Railroad Co., 30 S.W.2d 735; Ingram v. M. & O. Ry. Co., 30 S.W.2d 989; Norfolk & Western v. Collingsworth, 32 F. 561; Delaware, etc., Railroad Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210; Kansas City So. Railroad v. Jones, 276 U.S. 303, 72 L.Ed. 583; Gulf Railroad Co. v. Wells, 275 U.S. 455, 72 L.Ed. 370; C. & O. Railroad Co. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; Small v. Lamborn & Co., 267 U.S. 250, 69 L.Ed. 597; M. C. Ry. Co. v. Timmerman, 24 F.2d 23; Lehigh Valley v. Mangan, 278 F. 88; Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91; New York Cent. Ry. Co. v. Ambrose, 50 S.Ct. 198; Unadilla Valley Ry. Co. v. Dibble, 31 F.2d 239. (2) There was no evidence that the alleged custom was intended to cover a class to which section men belonged. This is an essential element which must be affirmatively proved to make the custom actionable. Norfolk Ry. Co. v. Gesswine, 144 F. 56; C. & O. Railroad Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42; C. & O. Ry. Co. v. Nixon, 271 U.S. 218; Norfolk & Western Railroad Co. v. Collingsworth, 32 F.2d 561; Delaware, etc., Railroad Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202; Jones v. St. L. & S. F. Ry. Co., 30 S.W.2d 481; Randall v. Railroad Co., 109 U.S. 478, 27 L.Ed. 1003; Sullivan v. Railroad Co., 36 N.E. 751; Reynolds v. Railroad Co., 69 F. 808, 16 C. C. A. 435; Roback v. Railroad Co., 43 Mo. 187; Anderson v. Wells, 273 S.W. 233; Degonia v. Railroad Co., 224 Mo. 564; L. & N. Railroad Co. v. Hyatt, 191 Ky. 85, 229 S.W. 101; Cincinnati Railroad Co. v. Brown, 234 S.W. 455; So. Ry. Co. v. Hilton, 37 F.2d 843. (3) There is no averment in the petition, nor was there any proof that the plaintiff knew of and relied upon the alleged custom to warn as one of a class within its protection. Norfolk Ry. Co. v. Gesswine, 144 F. 56; Kirkland v. Bixby, 282 Mo. 462; C. & O. Railroad Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42; 17 C. J. 518, sec. 81; L. & N. Railroad Co. v. Hyatt, 191 Ky. 85, 229 S.W. 101; C. M. & St. P. Ry. Co. v. Lindeman, 143 F. 946. (4) The negligence of the plaintiff in permitting himself to be driven in the motor car up to the curve and cut where the view was obscured, a known and obvious place of danger, was the sole and only proximate cause of the injury. Va. Ry. Co. v. Linkous, 230 F. 88 (Certiorari denied, 248 U.S. 630); Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91; So. Ry. Co. v. Hilton, 37 F.2d 843; Pleasant v. Director General of Railroads, 285 F. 342; Great Northern Railroad Co. v. Wiles, 240 U.S. 444, 60 L.Ed. 732; A. Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210; Frese v. Chicago & Burlington Railroad Co., 263 U.S. 1, 68 L.Ed. 131; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; Kansas City So. Railroad Co. v. Jones, 276 U.S. 303, 72 L.Ed. 583, 48 S.Ct. 308; Hines Director v. Kesheimer, Admx., 198 Ky. 580, 249 S.W. 1001; Boghick v. Louisville Railroad Co., 26 F.2d 361; Kemp v. Del L. W. Railroad Co., 99 N. J. Law 238, 122 A. 731; Certiorari denied, 264 U.S. 583, 68 L.Ed. 861; Unadilla Ry. Co. v. Dibble, 31 F.2d 239; Wagner v. St. L. & S. F. Ry. Co., 19 S.W.2d 518. (5) Plaintiff's Instruction 1 is erroneous for the following reasons: (a) Said instruction is misleading and prejudicial in that it makes the delay of train No. 15, and plaintiff's want of knowledge thereof, a predicate of liability. The defendant did not owe the section men any duty to run its trains on schedule time, or to inform them when they were delayed. Quigley v. Ry. Co., 291 Mo. 23, 235 S.W. 1050; 4 Elliott on Railroads, sec. 1862. (b) Instruction 1 made it the duty of the defendant's servants in charge of its trains, to anticipate and look out for the section men, irrespective of whether there was a custom and practice so to do. This was clearly error. C. & O. Railroad Co. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; C. & O. Railroad Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42; Martin v. Wabash Railroad Co., 30 S.W.2d 735; Voorhees v. C. R. I. Railroad Co., 30 S.W.2d 22; Kirkland v. Bixby, 282 Mo. 462; Degonia v. St. Louis Railroad Co., 224 Mo. 564. (c) Said Instruction 1 submits plaintiff's reliance on said custom when there was no pleading or proof upon that subject. Kirkland v. Bixby, 282 Mo. 462; C. & O. Railroad Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42; 17 C. J. 518, sec. 81; Martin v. Wabash Railroad Co., 30 S.W.2d 735. (6) The defendant owed no duty to the section men to run its passenger train at any particular rate of speed or to check the speed at curves, and it was prejudicial error to permit plaintiff's counsel to argue the question of speed, over defendant's objection and exception, and to refuse defendant's Instructions K and L withdrawing speed. 4 Elliott on Railroads, sec. 1862; Hoffard v. Ill. Cent. Railroad, 110 N.W. 446; Ives v. Wisconsin Ry. Co., 126 Wis. 357, 107 N.W. 452. (7) The court erred in refusing defendant's Instruction M, which announced the rule that the section men riding on the motor car were required to protect themselves, and that the train crew were not required to look out for them or anticipate their presence on the track. Martin v. Wabash Railroad Co., 30 S.W.2d 735; C. & O. Railroad Co. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; Numerous cases are cited in the Martin case. (8) The verdict of the jury was and is grossly excessive and the result of passion and prejudice, and the judgment, after remittitur, is grossly excessive. Hughes v. Schmidt, 30 S.W.2d 468; Morris v. Atlas Portland C. Co., 19 S.W.2d 865; Sullivan v. St. L. & S. F. Ry. Co., 12 S.W.2d 735.

Douglass & Inman and Allen, Moser & Marsalek for respondent.

(1) The jury had the undoubted right to believe all of the testimony of any witness, or none of it, or to accept it in part, or reject it in part, as they found the same to be true or false, when considered in relation to the other testimony and the facts and circumstances in the case. Anderson v Davis, 314 Mo. 515; Gould v. Railroad Co., 315 Mo. 723. (a) It is not the function of the appellate court to weigh conflicting testimony. The verdict of the jury conclusively settles all issues of fact in favor of the successful party. Reid v. Insurance Co., 58 Mo. 430. (b) Appellant has selected detached statements from the cross-examination of a number of the witnesses, as the basis of its contention that there was no evidence of a custom to sound the whistle of the locomotives as they approached and traversed the curve where the accident occurred. It was not the province of the trial court, on demurrer to the evidence, to select testimony unfavorable to plaintiff, or to draw inferences adverse to his case. Hoelker v. American Press, 296 S.W. 1015; Thornsberry v. Railroad, 178 S.W. 200; Rigley v. Pryor, 290 Mo. 10; Benjamin v. Railroad, 245 Mo. 615; Crowell v. St. Louis Screw Co., 220 Mo.App. 728; Brown v. Mill Co., 217 S.W. 334. (c) The evidence adduced by plaintiff to establish the defendant's custom to sound the locomotive whistle upon approaching and traversing the curve in question was substantial, and required the submission of that issue to the jury. Koonse v. Mo. Pac. Railroad Co., 18 S.W.2d 471, cert. den. 50 S.Ct. 34; O'Donnell v. B. & O. Railroad Co., 26 S.W.2d 933; DeClue v. Mo. Pac. Railroad Co., 264 S.W. 995; Fletcher v. B. & P. Railroad Co., 168 U.S. 135; St. Louis & S. F. Ry. Co. v. Jeffries, 276 F. 75; Director General v. Templin, 268 F. 483. (d) The defendant is liable to plaintiff for the negligence of its employees in failing, in violation of said custom, to sound the locomotive whistle upon approaching and rounding the curve. Federal Employers' Liability Act, 45 U.S.C. sec. 52; Smith v. C. B. & Q. Railroad Co., 15 S.W.2d 794; Hunt v. C. B. & Q. Railroad Co., 303 Mo. 123; Hughes v. M. R. & B. T. Ry., 309 Mo. 560; Rigley v. Pryor, 290 Mo. 10; McGovern v. P. & R. Ry. Co., 235 U.S. 389; Norfolk & W. Railroad Co. v. Earnest, 229 U.S. 114; Balto. & O. Railroad Co. v. Robertson, 300 F. 314; Lehigh Valley Railroad Co. v. Doktor, 290 F. 760; Lehigh Valley Railroad Co v. Mangan, 278 F. 85; Director General v. Templin, 268 F. 483. Defendant is liable to plaintiff without regard to the custom. N. Y. N. H. & H. Railroad Co. v. Pascucci, 46 F.2d 969. (2) The undisputed fact that the plaintiff (and the other section men as well) was listening intently for the whistle as the motor car approached the curve, was ample evidence to warrant the finding that plaintiff relied upon the custom of the trainmen to sound the whistle. De Clue v. Mo. Pac. Railroad Co., 264 S.W. 995; Pacheco v. N. Y., N. H. & H. Railroad Co., 15 F.2d 469; Knorpp v. Wagner, 195 Mo. 664. (f) It sufficiently appears from the evidence that the custom was intended for the protection of the section men. Montgomery v. B. & O. Railroad Co., 22 F.2d 360; Southern Ry. Co. v. Cook, 226 F. 1, writ of error den., 245 U.S. 677; Hunt v. Railroad, 303 Mo. 125; Smith v. C. B. & Q. Railroad Co., 15 S.W.2d 797. (g) There was ample evidence that the men on the motor car...