Mayfield v. Kansas City Southern Ry. Co.

• Citation: 85 S.W.2d 116,337 Mo. 79
• Parties: Orley Jefferson Mayfield, Administrator of the Estate of Benjamin Logan Mayfield, v. Kansas City Southern Railway Company, Appellant
• Decision Date: 09 July 1935
• Court: United States State Supreme Court of Missouri

85 S.W.2d 116

337 Mo. 79

Orley Jefferson Mayfield, Administrator of the Estate of Benjamin Logan Mayfield, v. Kansas City Southern Railway Company, Appellant

Supreme Court of Missouri

July 9, 1935

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Reversed and remanded.

Cyrus Crane, Geo. J. Mersereau and Dean Wood for appellant.

(1) The trial court erred in giving plaintiff's Instruction 1 (and refusing defendant's Instruction B, withdrawing plaintiff's charges of primary negligence, or in the alternative, in refusing defendant's Instructions E, H and P on its defense of contributory negligence), since plaintiff's Instruction 1, in presenting plaintiff's entire case to the jury on the last clear chance theory, also presented to the jury issues of primary negligence for its consideration, and yet specifically withdrew from the jury the issues of contributory negligence, which Instruction 1 in law is, therefore, prejudicial and reversible error. (a) Plaintiff's Instruction 1 leads the jury to disregard the actual situation in determining the issue of last clear chance, and to consider the situation that would have existed had the defendant not been primarily negligent, if so. Todd v. Ry. Co., 37 S.W.2d 557; Carney v. Ry Co., 23 S.W.2d 993; Henson v. Ry. Co., 301 Mo 415, 256 S.W. 771. (b) Such instruction deprives the defendant of its right to defend against plaintiff's charges of primary negligence by presenting in defense the issues of contributory negligence. Wholf v. Ry. Co., 73 S.W.2d 198; Sevedge v. Railroad Co., 53 S.W.2d 284; State ex rel. Fleming v. Bland, 15 S.W.2d 798. (c) If the plaintiff made a case on primary negligence, he submitted which is not conceded by defendant, still the issues of contributory negligence were a substantial defense in this case, and these issues were specifically withdrawn from the consideration of the jury by plaintiff's Instruction 1, and the refusal of defendant's Instructions E, H and P. Tetwiler v. Ry. Co., 242 Mo. 178, 145 S.W. 780; Morrow v. Hines, 233 S.W. 493. (d) The argument of plaintiff's counsel to the jury, being his own interpretation of plaintiff's Instruction 1, shows the prejudical effect of charges of primary negligence wrongfully submitted to the jury on the issues of last clear chance. Taylor v. Superior Oxy-Acetylene Co., 73 S.W.2d 187; Stanton v. Jones, 19 S.W.2d 507; Stout v. K. C. Pub. Serv. Co., 17 S.W.2d 363.

Madden, Freeman & Madden for respondent.

(1) Respondent's Instruction 1 was clearly proper since it submitted solely the theory of appellant's negligence under the humanitarian doctrine, and nothing was therein included which was not proper, germane and pertinent to such doctrine and an essential thereof; as a result, under that submission contributory negligence could not constitute a defense. (a) The violation of the custom in this movement as creating the duty invoked under the humanitarian doctrine, the violation of which constituted negligence. (b) The relevance of the violation of custom to the peril and the imminence thereof. (c) The violation of custom in this movement as a material factor in determining appellant's notice, actual or constructive, of decedent's peril. (d) The relation of the violation of custom in this movement to the alleged right of appellant, as urged by counsel, to assume that the decedent would protect himself. (e) The materiality of custom violation to the issue of obliviousness. (f) The character of this movement in violation of custom as a factor in the determination of the issue of proximate cause or sole negligence. The contention that this submission is erroneous under the rule in the Todd case and similar authorities. Stergon v. Ry. Co., 286 S.W. 723. The contention that this submission is erroneous under the rule in the Sevedge case and similar authorities. Rashall v. Railroad Co., 249 Mo. 519; Torantolla v. Rys. Co., 226 S.W. 617; Kippenbrock v. Railroad Co., 270 Mo. 484; State ex rel. v. Trimble, 304 Mo. 543; Southern Railroad v. Smith, 205 F. 361; Savage v. Railroad Co., 40 S.W.2d 632; Aerkfetz v. Humphreys, 145 U.S. 418; Pacheco v. Railroad Co., 15 F.2d 467; Martin v. Wabash, 30 S.W.2d 749; Ziegelmeier v. Railroad Co., 51 S.W.2d 1027; Shepherd v. Ry. Co., 72 S.W.2d 985; Stergon v. Railroad Co., 286 S.W. 723; Lepchenski v. Railroad Co., 59 S.W.2d 615; Northern v. Fisheries, 8 S.W.2d 995. (2) Respondent's Instruction I was properly based upon substantial evidence and not upon speculation and conjecture; and appellant's demurrer was properly denied. Maginnis v. Ry. Co., 187 S.W. 1167; Preston v. Railroad Co., 239 S.W. 1082; Tavis v. Bush, 217 S.W. 274; Allen v. Ry. Co., 54 S.W.2d 787; Beck v. Ry. Co., 37 S.W.2d 919; Friemonth v. Railroad Co., 180 S.W. 1065; Conley v. Ry. Co., 284 S.W. 183; State ex rel. v. Cox, 293 S.W. 122; Steele v. Ry. Co., 257 S.W. 756; Koontz v. Ry. Co., 253 S.W. 413; Whiteaker v. Railroad Co., 28 S.W.2d 682; Hatchett v. Rys. Co., 175 S.W. 880; Stewart v. Gas Co., 241 S.W. 912; McQuitty v. Ry. Co., 194 S.W. 888; Spotts v. Ry. Co., 111 Mo. 380; 52 C. J., pp. 677, 678; 22 R. C. L. 973.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an action for damages under the wrongful death statute. The action was brought by an administrator for the benefit of the next of kin of the deceased, Benjamin Logan Mayfield. The petition contained charges of both primary and humanitarian negligence. The jury returned a verdict for the plaintiff for $ 10,000 and from the judgment entered thereon defendant has appealed.

Defendant contends that its demurrer to the evidence, at the close of the case, should have been sustained because plaintiff failed to make a case for the jury of either primary or humanitarian negligence. Since on ruling this question, plaintiff is entitled to have the evidence considered from the viewpoint most favorable to him and to have all reasonable inferences, from the facts shown, drawn in his favor, our statement of facts will be made on that basis. [Hardin v. Illinois Central Railroad Co., 334 Mo. 1169, 70 S.W.2d 1075, and cases cited.] So considering the evidence, we find that it tends to show that Benjamin Logan Mayfield was a special agent of the Burlington Railway whose duties required him to be at night in its Twelfth Street yards in Kansas City. Mayfield was killed there about one-fifteen A. M., on July 8, 1929, by a transfer movement of defendant, Kansas City Southern Railway Company. These yards mentioned extend in a northerly and southerly direction between Twelfth and Sixteenth streets, and consisted of a series of six tracks numbered from two to seven, inclusive. On the night in question a Burlington train, No. 75, consisting of an engine, a car and a caboose, in the order named, entered the yards from the north and proceeded southward on track five, closely followed at an interval estimated variously at forty to fifty feet (Daume, Burlington brakeman), sixty to eighty feet (Organ, Burlington switch foreman), and about 125 feet (Roberts, defendant's switchman), by a transfer movement of the Kansas City Southern consisting of two cars and an engine. The engine on Burlington train No. 75 was on the south pulling the car and the caboose, the latter being on the north or rear end. This caboose was lighted at the rear or north end by the cupola light, by two side markers and a white lantern, and the interior was also lighted, with the rear door open, so that the light therefrom shone northward onto the track. Defendant's transfer, following this lighted caboose, consisted of two refrigerator cars on the south shoved by the engine on the north, so that a Southern freight car was immediately behind and following the caboose. Both movements were proceeding at a speed estimated at from three, or four to six miles per hour. Defendant's engine was "drifting," i. e., proceeding with the power off, and made no noise to indicate its approach.

Defendant's locomotive pushing the two large refrigerator cars, each fifteen feet high and forty feet long, came behind Burlington train No. 75 only a few blocks before reaching the yards. Defendant's crew, consisting of an engineer and a fireman, switch foreman and two switchmen, had brought these refrigerator cars from the Southern yards which lay north of the Burlington exchange yard. The movement of these trains down track five was customary and in the usual course of business in those yards. The night was dark, without a moon, but clear. There were no permanent lights in the Burlington yards. On track four, the next track to the east of said track five, there was another Burlington train, No. 83, of about twenty freight cars which had been pulled in from the south or Sixteenth Street end of said track. These twenty cars were on track four when the Burlington train, and the Southern transfer following it, came down south on track five. The Burlington train No. 75 stopped a few feet south of the south end of these freight cars on track four. Organ, a Burlington switch foreman, was standing three or four car lengths north of this point between tracks four and five when the two trains came down track five and passed him.

According to plaintiff's evidence, Roberts, one of the Southern switchmen, was sitting on the west side of the south or last refrigerator car (the engineer's side of the train) about eight or nine feet from the end, with his lantern lighted and placed on his right side and Johnson, the Southern switch foreman, was sitting a few feet away between him and the end of the car without any lantern lighted. There was no evidence that any of the Southern employees saw anybody on or approaching the track, except the testimony of Roberts. The Burlington brakeman, Daume,...