McAllister v. Terminal Railway Co.

• Decision Date: 05 March 1930
• Docket Number: No. 27144.,27144.
• Citation: 25 S.W.2d 791
• Parties: FLORENCE McALLISTER, Administratrix of Estate of WILLIAM McALLISTER, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

25 S.W.2d 791

FLORENCE McALLISTER, Administratrix of Estate of WILLIAM McALLISTER, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Appellant.

No. 27144.

Supreme Court of Missouri, Division One.

March 5, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

AFFIRMED.

J.L. Howell and R.E. Blodgett for appellant.

(1) There was not sufficient evidence to justify the submission of this cause to the jury, and the court should have directed a verdict in favor of the defendant. Illinois State Trust Co. v. Ry. Co., 5 S.W. (2d) 368; St. Louis-San Francisco Railroad Co. v. Conarty, 238 U.S. 243; Lang v. Railroad Co., 255 U.S. 455; McCalmont v. Railroad Co., 283 Fed. 736; Rittenhouse v. Railroad Co., 299 Mo. 199; C.R.I. & P. Railroad v. Guthridge, 179 Pac. 590; Schendel v. Ry. Co., 206 N.W. 436; Nealis v. Ry. Co., 218 N.W. 125; P. & R. Ry. Co. v. Cannon, 296 Fed. 302. (2) Plaintiff's instruction numbered 1 was erroneous in that it was based upon facts not in evidence. Schendel v. Ry. Co., 206 N.W. 436.

Abbott, Fauntleroy, Cullen & Edwards and Charles P. Noell for respondent.

(1) The separation of the cars, taken in connection with the proof that the coupler was broken, is evidence sufficient to establish negligence and liability under the Federal Employers' Liability Act and under the common law. Gotschall's Case, 244 U.S. 66; C.B. & Q. Railroad Co. v. United States, 220 U.S. 559; Meade v. Water & Steam Sup. Co. (Mo.), 300 S.W. 515; Blanton v. Dold, 109 Mo. 64; Eckhardt v. Electric Mfg. Co. (Mo.), 235 S.W. 170. (2) Circumstantial evidence is sufficient to establish a prima-facie case for the plaintiff. Frisco v. Railroad Co., 200 Mo. App. 691; Union Stock Yards Co. v. Conoyer (Nebr.), 59 N.W. 950; C.B. & Q. Railroad Co. v. Gunderson (Ill.), 51 N.E. 704; Schlerth v. Railroad, 115 Mo. 87; Lynch v. Railroad Co., 208 Mo. 1; Rine v. Railroad Co., 100 Mo. 228. (3) Circumstantial evidence was sufficient to show that the violation of the Federal Act was a proximate cause of the injury. Erie Railroad Co. v. Caldwell, 264 Fed. 947; Erie Railroad Co. v. Russell, 183 Fed. 722; Philadelphia & R. Railroad v. Eisenhart, 280 Fed. 271; Davis v. Wolff, 263 U.S. 243; B. & O. Railroad Co. v. Tittle, 4 Fed. (2d) 818; Minneapolis etc. Railroad Co. v. Goneau, 269 U.S. 406; Tennessee Railroad Co. v. Drake, 276 Fed. 393; Donegan v. B. & O., 165 Fed. 869. (4) The fact that the coupler broke, causing the train of cars to part and causing the two loaded cars in question to roll down switch track 21, was sufficient to establish a violation by defendant of the Safety Appliance Act. Phila. & R. Ry. Co. v. Eisenhart, 280 Fed. 275; M. & St. L. Railroad Co. v. Gotschall, 244 U.S. 66, 61 L. Ed. 995; L. & N. Railroad Co. v. Layton, 243 U.S. 617, 61 L. Ed. 931. (5) The so-called rule that an inference cannot be placed upon an inference, or that a fact established by inference cannot be used as the basis for a further inference or deduction, is not a sound rule of law, or, at any rate, is one that cannot be applied, and is not generally applied, as a general, all-embracing rule, as a test by which to determine whether a case is made for the jury where circumstantial evidence must be relied upon. The true rule is that in passing upon a demurrer to the evidence the plaintiff is to be accorded the benefit of every inference which may be fairly and legitimately drawn from the facts in evidence — every inference which a jury might, with any degree of propriety, have inferred in plaintiff's favor; that the court is not at liberty to make inferences of fact in favor of the defendant to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff; that any number of inferences may be so drawn and utilized in plaintiff's behalf, provided the facts in evidence afford a reasonable basis therefor; and that where circumstantial evidence is relied upon to establish the causal connection, the real question is whether the circumstances afford substantial evidence from which it may fairly be inferred that there is reasonable probability that the injury resulted proximately, in a natural continuous sequence, from the negligence or wrongful act, so as to take the case out of the realm of conjecture and within the field of legitimate inference. 1 Wigmore on Evidence (2 Ed.) 258, sec. 41; Buesching v. Gas Light Co., 73 Mo. 219; Stewart v. Gas Light Co. (Mo.), 241 S.W. 909; Hatchett v. Rys. Co. (Mo.), 175 S.W. 878; Lynch v. Railroad, 208 Mo. 1, 21; Rine v. Railroad, 100 Mo. 228; Troll v. Drayage Co., 254 Mo. 332; Souder v. Railroad, 100 Mo. 673; Settle v. Railroad, 127 Mo. 336; Daly v. Pryor, 197 Mo. App. 583; Reynolds v. Casualty Co., 274 Mo. 83; Briscoe v. Railroad, 200 Mo. App. 691; Hays v. Railroad, 111 U.S. 228, 28 L. Ed. 410; National Biscuit Co. v. Litzky, 22 Fed. (2d) 939, 56 A.L.R. 583; Northern Railway Co. v. Page, 274 U.S. 65, 71 L. Ed. 929; Cincinnati etc. Ry. Co. v. Thorp, 223 Fed. 615; Shugart v. Ry. Co., 133 Fed. 509; McDonald v. Ry. Co., 74 Fed. 104; Railway v. Kellogg, 94 U.S. 469, 24 L. Ed. 256; Postal Telegraph Co. v. Zopfi, 73 Fed. 609; Burghardt v. Ry. Co., 206 Mich. 545, 5 A.L.R. 1333; Fuchs v. St. Louis, 133 Mo. 199. (6) The rule of the Federal courts pertinent to the matter in hand is that it is only necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the injury resulted proximately from the negligence or wrongful act, so as to take the case out of the realm of conjecture and within the field of legitimate inference. Hays v. Railroad, 111 U.S. 228, 28 L. Ed. 410; National Biscuit Co. v. Litzky, 22 Fed. (2d) 939, 56 A.L.R. 583; Northern Railway Co. v. Page, 274 U.S. 65, 71 L. Ed. 929; Cincinnati etc. Ry. Co. v. Thorp, 223 Fed. 615; Shugart v. Ry. Co., 133 Fed. 509; McDonald v. Ry. Co., 74 Fed. 109; Railway v. Kellogg, 94 U.S. 469, 24 L. Ed. 256; Postal Telegraph Co. v. Zopfi, 73 Fed. 609.

PER CURIAM:

Appellant has filed a motion to transfer this cause to Court en Banc on the ground that "a Federal question is involved," citing Section 4 of the Amendment of 1890 of Article VI of the Constitution of Missouri, which is as follows:

"When the judges of a division are equally divided in opinion in a cause, or when a judge of a division dissents from the opinion therein, or when a Federal question is involved, the cause, on the application of the losing party, shall be transferred to the court for its decision; or, when a division in which a cause is pending shall so order, the cause shall be transferred to the court for its decision."

The obvious purpose of transferring a cause from a division to the Court en Banc for its decision is to obtain the judgment of the entire court on the matter presented for decision. Where the judges of a division are equally divided in opinion such transfer is necessary to reach a decision. Where one judge of a division dissents from the opinion therein the matter presented for decision when so questioned is presumably deemed to justify the consideration of the Court en Banc. Likewise, when a Federal question is involved the matter for decision is presumably deemed to be of such importance that it may be heard by the entire court. Cases arising under the Constitution of the United States, acts of Congress, or treaties, and involving their interpretation and application, and of which jurisdiction is given to the Federal courts, are commonly described by the legal profession as cases involving a "Federal question." [Black's Law Dictionary; In re Sievers, 91 Fed. 366, 372; Williams v. Bruffy, 102 U.S. 248 20 L. Ed. 135.] If the above reference to a Federal question had occurred without synonymous or qualifying terms in Article VI of the Constitution as originally adopted, it might be given this broad interpretation. However, appearing as it does in an amendment to Article VI and adopted some fifteen years thereafter we think the words "when a federal question is involved" should be interpreted according to the standard originally indicated and still set forth in Article VI. Section 12 of that article fixes our jurisdiction, and the only Federal questions there mentioned are those "involving the construction of the Constitution of the United States," or where "the validity of a treaty or statute of or authority exercised under the United States is drawn in question." When the article was amended as above it seems reasonable to assume that the same kind of a Federal question was meant as had previously been defined in the article and such as is in itself jurisdictional rather than merely incidental to a cause of action brought here on other jurisdictional grounds.

The only Federal question in this case grows out of the fact that the alleged cause of action rests on the Federal Employers' Liability Act. Neither the validity of the act, nor "authority exercised under the United States" is drawn in question. It follows that the motion should be and the same is hereby overruled. All concur.

LINDSAY, C.

Upon the original hearing of this cause on appeal, the judgment rendered in favor of respondent was affirmed, in accordance with an opinion prepared and filed by the Presiding Judge of this Division. Later, appellant's motion for a rehearing was sustained, and the cause was again submitted upon the original briefs, and upon a supplemental brief filed on behalf of respondent.

The vital question in the case, and the question uppermost in mind in granting a rehearing, was that of whether a submissible case was made in the showing of a causal connection between the existence of a defective car coupler, and the death of respondent's husband. A further consideration of the record and of the questions raised, and particularly the question especially under consideration in granting the rehearing, has led to the conclusion that the right result was reached...