McDaniel v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 10 March 1936
• Docket Number: 33091
• Parties: Alvin D. McDaniel v. Chicago, Rock Island & Pacific Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 118

338 Mo. 481

Alvin D. McDaniel v. Chicago, Rock Island & Pacific Railway Company, a Corporation, Appellant

No. 33091

Supreme Court of Missouri

March 10, 1936

Appeal from Daviess Circuit Court; Hon. Ira D. Beals Judge.

Affirmed.

Luther Burns, Henry S. Conrad, L. E. Durham and Hale Houts for appellant.

(1) The court erred in giving plaintiff's Instruction P-1, which authorized recovery as for negligence in operating the engine at a speed in excess of six miles an hour. Speed of the engine in excess of six miles an hour was not submissible as the proximate cause of plaintiff's injury. 45 U.S.C. A sec. 51; Hamilton v. Ry. Co., 318 Mo. 133; Warner v. Railroad Co., 178 Mo. 125; Shidloski v. Railroad Co., 333 Mo. 1142; Patton v. Tex. & Pac Railroad Co., 179 U.S. 664; C., M. & St. P. Ry. v. Coogan, 171 U.S. 474; N. Y. Cent. Railroad v. Ambrose, 280 U.S. 489; A., T. & S. F. Ry. v. Saxon, 284 U.S. 458; Pa. Railroad v. Chamberlin, 288 U.S. 333; Northern Pac. v. Bobo, 290 U.S. 502; St. L.-S. F. Ry. v. Mills, 271 U.S. 347; Gulf M. & N. Ry. v. Wells, 275 U.S. 459; Dickson v. Ry. Co., 124 Mo. 150; Harper v. Terminal Co., 187 Mo. 586; Kane v. Railroad Co., 251 Mo. 26; Watkins v. Bird-Sykes-Bunker Co., 322 Mo. 840; Driscoll v. Wells, 29 S.W.2d 50; Coble v. Ry. Co., 38 S.W.2d 1036; Sevedge v. Railroad Co., 331 Mo. 320; Caylor v. Ry. Co., 332 Mo. 851; Battles v. Rys. Co., 178 Mo.App. 614; Cervillo v. Manhattan Oil Co., 226 Mo.App. 1090; Christner v. Ry. Co., 228 Mo.App. 228; City of Winona v. Botzet, 169 F. 328; Frese v. Railroad Co., 263 U.S. 3; B. & O. Railroad v. Berry, 286 U.S. 275; Martin v. Wabash Ry., 325 Mo. 1133; Hock v. Ry. Co., 315 Mo. 1199; Osborn v. Ry. Co., 1 S.W.2d 181; Pryor v. Williams, 254 U.S. 43; Toledo S. T. L. & W. Railroad v. Allen, 276 U.S. 171; Delaware L. & W. Railroad v. Kolske, 279 U.S. 12; State ex rel. Weddle v. Trimble, 331 Mo. 9; Bollinger v. Ry. Co., 334 Mo. 733; Elkins v. Pub. Serv. Co., 335 Mo. 958; St. Louis S.W. Ry. Co. v. Simpson, 286 U.S. 351; Sullivan v. Railroad Co., 317 Mo. 1009; State ex rel. v. Bland, 313 Mo. 253; State ex rel. Mo. Pub. Util. v. Cox, 298 Mo. 427; Layton v. Chinberg, 282 S.W. 436; Burge v. Railroad Co., 244 Mo. 102; Rollison v. Mo., 252 Mo. 541. (2) The court erred in refusing defendant's peremptory instruction directing a verdict in its favor at the close of all the evidence. Authorities (1), supra; State ex rel. Weddle v. Trimble, 331 Mo. 9; Bollinger v. Ry. Co., 334 Mo. 733; Elkins v. Pub. Serv. Co., 335 Mo. 958; Martin v. Wabash Ry., 325 Mo. 1133; Hoch v. Ry. Co., 315 Mo. 1199; Osborn v. Ry. Co., 1 S.W.2d 181; Pryor v. Williams, 254 U.S. 43; Toledo S. T. L. & W. Railroad v. Allen, 276 U.S. 171; Delaware L. & W. Railroad v. Koske, 279 U.S. 12; Kinard v. Westerman, 279 Mo. 688; Phillips v. Ry. Co., 226 S.W. 865; Bode v. Wells, 322 Mo. 396; Bird v. Ry. Co., 78 S.W.2d 391. (3) The court erred in giving Instruction P-3. The instruction erroneously authorized assessment of the sum of $ 3325 for hospitalization, medical and surgical bills. There was no evidence that plaintiff had been charged or was obligated to pay any sum in excess of something over $ 200 or $ 300. Morris v. Ry. Co., 144 Mo. 500; Robertson v. Wabash Ry., 152 Mo. 390.

Cope & Hadsell, Cowgill & Popham and John F. Cook for respondent.

(1) The court did not err in giving plaintiff's Instruction P-1 because defendant's negligent violation of the rule and custom in exceeding six miles per hour at the place of the collision was submissible as a proximate cause of the collision and plaintiff's injury. The excessive speed was the proximate cause. Cann v. Ry. Co., 6 S.W.2d 39; State ex rel. Weddle v. Trimble, 52 S.W.2d 864; Anderson v. Asphalt Distributing Co., 55 S.W.2d 688. Proximate cause may be shown by circumstantial evidence and it is not necessary to prove it by positive evidence. Irby v. St. L. Pub. Serv. Co., 82 S.W.2d 118; Gillis v. Singer, 86 S.W.2d 355; Anderson v. Asphalt Distributing Co., 55 S.W.2d 693. It is not necessary that a cause of an injury to be a proximate cause be either the first cause in the line of causation or the cause immediately preceding the injury, but it is only necessary that the defendant in the exercise of due care could or might have anticipated that some injury might result and that defendant's conduct together with some subsequent occurrence might concur in causing the injury. Thornton v. Union E. L. & P. Co., 72 S.W.2d 163. (2) The court did not err in refusing defendant's peremptory instruction at the close of the evidence. The case was submissible on the question of defendant's negligent speed under the circumstances, custom and rules. All authorities under Point (1) are adopted here. Plaintiff made a case under defendant's rules governing the headlights on locomotives used in switching, Section 129 of the Rules of the Interstate Commerce Commission relating to the Boiler Inspection Act and Equipment of Engines. C. & O. Ry. Co. v. Wood, 59 F.2d 1017; Napier v. A. Coast Lines, 272 U.S. 605, 47 S.Ct. 207. Plaintiff did not assume the risk. O'Donnell v. Railroad Co., 26 S.W.2d 929. (3) The court did not err in giving Instruction P-3 which limited plaintiff's recovery to the sum of $ 3325 for the items of "Reasonable and necessary expenses, if any, which you believe from the evidence he has paid or incurred and will be compelled to pay for hospitalization, medical and surgical bills." Mirrielles v. Wabash Ry. Co., 163 Mo. 470, 63 S.W. 724.

OPINION

Collet, J.

Appeal from the judgment of the Circuit Court of Caldwell County awarding plaintiff $ 14,000 damages for personal injuries. Plaintiff, an employee of defendant Chicago, Rock Island and Pacific Railway Company, was injured at Dodge City, Kansas, while in the discharge of his duties as a brakeman, incident to the transportation of freight in interstate commerce.

On the evening of February 17, 1932, the plaintiff, another brakeman named Talbot, a yard clerk named Kitson, an engineer, a fireman and a conductor left Bucklin, Kansas, with an engine, tender, and a coach which served as a caboose, for the purpose of going from Bucklin to Dodge City to pick up a carload of eggs for shipment from Dodge City, Kansas, to Buffalo, New York. The train arrived at Dodge City shortly before eight P. M. Arriving at the depot at Dodge City the train crew received instructions relative to the location of the car of eggs and, leaving the conductor and the coach at the depot, the engineer, fireman, Talbot, Kitson and the plaintiff proceeded with the engine to pick up the car. The engine and tender were backed east down an industry track which ran east and west and on which the car had been placed ready for shipment. The rear of the tender was equipped with a "footboard" or "runningboard" divided in the center by the coupler. Plaintiff and Kitson were riding upon the south section of the footboard, Talbot on the north section, and the engineer and fireman in the cab. Approximately 350 feet west of the point of the accident the industry track crossed another of defendant's tracks, referred to as the Hardesty Street crossing. A switch, connecting another sidetrack with the industry track, was located a short distance east of the Hardesty Street crossing. It was dark and there were no lights on the rear end of the tender except a red light in the center and the small electric lanterns that each of the three men carried. These lights made objects visible only a few feet from them, plaintiff fixing this distance at approximately three feet. An ice wagon had been left near and on the south side of the industry track with the tongue of the wagon extending out over the track. It does not appear from the record who was responsible for leaving the wagon in that position. When the engine and tender were approximately twenty to twenty-five feet from the wagon tongue Talbot saw the obstruction and immediately called out to plaintiff and Kitson to look out and at the same time with his lantern signaled the engineer to stop. Kitson scrambled up on the coupler. Plaintiff "ducked" but the wagon tongue struck him slightly below the knee, fracturing both bones of the right leg. Kitson reached down and caught plaintiff, preventing his falling under the tender.

Plaintiff's petition charged negligence in three particulars. First, that the defendant was negligent in not having the rear of the tender equipped with a headlight; second, that the speed at which the engine was operating at the time of the injury was excessive and in violation of the established custom and practice of the defendant; third, the failure to warn plaintiff of the danger. The trial court overruled defendant's demurrer to the evidence and submitted the case to the jury only upon the assignment of negligence charging excessive speed. The jury returned a verdict for $ 18,500. On motion for new trial the court directed a remittitur of $ 4500. The formal remittitur being made, the motion for new trial was overruled and defendant appealed. Appellant presents three questions for determination. First, that plaintiff's Instruction P-1 which authorized a recovery based upon the speed of the engine should not have been given because (a) the evidence did not show that the speed of the engine was the proximate cause of the injury and (b) because the plaintiff assumed the risk of any injury resulting from the speed of the engine; second, that defendant's general demurrer to the evidence should have been sustained; third that the evidence did not justify plaintiff's Instruction P-3 which permitted a recovery for hospitalization, medical and surgical bills. Additional facts necessary to the determination of these questions will appear hereafter. The questions presented will be considered in the order...