McIntyre v. St. Louis & San Francisco Railway Co.

• Decision Date: 10 January 1921
• Parties: JOSEPH S. McINTYRE, Administrator of Estate of WALTER LEE CLARK, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

227 S.W. 1047

286 Mo. 234

JOSEPH S. McINTYRE, Administrator of Estate of WALTER LEE CLARK, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

January 10, 1921

Appeal from St. Louis City Circuit Court. -- Hon. A. B. Frey, Judge.

Affirmed.

W. F Evans, E. T. Miller and A. P. Stewart for appellant.

(1) The court erred in overruling the demurrer to the evidence at the close of plaintiff's case, and in refusing to give the peremptory instruction requested by defendant at the close of the whole case. (a) No actionable negligence was shown. Baltimore Railroad Co. v. Newell, 196 F. 866; Reese v. Railway, 225 F. 518; Reese v Railway, 239 U.S. 463; Hogan v. Railroad, 223 F. 890; Ainsley v. Railway, 90 A. (Pa.), 129; Pankey v. Railway, 180 Mo.App. 185; Ford v Dickinson, 217 S.W. (Mo.), 294; Morris v. Pryor, 272 Mo. 350; Raub v. Railroad, 94 A. (N. J.) 567; Myers v. Railway, 95 F. 406. (b) The location of the falsework close to the track and the danger of a switchman on the ladder on the side of a car being struck by it were open and obvious. Clark knew of the location of the falsework, or it was so obvious and so plainly observable that he must be presumed to have known of it, and he knew there was no light on the falsework. He therefore assumed the risk of injury, even though such risk grew out of defendant's negligence. Chesapeake Railroad v. Proffitt, 241 U.S. 462; Boldt v. Railroad, 245 U.S. 441; Baugham v. Railroad, 241 U.S. 237; Kanawha Railroad Co. v. Kerse, 239 U.S. 576. In cases arising under the Federal Employers' Liability Act, the rule of assumption of risk as interpreted and applied by the United States Supreme Court must control, even though the action be brought in a state court. Seaboard Air Line v. Horton, 233 U.S. 492; Southern Railroad v. Crockett, 234 U.S. 725; Jacobs v. Railway, 241 U.S. 229; Railroad Co. v. Ward, 40 S.Ct. 275; Southern Railroad v. Gray, 241 U.S. 333; New Orleans Railroad Co. v. Harris, 247 U.S. 367. (c) The evidence was insufficient to prove a common-law marriage between deceased and the beneficiary for whose benefit this action is brought. Topper v. Perry, 197 Mo. 531; McKenna v. McKenna, 180 Ill. 577; Bishop v. Inv. Co., 229 Mo. 699; Cargile v. Wood, 63 Mo. 512; Pope v. Railway, 175 S.W. (Mo.), 955. (d) Upon the entire record plaintiff was without legal capacity to maintain the action. Secs. 15, 16 and 17, R. S. 1909; Mullanphy v. St. Louis Co. Ct., 6 Mo. 291; Skelly v. Veerkamp, 30 Mo.App. 49; State ex rel. v. Collier, 62 Mo.App. 38; Williams v. Railway, 169 Mo.App. 468; Russell v. Grant, 122 Mo. 161. (2) The court erred in giving Instruction 1 at the instance and on behalf of plaintiff. (a) This instruction submitted to the jury a question of law as to whether plaintiff was the duly appointed and legally acting administrator of deceased. Williams v. Whitlock, 14 Mo. 387; Carroll v. Campbell, 110 Mo. 557. (b) This instruction went beyond the purview of the pleadings and enlarged the issues made by the pleadings. Black v. Railway, 217 Mo. 685; Degonia v. Railway, 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 655. (c) There was no evidence that deceased was on the ladder of the car in the performance of any duty, and this call in the instruction is without evidence to support it. (d) This instruction purported to cover the whole case, but excluded from the consideration of the jury the evidence tending to support the pleaded defense of assumption of risk. Railroad Co. v. Ward, 40 S.Ct. 276; Brownlow v. Wollard, 66 Mo.App. 636, 642; Clark v. Hammerle, 27 Mo. 70; Bank v. Murdock, 62 Mo. 73; Fitzgerald v. Hayward, 50 Mo. 523. (3) The court erred in giving Instruction No. 2 at the instance and on behalf of plaintiff. This instruction failed to require the jury to find that the cohabitation of the deceased and the beneficiary as man and wife was habitual. This error was not cured by the giving of defendant's Instruction "A-1" which required such finding. Bishop v. Inv. Co., 229 Mo. 728; Topper v. Perry, 197 Mo. 545; Cargile v. Wood, 63 Mo. 513; State ex rel. v. Ellison, 272 Mo. 583. (4) The court erred in giving plaintiff's Instruction 4 on the measure of damages. This instruction is also in conflict with defendant's given instruction "A-3," in that it allows a recovery for the entire pecuniary loss sustained by Mary Katherine Clark, irrespective of deceased's contributory negligence. McCord v. Schaff, 216 S.W. 322; Stevens v. Power Co., 208 S.W. 630; Chesapeake Railroad v. Kelly, 241 U.S. 488. (5) The court erred in refusing to give defendant's requested Instruction "H" on assumption of risk. Kanawha Railroad v. Kerse, 239 U.S. 581; Railroad Co. v. Ward, 40 S.Ct. 275; Boldt v. Railroad, 245 U.S. 445; Baugham v. Railroad, 241 U.S. 240; Chesapeake Railroad v. Proffitt, 241 U.S. 468; Southern Railroad v. Gray, 241 U.S. 339. (6) The court erred in refusing to give Instruction "A-2" requested by defendant. Raub v. Railroad, 94 A. 567; Myers v. Railway, 95 F. 406. (7) The verdict is grossly excessive and is not supported by the evidence. Railroad Co. v. Vreeland, 227 U.S. 70; Chesapeake Railroad v. Kelly. 241 U.S. 489; McCord v. Schaff, 216 S.W. 322.

Robert W. Hall and Earl F. Nelson for respondent.

(1) The petition states a cause of action. Collinsworth v. Zinc Co., 260 Mo. 692; Sullivan v. Mo. Pac. Ry. Co., 97 Mo. 113; Erwin v. Mo. & Kan. Tel. Co., 173 Mo.App. 508, 59 L. R. A. 253 (c. 1). (2) Plaintiff was appointed administrator of the estate of Walter Lee Clark by the order and judgment of the Probate Court of the City of St. Louis, and this action of the probate court is not open to collateral attack. Naylor's Admr. v. Moffitt, 29 Mo. 126; Johnson v. Beazley, 65 Mo. 250; Brawford v. Wolfe, 103 Mo. 391; Masey v. Stork, 116 Mo. 481; Cox v. Boyce, 152 Mo. 576; State ex rel. v. Holtkamp, 267 Mo. 412; State ex rel. v. Nortoni, 269 Mo. 563. (3) The evidence showed a common-law marriage between Mary Catherine Null and Walter Lee Clark. Davis v. Stouffer, 132 Mo.App. 555; Imboden v. Trust Co., 111 Mo.App. 220; State v. Cooper, 103 Mo. 272; Great Northern Ry. Co. v. Johnson, 254 F. 683. (4) Defendant negligently failed to furnish Clark a safe place in which to work. (a) By permitting the erection of falsework so close to its inbound and outbound tracks as not to clear its employes when on the sides of freight cars in the performance of their duties. Ry. Co. v. Kerse, 239 U.S. 576; Railroad Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; Ry Co. v. Beckett, 163 F. 481; Ry. Co. v. Cowley, 166 F. 283; West v. Ry. Co., 179 F. 801; Murphy v. Wabash Ry. Co., 115 Mo. 111; Charlton v. Ry. Co., 200 Mo. 364; George v. Ry Co., 225 Mo. 364; Fish v. Railroad, 263 Mo. 106; Ry. Co. v. Russell, 91 Ill. 298; Ry. Co. v. Thompson, 210 Ill. 226, 71 N.E. 328. (b) By failing to place a light or other warning or danger signal on the falsework at night. Yost v. Cement Co., 191 Mo.App. 431; Carney v. Brewing Assn., 150 Mo.App. 473; Irmer v. Brewing Co., 69 Mo.App. 17; Wendler v. Furnishing Co., 165 Mo. 537; DeLate v. Loose-Wiles Biscuit Co., 213 S.W. 885; Baldwin v. Coffee Co., 216 S.W. 998; Ford v. Dickinson, 217 S.W. 294; Sutter v. Metropolitan Ry. Co., 208 S.W. 851. (5) Clark did not assume the risk of injury from the negligence of defendant: (a) The evidence does not show that Clark knew of the upright posts or falsework between the inbound and outbound tracks. (b) If it can be said that the falsework or upright posts was so obvious that Clark must be presumed to have known of its location between the inbound and outbound tracks, the evidence does not show either that Clark knew or that it was obvious that the upright posts or falsework was close enough to strike him while riding on the side of the freight car. (c) The evidence does not show that Clark appreciated the danger of being struck by the upright posts or falsework while riding on the side of a freight car. (d) The evidence does not show that Clark knew that the upright posts or falsework was unlighted or without other warning or danger signals which would call it to the attention of a switchman working at night. Ry. Co. v. Swearengen, 122 F. 193, 196 U.S. 51, 49 L.Ed. 382; Railroad Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; Ry. Co. v. Cowley, 166 F. 283; Ry. Co. v. Beckett, 163 F. 479; National Steel Co. v. Hore, 155 F. 62; West v. Ry. Co., 179 F. 801. (6) The verdict is not excessive. Crecelius v. Ry. Co., 223 S.W. 413.

WHITE, C. Mozley, C., Concurs in result; Railey, C., not sitting. Walker and Williamson, JJ., concur; Williams, P. J., not sitting.

OPINION

WHITE, C.

The plaintiff, as administrator of the estate of Walter Lee Clark, deceased, recovered judgment against the defendant in the Circuit Court of the City of Saint Louis, in the sum of $ 16,000, damages for the alleged negligent killing of said Clark by the defendant. Clark was employed by defendant as a switchman and according to a stipulation of the parties was engaged in interstate commerce; the suit was brought under the Federal Employers' Liability Act.

Frank C. Mueller & Company had a contract with the City of Saint Louis to construct a viaduct along Chouteau Avenue over the railroad tracks of the defendant and of the Missouri Pacific Railroad Company, and it appears from the evidence that work on the viaduct had been in progress for several months at the time Clark was killed. The St. Louis & San Francisco Railroad had several tracks, including two main tracks passing under this viaduct, the inside rails of which were eight feet apart. Midway between those two tracks was placed some false work, consisting of two upright timbers about four by six inches, and standing about four feet apart, parallel with the main tracks, and extending from the ground up to the bridge,...