McMurray v. St. Louis Iron Mountain & Southern Ry. Co.

• Citation: 125 S.W. 751,225 Mo. 272
• Parties: FRANK McMURRAY, Administrator of Estate of DORA NIMMO, v. ST. LOUIS IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Decision Date: 02 February 1910
• Court: United States State Supreme Court of Missouri

125 S.W. 751

225 Mo. 272

FRANK McMURRAY, Administrator of Estate of DORA NIMMO, v. ST. LOUIS IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri

February 2, 1910

Appeal from Lawrence Circuit Court. -- Hon. F. C. Johnston, Judge.

Reversed and remanded.

M. L Clardy and E. J. White for appellant.

The court erred in admitting evidence that the rear brakeman of the construction train was in the blacksmith shop, instead of on the rear car, when the deceased was killed, as the law did not require the defendant, in its yard, to maintain watchmen to give notice to its employees of the movement of its cars. Aerkfetz v. Humphrey, 145 U.S. 418; Goodes v Railroad, 162 Mass. 287; Loring v. Railroad, 128 Mo. 349; Gurley v. Railroad, 104 Mo. 211; Speed v. Railroad, 71 Mo. 303; Evans v Railroad, 62 Mo. 49. (2) The court erred in refusing the demurrer asked at the close of plaintiff's evidence, and again at the close of the whole case. Renfro v. Railroad, 86 Mo. 302; Whitley v. Railroad, 109 Mo.App. 123; Harris v. Railroad, 40 Mo.App. 255; Harlan v. Railroad, 64 Mo. 480; Hallihan v. Railroad, 71 Mo. 113; Railroad v. Ropp, 11 L. R. A. (N. S.) 413; Devoe v. Railroad, 75 N.Y.S. 136; 70 A.D. 495; Snellen v. Railroad, 102 S.W. 193; Railroad v. Pool, 160 U.S. 438; Aerkfetz v. Humphreys, 145 U.S. 418; Railroad v. Elliott, 137 F. 904; State v. South Baltimore Car Co., 58 A. 447; Latremoulle v. Railroad, 63 Vt. 336; Campbell v. Railroad, 2 A. 489; Railroad v. Long, 112 Ind. 166; Lynch v. Railroad, 159 Mass. 536; Schaibe v. Railroad, 97 Mich. 318; Railroad v. McGraw, 22 Colo. 363; Railroad v. Haning, 131 Ind. 528; Cypher v. Railroad, 149 Pa. St. 359; Sweeney v. Railroad, 11 Mont. 523; Peterson v. Railroad, 34 N.W. 260; Crowe v. Railroad, 23 N.Y.S. 1100. The deceased, having been killed prior to 1905 and having been a co-employee with those who were operating the cars that struck the caboose that ran over him, there was no cause of action surviving to the wife of the deceased, and no action exists in her favor. Snellen v. Railroad, 102 S.W. 193; Strottman v. Railroad, 211 Mo. 227. (3) The first instruction, given at plaintiff's instance, was error. 1. In predicating a right of recovery on a failure to furnish a reasonably safe place, to give warning to the deceased and to maintain a watchman, or brakeman, on the rear car on approaching the caboose, as no such duty was placed on the defendant by the common law or by statute. See cases cited under point two, supra. 2. If any such duty to give warning did exist, as to employees, in defendant's yard, in making the duty hinge upon the placing of a brakeman upon the rear car alone, "furtherest" from the engine. 3. In making it negligence on the defendant's part to fail to give warning of the movement of cars, "to said caboose, or the cars immediately in front of it," as no such duty existed, in law, to warn those or any other cars, of the movement of cars in its yard. 4. In predicating a recovery on the ground of the knowledge of the employees in charge of the engine of the danger to the deceased, when the evidence failed to show any such notice on their part. Williams v. Railroad, 96 Mo. 275. 5. In characterizing the acts of such employees as "negligence," without defining the term so used. Magrane v. Railroad, 183 Mo. 119; Casey v. Bridge Co., 114 Mo.App. 65; Johnson v. Railroad, 117 Mo.App. 308. 6. In charging the jury to return a verdict for the fixed sum of $ 5,000, when the petition and evidence and the same instruction, combined common law acts of negligence with those that would come under the penalty section of the statute. Culbertson v. Railroad, 140 Mo. 35; McKenna v. Railroad, 54 Mo.App. 161; King v. Railroad, 98 Mo. 235; Crumpley v. Railroad, 98 Mo. 34; Rapp v. Railroad, 106 Mo. 423; Elliott v. Railroad, 67 Mo. 272; Holmes v. Railroad, 69 Mo. 536; Schlereth v. Railroad, 96 Mo. 509; Flynn v. Railroad, 78 Mo. 195; Casey v. Railroad, 205 Mo. 721. The second instruction, given at plaintiff's instance, was erroneous in telling the jury that the contributory negligence of the deceased, to bar a recovery, must have contributed directly to the injury. If, with the negligence of defendant's employees, it combined to cause the injury, no recovery could be had. Dougherty v. Railroad, 97 Mo. 647; Zumault v. Railroad, 175 Mo. 288; Payne v. Railroad, 129 Mo. 405.

McNatt & McNatt for respondent.

(1) The defendant, knowing persons were likely to be on or near the tracks at the point where deceased was killed, was bound to keep proper lookout for their protection, and evidence showing this was not done was proper for the jury's consideration. Fearson v. Railroad, 180 Mo. 208; Rinard v. Railroad, 164 Mo. 270. (2) The demurrer was properly overruled. 1 Thompson's Neg., sec. 461; Lanning v. Railroad, 196 Mo. 674; Rinard v. Railroad, 164 Mo. 270; Fearson v. Railroad, 180 Mo. 208; Smith v. Fordyce, 190 Mo. 1; Porter v. St. Joe Stock Yds. Co., 213 Mo. 372; Geesley v. Railroad, 32 Mo.App. 413; Railroad v. Triplett, 11 L. R. A. (Ark.) 773; Erickson v. Railroad, 5 L. R. A. (Minn.) 786; Railroad v. Lowe, 65 L. R. A. (Ky.) 122; Railroad v. Smith, 101 S.W. 453; Hefferman v. Railroad, 182 Mo. 611; Weller v. Railroad, 164 Mo. 180; Tummerna v. Railroad, 71 Mo. 476; Condon v. Railroad, 78 Mo. 567; Mitchell v. Railroad, 122 Mo.App. 50; Russell v. Railroad, 70 Mo.App. 88. (3) The deceased was not a fellow-servant with the train crew, and therefore the action did survive. Moore v. Railroad, 85 Mo. 588; Lanning v. Railroad, 196 Mo. 650; Miller v. Railroad, 109 Mo. 350; Parker v. Railroad, 109 Mo. 390; Schmith v. Railroad, 115 Mo. 87; Erickson v. Railroad, 171 Mo. 647; Koerner v. Car Co., 209 Mo. 141. (4) The first instruction was a submission of the allegations of fact contained in the petition, and told the jury that if the acts therein complained of, "combined," violated the duty owing to the deceased, and were "negligent," plaintiff should recover. Dickson v. Railroad, 124 Mo. 140; Fearson v. Railroad, 180 Mo. 208; Rinard v. Railroad, 164 Mo. 270; Gessley v. Railroad, 32 Mo.App. 413; Lanny v. Railroad, 196 Mo. 647; Koerner v. Car Co., 209 Mo. 141. (5) If defendant wanted the term "negligence" more fully defined it should have tendered an instruction defining same. Plaintiff's first instruction defined the duty owing deceased, and the jury could not have been misled as to what constituted negligence. Rattan v. Railroad, 120 Mo.App. 270; Sweeney v. Railroad, 150 Mo. 385; Preestmeyer v. Railroad, 102 Mo.App. 518; McGraves v. Railroad, 183 Mo. 119. (6) The only verdict that could have been rendered in this case was $ 5,000, the amount fixed by statute, because the death was the result of negligence of the employees "whilst running, conducting or managing any locomotive, car or train of cars." R. S. 1899, sec. 2864; Casey v. Railroad, 205 Mo. 721; Buddenberg v. Railroad, 108 Mo. 394. (7) The second instruction, given by the court, was a correct definition of the doctrine of contributory negligence, and is an exact copy of one approved by this court. Weller v. Railroad, 164 Mo. 194.

WOODSON, J. Burgess, Fox and Graves, JJ., concur; Gantt, J., dissents in separate opinion in which Valliant, C. J., and Lamm, J., concur.

OPINION

In Banc

WOODSON, J.

This cause was submitted at the last term of this court to Division Number Two. An opinion was handed down affirming the judgment of the circuit court in favor of the plaintiff. Defendant filed therein a motion for a rehearing, also one asking that Division to transfer the cause to Court in Banc. The latter motion was sustained, and the cause is here for disposition on its merits.

The petition is in the following words and figures (formal parts omitted):

"For her cause of action against the defendant plaintiff states that the defendant is a corporation duly organized and existing under the laws of the State of Missouri, and as such is and was at all times hereinafter mentioned, the owner, and operating certain lines of steam railway, in the State of Missouri, and among other lines, is and was at the times of the grievances herein complained of, constructing a line of railroad through the county of Lawrence, in said State of Missouri, and upon which it was at all times herein mentioned operating construction trains with steam locomotives and flat and other cars used for hauling its dirt from a deep cut east of the city of Aurora, Missouri, to fill in and construct a fill or 'dump' just west of said city.

"That in order for said construction trains to meet and pass each other in their work, defendant had constructed and caused to be laid a 'spur' switch, just east of said city, about one thousand feet long, where said trains often took siding for those running in opposite direction to pass them. Said spur was connected with the main track at its western terminus, where it curved shortly and sharply to the south, thence running in an easterly direction parallel to the main line, terminating at the east end and on an elevation or 'dump,' while the main track went into a cut and continued in an eastern direction.

"That by reason of the sharp curve in said track or switch, and the existence at the time of the several mining structures, and piles of rock, gravel and waste from the mines and mining lands along and through which said railroad bed was constructed, persons working upon and near said spur switch could not see the main line of said railroad, nor the approaching trains operating thereon, west of said switch connection, nor until said trains had passed the curve in said spur switch.

"Plaintiff further states that she is the widow of Albert P. Nimmo deceased, who was killed by the defendant's cars, so operated on said railroad, about the . . . . day of...