McNatt v. Wabash Ry. Co., 34916.

• Citation: 108 S.W.2d 33
• Decision Date: 30 July 1937
• Docket Number: No. 34916.,34916.
• Parties: GEORGE E. McNATT v. WABASH RAILWAY COMPANY, Appellant.
• Court: United States State Supreme Court of Missouri

108 S.W.2d 33

GEORGE E. McNATT v. WABASH RAILWAY COMPANY, Appellant.

No. 34916.

Supreme Court of Missouri.

Division One, July 30, 1937.

Appeal from Circuit Court of City of St. Louis. — Hon. E.J. Sartorius, Judge.

AFFIRMED (on condition).

N.S. Brown, R.B. Elster and Homer Hall for appellant.

(1) The decision of this court on the former appeal that the plaintiff was not entitled to recover is the law of the case and should be followed on this appeal and the judgment should be reversed without remanding. Hadley Bros. Uhl Co. v. Scott, 93 S.W. (2d) 278; Guels v. Miss. Valley Trust Co., 329 Mo. 1154, 49 S.W. (2d) 60; Lewis v. Barnes, 220 S.W. 490; Cape Girardeau & Thebes Bridge Term. Railroad Co. v. Southern Ill. & Mo. Bridge Co., 215 Mo. 294, 114 S.W. 1084; Kleinberg v. Kinealy, 207 S.W. 237; Barrett v. Stoddard County, 272 Mo. 133, 197 S.W. 914; Scott v. Parkview Realty & Inv. Co., 255 Mo. 102, 164 S.W. 532; Gracey v. St. Louis, 221 Mo. 6; Chicago & N.W. Ry. Co. v. Kelly, 84 Fed. (2d) 571. (2) If the plaintiff had a right to recover under the Federal Employers' Liability Act the rights and obligations of the parties are to be determined by the provisions of that act, and by the applicable principles of the common law as interpreted and applied in the Federal Courts. Pryor v. Williams, 254 U.S. 43, affirming Williams v. Pryor, 46 S.W. (2d) 341; Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W. (2d) 735; Seaboard Air Line Ry. v. Horton, 233 U.S. 501. 34 Sup. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C, 1 Ann. Cas. 1915B. 475; Southern Ry. Co. v. Gray, 241 U.S. 339, 36 Sup. Ct. 558. 60 L. Ed. 1030; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 474, 46 Sup. Ct. 564, 70 L. Ed. 1041; Toledo, St. Louis & Western Railroad Co. v. Allen, 276 U.S. 168, 48 Sup. Ct. 215, 72 L. Ed. 513. (3) A recovery under the Federal Employers' Liability Act may be had only upon proof of negligence by reasonable and substantial evidence, showing a breach of duty owed by defendant to plaintiff in respect of the place of his injury, and that his injuries resulted proximately and directly therefrom. The plaintiff failed to prove by such evidence that defendant's alleged negligence was the cause of his injury, and he is not entitled to recover. Robison v. Ry. Co., 64 S.W. (2d) 663; Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W. (2d) 735; Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 11, 49 Sup. Ct. 202, 73 L. Ed. 578; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 169, 48 Sup. Ct. 215, 72 L. Ed. 513; Seaboard Air Line v. Horton, 233 U.S. 501, 34 Sup. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C, 1 Ann. Cas. 1915B, 475; Southern Ry. Co. v. Gray Co., 241 U.S. 339, 36 Sup. Ct. 558, 60 L. Ed. 1030; Mo. Pac. Ry. Co. v. Aeby, 275 U.S. 426; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 37; Southern Ry. Co. v. Edwards, 44 Fed. (2d) 526. (4) The plaintiff failed to prove that at the time of the injury he was engaged in interstate transportation or in work so closely related thereto as to be a part of it, and he is not entitled to recover, and the court erred in refusing to instruct the jury to return a verdict for defendant. McNatt v. Wabash Ry. Co., 335 Mo. 999, 74 S.W. (2d) 625; Aldridge v. Wabash Ry. Co., 335 Mo. 595, 73 S.W. (2d) 401; Howard v. Railroad Co., 335 Mo. 304, 73 S.W. (2d) 272; Cox v. Mo. Pac. Ry. Co., 61 S.W. (2d) 965; Phillips v. Union Term. Ry. Co., 328 Mo. 240, 40 S.W. (2d) 1046; Jarvis v. Railroad Co., 327 Mo. 428, 37 S.W. (2d) 602; Martin v. St. Louis-S.F. Ry. Co., 302 Mo. 506, 258 S.W. 1023; Myers v. Railroad Co., 296 Mo. 239, 246 S.W. 257; Ill. Cent. Railroad Co. v. Behrens, 233 U.S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051; C.B. & Q. Railroad Co. v. Harrington, 241 U.S. 177; Illinois Cent. Railroad Co. v. Peery, 242 U.S. 292, 37 Sup. Ct. 122, 61 L. Ed. 309; Erie Railroad Co. v. Welsh, 242 U.S. 303; Minneapolis & St. L. Railroad Co. v. Winters, 242 U.S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358; Chicago & Northwestern Ry. Co. v. Bolle, 284 U.S. 74; Chicago & Eastern Ill. Railroad Co. v. Industrial Comm. of Ill., 284 U.S. 298, 52 Sup. Ct. 151, 76 L. Ed. 304; Wise v. Ry. Co., 43 Fed. (2d) 692; Pope v. Railroad Co., 54 Fed. (2d) 575; Middleton v. Southern Pac. Co., 61 Fed. (2d) 929. The plaintiff is bound by his own testimony and the statement of his attorney to the jury that the injury was received while he was spotting the car for loading, and, therefore, the court erred in refusing to instruct the jury that plaintiff was not engaged in interstate transportation at that time. Tungel v. Cook, 94 S.W. (2d) 925; Steele v. Mo. Pac. Ry. Co., 265 Mo. 97; Adelsberger v. Sheehy, 59 S.W. (2d) 647. (5) The plaintiff's injury was the direct and proximate result of his own carelessness and neglect and disregard of rules, and he is not entitled to recover, even though defendant might have been negligent. Harris v. Railroad Co., 250 Mo. 567; York v. Ry. Co., 62 S.W. (2d) 475; O'Donnell v. Railroad Co., 324 Mo. 1097; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34; Frese v. Railroad Co., 263 U.S. 1: Davis v. Kennedy, 266 U.S. 147; Unadilla Ry. Co. v. Caldine, 278 U.S. 139; Paster v. Penn. Railroad Co., 43 Fed. (2d) 910; Southern Ry. Co. v. Edwards, 44 Fed. (2d) 526; Pere Marquette Ry. Co. v. Haskins, 62 Fed. (2d) 806. (6) Proof of negligence alone does not entitle the plaintiff to recover. The negligence complained of must be the proximate cause of the injury. The jury are not permitted to speculate as to its cause, and the case must be withdrawn from their consideration unless there is evidence from which the inference may reasonably be drawn that the injury suffered was proximately caused by the negligent act of the defendant complained of. Brainard v. Mo. Pac. Ry. Co., 319 Mo. 890, 5 S.W. (2d) 15; Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W. (2d) 735; Atchison, Topeka & Santa Fe Ry. Co. v. Toops, 281 U.S. 351, 74 L. Ed. 896; Patton v. Railroad Co., 179 U.S. 658, 45 L. Ed. 361, 21 Sup. Ct. 275; New Orleans & N.E. Railroad Co. v. Harris, 247 U.S. 371, 62 L. Ed. 1170, 38 Sup. Ct. 535; St. Louis-S.F. Railroad Co. v. Mills, 271 U.S. 347, 70 L. Ed. 983, 46 Sup. Ct. 520; Chicago, M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 70 L. Ed. 1041, 46 Sup. Ct. 564; New York C. Railroad Co. v. Ambrose, 280 U.S. 486, 74 L. Ed. 562, 50 Sup. Ct. 198; Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 11, 49 Sup. Ct. 202, 73 L. Ed. 578; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 169, 48 Sup. Ct. 215, 72 L. Ed. 513; Seaboard Air Line v. Horton, 233 U.S. 501, 34 Sup. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C, 1 Ann. Cas. 1915B, 475: Southern Ry. Co. v. Gray Co., 241 U.S. 339, 36 Sup. Ct. 558, 60 L. Ed. 1030; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 426; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 37; Pere Marquette Ry. Co. v. Haskins, 62 Fed. (2d) 806; Bobango v. Railroad Co., 57 Fed. (2d) 667; Southern Ry. Co. v. Edwards, 44 Fed. (2d) 526; Adelsberger v. Sheehy, 59 S.W. (2d) 647; Swearinger v. Wabash Railroad Co., 221 Mo. 660. (7) The testimony of plaintiff shows that he was aware of the danger and voluntarily remained on the side of the car when he could have easily gotten off the car or taken a position where he would have avoided injury. He therefore assumed the risk and is not entitled to recover, and the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence. Webber v. Term. Railroad Assn., 335 Mo. 19, 70 S.W. (2d) 863; Williams v. Pryor, 46 S.W. (2d) 341, aff. Pryor v. Williams, 254 U.S. 44; Swearinger v. Railroad Co., 221 Mo. 337; McIntyre v. Railroad Co., 286 Mo. 234, 227 S.W. 1047; Morris v. Pryor, 272 Mo. 351, 198 S.W. 817; Quigley v. Hines, 291 Mo. 33, 235 S.W. 1050; Hoch v. Ry. Co., 315 Mo. 1209, 287 S.W. 1047; Norton v. Wheelock, 23 S.W. (2d) 146; O'Donnell, Admrx., v. Railroad Co., 324 Mo. 1106, 26 S.W. (2d) 929; Martin v. Wabash Ry. Co., 325 Mo. 1122, 30 S.W. (2d) 735; Jacobs v. Railroad Co., 241 U.S. 229; Mo. Pac. Ry. Co. v. David, 284 U.S. 460; Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44; Baugham v. Ry. Co., 241 U.S. 237; Southern Pac. Co. v. Berkshire, 254 U.S. 415, 65 L. Ed. 335, 41 Sup. Ct. 162; Reese v. Ry. Co., 239 U.S. 463; Boldt v. Railroad Co., 245 U.S. 441.

Eagleton, Waechter, Yost, Elam & Clark for respondent.

(1) The defendant's demurrers to the evidence were properly overruled, insofar as the applicability of the Federal Employers' Liability Act is concerned, because: (a) As a matter of law, under the undisputed evidence offered by both plaintiff and defendant, plaintiff was engaged in interstate transportation, or work so closely related to it as to be a part of it, at the time of his injury, his status in that regard taking character from his interstate employment. 45 U.S.C.A., secs. 51-59; Rogers v. Railroad Co., 337 Mo. 140, 85 S.W. (2d) 581; New York, C. & H. Railroad Co. v. Carr, 238 U.S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298; Erie Railroad Co. v. Winfield, 244 U.S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057; Pederson v. Railroad Co., 229 U.S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125; Louisville & N. Railroad Co. v. Parker, 242 U.S. 13, 37 Sup. Ct. 4, 61 L. Ed. 119; Pennsylvania Co. v. Donat, 239 U.S. 50, 36 Sup. Ct. 4, 60 L. Ed. 139; Youngstown & O. Railroad Co. v. Halverstodt, 12 Fed. (2d) 995; Sullivan v. Wabash Railroad Co., 23 Fed. (2d) 323; Birmingham B. Railroad Co. v. Dunlap, 58 Fed. (2d) 323; Howard v. Railroad Co., 335 Mo. 295, 73 S.W. (2d) 272; Gieseking v. Railroad Co., 94 S.W. (2d) 375; Brum v. Wabash Railroad Co., 74 S.W. (2d) 566; 2 Roberts' Federal Liability of Carriers, 1373, sec. 727, 1375, sec. 728, 1411, 1417-1419, sec. 742. (b) If not a matter of law, the question as to whether plaintiff was so engaged at the time of his injury was one for the jury to determine under the evidence to the effect that the cars he was then working upon were, in part, interstate, and that the movement being made was to facilitate the movement of the concededly...