McPherson v. Thompson

• Decision Date: 27 July 1942
• Docket Number: No. 6354.,6354.
• Citation: 164 S.W.2d 80
• Parties: McPHERSON v. THOMPSON.
• Court: Missouri Court of Appeals

164 S.W.2d 80

McPHERSON v. THOMPSON.

No. 6354.

Springfield Court of Appeals. Missouri.

July 27, 1942.

Rehearing Denied August 24, 1942.

Appeal from Circuit Court, Barton County; Thomas W. Martin, Judge.

"Not to be published in State Reports".

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 1 et seq., by Louise F. McPherson, administratrix of the estate of Jason B. McPherson, deceased, against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, to recover for the benefit of plaintiff and a minor child for the wrongful death of the decedent which resulted from a collision between motorized hand car on which decedent was riding and an automobile. From a judgment for plaintiff, defendant appeals.

Judgment affirmed.

Thos. J. Cole, of St. Louis, J. Carroll Combs, of Lamar, and L. J. Bishop and D. C. Chastain, both of Kansas City (Patterson, Chastain & Smith, of Kansas City, of counsel), for appellant.

W. W. McCanles, of Los Angeles, Cal., and Ben L. Clardy, of Kansas City, for respondent.

SMITH, Judge.

With slight alterations, we use the appellant's statement of the facts.

The defendant, Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, appeals from an adverse judgment of the circuit court of Barton County, rendered at the September, 1941, term thereof in an action for the wrongful death of Jason B. McPherson, a section foreman, which occurred on January 30, 1940. The judgment was for $5,000 and the action was brought by the administratrix of the estate for the benefit of the widow and a minor child. The accident happened near Independence, Missouri, where Mr. McPherson was a section foreman for the Missouri Pacific and Mr. McPherson's death was occasioned by the collision of a motorized hand car on which he was riding, which was going north, and a truck driven by T. R. McClenagan in an eastwardly direction on a public highway south of Independence and known as 39th Street.

On the morning of this day the section crews of Mr. McPherson and that of section foreman Hanes joined forces and left Independence on Mr. McPherson's motor car and went south to near Little Blue where they engaged the day in cutting sprouts and weeds, and cleaning up the right-of-way. Mr. McPherson was in charge of the combined gangs and was the superior of everyone in them, including foreman Hanes. When the day's work was done the men got on the motor car and started north to Independence. The motor car was operated by Ted Strohm who sat on the left or west side about the middle of the car. This car had a hand brake and the gasoline was fed with a hand throttle, and the brake and throttle were accessible to Strohm. On the same side of the car and back of Strohm, Mr. McFarland was sitting. On the right or east side of the motor car were three men. Mr. McPherson, the foreman, was at the front, sitting behind him was Mr. Hanes and behind Hanes was Mr. Shoemaker. Mr. McPherson was sitting at the north end of the east side of the motor car in a slanting position and had hold of a rail at the front end of the motor car. He could see west, north and east. There was no one on the front end of the west or left side of the motor car. As the foreman in charge, it was McPherson's duty to ride in this position where he could observe the movements of the car. This motor car was traveling at a speed of 10 or 12 miles an hour as it approached the 39th Street crossing. It was a cloudy day, but there was no mist or fog, but there were snow and ice on the pavement. When the motor car approached the 39th Street crossing, its speed was slowed to about 4 miles an hour and when the motor car was within 6 or 8 feet of the crossing, which was a plank crossing 24 feet wide north and south, Mr. McPherson, the foreman, signaled to the driver of the motor car to come on and go across the crossing and the motor car came on over the crossing and near the north end thereof collided with the truck, derailing the motor car and injuring Mr. McPherson so that he died within a few minutes. Just before the motor car started over the crossing Mr. McPherson had looked to the west, then to the east, and had motioned Strohm, the operator of the motor car, to come on across. It was Mr. McPherson's duty when he came to this crossing to signal to the operator of the motor car whether or not he should go on across. The truck was approaching from the west on the icy black-top pavement, which was slightly down grade, at a speed estimated by some at 15 miles an hour, and by others at 40 or 45 miles per hour, and when it was about 100 feet from the railroad track the driver of the truck applied the brakes, which caused it to sway and skid and the driver to lose control and the truck got down almost to the railroad track, when it turned to the north going along the track the same direction the motor car was going and cut over in front of the motor car at the north side of the crossing, when the collision occurred. There was no evidence as to whether Ted Strohm saw the approaching truck or not, nor whether he did anything, but it was shown that the motor car didn't change its speed very much. The motor car could have stopped by the use of the brake within a distance of 6 to 10 feet.

There was little conflict in the evidence. The truck driver, McClenagan, a witness for plaintiff, claimed he approached the crossing at a speed of 15 miles an hour and that the motor car was 25 feet south of the crossing when he first saw it from a disstance of 100 feet west of the track. Other witnesses for the plaintiff said the truck was going from 35 to 45 miles an hour and that the motor car was half way over the crossing when they first saw the truck about 100 feet to the west and at the time the truck driver applied his brakes.

Both Mr. McFarland and Mr. Hanes were called as witnesses by the plaintiff and they, with the truck driver, Mr. McClenagan, were the only witnesses who testified concerning the accident.

The defendant filed a demurrer to the evidence at the close of the plaintiff's case which was by the court overruled, and the defendant stood upon his demurrer.

The petition was based on the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and counted on several acts of negligence but plaintiff submitted to the jury only negligence on the part of Ted Strohm in failing to stop the motor car before colliding with the truck after he saw or should have seen that the truck was approaching the railroad tracks, slipping and sliding on the street.

The answer was a general denial and a plea that the deceased, Mr. McPherson, was in charge of the motor car and that the injury was due to his sole negligence and that of the truck driver, and that if there was any negligence on the part of the driver of the motor car, the same was imputed to the deceased.

The verdict, as stated, was for the plaintiff in the sum of $5,000 and after unavailing motion for new trial and judgment entered, the cause was duly appealed to this court.

It is conceded that this is an action under the Federal Employers' Liability Act. Since that is true, the rights of the parties are to be determined by that act and the decisions of the courts construing it.

The case is presented to us under eight assignments of error. The first four of which are as follows:

"1. The...