Miller v. Schaff

• Decision Date: 30 December 1920
• Docket Number: No. 20905.,20905.
• Citation: 228 S.W. 488
• Parties: MILLER v. SCHAFF.
• Court: Missouri Supreme Court

228 S.W. 488

MILLER v. SCHAFF.

No. 20905.

Supreme Court of Missouri, Division No. 1.

December 30, 1920.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Action by Maurice Miller against Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

A. E. Elliott, of Nevada, Mo., Carl S. Hoffman, of Sedalia, and J. W. Jamison, of St. Louis, for appellant.

Sizer & Gardner, of Monett, for respondent.

JAMES T. BLAIR, P. J.

Respondent was a brakeman on a train on the Missouri, Kansas & Texas Railway, then being operated by appellant, and was injured while engaged in switching operations at Broken Arrow, Okl. The petition charged that respondent's foot was jarred from a stirrup on the side of the car upon which he was riding, and that a negligently low joint and other specified defects, of which appellant knew or in the exercise of ordinary care should have known, were the cause of the unusual movement of the car which it was alleged was the immediate cause of the injury. Several errors are assigned.

I. The petition contains two counts. In each damages are sought for the same injury. The first alleges appellant and respondent were both engaged in interstate commerce at the time appellant was hurt. The second contains no such allegation as to respondent. Otherwise they are substantially alike. The case went to the jury on the first count only.

(a) It is argued the counts are repugnant, in that one count alleges the parties were engaged in interstate commerce, and the other "alleges plaintiff was not engaged in interstate commerce." If it is meant there is an express allegation in the second count that respondent was not engaged in interstate commerce, then counsel are in error, since the second count does not contain such allegation. We will examine the question on the theory that the two counts respectively state a cause of action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) and the common law. On the point stated appellant invokes the rule in Raming v. Metropolitan Street Railway, 157 Mo. loc. cit. 507, 57 S. W. 268. In that case the same count charged, as the court found, both a negligent, or unintentional, and a wanton, or intentional, injury, and it was held these inconsistent allegations in the same count destroyed each other. Had the pleader employed separate counts for the allegations, no sound objection to that course could have been made. Waechter v. Railroad, 113 Mo. App. loc. cit. 277, 278, 88 S. W. 147, and cases cited. The cases of Flowers v. Smith, 214 Mo. 98, 112 S. W. 499, and Christal v. Craig, 80 Mo. loc. cit. 371, are not in point. They hold that independent libels or slanders pleaded in the same count subject the petition to a motion to elect, and, if one of the intermingled causes of action in the count is bad, a general verdict cannot be upheld. Under our practice a count under a statute and one at common law for the same injury may be united in the same petition (White v. Railroad, 202 Mo. loc. cit. 560, 101 S. W. 14), and a verdict upon either count bars the other (Brownell v. Railroad, 47 Mo. loc. cit. 243, 244; Owens v. Railroad, 58 Mo. loc. cit. 394). "Nothing in the federal act would have been the other way." Wabash Railroad v. Hayes, 234 U. S. loc. cit. 90, 34 Sup. Ct. 729, 58 L. Ed. 1226; Bouchard v. Railway, 87 Vt. 399, 89 Atl. 475, L. R. A. 1915C, 33; Bankson v. Railroad (D. C.) 196 Fed. loc. cit. 174; Ex parte Atlantic Coast Line Railroad, 190 Ala. 132, 67 South. 256. The evidence may conclusively prove facts which determine the applicatory law. In such case only the count under that law should be submitted. There may be evidence tending both ways on that question. In that event both counts may be submitted, and the jury must then determine whether the parties were engaged in interstate commerce, and then, under the instructions, apply the law which the facts they find to be true show to be applicable; but there can be but one assessment of damages.

(b) Even if the evidence in this case left the matter in doubt whether respondent was engaged in interstate commerce, it is no ground of complaint for appellant that respondent abandoned one count — and thereby abandoned one chance of recovery. White v. Railroad, supra. It merely gave appellant an additional ground upon which he might defeat respondent of which ground respondent would have deprived him had he submitted the case on both counts. This, on the assumption first made.

(c) Neither can appellant be heard to complain that his instructions on the effect of contributory negligence at common law were not given. Respondent had abandoned the common-law count, and the jury were not asked to find anything against appellant under the common law. The legal effect of respondent's instructions, in this connection, was that if the jury did not find facts showing the federal Employers' Liability Act applied, i. e., found that the common law did apply, then they should not find for respondent at all. It follows that no instruction upon any common-law defense was proper except in so far as it was also a defense under the federal act.

II. It is contended there is no evidence tending to prove the negligence charged and submitted. There was evidence tending to prove that the track through Broken Arrow, including the portion between the house track switch and the passing track switch, whereon the injury was sustained, was in bad condition; that near and at the place of accident there was little or no ballast; that some of the ties were broken; that joints were low and would sink under passing cars to an extent variously estimated from two to six inches; that moving cars on this track would rock and lurch — a fair inference for the jury — violently; that respondent's foot was jerked or thrown or jarred from the stirrup of the car, upon which he was attempting to climb, by an unusual motion of the car which struck a low joint and went down with a "chug." The respondent described the way the car went down by indications made before the jury' which are not before us. The evidence tended to show the bad condition described had existed for 18 months or more. We do not understand counsel to contend the facts stated, if they are facts, do not show a defective track and a causal connection between it and respondent's injury. Their argument actually goes to the weight of respondent's evidence, the seeming contradictions therein, and the greater credibility of appellant's witnesses. These were matters proper for the consideration of the jury, and we have no doubt were pressed upon their attention by the able counsel who tried the case. It is not necessary to cite decisions to show we have nothing to do with these questions in this court.

III. It is insisted the evidence conclusively shows respondent assumed the risk. The gist of this argument is that the movement of the car which injured respondent was no greater than usual on railroad tracks. Morris v. Pryor, 272 Mo. 350, 198 S. W. 817, Patrum v. Railroad, 259 Mo. 109, 168 S. W. 622, and Williams v. Railroad, 119 Mo. 316, 24 S. W. 782, are cited. In the Williams Case plaintiff was employed as a switchman in defendant's repair yard in Springfield and was injured by reason of falling as a result of stepping on a spiral spring which was concealed by grass near the track on which the car which struck him was being operated. It was held, among other things, that the fact the place of injury was a repair yard was important; that plaintiff knew that in repairing cars pieces of wood and metal were likely to fall upon the roadbed and become concealed in the grass, of the presence of which plainti...