Mooney v. Terminal R. Ass'n of St. Louis

• Decision Date: 03 January 1944
• Docket Number: 38122
• Parties: Gertrude Mooney, Administratrix of the Estate of Neil P. Mooney, Deceased, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

176 S.W.2d 605

352 Mo. 245

Gertrude Mooney, Administratrix of the Estate of Neil P. Mooney, Deceased, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 38122

Supreme Court of Missouri

January 3, 1944

Appeal from Circuit Court of City of St. Louis; Hon. W. L Mason, Judge.

Reversed and remanded.

Carleton S. Hadley, Arnot L. Sheppard and Joseph A. McClain Jr., for appellant.

(1) Respondent failed to make a submissible case. He was warned not once but three times, of the exact switching movement to be made. Consequently the sole proximate cause of his death was his negligence in stepping directly in front of the oncoming engine when it was only about four feet away. Ebell v. Oregon-Washington R. & N. Co., 221 P. 1062; Hines v. Kesheimer's Admrx., 249 S.W. 1001; Loring v. K.C., F.S. & M.R. Co., 128 Mo. 349; Pere Marquette R. Co. v. Haskins, 62 F.2d 806; Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91, 73 L.Ed. 224; Ingram v. M. & O.R. Co., 30 S.W.2d 989. (2) The Missouri humanitarian doctrine is not applicable to this case because this action is under the Federal Employers' Liability Act and is governed by the federal rules. Cox v. M.-K.-T.R. Co., 335 Mo. 1226, 76 S.W.2d 411. (3) The federal courts do not recognize or apply the Missouri humanitarian doctrine, but only the last clear chance doctrine, viz., that before there may be a recovery despite contributory negligence, such negligence must have ceased before the casualty and the person endangered must have been actually seen in a position of peril unable to escape. Denver City Tramway Co. v. Cobb, 164 F. 41; Hart v. Northern P.R. Co., 196 F. 180; Iowa Central R. Co. v. Walker, 203 F. 685; Marshall v. Hines, 271 F. 165; Miller v. Canadian Northern R. Co., 281 F. 664; Wheelock v. Gray, 13 F.2d 972; Miller v. Union Pacific R. Co., 63 F.2d 574; Allnutt v. Mo. Pac. R. Co., 8 F.2d 604; Robbins v. Pa. R. Co., 245 F. 435; Linde Air Products Co. v. Cameron, 82 F.2d 22; Kansas City So. R. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80, 72 L.Ed. 259; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 166, 72 L.Ed. 513; St. L.-S.F.R. Co. v. Schumacher, 152 U.S. 77, 38 L.Ed. 361; Chunn v. City & Suburban Ry., 207 U.S. 302. 52 L.Ed. 219; Smith v. Gould (dissenting opinion), 110 W.Va. 579, 159 S.E. 53, 92 A.L.R. l.c. 37; Bassett & Co. v. Wood, 146 Va. 654, 132 S.E. 700; Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 301. (4) The last clear chance doctrine cannot be applied if plaintiff and defendant are engaged in a common venture when their courses of conduct are not independent of each other. Kansas City Southern R. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80, 72 L.Ed. 259. (5) Absent a rule or custom so requiring, men working on and around railroad tracks are not entitled to any warning of the approach of a train. Mayfield v. K.C. So. R. Co., 337 Mo. 79, 85 S.W.2d 116; Cochran v. Thompson, 148 S.W.2d 532; Karr v. C., R.I. & P.R. Co., 108 S.W.2d 44; Martin v. Wabash R. Co., 30 S.W.2d 735; Ingram v. M. & O.R. Co., 30 S.W.2d 989; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513; A., T. & S.F.R. Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758. (6) In order to give a custom the effect of law it must be shown to have been a definite, uniform and known practice under certain, definite and uniform circumstances. McClellan v. P.R. Co., 62 F.2d 61; Magyar v. P.R. Co., 144 A. 765; Shane v. Lowden, 106 S.W.2d 956. (7) Even if the Missouri humanitarian doctrine were open to respondent, the evidence is insufficient to make it applicable; as there is not only no proof of the existence of Mooney's peril for sufficient time to permit appellant's employees to save him, but respondent's proof affirmatively shows that Mooney stepped in front of the moving engine when it was only about four feet from him. Thus one step by Mooney put him into or took him out of the danger zone; and appellant's employees had a right to assume he would not step on the track he had just been told the engine would pass over, and with the engine bell ringing at the time. Smithers v. Barker, 111 S.W.2d 47; Knight v. Wabash R. Co., 85 S.W.2d 392; Costello v. Pitcairn, 116 S.W.2d 257; Lotta v. K.C. Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296. (8) Decedent's negligence was the sole cause of his death. This bars a recovery by respondent. Atlantic Coast Line v. Driggers, 229 U.S. 787, 73 L.Ed. 957; Robison v. C. & E.I.R. Co., 334 Mo. 81, 64 S.W.2d 660; Hough v. C., R.I. & P.R. Co., 339 Mo. 1169, 100 S.W.2d 499. (9) Respondent's Instruction 1 directing a verdict is entirely misleading, because it is framed upon the theory that, because decedent was oblivious, it was the duty of appellant's engineer to stop the locomotive. Obliviousness affects a humanitarian case only when it is submitted on a failure to warn, but does not affect the doctrine in so far as its application relates to stopping. Jordan v. St. Joseph L., H. & P. Co., 73 S.W.2d 205; Pentecost v. Terminal Railroad Assn., 66 S.W.2d 533; Scott v. Terminal Railroad Assn., 86 S.W.2d 116. (10) The trial court erred many times in permitting respondent, repeatedly, to cross-examine and attempt to impeach her own witnesses. Woelfle v. Connecticut Mut. Life Ins. Co., 235 Mo.App. 135, 112 S.W.2d 865; Clancy v. St. Louis Transit Co., 192 Mo. 615; Beier v. St. Louis Transit Co., 197 Mo. 214; McClendon v. Bank of Advance, 188 Mo.App. 417, 174 S.W. 203. (11) This record shows that the trial judge throughout this trial failed to observe the strict neutrality demanded of him. Wright v. Richmond, 21 Mo.App. 76; Rose v. Kansas City, 125 Mo.App. 231, 102 S.W. 578; Landers v. Railroad, 134 Mo.App. 80, 114 S.W. 543; Reeves v. Lutz, 191 Mo.App. 550, 177 S.W. 764; Jackman v. Railroad, 187 S.W. 786; McElwain v. Dunham, 221 S.W. 773; Rooker v. Railroad, 226 S.W. 69; Egan v. United Rys., 227 S.W. 126; Clear v. Van Blarcum, 241 S.W. 81; Wair v. A.C. & F. Co., 285 S.W. 155; Mahaney v. K.C., Clay County & St. J. Auto Transit Co., 329 Mo. 793, 46 S.W.2d 817. (12) Reversible error was committed when the trial judge refused to declare a mistrial when respondent's counsel stated in argument to the jury: "There is no doubt in my mind or the Court's mind that the case can be submitted to you as a question of fact for the jury to be passed . . . ." McGowan v. Wells, 24 S.W.2d 633; Kull v. Ford Motor Co., 261 S.W. 734. (13) Because respondent's counsel's argument was a viciously unfair attack upon his own witnesses, which created an "atmosphere of hostility" towards appellant, it constitutes reversible error. Potashnick v. Pearline, 43 S.W.2d 790; Carpenter v. Kurn, 136 S.W.2d 997; N.Y.C.R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 417, 73 L.Ed. 706; Minneapolis, St. P. & S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. (14) The verdict is so excessive as to show clearly it resulted from passion and prejudice. Hancock v. K.C. Terminal Ry. Co., 339 Mo. 1237, 100 S.W.2d 570; Sheehan v. Terminal Railroad Assn., 344 Mo. 586, 127 S.W.2d 657; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585. The vital issue here, as appellant sees it, is the holding in the opinion that respondent may recover upon the Missouri humanitarian doctrine, although the action is necessarily based upon the Federal Employers' Liability Act. (Hereinafter called, for brevity, the Act.) (15) Respondent bases her right to recover upon a federal statute. Consequently, her right to recover must be determined by the decisions of the federal courts in so far as all substantive questions of law are concerned. Cox v. M.-K.-T.R. Co., 335 Mo. 1226, 76 S.W.2d 411; Southern R. Co. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; C. & O.R. Co. v. Stapleton, 279 U.S. 587, 73 L.Ed. 861. (16) There can be no recovery under the Federal Employers' Liability Act unless the evidence shows the proximate cause of the damage was defendant's negligence. Patton v. T. & P.R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361. (17) It cannot be denied that, if proof of negligence is essential to recovery under the Act, and if the sufficiency of such proof must be determined by the federal decisions, the negligence relied upon must be such as is recognized by the federal courts. Indeed, it is so held. C. & O.R. Co. v. Stapleton, 279 U.S. 587, 73 L.Ed. 861. (18) Whether or not the burden of proving plaintiff's negligence rests upon him or defendant, is a question of substantive law which must be determined by the federal and not the state decisions. Central Vermont R. Co. v. White, 238 U.S. 43, 65 L.Ed. 1433. (19) Whether or not plaintiff assumed the risks of injury must be determined by the federal rather than the state decisions. Pryor v. Williams, 254 U.S. 43, 65 L.Ed. 120.

Wilbur C. Schwartz and Chelsea O. Inman for respondent.

(1) Failure of the engineer to stop when decedent's imminent peril became apparent was a proximate cause of his fatal injuries. Clark v. Terminal R. Assn., 111 S.W.2d 168; Armstrong v. M. & O.R. Co., 331 Mo. 1224, 55 S.W.2d 460, certiorari denied 289 U.S. 743; Dutcher v Railroad, 241 Mo. 137, 145 S.W. 63; Rogers v. M. & O.R. Co., 337 Mo. 140, 85 S.W.2d 581, certiorari denied 296 U.S. 642. (2) Even though the engineer closed his eyes and did not see decedent, the appellant was liable because there was a long-established custom requiring engineers to keep a lookout for switchmen who might be on or near the tracks in appellant's yard. Where such custom exists a case is properly submitted to the jury upon the hypothesis that the engineer saw or could have seen the injured switchman in peril in time to have...