Moran v. Railway Co.

• Decision Date: 12 April 1932
• Docket Number: No. 28603.,28603.
• Citation: 48 S.W.2d 881
• Parties: LEONA J. MORAN, Administratrix of the Estate of JOE E. MORAN, Plaintiff, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

48 S.W.2d 881

LEONA J. MORAN, Administratrix of the Estate of JOE E. MORAN, Plaintiff, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant.

No. 28603.

Supreme Court of Missouri.

Court en Banc, April 12, 1932.^*

Appeal from Clark Circuit Court. — Hon. Walter A. Higbee, Judge.

AFFIRMED.

Cyrus Crane, S.J. Jones, Geo. J. Mersereau and T.L. Montgomery for appellant.

(1) This action is governed and controlled by the Federal Employers' Liability Act and Federal decisions construing the same. Federal Employers' Liability Act, 35 U.S. Stat. 65, Chap. 149; Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34; Toledo, etc. Railroad Co. v. Slavin, 236 U.S. 454. (2) On the entire record plaintiff was not entitled to recover. (a) The decedent, Moran, was himself negligent. Atlantic Coast Line Railroad Co. v. Davis, 279 U.S. 34, 49 Sup. Ct. Rep. 210. (b) The decedent being thus guilty of negligence plaintiff has no case and her case is not saved by the Humanitarian or Last Chance Rule under the Federal doctrine. Kansas City So. Ry. Co. v. Ellzey, 275 U.S. 236, 48 Sup. Ct. Rep. 80. (c) No negligence under the Missouri doctrine. Gabal v. Railway Co., 251 Mo. 257; Rashall v. Railway Co., 249 Mo. 509; Evans v. Wabash Ry. Co., 178 Mo. 517; McGrath v. Transit Co., 197 Mo. 97; Kahill v. Railway Co., 205 Mo. 408; Sissel v. Railroad, 214 Mo. 515; Degonia v. Ry., 224 Mo. 564; Van Dyke v. Ry., 230 Mo. 259; Nivert v. Railroad, 232 Mo. 626; Ginnochio v. Railroad Co., 155 Mo. App. 163; Hitz v. Ry. Co., 152 Mo. App. 687. (3) Joe E. Moran assumed the risk of moving the hand car, as he attempted to do, and for this reason the verdict must be reversed. Chesapeake & Ohio Ry. Co. v. Nixon, 271 U.S. 218; Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492; Seaboard Air Line Ry. Co. v. Horton, 239 U.S. 595; Boldt, Admx. v. Railroad Co., 245 U.S. 441; Gila Valley Ry. Co. v. Hall, 232 U.S. 94; Jacobs v. Southern Ry. Co., 241 U.S. 229; Gillis v. Railroad Co., 249 U.S. 515; C.R.I. & P. Ry. Co. v. Fred Ward, 252 U.S. 18. (4) The court erred in giving Instruction No. 1 on behalf of plaintiff. Norfolk & Western Ry. Co. v. Earnest, 229 U.S. 114; Grand Trunk Ry. Co. v. Lindsay, 233 U.S. 49; Seaboard Air Line v. Tilghman, 237 U.S. 499; Gulf, C. & S.F. Ry. Co. v. Moser, 275 U.S. 133, 48 Sup. Ct. 49. (5) Some Other Prejudicial Errors. (a) The distance in which the train could have been stopped. (b) The court committed further reversible error in the admission of further incompetent testimony by inexperienced witnesses as to the effect upon a train striking a signalman's motor car on a track, when the train was traveling at a given rate of speed. (c) The court committed further error by permitting the witness to speculate as to whether or not the brakes had been applied. (d) The court committed further error in permitting the same witness to testify as to whether or not the train was running at its usual rate of speed at the time in question, although the law is that it is the speed and condition existing at the time that must be considered. (e) The court committed further error in permitting witnesses to testify as to the distance a fireman could see from his position on the engine by the observations of others. (f) The court committed further error in permitting this same witness to testify regarding station signals. (g) Plaintiff's witness, Clarence Bertram was asked and permitted to testify as to his observations. (h) Plaintiff's witness, Walker was asked and permitted to testify as to observations made of a freight train. (i) The court committed further reversible error in permitting plaintiff's counsel to show, on cross-examination of defendant's witnesses, the matter of signals and order boards at stations — orders with respect to the movement of trains east and west and whether they had the right of way by the station without stopping and all those things concerning which there was no charge of negligence. (6) The verdict of the jury is excessive. Gulf, C. & S.F. Ry. Co. v. Moser, 275 U.S. 133; Chesapeake & Ohio Ry. Co. v. Kelley, Admr., 241 U.S. 485.

John C. Mills, M.D. Campbell and John M. Campbell for respondent.

(1) Having made assignments of error appellant is limited to the assignments thus stated. Bachman v. Company, 310 Mo. 48. After having requested and induced the court to give the fourteen instructions above mentioned, the record then shows that defendant prayed the court to give further instructions. "Whereupon the defendant prayed the court to further instruct the jury." Thus after having received the fourteen instructions submitting the case, the defendant "further" prayed the court to instruct the jury. The first of these further instructions is a demurrer. The court was not asked to withdraw any of the fourteen instructions already given. We therefore submit that the demurrer cannot be considered because requested after the appellant had joined with the plaintiff in submitting the case to the jury. Wright v. Avery, 50 N.E. 204; Pierce v. Watkins, 45 N.E. 1068; West Chic. S. Railroad Co. v. Yung, 48 N.E. 208; Calumet Electric St. Ry. Co. v. Van Pelt, 50 N.E. 678. (2) The instruction on assumption of risk having been asked and given on the part of defendant at the same time by its instruction number 1, having called special attention to the fact that all of the instructions were to be considered together, no matter in whose behalf they were given, the language complained of could not possibly have misled the jury. It has never been considered error of which an appellant may complain that the court failed to give certain instructions on behalf of the respondent when it sought and obtained instructions covering the point. "Moreover, if defendant feared the effect of such language, it was its duty to have asked an instruction defining its own theory on such subject." Berns v. Company, 296 S.W. 239; In Soltesz v. Belz Prov. Co., 260 S.W. 990, near the foot of column 1, page 993, the court said: "If the appellant desired a more specific phrase, an instruction using it could have been asked. The record does not indicate much, if any, controversy on the trial on the question of fact which furnishes the basis of the present contention." In State ex rel. v. Reynolds, 257 Mo. 19, 38; Norris v. Railroad, 239 Mo. 695. In the instant case the defendant did not give the court opportunity, as it had the right to do, to give an instruction on this point, and inasmuch as no instruction was given on behalf of plaintiff on this point, the matter is one of mere nondirection and therefore, not error. If appellant desired a mere specific instruction it should have asked it. Matthews v. Company, 142 Mo. 645 (also see authorities quoted supra). (3) The next assignment is that the court erred in refusing defendant's instructions numbers 2, 3, 4, 5 and 6. No mention is thereafter made in appellant's brief of this assignment, and the same is therefore waived. Berns v. Company, 296 S.W. 242. (4) The next assignment is that the court erred in overruling defendant's motion for new trial and in arrest of judgment. That assignment is not thereafter mentioned in appellant's brief, and therefore needs no further attention. Such an assignment presents nothing for review. Berns v. Company, 296 S.W. 242; State ex rel. v. Trimble, 263 S.W. 840. That appellant in its answer (8) pleads assumption of risk which, as a matter of law, admits decedent was in the line of his duty. Stottle v. Company, 18 S.W. (2d) 433; Grott v. Shoe Co., 18 S.W. (2d) 789. What the fireman saw and realized, the engineer was bound to see and realize. Dutcher v. Wabash, 145 S.W. 63. (5) It is said in appellant's brief that it is doubtful if the petition states a case under the humanitarian rule. That part of the petition is the same as in Murphy v. Wabash, 228 Mo. 56, and numerous other cases before this court. It seems to be settled that an employee of a railroad may recover under the Federal Employers' Liability Act in an action based upon the humanitarian doctrine. Preston v. Union Pacific, 239 S.W. 1180; State v. Trimble, 263 S.W. 840; Banks v. Morris & Co., 257 S.W. 482, 484; Koonse v. Missouri-Pacific, 18 S.W. (2d) 467, 471; Vaughn v. Company, 18 S.W. (2d) 62. The law does not require engineers in charge of trains to leave their post when danger is threatened in order to save themselves, and they cannot be charged with negligence in remaining so long as there is hope, however faint, of averting disaster to others. Central Ry. Co. v. Crosby, 74 Ga. 737. Of course, an employee in charge of the motor car in question was charged with the same duty to save human life as was the engineer in the cases cited and the same doctrine is applied where a person or an employee is attempting to remove a push car or velocipede from the track so as to prevent a collision with an oncoming train. Chesapeake & O.R. Co. v. Lang, 135 Ky. 76; Jones v. McKay T. & C. Co., 137 La. 121; Huston & T.C.R. Co. v. Goodman, 85 S.W. 492; Gulf C. & S.F. Ry. Co. v. Brooks, 132 S.W. 95; Omaha & R.V. Ry. Co. v. Krayenvauhl, 48 Neb. 553; Roll v. N.C.R. Co., 15 Hunn (N.Y.) 496 affirmed; 80 N.Y. 647. A recent case answers appellant's contentions on both negligence and assumption of risk. See Mo. Pac. Ry. Co. v. Skipper (Ark.), 298 S.W. 849. (Certiorari was denied in this case, 48 Sup. Ct. Rep. 322).

FRANK, J.

Action under the Federal Employers' Liability Act to recover damages for the alleged wrongful death of plaintiff's intestate and husband, Joe E. Moran, an assistant signal maintenance man in the employ of defendant. He was struck by a through passenger train at Rutledge, Missouri, on December 14, 1926, while endeavoring to remove a service motor car from the track and out of the path of the approaching train. Plaintiff recovered judgment in the sum of $30,000 and defendant has appealed.

It is admitted that both deceased and appellant were at the time of the accident engaged in interstate commerce. The case...