Mullen v. Lowden

• Citation: 124 S.W.2d 1152,344 Mo. 40
• Decision Date: 08 February 1939
• Docket Number: 35600
• Parties: Anna J. Mullen, Administratrix of the Estate of Burt Mullen, Appellant, v. Frank O. Lowden, James E. Gorman and Joseph B. Fleming, Trustees for the Chicago, Rock Island & Pacific Railway Company, a Corporation
• Court: United States State Supreme Court of Missouri

124 S.W.2d 1152

344 Mo. 40

Anna J. Mullen, Administratrix of the Estate of Burt Mullen, Appellant, v. Frank O. Lowden, James E. Gorman and Joseph B. Fleming, Trustees for the Chicago, Rock Island & Pacific Railway Company, a Corporation

No. 35600

Supreme Court of Missouri

February 8, 1939

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.

Affirmed and remanded.

Wendell W. McCanles, Earl H. Bowles and W. H. Hargus for appellant.

(1) There was substantial evidence that the defendants were negligent in allowing and permitting deceased to do the work of a brakeman when they knew, or by the exercise of ordinary care could have known that he was physically unfit to do so at said time, and said negligence was a proximate cause of deceased's death. Hamilton v. Standard Oil Co., 19 S.W.2d 679; Woodward v. Mo. Pac. Ry. Co., 295 S.W. 98. (2) There was substantial evidence to prove that when the defendants' engineer did not receive a repeat or answer signal from the deceased to the proceed signal given by the rear brakeman after closing the switch, under the rule, custom and practice he could and should have stopped the train forthwith and could have done so before deceased fell or was thrown therefrom, and that his negligent failure so to do was a proximate cause of deceased's death. Case v. St. L. & S. F. Ry. Co., 30 S.W.2d 1069; Kelso v. Ross Const. Co., 85 S.W.2d 527; Martin v. Wab. Ry. Co., 30 S.W.2d 735; C. & O. Ry. Co. v Mihas, 280 U.S. 102; Williams v. Wab. Ry. Co., 175 S.W. 900; Preston v. Union Pacific, 239 S.W 1080; Pope v. Terminal Ry. Co., 254 S.W. 43; Adams v. Wab. Ry. Co., 199 S.W. 969; Stuart v. Dickinson, 235 S.W. 446; Finnegan v. Mo. Pac. Ry. Co., 169 S.W. 969; S. P. Railroad Co. v. Ralston, 67 F.2d 958; U. P. Ry. Co. v. Hadley, 246 U.S. 330; Stark v. Lusk, 187 S.W. 586; Murray v. Railroad Co., 228 Mo. 56; Bunyan v. Railroad Co., 127 Mo. 12; L. & N. Railroad Co. v. Benke's Admr., 195 S.W. 417; Zumwalt v. C. & A. Ry. Co., 266 S.W. 717; Banks v. Morris & Co., 257 S.W. 482; Sublett v. Term. Ry. Assn., 294 S.W. 718; Chunn v. Railroad Co., 207 U.S. 302; Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551; Montgomery v. B. & O. Ry. Co., 22 F.2d 359; B. & O. Ry. Co. v. Camp, 65 F. 960; Baldwin on Personal Injuries, sec. 358, p. 428. (3) There was substantial evidence to prove that after the proceed signal was given and not answered or repeated by deceased, it was negligence on the part of the defendants' engineer to fail to stop in violation of the established rule, custom and practice but to allow the train to slow down very slow, the cars to bunch and drift and thereafter to increase the speed which caused the tender of the engine to be violently jarred, jerked and shaken and as a direct result thereof the deceased to fall or be thrown therefrom and injured so that he died when the deceased had the right to assume he would stop and not proceed when an answer or repeat signal was not given. Halt v. Cleveland C.C. & St. L. Ry. Co., 279 S.W. 148; Choctaw, Oklahoma Railroad Co. v. McDade, 191 U.S. 64; Myers v. Ptg. Coal Co., 233 U.S. 184; Brainard v. Mo. Pac. Ry. Co., 5 S.W.2d 15; Settle v. Ry. Co., 127 Mo. 341; Good v. M. K. T. Ry. Co., 97 S.W.2d 612, 339 Mo. 330; Satterly v. St. L.-S. F. Ry. Co., 82 S.W.2d 69; Conner v. Ry. Co., 181 Mo. 411; Thompson v. City of Lamar, 17 S.W.2d 960, 322 Mo. 514; Fox v. Mo. Pac. Ry. Co., 74 S.W.2d 611; C., R. I. & P. Ry. Co. v. Ward, 252 U.S. 18; St. L.-S. F. Ry. Co. v. Jeffries, 276 F. 73; Hazenjaeger v. M. K. T. Ry. Co., 53 S.W.2d 1086; Union Pac. Railroad Co. v. Hoxol, 245 U.S. 535.

Hogsett, Murray, Depping & Houts for respondents.

(1) The court properly granted a new trial on the ground that there was insufficient evidence to submit the case to the jury. The court erred in not directing a verdict for defendants at the close of plaintiff's evidence and again erred in not directing a verdict for defendants at the close of all the evidence. (a) Plaintiff was not entitled to go to the jury or recover on the ground that defendants negligently allowed or permitted deceased to go to work and do the work of a brakeman when they knew or could have known that he was physically unfit to do so. Degonia v. St. Louis, I.M. & S. Ry., 224 Mo. 564; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 676; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Pevesdorf v. Union Elec. Co., 333 Mo. 1155, 64 S.W.2d 939; Bello v. Stuever, 44 S.W.2d 619; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; Shumate v. Wells, 320 Mo. 536, 9 S.W.2d 632; Hughes v. M. R. & B. T. Ry. Co., 309 Mo. 560, 274 S.W. 703; 39 C. J. 898; Chesapeake & O. Railroad v. Thomason, 70 F.2d 862; Wheelock v. Freiwald, 66 F.2d 698. (b) The evidence was insufficient for the submission of the case to the jury on the ground that the engineer was negligent in starting without a signal from deceased as alleged in the petition, or on the ground that deceased's death was caused by negligence of the engineer in failing to stop as alleged in the petition. Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 33, 53 S.Ct. 391, 77 L.Ed. 819; Fryer v. St. L.-S. F. Ry., 333 Mo. 754; Robinson v. C. & R. I. Ry. Co., 64 S.W.2d 661; Patton v. Tex. & Pac. Railroad, 179 U.S. 661; Lang v. N. Y. Central Ry. Co., 255 U.S. 455, 41 S.Ct. 381, 65 L.Ed. 729; Davis v. Wolfe, 263 U.S. 239, 44 S.Ct. 64, 68 L.Ed. 284; Baltimore & Ohio v. Groyer, 266 U.S. 521; Chicago, M. & St. P. Railroad Co. v. Coogan, 271 U.S. 474, 46 S.Ct. 198, 74 L.Ed. 562; A. T. & S. F. v. Saxon, 284 U.S. 458; New York Cent. Railroad Co. v. Ambrose, 280 U.S. 490, 50 S.Ct. 198, 74 L.Ed. 562; A. T. & S. F. v. Toops, 281 U.S. 354; Northern Pac. Railroad v. Bobo, 54 S.Ct. 265; Burnett v. Pennsylvania Ry. Co., 33 F.2d 580; Lynch v. Delaware, L. & W. Ry. Co., 58 F.2d 178; Harper v. Terminal Co., 187 Mo. 586, 86 S.W. 99; Kane v. Mo. Pac. Ry. Co., 251 Mo. 27, 157 S.W. 644; Hamilton v. Ry. Co., 318 Mo. 135, 300 S.W. 787; Reading Co. v. Boyer, 6 F.2d 185; Wheelock v. Freiwald, 66 F.2d 698; Pulitzer v. Chapman, 337 Mo. 319, 85 S.W.2d 400; Peppers v. St. L.-S. F. Ry. Co., 316 Mo. 1115, 295 S.W. 757; Booker v. Kansas City Gas Light Co., 231 Mo.App. 217, 96 S.W.2d 922; Turnbow v. Kansas City Rys. Co., 277 Mo. 656; Weaver v. M. & O. Railroad, 120 S.W.2d 1110; Southern Railroad Co. v. Walters, 284 U.S. 194; C. & O. Ry. Co. v. Thomason, 70 F.2d 862; Massman v. K. C. Pub. Serv. Co., 119 S.W.2d 837. (c) Plaintiff was not entitled to go to the jury on the theory that after the proceed signal was given by the rear brakeman the engineer negligently allowed the train to slow down, the cars to bunch and drift and thereafter negligently increased the speed and caused the tender of the engine to be violently jarred, jerked and shaken. Massman v. Kansas City Pub. Serv. Co., 119 S.W.2d 837; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 5; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333; Weaver v. M. & O. Railroad, 120 S.W.2d 1110; Southern Railroad Co. v. Walters, 284 U.S. 194; Wheelock v. Freiwald, 66 F.2d 698; Chesapeake & O. Railroad v. Thomason, 70 F.2d 862. (2) Deceased assumed the risk of any ailment, of doing the work, and of all train movements. Wheelock v. Freiwald, 66 F.2d 694. (3) Since the trial court should have directed a verdict for the defendants at the close of all the evidence and erred in refusing to do so, the order granting a new trial should be affirmed with directions to the trial court to enter judgment for defendants. Sec. 1063, R. S. 1929; Coe v. St. L.-S. F. Ry. Co., 332 Mo. 991, 61 S.W.2d 348; Booneville Natl. Bank v. Thompson, 339 Mo. 1049, 99 S.W.2d 93.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action, under the Federal Employers' Liability Act (45 U.S.C. A., secs. 51-59) for damages for the death of Burt Mullen, husband of plaintiff. Mullen was found dead in defendants' yards at Belleville, Kansas, after the train on which he was riding as head brakeman had left that terminal. Plaintiff obtained a verdict for $ 10,000. Thereafter, the trial court sustained defendants' motion for new trial on the ground "that there was insufficient evidence" to make a jury case. Plaintiff has appealed from this order granting a new trial.

Since the sole question is whether plaintiff was entitled to go to the jury, we will consider the evidence most favorable to plaintiff's contentions. The charges of negligence made in the petition included: (1) Permitting Mullen to go on the train when defendants' employees knew or could have known that he was not in physical condition to do so; (2) starting the train upon a signal from the rear brakeman without a signal from Mullen; (3) permitting the train to proceed after passing from the switch to the main line upon a signal from the rear brakeman without a repeat or answer signal from Mullen; (4) failure to stop the train when the signal from the rear brakeman was not repeated or answered by Mullen; (5) causing the speed of the train to be suddenly checked and then suddenly increased jarring, jerking, and shaking the tender upon which Mullen was riding. The case was submitted on a combination of charges 3 and 4 only, but an instruction attempting to submit charge 5 was offered and refused. There was no attempt to submit charges 1 and 2, and they were thereby abandoned so far as the consideration of this appeal is concerned.

Plaintiff produced as witnesses all of the living members (the fireman had died) of the train crew upon which Mullen was head brakeman. Therefore, all evidence as to actual facts occurring on the night of his death (July 30, 1935) came into the case as plaintiff's evidence. Defendant's evidence concerned only the construction and application of defendants' rules about signaling. Mullen, who had been in...