Myers v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 20 December 1922
• Parties: McKINLEY C. MYERS v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant, and JOHN E. MYERS
• Court: Missouri Supreme Court

246 S.W. 257

296 Mo. 239

McKINLEY C. MYERS v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant, and JOHN E. MYERS

Supreme Court of Missouri

December 20, 1922

Appeal from Lafayette Circuit Court. -- Hon Samuel Davis, Judge.

Affirmed.

H. J Nelson, Lyons & Ristine and J. G. Trimble for appellant.

(1) The peremptory instruction to find for defendant should have been given, for the reason that both plaintiff and defendant railroad company were engaged in interstate commerce and plaintiff's cause of action, if any he had, was barred by the limitation contained in the Federal Employers' Liability Act; no negligence was shown and the injury resulted from an assumed risk. (a) The railroad company was engaged in interstate commerce. All trains over the line at the place of accident were interstate trains carrying interstate passengers and freight. Sec. 1, Interstate Commerce Act, 3 U. S. S. A. 30. (b) Plaintiff was engaged in interstate commerce. Sou. Pac. Co. v. Ind. Comm. of California, 174 Cal. 8; P. & R. Ry. v DiDonato, 41 U.S. S.Ct. 516; Reap v. Hines, 273 F. 88; Manes v. Railway, 220 S.W. 14; Sou. Pac v. Puckett, 244 U.S. 571; Erie R. Co. v. Azary, 40 S.C. 454; Gloucester Ferry Co. v. Penn., 114 U.S. 196; Coal & Coke Ry. v. Deal, 231 F. 604; Erie Ry. v. Collins, 40 S.C. 450; Shanks v. Railroad, 239 U.S. 556; N.Y. Central Railroad v. White, 243 U.S. 188; San Pedro Railroad v. Davide, 210 F. 870; Sanders v. Railroad, 97 S.C. 50; Louisville Railroad v. Walker's Admr., 162 Ky. 209. 172 S.W. 517; S. A. L. Railroad Co. v. Padgett, 236 U.S. 668; N.Y. Central Railroad Co. v. Carr, 238 U.S. 260; N. C. Railroad Co. v. Zachary, 232 U.S. 248. As a section man plaintiff was engaged in interstate commerce. San Pedro Railroad v. Davide, 210 F. 870; Central Railroad v. Colasurdo, 192 F. 901; Zikos v. Oregon R. & N. Co., 179 F. 893; Lombardo v. Boston Railroad, 223 F. 427. An employee "on duty" though not at the time at work, is engaged in interstate commerce. N. C. Railroad Co. v. Zachary, 232 U.S. 248. He is "on duty" when "subject to call." M. K. & T. Ry. v. United States, 231 U.S. 112; United States v. K. C. S. Ry., 189 F. 471; United States v. D. & R. G. Railroad, 197 F. 629. (c) The injury resulted from a risk incident to the work and was assumed by plaintiff. T. & P. Railroad v. White, 177 S.W. 1185. (d) Plaintiff's action, if any he had, was barred by the limitation contained in the Federal Employers' Liability Act. Emp. Liability Act. sec. 6, 2 U. S. A. 469; Vaught v. Virginia Railroad, 179 S.W. 314. (e) There was no evidence of negligence in the furnishing of the bucket and no evidence that if the bucket were leaky plaintiff's trousers became saturated with oil because thereof. He "jerked" the cobs out of the oil. As between employer and employee under the Federal Employers' Liability Act there is no such thing as res ipsa loquitur. There must be actual proof of negligence. Negligence cannot be inferred. Midland Valley v. Fulgham, 181 F. 91; C. & N.W. Railroad v. O'Brien, 132 F. 593; Northern Pacific v. Dixon, 139 F. 737; Nelson v. N. P. Ry., 148 P. 388; Fish v. Railway, 263 Mo. 106; Patton v. Railroad, 179 U.S. 658. There was no proof of negligence in selecting the bucket which would permit the case to be submitted, even under the state law. (2) Defendant's refused Instructions B, C, D, E and F should have been given. (a) Instruction B should have been given for the reason that the testimony showed plaintiff to be of sufficient age, intelligence and experience in the work to be treated as an adult. Payne v. Railroad, 129 Mo. 405; Frauenthal v. Gas Co., 67 Mo.App. 1; Butz v. Cavanaugh, 137 Mo. 503; McGee v. Railroad, 214 Mo. 530; Spillane v. Railroad, 135 Mo. 414. (b) Instruction C should have been given for the reason that there was no evidence of negligence in furnishing the bucket and no evidence that any oil "leaked" from the bucket to plaintiff's trousers. (c) Instruction D was a cautionary instruction and should have been given. (d) Instruction E should have been given because it told the jury that if his injury was brought about by the work which he was doing and not because of negligence on the part of the defendant, plaintiff could not recover. The risk was an assumed one. T. & P. Railroad v. White, 177 S.W. 1185. (e) Defendant's refused Instruction F should have been given for the reason that plaintiff testified that he just jerked the cobs out of the bucket. If his conduct in jerking the cobs out of the bucket caused his trousers to become saturated with coal oil, it was his own act and not the result of a negligent furnishing of a leaky bucket. Grand Trunk Ry. v. Lindsay, 233 U.S. 42; Ellis v. Railroad, 155 Ky. 745; Fletcher v. Railroad, 155 N.W. 3. (3) Plaintiff's given Instructions 1, 3 and 5 are erroneous, (a) Plaintiff's Instruction 1 is in conflict with defendant's given Instruction 1, in that it submits for the consideration of the jury the question of negligence "in directing and commanding plaintiff" to engage in working about the fire, while defendant's Instruction 1 tells the jury there was no evidence of negligence in that regard. It is in conflict with defendant's Instructions 5, 6, 8, 9 and 12, in that it submits for the consideration of the jury plaintiff's age, experience and capacity. It is not confined to the negligence pleaded. It permits a recovery if the foreman negligently directed plaintiff to engage in working about the fire with an appliance handed him by the foreman. The only appliance "handed him by the foreman" was a rag. There is no claim that the rag was a defective appliance. Instructions must be within the pleadings and the evidence. Hufft v. Railroad, 222 Mo. 286; Degonia v. Railroad, 224 Mo. 564. It does not define the negligence which would permit a recovery, but leaves the jury to imagine and determine for themselves the act of negligence, regardless of whether such act was pleaded or proven by competent evidence. "Instructions must be within the purview both of the pleadings and the evidence." Degonia v. Railroad, 224 Mo. 589. It submits for the consideration of the jury plaintiff's age, experience and capacity, there being no evidence to justify such an instruction. It permits a recovery if plaintiff were burned while working in obedience to a command of his father, regardless of whether there was any negligence on the part of the father and regardless of how he came in contact with the flames. (b) Plaintiff's Instruction 3 is in conflict with defendant's Instruction 1, in that it permits the jury to find that his father negligently ordered plaintiff to engage in fighting fire, while defendant's Instruction 1 tells the jury there was no evidence that he was negligently ordered to engage in fighting fire. It is in conflict with defendant's Instruction 3, in that it permits the jury to find that his father knew or could have known plaintiff's trousers were saturated with coal oil, while defendant's Instruction 3 tells the jury there was no evidence that the defendant knew or by the exercise of reasonable care could have known plaintiff's trousers were saturated with coal oil. It permits the jury to find that his father could have known of the leaky bucket instead of requiring the jury to find that he did know. Negligence must be proved, not inferred. Midland Valley v. Fulgham, 181 F. 91; Patton v. Railroad, 179 U.S. 658. There was no evidence that the bucket was not reasonably safe for the purpose for which it was used. There is no evidence that plaintiff was ordered to use the bucket as it is claimed he did use it. There is no evidence that coal oil "leaked" from the bucket upon plaintiff's trousers. It ignores all the evidence in the case showing the purpose for which a fireguard was being burned. The fireguard was being burned to protect bridges and prevent delays to and wrecks of trains, as well as to protect property of adjacent landowners so as to save money to the company. This instruction limits the purpose to that at the moment plaintiff was injured. This instruction ignores the fact that the apparent danger of the spreading was occasioned by a "suck" or whirlwind. The instruction to "help the boys" to keep it from spreading was given after plaintiff had voluntarily started "back to help." He was not "ordered" to help. (c) Plaintiff's instruction 5 is erroneous. It permits a recovery for medical attention and nursing "in the future." In the connection in which it is used the words mean from the time of his injury July 12, 1911, six years before he became of age. If there could be a recovery for medical attention and wages during that time his father would be entitled to such recovery. L. & N. Railroad Co. v. Long, 189 S.W. 435. It permits a recovery for wages, medical attention and nursing in face of the fact that his father's negligence (if there were any negligence in the case) was the cause of plaintiff's injury, and the father could not recover a judgment because of his own negligence. It assumes plaintiff is unable to earn a living, while the evidence shows there is no total disability and no impaired ability except through his own failure to use proper means to effect a cure. Permitting recovery for total disability when plaintiff's ability is only impaired is erroneous.

Duvall & Boyd and Kelly, Buchholz, Kimbrell & O'Donnell for respondent.

(1) The petition having alleged and the answer having admitted, and the evidence of the witnesses of both parties who were present at the time of the injury having shown, that the purpose of the work in which plaintiff was engaged at the very time of his injury was to prevent the burning of the property of a farmer beside the right of way so as to relieve defendant from the liability imposed on it by Section 9954 the trial court could not...