Newlin v. St. Louis & S. F. R. Co.

Citation121 S.W. 125,222 Mo. 375
CourtUnited States State Supreme Court of Missouri
Decision Date01 July 1909
PartiesNEWLIN v. ST. LOUIS & S. F. R. CO.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by Tinnie Newlin, for herself and as trustee for Earl and Ruby Newlin, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed.

W. F. Evans, Dana, Cowherd & Ingraham, and Hunt C. Moore, for appellant. John M. Cleary, for respondent.

LAMM, P. J.

Leroy Newlin was the husband of Tinnie Newlin on August 15, 1905, and for eight months had been in defendant's employ as a switchman in its yards in Rosedale, Kan. Earl and Ruby are minors, and the only children born of the marriage. Leroy was killed while in the line of duty switching in said yards in trying to uncouple two moving freight cars; his foot being caught and held in an unblocked space between the main rail and a switch rail. The widow sued in Jackson county, Mo., charging negligence as follows: "The death of said Leroy Newlin was directly occasioned by wrongful acts and omissions on the part of defendant, its servants, agents, and officers, in that the blocking in its tracks between the main rail and the switch rail at the place aforesaid had become rotten, defective, and worn out, and had wholly disappeared, and defendant failed, omitted, and neglected to block or fill said interval and repair said defect so that there was no protection against the entrapping of a foot in the space between said main rail and said switch rail. That at the said time defendant knew, or by the exercise of ordinary care might have known, that said blocking or filling had decayed, rotted out, and had entirely disappeared, and that there was at said time no blocking or filling in said interval between said main rail and switch rail, and that there was no protection at said place against the entrapping of a foot therein, but utterly failed, neglected, and refused to repair or replace said blocking or filling and permitted the same to remain in said defective and dangerous condition, but said Leroy Newlin was wholly ignorant thereof."

The right of plaintiffs to recover for the wrongful death of Leroy Newlin arises on two Kansas statutes, viz., section 4871, par. 422, and section 4872, par. 422a, art. 18, c. 80, Gen. St. Kan. 1901. These are the same statutes on which plaintiffs relied in Lee v. Railroad, 195 Mo., loc. cit. 419, 92 S. W. 614, and Charlton v. Railroad, 200 Mo., loc. cit. 419, 98 S. W. 529, and are found there in full (q. v.). They will not be reproduced unless in the evolution of the case such course becomes necessary. Defendant answered in (1) a general denial; (2) a plea of contributory negligence of decedent; (3) an allegation that, if decedent was injured by the negligence of any one other than himself, it was that of persons who were fellow servants under the laws of the state of Kansas and such risk was assumed; (4) that under the laws of the state of Kansas (chapter 341, p. 566, Laws Kan. 1905) defendant was entitled to a notice in writing from plaintiff within eight months after the injury, stating the time and place thereof, and that no such notice had been given (the statute is pleaded, but need not be set forth here); (5) for a further defense defendant pleaded a general assumption of risk; and (6) for still another alleged that defendant's liability, if any, depended upon and is to be determined by the law in force at the time in Kansas, and, under such law, defendant is not liable. Plaintiffs replied as follows: "Now comes plaintiffs, and, for reply to defendant's amended answer herein, deny each and every allegation in said amended answer contained. For further reply to defendant's amended answer herein plaintiffs state that chapter 341, p. 566, Laws Kan. 1905, is not fully set forth in defendant's amended answer; that said chapter is not applicable to this cause or to the facts as set forth in the petition herein, and does not read as alleged in the amended answer; that said chapter has no force or effect in this action or in this state and is amendatory of the co-employés law of the state of Kansas, and the right of action in the plaintiffs herein is not governed by said act; that in any event the plaintiffs in this action have fully complied with said chapter, wherefore," etc. From a judgment entered on a verdict in favor of plaintiffs for $5,000, defendant appeals.

A group of questions are briefed and argued. For example: Whether the statute pleaded in the fourth paragraph of the answer and in the reply relates to liability under the fellow-servant law of Kansas alone, or covers the case stated in the petition for negligence of the master in not providing a reasonably safe field of operations. Again, defendant, to show nonliability, introduced sections of the Kansas Code of Civil Procedure prescribing in what counties venue should be laid, and where suits should be brought against railway corporations for personal injuries, and counsel argue these statutes are part of the substantive law, and hence this suit was brought in Missouri in violation of those statutes. Contra, plaintiff's counsel argues that those statutes have no extraterritorial force or effect, that they cover mere adjective law and relate solely to procedure in suits in the state of Kansas — not elsewhere — and, if construed otherwise, would strike down a settled legislative policy of comity. Again, certain paper rules of defendant were put in evidence, and it was shown that decedent received them on entering its employ and contracted to observe them. These rules recognize and remark upon the dangers incident to switching and especially in uncoupling cars. One of them provides that switchmen "must be particular to notice the speed of the cars while moving, and, if at a dangerous rate, no attempt must be made to couple by going between them." It then (in a somewhat double way) goes on to state that it is dangerous to uncouple or to attempt to place links, pins, or knuckles while cars are in motion, "and is positively forbidden." To avoid this rule, plaintiffs rely upon a proved custom or usage in the Rosedale yards, long in vogue, whereby when trains were proceeding at slow speed (as was this) and, when the lift rod of an automatic car coupler would not work the pin (as did this), a switchman under the eye of his foreman,...

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