Norton v. Wheelock

• Decision Date: 13 September 1929
• Docket Number: No. 27629.,27629.
• Citation: 23 S.W.2d 142
• Court: Missouri Supreme Court
• Parties: DORA E. NORTON, Administratrix of Estate of JOHN HENRY NORTON, v. WILLIAM H. WHEELOCK and WILLIAM G. BIERD, Receivers of CHICAGO & ALTON RAILROAD COMPANY, Appellants.

23 S.W.2d 142

DORA E. NORTON, Administratrix of Estate of JOHN HENRY NORTON, v. WILLIAM H. WHEELOCK and WILLIAM G. BIERD, Receivers of CHICAGO & ALTON RAILROAD COMPANY, Appellants.

No. 27629.

Supreme Court of Missouri, Division One.

September 13, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.

AFFIRMED.

Jones, Hocker, Sullivan & Angert for appellant.

(1) The demurrer to the evidence should have been sustained. (a) The testimony fails to establish any duty to warn the deceased. Aerkfetz v. Humphreys, 145 U.S. 420; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 171; Rosney v. Railroad Co., 135 Fed. 311; Davis v. Railway Co., 276 Fed. 189; Gabal v. Railroad, 251 Mo. 267; Degonia v. Railroad, 224 Mo. 596; Crow v. Railroad, 70 Hun, 37, 23 N.Y. Supp. 1100; Hoch v. Railway Co., 315 Mo. 1214. The switching crew had a right to expect a clear track. Track 8 was a "live track." They were under no obligation to use ordinary care to ascertain if the plaintiff was in a perilous position. Aerkfetz v. Humphreys, 145 U.S. 420; Crow v. Railroad, 70 Hun, 37, 23 N.Y. Supp. 1102; Connelley v. Railroad, 201 Fed. 56; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 171; Hoch v. Railway Co., 315 Mo. 1214. (b) The plaintiff correctly abandoned the charge that the switching crew, by the exercise of ordinary care, could have ascertained deceased's position of peril, because the law imposes no such duty. In the absence of actual knowledge, there was no duty to warn. There was no evidence of actual knowledge of deceased's position of peril. Therefore, there was no case for the jury under the pleadings and evidence. Cases, supra; Hughes v. Railroad, 309 Mo. 560. (c) The evidence is insufficient to show what, if any, warning could have been given that would have been effectual. Neither is there proof that deceased was doing repair work on track 8. It is just as probable that he was on his way to lunch or to the office. The plaintiff's case, therefore, is based only upon conjecture and a verdict thereunder cannot stand. Midland Valley Ry. Co. v. Fulgham, 181 Fed. 95; Patton v. Railway Co., 179 U.S. 663; C.M. & St. P. Ry. Co. v. Coogan, 271 U.S. 478; K.C. So. Ry. Co. v. Jones, 276 U.S. 303; Hamilton v. Ry. Co., 300 S.W. 692; McGrath v. Transit Co., 197 Mo. 104. (d) The story told by plaintiff's witness. Randall, that the deceased told the foreman, that he had a repair to make on track 8 and to "watch out" for him is so improbable, contradictory, unusual and unbelievable that it should not be given any credence. Moore on Facts, sec. 1074; Graham v. Railway Co., 119 N.W. (Iowa) 710; Flaherty v. Harrison, 98 Wis. 559; Thompson v. Press Co., 37 Minn. 285; Waters-Pierce Oil Co. v. Van Elderen, 137 Fed. 569; Wray v. Light & Power Co., 68 Mo. App. 389: Kibble v. Railroad, 227 S.W. (Mo.) 42: Alexander v. Railway Co., 289 Mo. 621; Vette v. Hackman, 292 Mo. 146. (e) The deceased was a car inspector and light repair man in defendants' yards. Track 8 was a live track, where switching was constantly being done. He assumed not only the risk incident to his employment, but all dangers which were obvious and apparent. Southern Ry. Co. v. Berkshire, 254 U.S. 415; Gila Valley Ry. Co. v. Hall, 232 U.S. 94; 3 Labatt's Master & Servant (2 Ed.) sec. 1183, p. 3178. Assuming the deceased was struck by a moving car which had been switched to track 8 without warning, as such car inspector and repair man he assumed the risk of being so injured, since such risk was an ordinary incident of the business in which he was engaged. Aerkfetz v. Humphreys, 145 U.S. 418; Tuttle v. Ry. Co., 122 U.S. 189; Randall v. Railroad Co., 109 U.S. 478; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 173; Pryor v. Williams, 254 U.S. 43; Seaboard Air Line Co. v. Horton, 233 U.S. 492; Hoch v. Ry. Co., 315 Mo. 1208. Under any view of the evidence it was deceased's duty to inspect the trains and determine what cars could be repaired on have tracks and what cars should be sent to the repair track. If he was working on track 8, he had chosen a dangerous method of doing his work, when the safe method of having the car placed on a repair track was open to him. Under such circumstances he must be held to have assumed the risk. Suttle v. Railroad, 144 Fed. 668; Morris v. Railway Co., 108 Fed. 747; Chicago, etc., Railway Co. v. Crotty, 141 Fed. 913; Hurst v. Railroad, 163 Mo. 309; Moore v. Railway Co., 146 Mo. 572; Atlantic Coast Line R. Co. v. Linstedt, 184 Fed. 36. Even if the switching crew had known that the deceased was making light repairs on track 8, they had a right to assume that he would give them a clear track, and there was no need to warn him, unless they knew of his perilous position and that he was oblivious to his peril. Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 173. (2) The plaintiff, not being entitled to recover under the theory that the switching crew, in the exercise of ordinary care, should have discovered the deceased's peril in time to have warned him, and there being no evidence that said switching crew had actual knowledge of the deceased's position of peril, defendants' instructions C and D should have been given. (3) The court erred in giving plaintiff's Instruction 1. Said instruction is misleading and confusing, because of its unnecessary length, and because it unnecessarily submits numerous conceded facts. Henry v. Railroad Co., 282 S.W. (Mo.) 423; Burton v. Maupin, 281 S.W. (Mo. App.) 83; Windsor v. Railroad, 45 Mo. App. 123; Czezewzka v. Railway Co., 121 Mo. 212.

Charles P. Noell and Hensley, Allen & Marsalek for respondent.

(1) The demurrer to the evidence was properly overruled. The "Switchmen's Rule" does not apply where the employees moving the car have knowledge of the position of danger of the employee injured, or where they disregard the established practice or custom existing at the place of the injury. (a) There was ample evidence from which the jury could infer that the foreman of the switching crew which shunted the car onto the track on which Norton was working, knew of Norton's dangerous position. Under such circumstances, the defendants are liable. Woodward v. Railroad, 316 Mo. 1196; Rine v. Railroad, 100 Mo. 228; Lynch v. Railroad, 208 Mo. 21; Dutcher v. Railroad, 241 Mo. 137; Sinclair v. Railroad, 133 Mo. 233; Kame v. Railroad, 254 Mo. 196; Rittenhouse v. Railroad, 299 Mo. 199. (b) There was also a custom and practice in defendants' yard for the inspector, when he had repair work to do on any of the tracks, to notify the switching crew, and for the switching crew upon such notice to adopt suitable precautions to avoid injuring him. Defendant is liable for the switching crew's negligence in kicking the car upon the track on which Norton was working, without warning to him, after he had notified them of his intention to work thereon. Halt v. Railroad, 279 S.W. 148, 271 U.S. 668; McGovern v. P. & R. Ry. Co., 235 U.S. 389, 59 L. Ed. 283; Pacheco v. Railroad Co., 15 Fed. (2d) 467; Lehigh Valley Railroad Co. v. Mangan, 278 Fed. 85; Dir. Gen. v. Templin, 268 Fed. 483; Lehigh Valley R. Co. v. Doktor, 290 Fed. 760; Toledo, etc., Railroad Co. v. Bartley, 172 Fed. 82. Norton did not assume the danger arising from the unknown and unanticipated negligence of the switching crew. Montgomery v. Railroad, 22 Fed. (2d) 359; Dir. Gen. v. Templin, 268 Fed. 483. (c) The evidence was sufficient to take the case to the jury on either of the above theories. Federal Employers' Liability Act, 45 U.S.C.A., sec. 52. (d) The finding that Norton, when he was killed, was working about the cars, in a position of danger, is supported by the facts in the record, and inferences therefrom, and does not rest on conjecture. The circumstances are sufficient to support such inference. Buesching v. Gas Co., 73 Mo. 219; Briscoe v. Railroad, 200 Mo. App. 691; Liston v. Railroad, 149 Mo. App. 231; Hatchell v. Rys. Co. (Mo.), 175 S.W. 878; Stewart v. Gas Co. (Mo.), 241 S.W. 909. Furthermore, Norton's statement to Walker, that he would be engaged in repair work on track 8 as soon as he finished inspecting train 89, was part of the res gestae, and with the other circumstances in evidence, was sufficient to support the jury's finding that he was so engaged at the time of his death. Haines v. Railroad, 193 Mo. App. 453; State v. Kennade, 121 Mo. 413; Hodges v. Hill, 175 Mo. App. 441; Knoche v. Knoche, 160 Mo. App. 257; Bradley v. Mod. Woodmen, 146 Mo. App. 428; Central Railroad v. Bell, 187 Ala. 541; Railroad v. Howard, 19 Am. St. 96; Railroad v. Herrick, 29 N.E. 1052; Rogers v. Ins. Co., 138 Cal. 285; Barz v. Yeast Co., 308 Mo. 288; 22 C.J. 453. sec. 544. Defendants' answer concedes that Norton was in a position of danger, that caution on the part of the switching crew was necessary to avoid injuring him, and that if notified the switching crew could and would have protected him from injury. Defendants are bound by the allegations of their answer, and the reasonable inferences therefrom. Stewart v. Gas Co. (Mo.), 241 S.W. 909; Milward v. Railroad Co., 207 Mo. App. 345; McKenzie v. Rys. Co., 216 Mo. 20; Lynch v. Railroad, 208 Mo. 1; Jewell v. Mfg. Co., 143 Mo. App. 210: Grott v. Shoe Co. (Mo.), 2 S.W. (2d) 785. It was the jury's function to pass upon the credibility of Randall's testimony. Friedman v. Rys. Co., 293 Mo. 235; Franke v. City, 110 Mo. 516. (2) The mere fact that an instruction is long does not convict the court of error in giving it, if its provisions are clear. Wolfe v. Payne, 294 Mo. 170; Walter v. Cement Co. (Mo.), 250 S.W. 587; Johnson v. Foundry Co. (Mo.), 259 S.W. 442; Choka v. Power Co., 303 Mo. 132.

LINDSAY, C.

The plaintiff is the widow of John H. Norton, deceased, and sues as administratrix of his estate for the benefit of herself as widow. The suit is brought under the Federal Employers' Liability Act, for damages sustained through the death of her husband, alleged to have been caused by the negligence of the...