Oglesby v. St. Louis-San Francisco Ry. Co.

• Decision Date: 10 October 1927
• Docket Number: 25115
• Parties: Lillian Oglesby, Administratrix of Estate of Ernest E. Oglesby, v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

1 S.W.2d 172

318 Mo. 79

Lillian Oglesby, Administratrix of Estate of Ernest E. Oglesby, v. St. Louis-San Francisco Railway Company, Appellant

No. 25115

Supreme Court of Missouri

October 10, 1927

Motion for Rehearing Denied December 7, 1927.

Motion to Transfer to Banc Overruled December 30, 1927.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

E T. Miller, Henry S. Conrad, L. E. Durham and Hale Houts for appellant.

(1) The court should have directed a verdict for the defendant because the evidence failed to show that deceased was engaged in interstate commerce. Shanks v. Railroad Co., 239 U.S. 554; Industrial Accident Comm. v. Davis, 259 U.S. 182; Minneapolis & St. Louis Railroad v Winters, 242 U.S. 353; Chicago & K. S. Railroad v. Kindlesparker, 246 U.S. 657; Connelly v. C. M. & St. P. Ry., 3 F. 818. (2) The court should have directed verdict for defendant, because the evidence fails to show that deceased's injury and death were caused by negligence of which defendant was charged by petition or which was submitted to the jury. Swearingen v. Railroad, 221 Mo. 659; Wray v. E. L. & W. P. Co., 68 Mo.App. 390; State ex rel. Utilities Co. v. Cox, 250 S.W. 551; Yarnell v. Railroad Co., 113 Mo. 679. (3) The court should have directed verdict for defendant, because under the evidence deceased assumed the risk of injury. Wray v. E. L. & W. P. Co., 68 Mo.App. 388; Junior v. Light & Power Co., 127 Mo. 83; Pryor v. Williams, 254 U.S. 43. (4) The court erred in giving plaintiff's Instruction 2. (a) In that the instruction made of defendant an insurer of deceased's safety, set up an arbitrary standard of duty, and required defendant to furnish a particular appliance without requiring the jury to find that the exercise of ordinary care required that such appliance be furnished. Chrismer v. Bell Tel. Co., 194 Mo. 209; Baltimore & Ohio Railroad v. Groeger, 45 S.Ct. 173. (b) In that it assumed that an automatic contactor was in general use. Reel v. Investment Co., 236 S.W. 47. (5) The court erred in refusing to set aside the verdict as excessive and in refusing to require a remittitur. Midway Bank & Trust Co. v. Davis, 288 Mo. 563; Burtch v. Wabash Ry. Co., 236 S.W. 338.

P. H. Jackson, Harry R. Freeman and Madden & Madden for respondent.

(1) Deceased was engaged in interstate commerce. Under the latest pronouncement of the United States Supreme Court in Industrial Accident Commission v. Davis, 259 U.S. 142, the facts of this case disclose a connection so close, intimate and immediate between these "running repairs" in the course of which respondent's decedent was killed, and interstate transportation, that the work was substantially integrated with interstate commerce and hence the deceased died while engaged therein. Shanks Case, 239 U.S. 556; Law v. Railroad, 208 F. 869; Delk v. Railroad, 158 F. 931; Darr v. Railroad, 204 F. 751; Cook v. Railroad, 96 S.E. 148; Stone v. Railroad, 207 N.Y.S. 353; Roush v. Railroad, 243 F. 712; Collins v. Railroad, 253 U.S. 77. (2) A clear causal connection was shown between appellant's negligence and Oglesby's death. The evidence is undisputed that the automatic contactor is a safety device for the safeguarding of human life; that with certain types of this contactor prior to welding a voltage of thirty volts flows through the welding machine and into this uninsulated trigger; that with such safety device the operator must press this trigger and hence receive this voltage. The court can certainly indulge the presumption that a contrivance by undisputed evidence designated as a safety device for the preservation of life, in general and almost universal use, is not a death trap, and that in safeguarding an operator against electric shock and injury it will not by its construction, design, and in its proper operation cause a death current to be transmitted to his body. If with this safety appliance the operator habitually receives a current of thirty volts, then it follows that a voltage of thirty is not dangerous or lethal. Further, it is disclosed directly and undisputedly by the testimony of appellant's own employee, McRae, that a voltage of thirty volts is not dangerous, but instead is innocuous and does not affect the operator. Stewart v. Laclede Light Co., 241 S.W. 909. When facts are proven, it is legitimate to draw from them such reasonable inferences as will be sufficient to sustain a verdict. Swearingen v. Railroad, 221 Mo. 660; Rine v. Railway, 100 Mo. 234. (3) Two inescapable conclusions preclude appellant from successfully urging here a defense of assumption of risk. The jury having found as a matter of fact that the deceased did not assume the risk, appellant is here submitting a demurrer to the evidence which admits in favor of respondent all facts the evidence tends to prove and all inferences deducible therefrom which the jury might with any degree of propriety have drawn. All doubts must be resolved in favor of respondent. If in this light the evidence is sufficient to support the verdict, appellant's assignment must fail. Maginnis v. Railway, 268 Mo. 667, 187 S.W. 1165. (a) Appellant is here precluded from urging that deceased assumed the extraordinary risk of appellant's negligence; the assumption of such a risk is not within the issues under the pleadings and not a word of evidence was introduced bearing thereon. This plea made issuable only the assumption of an "ordinary risk." That danger of injury from defective appliances and from an employer's negligence is not an "ordinary risk," but is deemed an "extraordinary" risk clearly distinguishable therefrom and with different rules of law applicable thereto is elementary law. McIntyre v. Railroad, 286 Mo. 256; Horton v. Railroad, 233 U.S. 504; Boldt v. Railroad, 245 U.S. 444; Labatt's Master & Servant, chap. 50; Horton v. Railway, 233 U.S. 504; Kidd v. Ry. Co., 274 S.W. 1080. (4) Respondent's instruction number two is proper and not erroneous. (a) Appellant cannot predicate error upon this instruction because the jury were not required to declare the legal effect of facts proved. Huhn v. Railway, 92 Mo. 440; Kuhn v. Lusk, 281 Mo. 324; Jones v. Railway, 178 Mo. 528. (b) There is in this instruction no assumption of any material fact upon which appellant can here predicate error. Hall v. Coal Co., 260 Mo. 351, 169 S.W. 927; Orris v. Railway, 279 Mo. 16. (5) The amount of the verdict is reasonable and just. Gill v. Railway Co., 302 Mo. 317; Crecelius v. Ry. Co., 284 Mo. 26; Kidd v. Ry. Co., 274 S.W. 1079.

Graves, P. J. All concur, except Gantt, J., not sitting.

OPINION

GRAVES

By a reassignment this case has fallen to me. It is an action for damages under the Federal Employers' Liability Act for the alleged negligent killing of Ernest E. Oglesby by the (defendant below) appellant Railway Company. The action is brought by his widow, as the duly appointed administratrix of Oglesby's estate. After some formal allegations the petition charges:

"Plaintiff further states that on or about the 23rd day of June, 1921, Ernest E. Oglesby, deceased, was in the employ and service of the defendant as an electrician at said shops in Kansas City, Missouri, and was engaged with other employees of defendant in repairing an engine which was used and assigned to the work of carrying on commerce between States, and to pulling interstate trains and in doing repair work deceased and defendant were engaged in commerce between States.

"At the above-mentioned time said Ernest E. Oglesby was operating an electric welding machine and had entered the dome of said engine to weld parts of said engine that were cracked and broken; that the space was so small deceased was required to lie down upon the metal parts which were wet and charged with electricity and while engaged in said work through and by the negligence of the defendant an electric current was caused or permitted to pass through deceased's body, shocking, burning and injuring him to such an extent that he died on said date as a direct result of said injuries.

"Plaintiff further states that the defendant was negligent in that it failed to furnish deceased with a safe instrumentality with which to work because said welding machine was defectively put together, in that it was not provided with an automatic contactor and the wires in said machine were short circuited which caused the electric current when turned on and not in the actual operation of welding to be high, excessive and dangerous to persons operating said machine, and that defendant knew, or in the exercise of ordinary care could have known, that said machine was in such defective and unsafe condition and of the likelihood of the operator coming in contact with the current, especially in the place where deceased was required to work and of the danger to said operator, in time before the death of deceased to have remedied said defects and thereby have prevented his injuries and death; in that said defendant with the knowledge of conditions and dangers as aforesaid, negligently failed to warn deceased of his danger; in that with the knowledge of conditions and dangers as aforesaid it negligently ordered and directed him to do said work, and in that defendant failed to furnish deceased with a safe place in which to work because defendant with the knowledge of conditions and dangers as aforesaid negligently required deceased to enter the dome of said engine in the small space and lie down upon the wet parts thereof and operate said defective machine as aforesaid and that each and all of said negligent acts directly caused the injuries and death of Ernest E. Oglesby."

Thus is stated the alleged negligence. The submission was upon one ground only, as will be noted later. The suit is for the benefit of the widow and a...