Penney v. St. Joseph Stockyards Co.

• Decision Date: 31 March 1908
• Citation: 212 Mo. 309,111 S.W. 79
• Parties: PENNEY et al. v. ST. JOSEPH STOCK-YARDS CO.
• Court: Missouri Supreme Court

111 S.W. 79

212 Mo. 309

PENNEY et al. v. ST. JOSEPH STOCK-YARDS CO.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

Rehearing Denied May 19, 1908.

1. MASTER AND SERVANT — FELLOW SERVANTS — STATUTES — APPLICABILITY — "RAILROAD CORPORATION."

Under Rev. St. 1899, § 1163 (Ann. St. 1906, p. 988), providing that the term "railroad corporation" shall mean all corporations owning or operating any railroad, a corporation organized under Rev. St. 1889, §§ 2768-2807, providing for the incorporation of manufacturing and business companies, and empowered by its charters to operate terminal lines of railroad in connection with its stockyards and packing houses, and maintaining a number of miles of railroad and terminals and engines, and employés to operate the same, is a railroad corporation, within Rev. St. 1899, § 2873 (Ann. St. 1906, p. 1655), providing that every railroad corporation shall be liable for damages sustained by any servant while engaged in operating such railroad by reason of the negligence of any other servant.

2. DEATH — ACTIONS FOR DEATH — ACTIONS BY MINOR CHILDREN OF DECEDENT — ISSUES — EVIDENCE — ADMISSIBILITY.

Where, in an action by minors for the negligent death of their father, defendant alleged that a third person claiming to be decedent's widow had brought suit for his death, which suit was pending, but refused to prove that the third person was decedent's widow, the refusal of the court to admit in evidence the third person's petition was not erroneous; the minors not being estopped by the allegations in such petition.

3. MARRIAGE — EVIDENCE — PRESUMPTIONS.

The presumption of marriage arising from evidence that a woman was living with a man as his wife at the time of his death is rebuttable.

4. TRIAL — INSTRUCTIONS — REQUESTS — EFFECT OF FAILURE TO MAKE.

Where, in an action by minors for the negligent death of their father, defendant pleaded that a third person claiming to be the widow of decedent had brought a suit for his death, which suit was pending, and a witness testified that he had heard that the third person was decedent's widow, and that he had also heard that she was not his widow, and had been decedent's mistress, and defendant did not request an instruction submitting the issue to the jury, the issue was abandoned.

5. MASTER AND SERVANT — INJURY TO SERVANT — EMPLOYMENT IN LINE OF DUTY — EVIDENCE.

In an action for the negligent death of an employé, evidence held to show that he was at the time of his death engaged in the line of his duty, rendering the doctrine that where a servant departs from his duty, and goes outside the scope of his employment, and assumes a position of hazard, he cannot recover, inapplicable.

6. SAME — CONTRIBUTORY NEGLIGENCE.

Where, in an action for the negligent death of a switchman caused by the engineer moving cars, the evidence showed that it was the duty of the engineer not to move the cars until he had received a signal either from decedent or co-employés; that decedent was not called on to anticipate that the engine would be moved until the cars were unloaded, and not then until the engineer had given a proper warning; that the cars were not unloaded at the time they were moved; and that the engineer did not give a warning of his intention to move the cars — decedent was not guilty of contributory negligence precluding a recovery.

7. SAME — EVIDENCE — INSTRUCTIONS.

Where, in an action for the negligent death of a switchman caused by the engineer moving cars, the evidence showed that it was the duty of the engineer not to move the cars until he had received a signal either from decedent or co-employés, that decedent was not called on to anticipate that the engine would be moved until the engineer had given the proper warning, that

the engineer did not give a warning of his intention to move the cars, and that the co-employés did not give the engineer a signal, etc., an instruction that if the engineer was required to move the cars on a signal given by the co-employés, and decedent knew that fact, he was guilty of contributory negligence, precluding a recovery, was erroneous, in that it failed to instruct that the jury must also find that the engineer moved the cars on such signal before a recovery would be defeated.

8. APPEAL AND ERROR — INVITED ERROR — RIGHT TO COMPLAIN.

A party cannot complain of an instruction given at his request.

9. TRIAL — INSTRUCTIONS — REFUSAL TO GIVE INSTRUCTIONS COVERED BY THOSE GIVEN.

Where, in an action for the negligent death of a switchman, the court charged that if decedent negligently placed himself in a position of danger, and if he failed to exercise the caution which a careful switchman under similar circumstances would have exercised, and such failure contributed to his death, there could be no recovery, the refusal to charge that, if decedent at the time of his death was not required in the performance of his duty to place himself in the position in which he was at the time he was injured, the verdict should be for defendant, was not erroneous.

10. SAME — ELIMINATING ISSUES.

An instruction, in an action for the negligent death of a switchman, that, if decedent was not required at the time in the performance of his duties to go in between cars and place himself in the position in which he was at the time he was injured, the verdict must be for defendant, is erroneous, as leaving out of consideration the usual and proper method for decedent to perform his duty, and as not submitting to the jury the question whether his act in going between the cars was negligence.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by Earl B. Penney and others by Henry M. Ramey, next friend, against the St. Joseph Stockyards Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Thomas F. Ryan, for appellant. J. W. Mytton, C. F. Strop, Henry M. Ramey, Jr., and Eugene Silverman, for respondents.

GANTT, J.

This is an action by the plaintiffs, who are minors, by their next friend, against the stockyards company for the alleged negligent killing of their father, Rufus Penney, on December 4, 1904, at St. Joseph, Mo. The stockyards company is a corporation organized, under article 8, c. 42, Rev. St. 1889, now chapter 12, art. 9, Rev. St. 1899 (Ann. St. 1906, pp. 1064-1082), entitled "Manufacturing and business companies," in 1896. Among other purposes of this corporation as set out in its letters was "the operation of terminal lines of railway" in connection with its stockyards and packing houses in the city of St. Joseph.

The evidence tended to prove that at the time of the injury complained of the defendant owned a number of miles of railroad tracks at the city of St. Joseph and large terminals therein, and large pens and yards for the receiving and handling of live stock and maintained a roundhouse, and at the time of the killing of plaintiff's father continuously operated six locomotive engines, and employed the necessary crews to operate the same, and did the necessary switching for the six principal railroads, converging at St. Joseph in connection, with the said stockyards. Each engine had a switching crew of three men besides the engineer and fireman. The hogpens were about 600 feet long south and north. Alongside of the hogpens was a large platform about 12 feet wide and running the full length of the said hogpen. This platform or "dock," as it was called, was about on a level with the floor of a stock car, and was used for unloading cars. Gates that were fastened to the posts of the hogpens swung round from the dock, and were adjusted to the car doors, and in this way a narrow inclosure or passageway was formed, so that the hogs could be driven from the car across the dock into the hogpens. Alongside of, and immediately east of, this dock, was a railroad track of the defendant's, upon which the cars were set to be unloaded. The space between the dock and the cars when standing on this track was about six to ten inches. The petition alleged the appointment of the next friend to institute and prosecute this suit for the plaintiff minors, also the incorporation of the defendant, and that at the time of his death Rufus F. Penney was unmarried and left no widow surviving him; that the defendant in its railroad business used and operated locomotive engines and trains, and that each of said engines and train maintained a train crew, each of said crews being composed of an engineer, a fireman and two switchmen; that defendant had large docks in and about its yards, constructed and used for the purpose of unloading live stock from railroad cars into its said stockyards, and alongside of said docks are railroad tracks used for the purpose of transporting cars to, alongside of and flush with said docks; that on and prior to the 6th of December, 1904, the father of the plaintiffs, said Rufus F. Penney, was in the employ of the defendant in the capacity of a switchman in one of its said train crews.

The petition further states that at all times there were large numbers of men engaged about the docks of the said company in unloading live stock from the cars on the tracks alongside of said docks, and it was the duty of the train crew, of which their father was switchman, to run, or cause to be run, cars loaded with live stock upon the tracks alongside of said docks to be unloaded, and to remove from said tracks cars that had been unloaded by the employés engaged in unloading the same; that at all times there were large numbers of cars along the side of said docks, and in the performance of his duties it was the duty of their father to ascertain, before moving a car on the tracks by said docks, whether or not men were engaged at work on or about the cars or docks, who were liable to be injured by the moving of said cars, and, if it was desired to couple cars together, to ascertain before moving said cars whether or not any persons were in a position of danger, and...