Perry v. Missouri-Kansas-Texas R. Co.

• Decision Date: 21 April 1937
• Docket Number: 34303
• Parties: Joseph G. Perry v. Missouri-Kansas-Texas Railroad Company, Appellant
• Court: Missouri Supreme Court

104 S.W.2d 332

340 Mo. 1052

Joseph G. Perry v. Missouri-Kansas-Texas Railroad Company, Appellant

No. 34303

Supreme Court of Missouri

April 21, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Affirmed.

Carl S. Hoffman and Everett Paul Griffin for appellant.

(1) The court erred in refusing to give defendant's peremptory instruction in the nature of a demurrer to the evidence offered by defendant at the close of the evidence. (a) There was no evidence to support the allegations of negligence contained in the petition. Joslin v. Ry. Co., 319 Mo. 250; Hyde v. Ry. Co., 110 Mo. 272; Millikin v. Commission Co., 202 Mo. 637; Gulf, etc., Railroad v. Wells, 275 U.S. 455. (b) Failure of respondent to put out blue lights before going in between the cars was a known violation by respondent of a positive rule promulgated by appellant for respondent's own safety and was the sole proximate cause of his injury. Francis v. Railroad Co., 110 Mo. 387; Yoakum v. Lusk, 223 S.W. 53; Flack v. Ry. Co., 285 Mo. 28; Great Northern Ry Co. v. Wiles, 240 U.S. 444; Davis v. Kennedy, 266 U.S. 147; Unadilla Valley Railroad Co. v Caldine, 278 U.S. 139; Frese v. Railroad Co., 263 U.S. 1; Paster v. Railroad Co., 43 F.2d 908; Unadilla Valley Railroad Co. v. Dibble, 31 F.2d 239; Southern Ry. Co. v. Hylton, 37 F.2d 843; Central Ry. Co. v. Young, 200 F. 359. (c) Suit is under the Federal Employers' Liability Act, and in such an action assumption of risk is a complete defense. The danger of going between the cars under the circumstances shown by the evidence was open and obvious. Respondent knew the danger, or, in any event, the danger was so open and obvious that an ordinarily prudent person would have seen and appreciated. Accordingly, respondent assumed the risks. Hoch v. Ry. Co., 315 Mo. 1199; Quigley v. Hines, 291 Mo. 23; Flack v. Ry. Co., 285 Mo. 28; Boldt v. Railroad Co., 245 U.S. 441; Sou. Pac. v. Berkshire, 254 U.S. 415; Jacobs v. Railroad Co., 241 U.S. 229; Seaboard Air Line v. Horton, 233 U.S. 492; Matthews v. Railroad Co., 227 Mo. 241. (2) The court erred in giving, at the request of plaintiff, Instruction 1 in the series of instructions given. (a) There was no evidence to support the theory of negligence submitted by this instruction. There was no evidence that any promise of any kind was given to respondent. Degonia v. Railroad Co., 224 Mo. 564; Allen v. Mo. Pac. Railroad Co., 294 S.W. 80; Bonnareno v. Lead Belt Ry. Co., 309 Mo. 65; Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1. (b) The instruction purports to cover the entire case and directs a verdict, but omits essential facts and elements necessary to authorize a verdict. (c) The jury is not required to find that defendant knew or, by the exercise of ordinary care, could have known that respondent was between the cars. (d) The instruction failed to require the jury to find that respondent did not know that the cars were to be moved. (e) The instruction failed to require the jury to find any facts which would justify an admitted failure to comply with the blue flag rule. State ex rel. v. Ellison, 272 Mo. 571; Allen v. Ry. Co., 294 S.W. 80; Cassin v. Lusk, 277 Mo. 663; Jones v. Ry. Co., 226 Mo.App. 1152; Luft v. Strobel, 19 S.W.2d 721. (f) The instruction gave the jury a roving commission to find defendant guilty of negligence without specifying what particulars would constitute negligence. Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; Jordan v. Hannibal, 87 Mo. 677; Allen v. Ry. Co., 294 S.W. 80; Hawes v. K. C. Stock Yards Co., 103 Mo. 60; Lesser v. Ry. Co., 85 Mo.App. 326. (3) The court erred in giving, at plaintiff's request, Instruction 2 in the series of given instructions. (a) Negligence is not defined nor does the instructions set out any elements or facts which must be found to constitute negligence. Authorities under Point 2 (f). (b) The instruction does not correctly state the law of assumption of risk under the Federal Act. A servant assumes the risk if the danger is so open and obvious that an ordinarily prudent person would have seen and appreciated it. Authorities under Point 1 (c). (4) The court erred in refusing to give, at the request of defendant, Instruction D in the series of instructions refused. This instruction correctly declared the law to be that if the rules which were in force required plaintiff to place blue lights before going between the cars, and that it was the practice and custom for this rule to be obeyed, and that plaintiff knew of said rule and custom and did not comply therewith, he could not recover, notwithstanding that he went between the cars at the direction of one of the switchmen. Authorities under Point (1); Schaub v. Ry. Co., 106 Mo. 93.

Wm. H. Allen for respondent.

Since under the Federal Employers' Liability Act, defendant is liable for an injury resulting to plaintiff from the negligence of a fellow servant, it cannot be doubted that the gross negligence of Morgenthaler, shown by the evidence, rendered defendant liable for plaintiff's injuries. 45 U.S.C. A., sec. 51; Kamer v. Railroad Co., 326 Mo. 792, certiorari denied 282 U.S. 903, 75 L.Ed. 795; Preston v. Railroad Co., 292 Mo. 442; Dahlen v. Hines, 275 F. 817; Reed v. Director General, 258 Mo. 92, 56 L.Ed. 480; Portland Terminal Co. v. Jarvis, 227 F. 8; Reading Co. v. Rorer, 15 F.2d 1017; DeClue v. Ry. Co., 264 S.W. 992; San Pedro, L. A. & S. L. Railroad Co. v. Brown, 258 F. 806; Colasurdo v. Central Railroad of N. J., 180 F. 832, 192 F. 901. Under the circumstances shown in evidence, the fact that plaintiff did not go to the shanty house to get a blue light and put it out before going between the cars to make this minor adjustment, could not possibly deprive him of the right to recover, under the Employers' Liability Act, for Morgenthaler's negligence. The evidence overwhelmingly showed that such blue flag rule was not, in fact, in force, and had not been in force for many years, with respect to light repairs, or adjustments such as this, which might become necessary in making up this fast merchandise train, No. 71; that it was, and for many years had been, the universal practice and custom, known to defendant, and, indeed, sanctioned and required by defendant, that when one was thus temporarily required to go between the cars in making up this train, such precaution would be taken as plaintiff took in the instant case, namely, to have a fellow workman keep a lookout, and give a warning, if necessary. Indeed, there was evidence that in making up this train the blue flag rule "did not function," but had been entirely abrogated. Under such evidence it was obviously a question for the jury whether the blue flag rule was then and there in force at all. Kamer v. Railroad Co., 326 Mo. 792, certiorari denied 282 U.S. 903, 75 L.Ed. 795; Johnson v. Ill. Ry. Co., 334 Mo. 22; Yost v. Railroad Co., 245 Mo. 219; Dahlen v. Hines, 275 F. 817; Finnegan v. Ry. Co., 261 Mo. 480; Davis v. Dowling, 284 F. 670; L. & N. Railroad Co. v. Payne's Admr., 177 Ky. 462, 197 S.W. 928; Norfolk & W. Ry. Co. v. Shorts, 171 Ky. 647, 188 S.W. 786; Shepard v. Payne, 60 Utah 140, 206 P. 1098; St. Louis, etc. Railroad Co. v. Stewart, 24 Ark. 437, 187 S.W. 920; Gulf, etc., Ry. Co. v. Locker, 264 S.W. 595; Southern Ry. Co. v. Smith, 223 Ala. 583, 137 So. 398. Evidence tending to show a violation of such a rule by an employee has no effect other than to tend to show contributory negligence on his part. And since the Employers' Liability Act makes the carrier liable for injuries to an employee "resulting in whole or in part" from negligence of any of its agents and employees, and since the act provides that "the fact that the employee may be found guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of the negligence contributable to such employee," in no event may the violation of such a rule defeat the employee's right to recover unless it conclusively appears that such violation was the sole proximate cause of injury. Obviously there was no such showing in this case. On the contrary, according to the overwhelming evidence, the blue flag rule was not in force at all, and the direct, proximate cause of the injury was the gross negligence of the defendant's servant Morgenthaler. 45 U.S.C. A., secs. 51, 53; Kamer v. Railroad Co., 326 Mo. 792, certiorari denied 282 U.S. 903, 75 L.Ed. 795; Johnson v. Ry. Co., 334 Mo. 22; Dahlen v. Hines, 275 F. 817. There is no merit whatsoever in the contention that under the Federal rule plaintiff assumed the risk of injury by reason of going between the cars to make this minor adjustment, under the circumstances shown in evidence. Obviously plaintiff did not assume the risk of injury due to the negligence of defendant's servant Morgenthaler in failing to watch out for the movement of the engine and cars upon this track, as he had agreed to do. The risk occasioned by such negligence was plainly not a risk ordinarily incident to the employment, and it was not one of which the plaintiff "had any knowledge, or means of knowledge, until the fatal and negligent act was done" and plaintiff was caught between the cars. Johnson v. Ry. Co., 334 Mo. 32; Kamer v. Railroad Co., 326 Mo. 792, cert. denied 282 U.S. 903, 75 L.Ed. 795; Shaw v. Railroad Co., 314 Mo. 123; Reed, Admr., v. Director General, 258 U.S. 92, 56 L.Ed. 480; Portland Terminal Co. v. Jarvis, 227 F. 8; Jeffries v. Ry. Co., 276 F. 73; Del. L. & W. Railroad Co. v. Busse, 263 F. 516; Boyet v. Davis, 212 Mo.App. 513. Under the Federal Employers' Liability Act an employee engaged in interstate commerce does not assume the risk of injury due to the negligence of a fellow servant. Reed v. Director General, 208 U.S. 92, 56 L.Ed. 480...