Peters v. Wabash Ry. Co.

• Decision Date: 01 October 1931
• Docket Number: No. 28861.,28861.
• Citation: 42 S.W.2d 588
• Parties: JOYCE ETHEL PETERS, Administratrix of Estate of JAMES CORNELIUS PETERS, v. WABASH RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

42 S.W.2d 588

JOYCE ETHEL PETERS, Administratrix of Estate of JAMES CORNELIUS PETERS, v. WABASH RAILWAY COMPANY, Appellant.

No. 28861.

Supreme Court of Missouri.

Division Two, October 1, 1931.

Appeal from Circuit Court of City of St. Louis. — Hon. A.B. Frey, Judge.

REVERSED.

Homer Hall and Woodward & Evans for appellant.

The trial court erred in failing and refusing to give an instruction in the nature of a demurrer to the evidence, offered by defendant at the close of plaintiff's case, for the reason that the evidence failed to show that the alleged negligence was the proximate cause of decedent's death, but, on the contrary, the evidence affirmatively established an absence of causal connection between the alleged negligence and the injury. (1) A showing of causal connection between the alleged negligence and the injury is always a necessary part of plaintiff's case. State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 871; State ex rel. Lusk v. Ellison, 271 Mo. 463, 196 S.W. 1088; De Moss v. Ry. Co., 296 Mo. 526, 246 S.W. 566; Glenn v. St. Ry. Co., 167 Mo. App. 109. (2) This is equally true in actions under the Federal Employers Liability Act. Atchison, T. & S.F. Ry. Co. v. Swearingen, 239 U.S. 339, 60 L. Ed. 317, 36 Sup. Ct. 121; Northern Ry. Co. v. Page, 274 U.S. 65, 71 L. Ed. 929, 47 Sup. Ct. 491; Hamilton v. Ry. Co., 318 Mo. 123, 300 S.W. 791; Johnson v. Terminal Railroad Assn. (Mo.), 8 S.W. (2d) 891, 61 A.L.R. 572 (certiorari denied, 278 U.S. 644). (3) The evidence wholly fails to show that death was caused by, or resulted from, the failure of the cars to couple automatically in violation of the statute, either in whole or in part; and, in fact, affirmatively established that this was not true. Under such conditions the plaintiff is not entitled to recover. St. Louis & S.F. Ry. Co. v. Conarty, 238 U.S. 243, 59 L. Ed. 1290, 35 Sup. Ct. 785; Lang v. Ry. Co., 255 U.S. 455, 65 L. Ed. 729, 41 Sup. Ct. 381 (affirming 227 N.Y. 507); Davis v. Hand, 290 Fed. 73 (certiorari denied, 263 U.S. 705); Phillips v. Railroad Co., 283 Fed. 381 (certiorari denied, 260 U.S. 731); McCalmont v. Railroad Co., 283 Fed. 736 (certiorari denied, 260 U.S. 751); Weekly v. Railroad Co., 4 Fed. (2d) 312; C.M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 70 L. Ed. 1041, 46 Sup. Ct. 564; Hadgert v. Railroad Co., 202 N.Y. Supp. 793, 207 N.Y. App. Div. 756, 764; Schendel v. Railway Co., 165 Minn. 223, 206 N.W. 436; Kern v. Payne, 65 Mont. 325, 211 Pac. 767 (certiorari denied, 261 U.S. 617); Johnson v. Terminal Railroad Assn. (Mo.), 8 S.W. (2d) 891; Illinois State Trust Co. v. Railroad Co., 319 Mo. 608, 5 S.W. (2d) 368 (certiorari denied, 278 U.S. 623); Rittenhouse v. Ry. Co., 299 Mo. 199, 252 S.W. 945; Martin v. Railway Co. (Mo.), 19 S.W. (2d) 470. (4) Where a Federal statute is involved, as here, our State courts will follow the decisions of the Federal courts. Norton v. Wheclock, 23 S.W. (2d) 146; Illinois State Trust Co. v. Railroad Co., 319 Mo. 608, 5 S.W. (2d) 370. (5) The mere fact that decedent would not have had occasion to go into the place where he was killed if the cars had coupled on the first impact is not sufficient to establish a causal connection. Lang v. Railroad Co., supra; St. L. & S.F. Ry. Co. v. Conarty, supra; Davis v. Hand, supra; Foley v. McMahan, 114 Mo. App. 442. (6) Proof that the negligent act complained of was the efficient cause of the injury must be more than merely speculative or conjectural. The circumstances must be proved and not themselves presumed. C.M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 70 L. Ed. 1041, 46 Sup. Ct. 564; Hamilton v. Ry. Co., supra; N.Y. Cent. Railroad Co. v. Ambrose (U.S.), 74 L. Ed. 276.

Charles P. Noell, Charles L. Moore and Allen, Moser & Marsalek for respondent.

The demurrer to the evidence below was properly overruled. (1) The fact that the couplers failed to couple automatically by impact establishes a violation by defendant of the Safety Appliance Act, in that defendant was hauling and using on its lines cars not equipped with couplers coupling automatically by impact, as required by the act. M. & St. L. Railroad Co. v. Gotschall, 244 U.S. 66, 61 L. Ed. 995; L. & N. Railroad Co. v. Layton, 243 U.S. 617, 61 L. Ed. 931; Chicago R.I. & P. Ry. Co. v. Brown, 229 U.S. 317, 57 L. Ed. 1204; San Antonio Ry. Co. v. Wagner, 241 U.S. 476, 60 L. Ed. 1110; Philadelphia & R. Ry. Co. v. Auchenbach, 16 Fed. (2d) 550 (certiorari denied, 273 U.S. 761), 71 L. Ed. 879; St. Louis I.M. & So. Ry. Co. v. Taylor, 210 U.S. 281, 52 L. Ed. 1061; Atlantic Railroad Co. v. Parker, 242 U.S. 56, 61 L. Ed. 150; Philadelphia & R. Ry. Co. v. Eisenhart, 280 Fed. 271; Carter v. Railroad, 307 Mo. 595. (2) The Safety Appliance Act placed upon the defendant the absolute and unqualified duty to equip its cars with couplers coupling automatically on impact, and to maintain such appliances in working condition at all times. Authorities, supra. (3) The failure of defendant to perform the absolute and unqualified duty placed upon it by the Safety Appliance Act to equip its cars with couplers coupling automatically by impact and to maintain the same in working condition at all times, directly and proximately caused the injury and death of the deceased within the meaning and intendment of the provisions of the Employers' Liability Act giving a right of action where the injury or death results in whole or in part by reason of any defect or insufficiency in the carrier's cars, appliances, etc., due to its negligence, and eliminating contributory negligence and assumption of risk in any case where such violation of the Safety Appliance Act contributed to such injury or death. Chicago Great Western Railroad Co. v. Schendel, 267 U.S. 287, 69 L. Ed. 615; Minneapolis, etc., Ry. Co. v. Goneau, 269 U.S. 406, 70 L. Ed. 335; Chicago R.I. & P. Railroad Co. v. Brown, 229 U.S. 317, 57 L. Ed. 1205; Davis v. Wolfe, 263 U.S. 239, 68 L. Ed. 285; L. & N. Railroad Co. v. Layton, 243 U.S. 617, 61 L. Ed. 931; Minneapolis & St. L. Railroad Co. v. Gotschall, 244 U.S. 66, 61 L. Ed. 995; Atlantic City Railroad Co. v. Parker, 242 U.S. 56, 61 L. Ed. 151; Spokane & I.E. Railroad Co. v. Campbell, 241 U.S. 497, 60 L. Ed. 1125; Philadelphia & R. Ry. Co. v. Auchenbach, 16 Fed. (2d) 550 (certiorari denied, 273 U.S. 761, 71 L. Ed. 879) (s.c.) 8 Fed. (2d) 350; Philadelphia & R. Ry. Co. v. Eisenhart, 280 Fed. 271; St. Louis Merchants Bridge Terminal Ry. Co. v. Schuerman, 237 Fed. 1 (certiorari denied, 242 U.S. 652, 61 L. Ed. 546; McAllister v. Merchants Bridge Terminal Railway Co., 324 Mo. 1005; Hood v. Railroad Co., 302 Mo. 609; York v. Ry. Co., 110 S.W. (Ark.) 803; Erie Railroad Co. v. Russell, 183 Fed. 722; Chicago Junc. Ry. Co. v. King, 169 Fed. 372; Clark v. Railroad Co., 230 Fed. 478; Voelker v. Railroad, 116 Fed. 867. (4) As Peters was a switchman actually engaged in a coupling operation, and as he was required to go into the dangerous place where he met his death because the equipment of the cars which he was attempting to couple together did not meet the statutory requirements especially intended to protect men in his position, and was killed as a direct result thereof, he was plainly within the class of persons for whose benefit the Safety Appliance Act required that the cars be equipped with automatic couplers, and his injury and death were within the evil against which the provisions for such appliances are directed. Chicago Great Western Railroad Co. v. Schendel, 267 U.S. 287, 69 L. Ed. 615. (5) Neither contributory negligence nor assumption of risk is a defense to an action where the injury results from a failure to comply with the provisions of the Safety Appliance Act. United States Code Annotated, Title 45, sec. 53, sec. 54; Chicago Great Western Railroad Co. v. Schendel, 267 U.S. 287, 69 L. Ed. 615; Jordan v. Railway Co., 308 Mo. 31. (6) In order to recover under the Employers' Liability Act, for a violation of the provisions of the Safety Appliance Act, such violation need not be the sole, efficient cause of the injury. Where concurrent acts of the employer and employee contribute to the injury, the element of proximate cause is, in legal effect, eliminated, since the provisions of the Employers' Liability Act require that the act of the employee be disregarded. Chicago Great Western Railroad Co. v. Schendel. 267 U.S. 287, 69 L. Ed. 615; Chicago R.I. & P. Railroad Co. v. Brown, 229 U.S. 317, 57 L. Ed. 1205; Minneapolis, etc., Ry. Co. v. Goneau, 269 U.S. 406, 70 L. Ed. 335; San Antonio & P. Railroad Co. v. Wagner, 241 U.S. 476, 60 L. Ed. 1111; Hood v. B. & O. Railroad Co., 302 Mo. 609; York v. Railway Co., 110 S.W. 803; Other authorities cited under point 3, supra; Spokane & I.E. Railroad Co. v. Campbell, 241 U.S. 510, 60 L. Ed. 1136; Philadelphia & R. Ry. Co. v. Auchenbach, 16 Fed. (2d) 551 (certiorari denied, 273 U.S. 761, 71 L. Ed. 879; Spokane & I.E. Railroad Co. v. Campbell, 217 Fed. 524; Grand Trunk W. Ry. Co. v. Lindsay, 201 Fed. 844; Pless v. Railroad Co., 189 App. Div. 261, 179 N.Y. Supp. 578, affirmed 232 N.Y. 523, 134 N.E. 555. (7) The act of the deceased in giving a "kick" signal, if he did, after the third coupling attempt, from his position when that coupling attempt was made, could amount to no more than contributory negligence, which is expressly removed from consideration by the provisions of the Employers' Liability Act, where the action is one for the violation of the Safety Appliance Act. Chicago Great Western Railroad Co. v. Schendel, 267 U.S. 287, 69 L. Ed. 615; Spokane, etc., Railroad Co. v. Campbell, 241 U.S. 510, 60 L. Ed. 1136; Philadelphia & R. Ry. Co. v. Auchenbach, 16 Fed. (2d) 551; Other authorities cited under Point 6, supra. (8) In view of the fact that the failure of the defendant to equip its cars with couplers coupling automatically by impact made it necessary for Peters to go into the dangerous place, between the ends of the two cars standing in dangerous proximity to the platform,...