Pipes v. Missouri Pacific Railway Co.
| Citation | 184 S.W. 79,267 Mo. 385 |
| Parties | IRWIN H. PIPES v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Decision Date | 30 March 1916 |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Clarence A. Burney Judge.
Reversed and remanded.
White Hackney & Lyons for appellant.
(1) The court erred in permitting plaintiff to testify that in his opinion undoubtedly the brakes were set on the engine thereby causing the drag to stop suddenly. Permitting him to answer this question and give his conclusion of the most vital fact in issue in the case was glaringly prejudicial to the defendant. Landers v. Railroad, 134 Mo.App. 87; Taylor v. Railroad, 185 Mo. 255; Castanie v Railroad, 249 Mo. 192; Glasgow v. Railroad, 191 Mo. 364; Roscoe v. Met. St. Ry., 202 Mo. 595; Gutridge v. Railroad, 94 Mo. 472; Nash v. Dowling, 93 Mo.App. 164; Wesner v. Railroad, 177 Mo.App. 122; 6 Thompson on Negligence, p. 684. (2) But in any event, and on any theory, the court, after having permitted the plaintiff to give his opinion as to what stopped the drag, when the plaintiff was not in a position to see what actually occurred, should have permitted Hogan, of like experience with the plaintiff and who had occupied a position enabling him to tell what stopped the drag, to give an opinion on the same matter on which the plaintiff had given his opinion. If Hogan's testimony was inadmissible then plaintiff's testimony was also inadmissible. (3) The plaintiff did not bring his action for damages under the Federal Employers' Liability Act, but sued under the State law and was not entitled to recover. When it appeared from the evidence that the plaintiff and the defendant were, at the time of the accident, engaged in interstate commerce, the State law was not applicable to the transaction and the rights, duties and liabilities of the parties, but the Federal Employers' Liability Act having superseded the State law in such a case was alone applicable, and this completely barred the plaintiff's right to recover under the State law. The case pleaded by the plaintiff, to-wit, one under the State law was, therefore, disproved, and the case proved, to-wit, one under the Federal Employers' Liability Act, was not pleaded, hence there could be no recovery for the plaintiff, and the jury should have been so instructed. Moliter v. Railroad, 180 Mo.App. 84; Railroad v. Seale, 229 U.S. 156; Railroad v. Slavin, 236 U.S. 454.
Percy C. Field and Clarence S. Palmer for respondent.
(1) The testimony of the plaintiff as to the cause of the sudden stopping of the train was proper. He was stating a fact made known to him by his trained senses. Railroad v. Johnson, 38 Ga. 409; Wigmore on Evidence, sec. 659; Hunter v. Halsley, 98 Mo.App. 621; Smith v. Railroad, 34 Nova Scotia, 22; Bryce v. Railroad, 129 Iowa 342. (2) There was no error in the ruling of the trial court on the admissibility of the testimony of the witness Hogan. He testified to all the facts about which he was asked. (3) The rights of the parties to this action were exactly the same under the facts, whether the case was controlled by the State or Federal law. By no possibility were the rights of the appellant materially affected by the rulings of the trial court on this question, and there should therefore be no reversal. Railroad v. Wulf, 226 U.S. 570; Railroad v. Slavin, 236 U.S. 306; Sec. 2082, R. S. 1909; Railroad v. Yurkonis, 220 F. 429; Railroad v. Hayes, 234 U.S. 86; Hogarty v. Railroad, 245 Pa. St. 443; Railroad v. Nelson, 212 F. 69; McIntosh v. Railroad, 182 Mo.App. 288.
This is an action for personal injury suffered by the plaintiff in the course of his employment as a switchman in defendant's yard at Kansas City. Verdict and judgment for $ 8000, from which the defendant has taken this appeal.
The petition states, in substance, that the plaintiff was a member of a switching crew employed by defendant in said yard. On June 12, 1914, he, with the crew, which consisted of a foreman, an engineer and fireman who operated the engine, and himself and another switchman, was engaged in handling cars in said yard; that in doing this work the engine was attached to the east end of a drag consisting of sixteen freight cars, for the purpose of shoving it west on one of the tracks to couple it to three freight cars standing on said track, and shoving the drag so made up to a gravity lead at the west end of the yard; that in executing the movement it was his duty to get on the top of the cars and pass along the running boards to the head of the drag, or farthest car from the engine; that in pursuance of this duty he mounted one of the cars, climbed to the top, and walked west along the footboard; that while he was doing this the last car had been apparently coupled to the three that were standing on the track so that there were nineteen cars in the drag; that while plaintiff was still walking along the footboard on the top of the sixteenth car toward the head of the drag, and was at the west end of the sixteenth car, the fireman, who was driving said engine, without any signal to stop, applied the brakes to the engine and caused it to stop suddenly and with a jerk, so that the three front cars which had not been securely coupled to the one on which he was walking separated from it and plaintiff was thrown from the top of the car to the track below and injured.
It specifies particularly that the "defendant was negligent, in that, the said fireman carelessly and negligently caused said engine and drag to stop with a jerk, when no signal had been given to stop, when the defendant, by and through its agents and servants, in charge of said engine and drag, knew, or by the exercise of ordinary care, could have known that plaintiff was walking upon the running board of said cars of said drag and would be jerked off of said drag and injured by the stopping of said engine and drag with a jerk when no signal to stop had been given;" and that the agents and servants of defendant in charge of said engine and drag carelessly and negligently pushed it along without the three head cars being securely coupled, so that they would separate from the drag being stopped with a jerk, when they knew or by the exercise of ordinary care could have known of the dangerous position of plaintiff and that he was relying on the car being securely coupled.
The answer consisted of a general denial and the ordinary general plea of contributory negligence.
There was no suggestion in any of the pleadings that the employment of the defendant at the time of the injury related in any way to commerce between the States.
There was evidence tending to prove that these three cars had been delivered at the yard that day by the Chicago, Milwaukee & St. Paul Railway Company, which had brought them from Laredo, Missouri, and that one of them had been delivered at Laredo that morning from Ottumwa, Iowa.
There was also evidence tending to prove the allegations of the petition, unless there was a failure with respect to setting the brakes. On this subject the plaintiff testified as follows: "I was standing there looking back over my shoulder and just at the time I was looking back the stop came, and the stop was so sudden that undoubtedly the stop was made by the application of the brakes, or else. -- " At this point he was interrupted by an objection from defendant's attorney, who immediately moved to strike out the statement of the cause of the stopping, on the ground that it was mere speculation. This was overruled by the court and the witness continued, stating that the jerk came with such an abrupt stop that in his estimation or knowledge the brakes were undoubtedly set or the engine reversed -- that it was made by the stopping of the engine. The defendant moved to strike out this portion of the answer as being a mere opinion. The objection was overruled by the court and to this action in admitting this evidence and refusing to strike it out the defendant excepted.
The defendant introduced Mr. Hogan, the other switchman of the crew, who testified that at the time Mr. Pipes fell from the top of the car he (Hogan) was standing at about the middle of the original drag of sixteen cars, transmitting to the engines such signals as were given by the foreman, who was at the place where the coupling was to be done. During his examination by Mr. Hackney for defendant (Mr. Field representing the plaintiff), the following took place:
The defendant, at the close of plaintiff's evidence and again at the close of all the evidence, asked the court to instruct the jury to find a verdict in its favor, which it refused and defendant duly excepted. It also asked the court to instruct that if the plaintiff was negligent, and his negligence contributed in any way to his injury, they should find for the defendant. This was also refused and exception taken. ...
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