Pope v. Terminal R. Ass'n

• Decision Date: 31 July 1923
• Docket Number: No. 23508.,23508.
• Parties: POPE v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Supreme Court

254 S.W. 43

POPE v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 23508.

Supreme Court of Missouri, Division No. 1.

July 31, 1923.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by Nadine Pope, administratrix of the estate of Harry Herbert Pope, deceased, against the Terminal Railroad. Association of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Howell and W. L. Hezel, both of St. Louis, for appellant.

Sidney Thorne Able and Charles P. Noell, both of St. Louis, for respondent.

GRAVES, P. J.

Action for death of husband. Plaintiff is the widow and administratrix of Harry Herbert Pope, deceased. The action is under the federal "Employers' ability Act (U. S. Comp. St. §§ 8057-8605), and the suit is by the administratrix for the benefit of herself and an only child of the Marriage. Pope, the deceased; was the foreman of a switching crew operating in the yards of defendant at what is called the Sixteenth street yards. Pope was riding in the cab of a switch engine, which with the tender in front was backing eastward through this yard, when the engine, and a drag of 8 or 10 cars, ran into an open switch of a crossover track, and struck a string of ears on a track parallel to the track upon which the engine and drag of cars were running just before it struck the open switch of the crossover track, which crossover track connected these two parallel tracks, one of which (the one where the engine and drag of ears were being operated) was caked the "middle" track, and the other the "wall" track. The petition charged negligence as follows:

"(1) Plaintiff further states that on the aforesaid day the said Harry Herbert Pope, now deceased, was employed as aforesaid as a member of one of the defendant's switching crews; that, while he was in the cab of one of the defendant's engines, the; said engine was allowed, permitted, and caused by the defendant's engineer and fireman in control of the movements of the said engine to run through an open switch which allowed, permitted, and caused the tender and engine to pass from the track that it was running upon onto a crossover track and to collide with a train of cars that was at that time standing upon and blocking the track into which the crossover track led at the point where the crossover track led into it, causing the said Harry Herbert Pope to be crashed and killed.

"(2) Plaintiff further states that in the exercise of ordinary care and under the rules and orders of the defendant, and under the method of operating trains at the place in question in the defendant's yards in the city of and state of Missouri, and under the long-established custom then in force for the engineer and fireman to at all times run the engine under control and in such a manner that it could be stopped after an open switch or some other cause for stopping could under the condition existing at the time be discovered by the engineer and firemen, and in the exercise of ordinary care it was the duty of the engineer and fireman to keep a lookout in the direction toward which the engine was moving and to discover open switches and to stop the engine before reaching same, yet the engineer and fireman neglected all their duties in the above-mentioned respects and carelessly and negligently ran the engine through the open switch, allowing it to strike and collide with the cars on the track to which the open switch led, and the said Harry Herbert Pope to be crushed and mashed to death.

"(3) Plaintiff further states that in the exercise of ordinary care and under the rules, directions, and orders of the defendant, and the well-established custom in force there at that time, it was the duty of the engineer and fireman to keep a lookout down the track for such open switches and other causes for stopping, and plaintiff further avers that the engineer and fireman saw, or by the exercise of ordinary care could have seen,. that the switch was not properly lined for the movement intended, and that the train, if allowed to proceed, would go on the crossover track and collide with the train of cars upon the adjoining track to which the crossover track led, in time by the exercise of ordinary care with the appliances and means at hand, and with safety to the employs upon the said engine and cars, to have brought the engine and cars to a stop or so slacken its speed as to have prevented plaintiff's injuries, but that they neglected their duties in all of the above-mentioned respects and allowed, permitted, and caused the tender and engine to go through the open switch onto the crossover track and collide with the train on the adjoining track in the defendant's yards in the city of St. Louis and state of Missouri, and the said Harry Herbert Pope to be crushed and mashed to death."

The answer was: (1) general denial; (2) plea of assumption of risk; and (3) contributory negligence of deceased. Reply placed the new matter in the answer in issue. The suit was for $65,000, and the verdict of the jury for $12,000. The assignment of errors in appellant's brief covers five matters, as follows: (1) refusal of the court to sustain a demurrer to the evidence; (2) refusal of the court to give defendant's instruction No. 16; (3) refusal to give defendant's instruction No. 15; (4) the giving of plaintiff's only instruction No. 1, on the measure of damages; and (5) excessiveness of the verdict. The appeal from the adverse judgment upon the verdict aforesaid was duly perfected by defendant, the appellant here. Pertinent facts will be taken with the points made.

I. We would be fully justified in adopting appellant's statement of the case as the facts of the case. In fact in strict accordance with our rule we should do so. Our rule No. 15 (228 S. W. viii) provides as to respondent's briefs as follows:

"The respondent in his brief may adopt the statement of appellant; or, if not satisfied therewith, he shall in a concise statement correct any errors therein."

Just before this provision, the rule says as to a statement in appellant's brief, the following:

"The brief for appellant shall distinctly allege the errors committed by the trial court, and shall contain, in addition thereto, (1) a fair and concise statement of the facts of the case without reiteration, statements of law, or argument."

Under this rule, where, as here, the respondent makes no statement at all, and makes no corrections in appellant's statement, or in any way indicates his or her dissatisfaction as to appellant's statement, this court, in view of the rule, can take appellant's statement as and for the facts of the case. Counsel are presumed to know the facts of their case, and the rules of the court in relation thereto.

There is, however, an averseness, upon the Dart of the writer, to borrow from counsel a statement of the facts, unless there is an express admission by opposing counsel that the statement is correct. Counsel so often (unintentionally, of course) shade the facts in the statement. So, notwithstanding the fact that the silence of respondent would permit us to use appellant's statement, as and for the facts in evidence, we have chosen to make our own review of the facts.

II. The charge, or charges, of negligence in the petition, which are set out in full in the statement, ore lacking in that precision of statement to have been expected from the able and experienced counsel for plaintiff. We have numbered the paragraphs for convenience.

The first paragraph of the petition above quoted charges no negligence. It avers no duties imposed either by law or custom. It is a general statement of how deceased was injured.

The second paragraph, quoted, supra, charges: (1) That in the exercise of ordinary care, under the prevailing rules and orders of defendant and the long-established custom then in force, it was the duty of the engineer and fireman to have their engine under such control that they could stop such engine within the distance in which an open switch or other trace obstruction could be seen in the exercise of ordinary care in keeping a lookout for such things; and (2) that it was the duty of such fireman and engineer to keep a lookout in the direction in which the engine was moving to discover open switches and other obstructions. This paragraph then charges a negligent failure to perform either of the two alleged duties aforesaid.

The third paragraph reiterates the allegation that it was the duty of the engineer and fireman to keep a lookout down the track for open switches and other causes for stopping and then avers that these servants of defendant saw, or by the exercise of ordinary care could have seen, the open switch, in time to have averted the accident by bringing the engine to a stop or by slackening its speed; but negligently failed in the performance of such duties, through and by Which negligence the plaintiff's husband was killed. This paragraph is but an elaboration of one of the negligent acts averred in paragraph 2, supra. The two acts of negligence in paragraph 2, supra, form the basis of this action. Those acts of negligence are: (1) Failing to have their engine under such control as to be able to stop it and its drag of cars within the space in which the open switch could have been seen, in the exercise of ordinary care, in' keeping a lookout for same; and (2) failing to keep a lookout, and failing to stop the engine, or slacken its speed, so as to have averted the injury. The facts bearing hereon are required by the alleged error upon the part of the court in refusing to sustain the demurrer to plaintiff's evidence. Of this demurrer next.

As to the demurrer to plaintiff's evidence it must be said that there are some undisputed facts. It is conceded, for the purpose of this case, that deceased was engaged in interstate commerce at the time of, the accident, and that defendant was likewise engaged in interstate commerce. It must further be said that deceased was the foreman...