Preston v. Union Pacific Railroad Co.

• Decision Date: 14 March 1922
• Citation: 239 S.W. 1080,292 Mo. 442
• Parties: HAROLD L. PRESTON v. UNION PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

239 S.W. 1080

292 Mo. 442

HAROLD L. PRESTON v. UNION PACIFIC RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

March 14, 1922

Appeal from Jackson Circuit Court. -- Hon. William O. Thomas, Judge.

Affirmed.

R. W Blair and Watson, Gage & Ess for appellant.

(1) The court erred in overruling defendant's demurrer interposed at the close of plaintiff's evidence, and renewed at the close of all the evidence. First. Because the properties of the Union Pacific Railroad Company were, at the time of the injury, December 30, 1917, under the exclusive control of the United States Government, and were being operated, on December 30, 1917, by the director general of railroads and not by the Union Pacific Railroad Company. Railroad v North Dakota, 250 U.S. 135; Railroad v Caldwell, 264 F. 947; Krichman v. United States, 263 F. 543; Act of Congress, Aug. 29, 1916, 39 Stat. 645 (Comp. St. 1974a); Haubert v. Railroad, 259 F. 361; Mardis v. Hines, 258 F. 945; Foster v. Tel. Co., 219 S.W. 107; Cravens v. Hines, 218 S.W. 912; Rutherford v. Railroad, 254 F. 880; Armstrong v. United States, 13 Wall. 154. Second. Because there was no evidence: (a) That defendant saw plaintiff in a position of peril in time thereafter, by the exercise of ordinary care and by the use of the means at hand, to have warned him, and thereby averted the accident. (2) The court erred in refusing to give defendant's demurrer to the evidence, because, under the Federal Employers' Liability Act, plaintiff assumed risk of injury, under the undisputed evidence in this case, as a matter of law; and, by submitting that question to the jury for its consideration defendant was deprived of rights guaranteed it by said act, and obligations and burdens inconsistent with, and not imposed by, said act, were thereby imposed on defendant. Seaboard Air Line v. Horton, 233 U.S. 503; Jacobs v. Railroad, 241 U.S. 229; Railroad v. Ward, 40 S.Ct. 275; Railroad v. Proffitt, 241 U.S. 462; Ry. Co. v. De Atley, 241 U.S. 313; Erie Rd. Co. v. Purucker, 244 U.S. 320. (3) The court erred in giving plaintiff's instructions numbered 1 and 2, over the objection and exception of defendant. Gunn v. Hemphill Lbr. Co., 218 S.W. 982. (b) That defendant saw plaintiff in a position of peril in time thereafter, by the exercise of ordinary care and by the use of the means at hand, to have stopped the cars and averted the accident. (c) That defendant saw plaintiff oblivious to his peril in time thereafter, by the exercise of ordinary care and by the use of the means at hand, to have warned plaintiff or stopped the cars, and thereby have averted the accident. State ex rel. Lusk v. Ellison, 271 Mo. 463; Degonia v. Railroad, 224 Mo. 596; Rashall v. Railroad, 249 Mo. 510; Cahill v. Railroad, 205 Mo. 408; Evans v. Railroad, 178 Mo. 517; Aerkfetz v. Humphreys, 145 U.S. 419; Davis v. Railroad, 159 Mo. 67; Gaval v. Railroad, 251 Mo. 267; Keele v. Railroad, 258 Mo. 62; Eppstein v. Railroad, 197 Mo. 723; Pope v. Railroad, 242 Mo. 240; Barnard v. Met. St. Ry. Co., 137 Mo.App. 691. Third. Because plaintiff's own testimony shows conclusively that he could not have heard a warning if it had been given when the cars were more than fifteen to eighteen feet away from him; and therefore, such negligence, if any, was not the proximate cause of the injury. Rollison v. Wabash, 252 Mo. 539; Henze v. Railroad, 71 Mo. 636; Shaw v. Railroad, 104 Mo. 656; Sanders v. Railroad, 147 Mo. 424; Armstrong v. Railroad, 195 Mo.App. 86; Rashall v. Railroad, 249 Mo. 509. (4) The court erred in refusing to give instructions numbered ten and thirteen, requested by defendant. Simms v. Dunham, 203 S.W. 652; Degonia v. Railroad, 224 Mo. 589; McElwain v. Dunham, 221 S.W. 773; Gabal v. Railroad, 251 Mo. 268; Clark v. Railroad, 242 Mo. 606; Epstein v. Railroad, 197 Mo. 729; Degonia v. Railroad, 224 Mo. 587; State ex rel. Peters v. Reynolds, 214 S.W. 121; Clancy v. Railroad, 192 Mo. 615; Brackschmidt v. Railroad, 205 Mo. 443. (5) The court erred in submitting the question of plaintiff's negligence to the jury for their consideration, because under the undisputed evidence in the case, plaintiff was guilty of contributory negligence as a matter of law; and the court thereby deprived defendant of rights guaranteed it by the Federal Employers' Liability Act, and imposed obligations and burdens not imposed by, and inconsistent with, said act. (6) The court erred in overruling defendant's motion for a new trial, for the reason that plaintiff's testimony was so contradictory, so highly improbable and so at war with the conceded facts of the occurrence that it should be rejected as too unsubstantial to raise any question of fact for the jury. Spohn v. Mo. Pac. Co., 87 Mo. 74; Lehnick v. St. Ry. Co., 118 Mo.App. 611; Comm. Co. v. Aaron, 145 Mo.App. 316; Steele v. Railroad, 265 Mo. 116; Scroggins v. Met. St. Ry. Co., 138 Mo.App. 215; Nolan v. Railroad, 250 Mo. 621; Daniels v. Railroad, 177 Mo.App. 280; Guffy v. Harvey, 179 S.W. 729; Schaub v. Ry. Co., 133 Mo.App. 448; Stafford v. Adams, 113 Mo.App. 121; Sexton v. Ry. Co., 245 Mo. 272; Weltmer v. Bishop, 171 Mo. 116; Payne v. Ry. Co., 136 Mo. 575; Nugent v. Milling Co., 131 Mo. 252; Lange v. Railroad, 151 Mo.App. 505. (7) The court erred in permitting counsel for plaintiff to make improper and prejudicial remarks during the trial and in his argument to the jury, and in refusing to reprimand counsel and discharge the jury on motion of defendant. Barnes v. St. Joseph, 129 Mo.App. 545; Haynes v. Trenton, 108 Mo. 133; Cameron v. Cameron, 162 Mo.App. 115; Pledge v. Griffith, 199 Mo.App. 316; Haake v. Milling Co., 168 Mo.App. 180; Kinney v. St. Ry. Co., 261 Mo. 116; Gibson v. Zeibig, 24 Mo.App. 65. (8) The court erred in refusing to sustain defendant's motion for a new trial, because the verdict is so grossly excessive under all the evidence in the case, that it cannot be reconciled with honest motives, and can only be accounted for on the grounds of passion, prejudice or misconduct of the jury. Applegate v. Railroad, 252 Mo. 173; Lessenden v. Railroad, 238 Mo. 247; Farrar v. Railroad, 249 Mo. 211; Gibney v. Transit Co., 204 Mo. 704; Patterson v. Traction Co., 178 Mo. 273; Harper v. Railroad, 186 Mo.App. 308; Hutchinson v. Safety Gate Co., 247 Mo. 100.

Atwood, Wickersham, Hill & Popham for respondent.

(1) Affidavit for appeal is fatally defective in that the statute requires it shall state the appellant is "aggrieved" by the judgment and decision of the court in the case; whereas, this affidavit merely states appellant is "injured" etc. Appeals are statutory. No right therefor existing at common law and the statute must be strictly construed. R. S. 1909, sec. 2040; Owens v Mathews, 216 Mo. 709; Railroad v. Powell, 104 Mo.App. 367; Walser v. Leach, 190 S.W. 932; Thomas v. Ins. Co., 89 Mo.App. 12; Waller v. Robertson Trf. Co., 195 Mo.App. 280. (2) Appellant's belated contention that cause should be reversed because judgment is against the Union Pacific Railway Company instead of the Director General of Railroads is without merit, because: (a) Preston was injured on December 30, 1917, one day before the beginning of Federal control -- contract between railroads and director general specifically defined "Federal Control" as meaning from 12:00 o'clock midnight December 31, 1917, to and including the day and hour on which said control should cease." Order No. 50 Director General dated October 28, 1918, provided that pleadings in the cases already pending against railroads on causes of action arising during "Federal Control" and after December 31, 1917, may be amended on application substituting the name of the director general of railroads. Director General of Railroads' Bulletin No. 4 (Revised) page 41 (A); Order No. 50, Director General of Railroads, pp. 334-5; Kersten v. Hines, 223 S.W. 590; Hanks v. Hines, 219 S.W. 978; McGregor v. Railroad, 172 N.W. 841, 4 A. L. R. 1635; Fed. Stat. Ann. (2 Ed.) 775 (1919 Supp.) (b) If it should be held the Union Pacific Railroad was under "Federal Control" when Preston was injured, this court may substitute the present agent of the President provided for by subdivision (a) of Sec. 206 of the Transportation Act of 1920. Kersten v. Hines, 223 S.W. 593; Cravens v. Hines, 218 S.W. 915; R. S. 1909, sec. 1851; Hunter v. K. C. Savings Bank, 158 Mo. 271; Peacock v. Railroad, 175 N.W. 580; Robinson v. Ry. Co., 102 S.E. 532. (c) Order No. 50 of Director General allows amendment without summons. Sagona v. Pullman Co., 174 N.Y.S. 536. (3) The court did not err in overruling defendant's demurrer. Greenwell v. Railroad, 224 S.W. 404; Harwick v. Railroad, 181 Mo.App. 171; Sullivan v. Railroad, 97 Mo. 119; Cahill v. Railroad, 205 Mo. 408; Lancaster v. Railroad, 143 Mo.App. 175; Kippenbrock v. Wab. Ry. Co., 194 S.W. 51; Wightman & Hough Co. v. Nivois, 264 F. 160; Railway v. Earnest, 229 U.S. 114; Railroad v. Wright, 239 U.S. 548; Erie Railroad v. Purucker, 244 U.S. 320; So. Ry. Co. v. Smith, 205 F. 361; Newkirk v. Pryor, 183 S.W. 685. (4) Appellants objection to the giving of instructions 1 and 2 at request of plaintiff is groundless. Instructions follow strictly the law as laid down and approved in many cases. Railroad Co. v. Purucker, 244 U.S. 322; Union Pac. v. Hadley, 246 U.S. 330; Ry. Co. v. Brown, 229 U.S. 317; Ry. Co. v. Proffitt, 241 U.S. 62; Ry. Co. v. Cole, 214 F. 950; Ry. Co. v. Earnest, 229 U.S. 114; Railroad Co. v. Horton, 233 U.S. 492; Hardwick v. Railroad, 181 Mo.App. 171. (b) The court properly refused defendant's requested instructions 10 and 13. Instruction No. 10 was a comment on the evidence, invaded the province of the jury, and would have amounted to a directed verdict for defendant. Instruction No. 13 was properly refused because it invaded the province of the jury, was too general, and...