Rittenhouse of Estate of H. A. Rittenhouse v. St. Louis-San Francisco Railway Company
| Decision Date | 11 June 1923 |
| Citation | 252 S.W. 945,299 Mo. 199 |
| Parties | ETTA RITTENHOUSE, Administratrix of Estate of H. A. RITTENHOUSE, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. Charles L. Henson Judge.
Reversed.
Mann & Mann and W. F. Evans for appellant.
(1) The petition fails to state a cause of action under the humanitarian doctrine in that it does not allege that the defendant knew that deceased was between the cars and in a place of peril, neither does it allege facts sufficient to charge defendant with knowledge of his presence between the cars. The petition fails to state a cause of action under the humanitarian doctrine because it nowhere alleges that the deceased was in a place of peril from which he was unable to extricate himself, or that he was oblivious to his danger and that his obliviousness was, or by the exercise of ordinary care could have been, apparent to defendant. Obliviousness is a necessary and indispensable element in a case under the humanitarian doctrine and unless it is alleged in the petition a cause of action under this doctrine is not stated. State ex rel. Railroad v. Reynolds, 233 S.W. 222; Rubick v. Sandler, 219 S.W. 406; Haines v Railroad, 203 S.W. 632; Kamoss v. Railroad, 202 S.W. 436; Pope v. Railroad, 242 Mo. 232, 239; Kinlen v. Railroad, 216 Mo. 145, 164. (2) The evidence fails to show facts sufficient to charge defendant with negligence under the humanitarian doctrine. (3) There was no actionable violation of the Safety Appliance Act and therefore plaintiff was not entitled to have her case submitted to the jury on the allegation of negligence growing out of the alleged violation of this act. To constitute an actionable violation of the Statute, either for damages, or for the penalty, the coupler must not only become inoperative, but there must be an attempt "to haul or permit it to be hauled or used." No one was injured when the coupler became inoperative, and while the car was being used. This injury occurred after the coupler became inoperative and after the car had ceased to be hauled or used. The defective coupler was therefore not a cause, either proximate or remote, of this injury. U. S. Comp. Stat. sec 8621 (); M'Calmont v. Penn. Ry. Co., 273 F. 231; B. & O. Ry. v. United States, 242 F. 425. (4) The violation of Section 2 of the Safety Appliance Act is not actionable in this case for the reason that the deceased was not within that class of persons for whose benefit the Safety Appliance Act required that cars be equipped with automatic couplers; his injury was not within the evils against which the provisions for such appliances were directed. The evils against which provisions of the act are directed are those which render it necessary for men to go between the ends of the cars to couple or uncouple them. The deceased, according to the evidence, had no duty to perform in coupling or uncoupling cars. Railway Co. v. Conarty, 238 U.S. 243, 59 L.Ed. 1290; Lang v. New York Central, 255 U.S. 455, 65 L.Ed. 729; M'Calmont v. Pennsylvania Co., 273 F. 231.
Sizer & Gardner for respondent.
(1) The humanitarian doctrine is not in this case, plaintiff does not declare upon it in her petition, neither does she invoke it in this suit. The humanitarian doctrine, so called has cut well defined channels and established itself in our law in the nature of exceptions to the general rule that contributory negligence or concurrent negligence bars a recovery. Tavis v. Bush, 280 Mo. 390; Degonia v. Railroad, 224 Mo. 587. (2) Plaintiff sues under the Federal Employer's Liability Act, wherein contributory negligence is not a bar, and alleges two grounds of negligence against defendant: First, statutory negligence, in failing to keep and maintain its couplers so they would couple automatically by impact as required by the Safety Appliance Laws; and, second, common-law negligence in carelessly and negligently shoving a string of cars against and upon the deceased while he was stationed between the cars and attempting to inspect, fix and adjust said couplers, when they knew, or by the exercise of ordinary care could have known, that he was so engaged. If the testimony authorized the submission of this case to the jury under either one of such grounds of negligence, then the court erred in sustaining defendant's demurrer, and properly corrected its error in granting plaintiff a new trial. (3) We will notice first the second ground of negligence. This allegation charges negligence in general terms, which in the absence of a motion to make more specific, is certainly broad enough to authorize a submission of the case on any negligence shown by the evidence in relation to the handling of the cars in question. Williams v. Railroad, 175 S.W. 902. In this connection, and on this feature of the case, we call attention to Young v. Railroad, 268 Mo. 625, a case on all-fours with the case at bar. (4) The evidence clearly shows that the deceased was required to work in a place of danger, and that the defendant's employees while handling the cars knew the situation of the deceased and knew of the danger, and they owed him the duty to warn or notify him of the approach of cars. Young v. Lusk, 268 Mo. 639; Moore v. Railroad, 58 Mo. 588; Koerner v. St. Louis Car Co., 209 Mo. 141; Johnson v. Brick & Coal Co., 276 Mo. 50. The deceased had the right to assume that the defendant would not imperil his safety by permitting or causing the car on which he was then working to be struck by other cars and moved without notice or warning to him. Young v. Lusk, 268 Mo. 639; Williams v. Railroad, 175 S.W. 900; Koerner v. St. Louis Car Co., 209 Mo. 141; Peppers v. Plate Glass Co., 165 Mo.App. 556; Anderson v. Railroad, 196 Mo. 440; Porter v. Stock Yards Co., 213 Mo. 372; Kettleheak v. Car & Foundry Co., 171 Mo.App. 541; Hutchinson v. Safety Gate Co., 247 Mo. 94; Erickson v. Railroad, 171 Mo. 659; George v. Railroad, 225 Mo. 405; Charlton v. Railroad, 200 Mo. 413; Crawford v. Stock Yards Co., 215 Mo. 414; Clark v. Iron & Foundry Co., 234 Mo. 436. (5) The other ground of negligence alleged in the petition is a violation of the Safety Appliance Act, in that appellant failed to maintain its couplers so that the same would couple automatically without employees being compelled to go between the cars. The automatic coupler statute violated in this case makes it unlawful for common carriers "to haul or permit to be hauled or used on their lines any car not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of cars." It is conceded that the coupler in question was defective; but appellant contends, first, that deceased does not come within the class of employees protected by this statute; and, second, that its violation of the statute was not the proximate cause of his death. If any authorities are needed that the defendant did violate the statute by reason of its coupler being inoperative, we call the court's attention to Railroad v. Popplar, 237 U.S. 369, 59 L.Ed. 1000, affirming 121 Minn. 413, Ann. Cases, 1914D, 389; Railroad v. Parker, 242 U.S. 56, 61 L.Ed. 157; Christy v. Railroad, 195 Mo.App. 232, 62 L.Ed. 924; Moore v. Railroad, 268 Mo. 31. (6) The preparation of the coupler and the impact itself, it has been held, are not isolated acts, but are connected and indivisible parts of the coupling operation, within the purview of the statute. Johnson v. Railroad, 196 U.S. 1, 49 L.Ed. 363; Railroad v. Voelker, 66 C. C. A. 226, 129 F. 522, 70 L. R. A. 264; Railroad v. Poole, 175 Ind. 567; Burho v. Railroad, 121 Minn. 326; Railroad v. Wagner, 166 S.W. 24; Railroad v. Simmons, 105 Va. 651; United States v. Railroad, 167 F. 695. Therefore, the statute by express terms, extends its protection to any and every employee of a common carrier whose duty it is, when occasion requires, to go between the ends of cars for the purpose of adjusting the pins, knuckles or any other portion of the coupling device. Section 2, Safety Appliance Act (27 Stat. L. 531, Compiled Statutes 8606) was enacted primarily for the purpose of protecting employees whose duties require them to go between cars for the purpose of coupling and uncoupling cars, and compels the common carriers to equip their cars with automatic couplers so that such employees will be relieved of this risk. Railroad v. Layton, 243 U.S. 617, 61 L.Ed. 931; Railroad v. Wiles, 240 U.S. 444, 60 L.Ed. 732; Railroad v. Conarty, 238 U.S. 243, 59 L.Ed. 1290; Railroad v. McWhirter, 229 U.S. 265, 57 L.Ed. 1170. While the act requires cars to be equipped with couplers which couple automatically without the necessity of men going between the ends of the cars, the statute is not intended solely for the benefit of employees injured when between cars for the purpose of coupling or uncoupling them. The design of the statute is broader, and its protection extends to employees of an interstate carrier engaged in the operation, and the movement of cars, even though they are not actually engaged in coupling cars at the time of the injury. Railroad v. Botschall, 444 U.S. 66, 61 L.Ed. 995; Railroad v. Layton, 243 U.S. 607, 61 L.Ed. 931.
DAVIS, C. Railey and Higbee, CC., concur.
This suit, an action for negligence by the administratrix of deceased for his wrongful death, was instituted in the Circuit Court of Lawrence County on the 10th day of June 1920. A trial was had, in which both plaintiff and defendant submitted evidence. At the conclusion of the whole evidence, the court indicated that it would give an instruction in the nature of a demurrer to the evidence, when plaintiff took an involuntary nonsuit, with leave to move...
To continue reading
Request your trial