Shaw v. Chicago & Alton Railroad Company

• Citation: 282 S.W. 416,314 Mo. 123
• Decision Date: 12 April 1926
• Docket Number: 25124
• Parties: EFFIE SHAW, Administratrix of Estate of JOHN D. SHAW, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

282 S.W. 416

314 Mo. 123

EFFIE SHAW, Administratrix of Estate of JOHN D. SHAW, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant

No. 25124

Supreme Court of Missouri

April 12, 1926

Appeal from Jackson Circuit Court; Hon. E. E. Porterfield Judge.

Affirmed.

Roger S. Miller and Charles M. Miller for appellant.

(1) Respondent, as administratrix, appointed under the laws of the State of Illinois, has no right or authority to maintain this suit in Missouri, and the trial court erred in not sustaining the motion to dismiss. McGinnis v. Mo. Car & Foundry Co., 174 Mo. 225; Lee v. Mo. Pac. Ry Co., 195 Mo. 400; Miller v. Hoover, 121 Mo.App 568; Sec. 1163, R. S. 1919; Davis v. Farmer's Co-Operative Equity Co., 262 U.S. 312. (2) No actionable negligence was proven against appellant and the trial court erred in refusing appellant's peremptory instructions. Reeves v. Railroad, 251 Mo. 169; Stumff v. Corn Products Co., 155 Ill.App. 194; Rollison v. Railroad, 252 Mo. 541; Sullivan v. Giddeon & N. I. R. Co., 271 S.W. 990. (3) Deceased assumed the risk of being injured in attempting to mount the foot-board, located on the end of the tender by stepping between the rails to do so, while the engine and tender were backing up toward him, when he could have mounted the foot-board from outside the rails and avoided the danger of mounting the foot-board from between the rails, and the trial court erred in not declaring he assumed the risk, barring recovery, and in not giving the peremptory instructions requested by appellant. Pryor v. Williams, 254 U.S. 43; Berkshire v. Southern Pac. Railroad, 254 U.S. 415, 65 Law Ed. 335; Horton v. Railroad, 233 U.S. 492; Boldt v. Railroad, 245 U.S. 441; Morris v. Duluth, 108 F. 747; Suttle v. Railroad, 144 F. 668; Jacobs v. Railroad, 241 U.S. 229; Wise Terminal Co. v. McCormick, 104 Va. 51; Pratt v. Southern Railroad, 165 Ala. 501; Givens v. Railroad, 66 Iowa 231; Dandie v. Southern Railroad, 42 La. Ann. 686. (4) The trial court erred in admitting in evidence that six days after the accident, Mrs. Shaw gave birth to a child, and in holding that the child was a proper beneficiary for which damages could be recovered. Buel v. Railroad, 248 Mo. 126; Strode v. Transit Co., 197 Mo. 616. (5) The trial court erred in refusing appellant's offer of proof, relating to conditions and circumstances, under which an employee may be discharged, which was offered by appellant for the purpose of contradicting, impeaching, and discrediting the testimony of respondent's witness Smock, to the effect that he gave untrue testimony before the coroner's inquest, under oath, and other untrue written statements to appellant, because he was afraid he would be discharged, if he did not do so. (6) The verdict and judgment is not only excessive, but so excessive as to indicate passion and prejudice on the part of the jury, against appellant. Midwest Nat. Bank & Trust Co. v. Davis, 288 Mo. 563; Burtch v. Wabash Ry. Co., 263 S.W. 338.

J. Vernet Jones, Harry R. Freeman and Madden & Madden for respondent.

OPINION

Graves, J.

Action for death of the husband, occasioned by the alleged negligence of the defendant.

It is not seriously contended that deceased, at the time of his accident and death, was not engaged in interstate commerce. The action is brought under the Federal Employers' Liability Act. The deceased and his family lived at Roodhouse, Green County, Illinois. Deceased was a switchman employed in defendant's yards at Roodhouse. Plaintiff, the wife of the deceased, was appointed administratrix of his estate by the proper court in Greene County, Illinois. One line of defendant's road was operated from Roodhouse, in Greene County, Illinois, across Missouri, and into Jackson County, Missouri, in which latter county this suit was brought. The plaintiff sues as administratrix for and in behalf of herself, and a minor son, who was born a few days after Shaw met his death. The negligence is thus stated in the petition:

"Plaintiff further states that on or about the 24th day of May, 1920, John D. Shaw, deceased, was in the employ and service of defendant as a switchman at said yards in Roodhouse, Greene County, Illinois, and was engaged with other employees of defendant in switching cars in and about said yards; that said cars and their contents were shipped and moved from points outside the State of Illinois and were en route to points in the State of Illinois and other states, and that in handling said cars the defendant and John D. Shaw, deceased, were engaged in commerce between states.

"At the above-mentioned time a switch engine was being backed over one of said switching tracks to connect with and switch interstate cars and shipments as aforesaid, and one Whitmore, acting as yard-master and foreman and vice-principal over the plaintiff, stepped upon the foot-board of said moving engine at a point near where it was the duty of deceased to board said engine and remained standing in that position, requiring deceased to step upon the track on which said engine was being operated to board same, and when said deceased was in the act of boarding said engine and stepping from the roadbed to the foot-board of said engine said Whitmore suddenly stepped to that part of the foot-board where deceased was attempting to get on, striking his body against that of deceased, causing the latter to fall back to the ground and be run over by said switch engine, cutting off both his legs and injuring him internally, and as a direct result of said injuries he died several hours later on said date.

"Said John D. Shaw was a strong and healthy man twenty-two years of age at the time of his death and left surviving him Effie Shaw, his widow, age eighteen years, and a few days after his death a son, John David Shaw, was born. Said Effie Shaw was entirely dependent upon deceased for her support and maintenance, and this action is brought for the benefit of said widow and child who had a pecuniary interest in the life of deceased and by said interest suffered and will suffer in the future the pecuniary loss of the society, consortium, maintenance, support, assistance and contributions of said John D. Shaw, deceased, and said child will also suffer the pecuniary loss of his father's care, advice, counsel and training.

" The injuries and death of said John D. Shaw, deceased, were due to and occasioned by the negligence of defendant in that said Whitmore was negligent in that after boarding said engine he remained standing at the end of the foot-board where it was the duty of deceased to board the engine, and required deceased to step upon the tracks to board said engine, and said defendant was further negligent in that said Whitmore suddenly and without warning stepped towards the opposite end of said foot-board and against the deceased and prevented him getting upon said foot-board when he was in the act of boarding said engine, causing deceased to fall and to be injured as aforesaid, and was further negligent in that he failed to warn deceased of his intention to change his position on said foot-board. Said Whitmore knew, or in the exercise of ordinary care could have known, at the time he stepped and remained upon the end of the foot-board that it was the duty of John D. Shaw to board said engine, and that John D. Shaw was in a position to board same, and thereafter he also knew or by the exercise of ordinary care could have known, that John D. Shaw was upon the track and in position to step upon the foot-board prior to the time said Whitmore changed his position upon said foot-board."

The action was for $ 75,000. Upon a former trial plaintiff had a verdict for $ 35,000, but this verdict was set aside for reasons not pertinent here.

The defendant first filed a motion to dismiss the proceedings, the particulars of which will be discussed in the opinion. It suffices to say that the motion was overruled, and defendant answered over.

The answer is: (1) plea of contributory negligence, (2) assumption of risk, and (3) a renewal in the answer of the grounds upon which the motion to dismiss was predicated, and a prayer asking a dismissal of the proceeding, with other legal relief. Reply was general denial.

Upon the second trial, from the judgment therein this appeal was taken, the verdict and judgment was for plaintiff in the sum of $ 25,000.

There is no separate assignment of errors in the brief. Assignments of errors and points and authorities are joined in one. As to this it must be said that the points made assign in specific terms alleged trial errors. These assignments will be left to the opinion. What we have stated is a general outline of the case.

I. The motion to dismiss, which was repeated by way of answer, urges that both plaintiff and defendant are residents of Illinois; that the cause of action arose in Illinois; that to try the cause in Missouri meant the bringing of witnesses from a great distance; that the trial of such causes originating as this is an imposition upon our courts, and imposition upon the taxpayers of Jackson County, the place of trial; that such a trial would require the taking of depositions and the inconvenience and expense of getting witnesses, all to the great prejudice of the defendant. This point is fully covered by our very recent case of Wells v. Davis, 303 Mo. 388. The discussion there is so full and so recent that we will not rehash the subject, except to emphasize the fact that where a cause of action is given by the Federal Government, and made enforceable in the state courts, as are cases under the Employers' Liability Act such a law is not one of a foreign country, but is one which fairly comes within the terms of Section 1163, Revised Statutes 1919, relative to our practice in this State. It is a part...