Shidloski v. Railroad Co.

• Decision Date: 19 October 1933
• Docket Number: No. 31159.,31159.
• Citation: 64 S.W.2d 259
• Court: Missouri Supreme Court
• Parties: STANLEY SHIDLOSKI, Administrator of the Estate of ALEXANDER SERWATKA, v. NEW YORK, CHICAGO & ST. LOUIS RAILROAD COMPANY, a Corporation, Appellant.

64 S.W.2d 259

STANLEY SHIDLOSKI, Administrator of the Estate of ALEXANDER SERWATKA, v. NEW YORK, CHICAGO & ST. LOUIS RAILROAD COMPANY, a Corporation, Appellant.

No. 31159.

Supreme Court of Missouri, Division 1.

October 19, 1933.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Granville, Hogan, Judge.

REVERSED.

Jones, Hocker, Sullivan & Gladney and Willard A. McCaleb for appellant.

(1) The evidence was wholly insufficient to show that plaintiff's deceased was engaged in interstate transportation, or in work so closely related thereto as to be a part thereof, at the time he received the injuries which caused his death. Poindexter v. Ry. Co., 319 Mo. 285; Martin v. St. Louis & S.F. Ry. Co., 302 Mo. 506; Jarvis v. Railroad Co., 37 S.W. (2d) 602; Shanks v. Railroad Co., 239 U.S. 556; Railroad Co. v. Bezue, 52 Sup. Ct. 24, 76 L. Ed. 258; Railroad Co. v. Ind. Comm. of Illinois, 284 U.S. 296, 77 A.L.R. 1367; Railroad Co. v. Bolle, 284 U.S. 74; Railroad Co., v. Winters, 242 U.S. 353; Heinbach v. Railroad Co., 197 Fed. 580; Pedersen v. Railroad Co., 197 Fed. 537; Central Railroad Co. v. Paslick, 239 Fed. 713; Chicago & A. Railroad Co. v. Allen, 249 Fed. 283; Railroad Co. v. Littleton, 180 S.W. 1194; Davis v. Railroad Co., 10 Fed. (2d) 140; Loveless v. Railroad Co., 75 So. 7; Defenbaugh v. Railroad Co., 171 Pac. 647; Railroad Co. v. Owens, 101 Atl. 532; Moran v. Railroad Co., 96 Atl. 1023, affirmed in 245 U.S. 629; Okrzesz v. Railroad Co., 155 N.Y. Supp. 919; Parsons v. Railroad Co., 111 N.E. 1093, 153 N.Y. Supp. 178; Railroad Co. v. Winters, 23 S.W. (2d) 489; Payne v. Wynne, 233 S.W. 609; Utah Rapid Transit Co. v. Ind. Comm., 204 Pac. 87; Bissett v. Railroad Co., 132 Atl. 302. (2) The defendant owed no duty to warn the deceased of the switching operations being carried on in its yards. Aeirfeitz v. Humphreys, 145 U.S. 418; Railroad Co. v. Nixon, 271 U.S. 218; Reading Co. v. Haldeman, 20 Fed. (2d) 53; Mich. Cent. Railroad Co. v. Zimmerman, 24 Fed. (2d) 23; Atchison, T. & S.F. Ry. v. Wyer, 8 Fed. (2d) 30; Pennsylvania Railroad Co. v. Lutton, 29 Fed. (2d) 689; Flannery v. Railroad Co., 29 Fed. (2d) 18; Carfelo v. Railroad Co., 54 Fed. (2d) 475. (3) The defendant owed no special effort to avoid injury to the deceased unless his peril was known. St. Louis & S.F. Ry. Co. v. Schumacher, 152 U.S. 77; Inland Seaboard Coasting Co. v. Tolson, 139 U.S. 551. (4) The alleged custom or practice of sending a man ahead to warn car repairer on or about the yards where switching operations of defendant were carried on is supported, at most, by no more than a scintilla of evidence. McClellan v. Railroad Co., 62 Fed. (2d) 61; Railroad Co. v. Lindeman, 143 Fed. 946; Norfolk Ry. Co. v. Collingsworth, 32 Fed. (2d) 561; Carfelo v. Railroad Co., 54 Fed. (2d) 475; Greenwich Ins. Co. v. Waterman, 54 Fed. 839. (a) A scintilla of evidence is insufficient to prove negligence under the Federal Employers' Liability Act. Railroad Co. v. Allen, 276 U.S. 165; Gunning v. Cooley, 281 U.S. 94; Pennsylvania Railroad Co. v. Chamberlain, 77 L. Ed. 514; Carfelo v. Railroad Co., 54 Fed. (2d) 475. (5) The deceased assumed the risk of injury, since he knew or should have known of the danger to which he was exposing himself by walking between the cars while switching operations were being carried on in the immediate vicinity. Chesapeake & Ohio Ry. Co. v. Nixon, 271 U.S. 218; Railroad Co. v. Allen, 276 U.S. 170; Norfolk & W. Ry. Co. v. Collingsworth, 32 Fed. (2d) 561; Boldt v. Railroad Co., 245 U.S. 441; Haggerty v. Chicago, M. & St. P. Ry. Co., 141 Fed. 966. (a) An employee is presumed to see and know dangers which an ordinary person would see and know. Standard Oil Co. v. Martin, 21 Fed. (2d) 912; Railroad Co. v. McDougal, 15 Fed. (2d) 283. (6) There is no basis in the evidence for a finding that deceased would have been discovered between the cars in a position of peril, necessitating a warning, even if the alleged custom to inspect existed and was violated. Davis v. Hand, 290 Fed. 73; Barrett v. Virginia Ry. Co., 250 U.S. 473; Hatton v. New York, N.H. & H. Ry. Co., 261 Fed. 667; Lang v. Railroad Co., 255 U.S. 455. (7) It is error to predicate facts, not supported by the evidence, in an instruction. Heinzbe v. Met. St. Ry. Co., 182 Mo. 528; Beard v. Mo. Pac. Ry. Co., 272 Mo. 142; Lackey v. United Rys. Co., 288 Mo. 120; Lewis v. Railroad Co., 319 Mo. 233.

Louis E. Miller, John F. Gibbons and Charles A. Lich for respondent.

(1) The evidence was sufficient to show that plaintiff's deceased was engaged in interstate commerce and the action was properly brought under the Federal Employers' Liability Act. Railroad Co. v. Zachary, 232 U.S. 591; Railroad Co. v. Knox, 218 Fed. 748; Trowbridge v. Kansas City & Westport Belt Ry. Co., 192 Mo. App. 54; Johnson v. So. Pac. Co., 196 U.S. 371; Railroad Co. v. Pettis, 89 So. 201; Cook v. So. Ry. Co., 109 S.C. 377; Southern Pac. Co. v. Ind. Comm., 175 Pac. 453; Pipal v. Grand Trunk Ry. Co., 341 Ill. 320, certiorari denied, 283 U.S. 838; McAdoo v. McCoy, 215 S.W. 870, certiorari denied, 255 U.S. 575; Johnson v. Great Northern Ry. Co., 178 Fed. 643; Heston v. Railroad Co., 254 Fed. 787; Rodgers v. Canadian Northern Ry. Co., 246 Mich. 399, certiorari denied, 280 U.S. 554; Whitmore v. Am. Ry. Express Co., 269 S.W. 657. (a) The failure of the defendant to produce the records in its custody and under its control, showing the particular car upon which the plaintiff's deceased was working at the time of his injuries, gives rise to the inference that if such evidence were produced it would be unfavorable to defendant and show conclusively the interstate employment of plaintiff's deceased. McCollum v. Watts, 5 S.W. (2d) 427; 22 C.J. 111; Kirby v. Tallmadge, 160 U.S. 383; Whitmore v. Am. Ry. Express Co., 269 U.S. 657; Thomas v. Equitable Assurance Society, 205 S.W. 533; Morrow v. Railroad, 140 Mo. App. 216; Powell v. Railroad Co., 255 Mo. 420; Bent v. Lewis, 88 Mo. 462; Cudahy Packing Co. v. Railroad Co., 196 Mo. App. 528; Abney v. Marshall, 124 Mo. App. 483; State ex rel. Railroad Co. v. Trimble, 260 S.W. 1000. (2) Where custom in defendant's business required switchmen to warn repairer on repair tracks of intended coupling or movement of cars thereon, its failure to do so was negligence. Armstrong v. Railroad Co., 55 S.W. (2d) 460; Case v. St. Louis-S.F. Ry. Co., 30 S.W. (2d) 1069; Director General of Railroads v. Templin, 268 Fed. 483; Koonse v. Railroad Co., 18 S.W. (2d) 467; Norton v. Wheelock, 23 S.W. (2d) 142. (3) Where custom and practice in defendant's business required switchmen to warn car repairer on repair tracks of intended coupling or movement of cars thereon, car repairer in passing through spaced cars on repair tracks had right to rely upon defendant's observance of said custom and whether its failure to do so proximately caused plaintiff's deceased to be struck and killed by a movement of cars thereon, was properly for the jury. Armstrong v. Railroad Co., 55 S.W. (2d) 460; Martin v. Wabash Ry. Co., 30 S.W. (2d) 735; Derrington v. So. Ry. Co., 40 S.W. (2d) 1069; Koonse v. Mo. Pac. Ry. Co., 18 S.W. (2d) 467; Norton v. Wheelock, 23 S.W. (2d) 142; Detmering v. Railroad Co., 36 S.W. (2d) 112; Case v. Railroad Co., 30 S.W. (2d) 1069. (4) The existence of the custom and practice in defendant's business of requiring a member of its switching crew to warn car repairer on repair tracks of intended coupling or movement of cars thereon was not only established by substantial evidence offered on behalf of the plaintiff, but strongly corroborated by the admissions of defendant's employees. Case v. Railroad Co., 30 S.W. (2d) 1069; Derrington v. Railroad Co., 40 S.W. (2d) 1069; Pacheco v. Railroad Co., 15 Fed. (2d) 468; Railroad Co. v. Mihas, 280 U.S. 102; O'Donnell v. Railroad Co., 26 S.W. (2d) 460. (a) Custom need not be proved with such fullness as would make it a rule of the common law. O'Donnell v. Railroad Co., 26 S.W. (2d) 929; Koonse v. Railroad Co., 18 S.W. (2d) 467; Armstrong v. Railroad Co., 55 S.W. (2d) 460; St. Louis-S.F. Ry. Co. v. Jeffries, 276 Fed. 75. (5) The movement of a string of cars upon a repair track, over which car repairer was crossing in the course of his duties, in violation of defendant's custom and practice to warn was not a danger so open and obvious that it could be reasonably appreciated by plaintiff's deceased, but an extraordinary risk arising from defendant's negligence and therefore not assumed by car repairer. Koonse v. Railroad Co., 18 S.W. (2d) 467; Norton v. Wheelock, 23 S.W. (2d) 148; Montgomery v. Railroad Co., 22 Fed. (2d) 360; Chicago, Rock Island & Pac. Railway Co. v. Ward, 252 U.S. 22; Railroad Co. v. Profitt, 241 U.S. 468; Erie Railroad Co. v. Purucker, 244 U.S. 320; Railroad Co. v. De Atley, 241 U.S. 310; Oglesby v. St. Louis-S.F. Ry. Co., 1 S.W. (2d) 172; Armstrong v. Railroad Co., 55 S.W. (2d) 460. (6) It was for the jury to determine whether the violation of defendant's custom and practice to warn was the proximate cause of deceased's injuries and death. Kidd v. Chicago, R.I. & P. Ry. Co., 274 S.W. 1079, certiorari denied, 269 U.S. 582; Hogan v. Fleming, 297 S.W. 404; Lovett v. Kansas City Term. Ry. Co., 295 S.W. 89; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W. (2d) 982; McCray v. Mo. K. & T. Ry., 10 S.W. (2d) 936.

ATWOOD, J.

Stanley Shidloski, administrator of the estate of Alexander Serwatka, deceased, obtained a judgment for $15,000 against the New York, Chicago & St. Louis Railroad Company, commonly known as the Nickel Plate Railroad, on account of the death of Serwatka which resulted from his being struck by a string of cars while he was employed by said railroad as a car repairer in its yards located at Madison, Illinois.

The action was brought under the Federal Employers' Liability Act. The existence of a well-established custom to warn employees working in and about cars in said yards of the movement or intended movement of cars to be switched or...