Siberell v. St. Louis-San Francisco Ry. Co.

• Decision Date: 30 July 1928
• Docket Number: 26754
• Citation: 9 S.W.2d 912,320 Mo. 916
• Parties: Horace Siberell, Administrator De Bonis Non of Estate of Henry Williams, v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

9 S.W.2d 912

320 Mo. 916

Horace Siberell, Administrator De Bonis Non of Estate of Henry Williams, v. St. Louis-San Francisco Railway Company, Appellant

No. 26754

Supreme Court of Missouri

July 30, 1928

Motion for Rehearing Overruled October 3, 1928.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

E T. Miller, A. P. Stewart and C. H. Skinker Jr., for appellant.

(1) The demurrer to the evidence should have been sustained and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) There was no substantial evidence of negligence on defendant's part proximately resulting in the death of the deceased. Furthermore, the fact that the brake rod found wedged in the frog came from a car in the freight train rests wholly on conjecture and speculation. Under the Federal Employers' Liability Act negligence is an affirmative fact which plaintiff must establish, and a jury should not be permitted to indulge in speculation and conjecture in arriving at a verdict. New Orleans & N. E. Ry. v. Harris, 247 U.S 367; Chicago Ry. Co. v. Coogan, 271 U.S. 472; St. Louis Railway v. Mills, 271 U.S. 344; Northern Railway v. Page, 47 S.Ct. 491; Bennett v. Terminal Co., 2 F.2d 913; Reading Co. v. Boyer, 6 F.2d 185; Douglas v. Terminal Co., 298 F. 199; Payne v. Bucher, 270 F. 38. (b) Res ipsa loquitur does not apply. Patton v. Railway, 179 U.S. 663; New Orleans & N. E. Ry. v. Scarlet, 249 U.S. 530; Midland Valley Ry. Co. v. Fulgham, 181 F. 95; Smith v. Ill. Central Ry. Co., 200 F. 553; So. Covington Ry. v. Finan's Admx. (Ky.), 155 S.W. 742; Washington Ry. v. Weakley (Va.), 125 S.E. 675; Connor v. Railway (Cal.), 207 P. 378. (c) Upon the record the evidence respecting the telephone conversation by Penrod, defendant's station agent at Brownwood, was wholly insufficient to establish notice to the train crew in charge of the freight train, or to defendant, of a dragging brake beam or brake rod. Strack v. Tel. Co., 216 Mo. 601. (2) Upon the record it was prejudicial error to admit the testimony of plaintiff's witness Kelch as to the telephone conversation Penrod, defendant's station agent at Brownwood, had respecting a dragging brake beam, and to overrule the motion to strike out that testimony. The evidence wholly fails to show that Penrod's information was communicated to an agent of defendant, but, on the contrary, does show that it was not. Hence, no notice of a dragging brake beam was brought home to defendant, much less to the train crew in charge of the freight train, who were the only agents or employees of defendant who could, under the circumstances, be charged with negligence. Strack v. Tel. Co., 216 Mo. 614. (3) Plaintiff's Instruction 1 is erroneous, and the giving of this instruction was prejudicial error. (a) It is so lengthy, involved and incomprehensible, consisting of only one sentence and covering five printed pages, that its effect was to confuse and mislead the jury, instead of to instruct them. Wolfe v. Payne, 294 Mo. 189 (dissenting opinion); Stid v. Railroad, 236 Mo. 382; Williams v. Ransom, 234 Mo. 55; Heman v. Hartman, 189 Mo. 20; Sidway v. Live Stock Co., 163 Mo. 342. (b) It is conflicting in its own terms and self-destructive, authorizing a finding of two inconsistent and incompatible acts as the proximate cause of the death of deceased, (a) the brake beam or brake rod catching in the frog, and (b) the failure of the train crew in charge of the freight train to inspect the train at Brownwood and Advance, in violation of a rule of defendant requiring that trainmen must know that the cars in their train are in good order before starting, and inspect them whenever they have an opportunity to do so. (c) It is not supported by the evidence. It is reversible error to give instructions which find no support in the evidence. Evans v. Railway, 106 Mo. 594; Paddock v. Somes, 102 Mo. 226. (d) It fails to give proper effect to the standard prescribed by the Federal Employers' Liability Act for determining the amount of damages, as interpreted by the Supreme Court of the United States. Chesapeake & O. Ry. v. Kelly, 241 U.S. 491; Chesapeake & O. Ry. v. Gainey, 241 U.S. 494. (4) It was error to refuse to give defendant's requested instructions which were intended to withdraw from the consideration of the jury assignments of negligence which were without support in the evidence. Chrismer v. Tel. Co., 194 Mo. 207. (5) It was error to refuse to give defendant's requested Instruction 16. Upon the record, the train crew having charge of the operation of the freight train were the only employees of defendant whose negligence could in anywise be made the predicate of liability in this case. The evidence wholly failed to show actual knowledge on the part of the freight train crew of the dragging brake beam, if it existed. Hence, if the jury should find that this train crew could not, by the exercise of ordinary care on their part, have discovered the fact that said brake beam was dragging, then they would not have been justified in finding for plaintiff. (6) It was error to refuse to give defendant's requested Instruction 18. The evidence having failed to show any negligence on the part of defendant proximately causing the death of deceased, and it not being contended that deceased was guilty of negligence which contributed to cause his death, this case is peculiarly one in which the "accident" instruction should have been given. (7) It was error to refuse to give defendant's requested Instructions 19 to 21. Since it is undisputed that Penrod, defendant's station agent at Brownwood, was off duty at the time the freight train passed defendant's depot at Brownwood, any information he may have had as to a dragging brake beam on said train was not the knowledge of or notice to defendant. Penrod had nothing whatever to do with the operation of the freight train; and, under the circumstances shown by the evidence, no legal duty rested on him to communicate his knowledge and information to the defendant, and defendant would not be liable for his failure to communicate such knowledge or information to defendant, or to a proper agent of defendant, or to communicate it properly. (8) The recovery for the benefit of Fannie Williams, widow and statutory beneficiary of Henry Williams, was personal to her, that is to say, the portion of the recovery representing compensation for her pecuniary loss sustained through the alleged wrongful death of Henry Williams was for her exclusive personal benefit. No other person, party or beneficiary had or has any interest in that portion of the recovery, or any right to the same. Since Fannie Williams, the widow, is now dead, this suit should abate pro tanto as to her interest therein or in the judgment appealed from. Sanders' Admx. v. Railroad, 111 F. 708; Martin v. Railroad, 151 U.S. 692; Mich. Cent. Ry. Co. v. Vreeland, 227 U.S. 70.

Charles P. Noell for respondent; Glen Mohler, of counsel.

(1) The demurrer to the evidence was properly overruled. (a) There was substantial evidence of negligence on the defendant's part, in that the crew on the freight train failed to discover the hanging brake beam by inspection at the station of Brownwood and Advance, and that the crew violated a rule of the company with respect to inspections of moving cars. There is also substantial evidence for the jury that defendant's agent, Penrod, knew that the brake beam was dragging in time to have prevented the accident. Under the Federal Employer's Liability Act, the carrier owes the duty to its employees to furnish a safe track over which the employee may operate its trains. Lock v. C. B. & Q Railroad, 219 S.W. 919; Hach v. I. M. & S. Ry. Co., 208 Mo. 601; Burtch v. Wabash Ry. Co., 236 S.W. 338; Miller v. Schaff, 228 S.W. 448; Schlueter v. Railroad Co., 296 S.W. 105; Woolsey v. Wabash Ry. Co., 274 S.W. 871. (2) The court did not err in admitting the testimony of plaintiff's witness Kelch, that he notified the station agent Penrod of the dragging brake beam, nor in admitting the evidence as to the telephone conversation of Penrod to the station at Advance. Meeker v. Union E. L. & P. Co., 279 Mo. 603; Guest v. H. & St. Joe Ry. Co., 77 Mo.App. 258. (3) Instruction 1 is not erroneous, but is a correct instruction under the pleadings and proof in this case. (a) The length of the instruction is not reversible error. The instruction submits three assignments of negligence. It contains the requirements with respect to the beneficiaries of the deceased and sets out the measure of damages and authorizes the jury to diminish the damages in case deceased was guilty of contributory negligence. The instruction is clear and not confusing, and the mere length should not condemn it. Ward v. Mo. Pac. Railroad Co., 277 S.W. 908; Kidd v. C. R. I. & P. Ry. Co., 274 S.W. 1079; Weller v. Railroad, 164 Mo. 180. (b) The instruction submits three assignments of negligence and it cannot be said that it is self-contradictory and self-destructive. Garard v. Coal & Coke Co., 207 Mo. 259. (c) There was substantial evidence to support each portion of the instruction. (d) The instruction gives proper effect to the pecuniary loss sustained by the beneficiaries, which is the measure of damages under the Federal Employer's Liability Act. Gill v. B. & O. Railroad Co., 302 Mo. 317. (4) The court did not err in refusing to give withdrawal instructions offered by defendant, since plaintiff abandoned the assignments of negligence sought to be withdrawn. Flach v. Ball, 240 S.W. 469; Johnson v. Wabash Ry. Co., 259 Mo. 534; Dietzman v. Screw Co., 254 S.W. 59; Berry v. Coal Co., 253 S.W. 456. (5) The court did not err in refusing to give appellant's Instruction 16, since by that instruction appellant sought to...