Smith v. Thompson

• Decision Date: 13 March 1942
• Docket Number: 37239,37240
• Citation: 161 S.W.2d 232,349 Mo. 396
• Parties: Anna Smith, Administratrix of the Estate of J. D. Smith, Deceased, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, and Berryman Henwood, Trustee of the St. Louis Southwestern Railway Company, a Corporation, Appellants
• Court: Missouri Supreme Court

161 S.W.2d 232

349 Mo. 396

Anna Smith, Administratrix of the Estate of J. D. Smith, Deceased, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation, and Berryman Henwood, Trustee of the St. Louis Southwestern Railway Company, a Corporation, Appellants

Nos. 37239, 37240

Supreme Court of Missouri

March 13, 1942

Rehearing Denied May 5, 1942.

Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

Thos. J. Cole and McReynolds & Flanigan for appellant Guy A. Thompson.

(1) The court erred in submitting this case to the jury for the reasons: (a) There was no proof that the defendant, Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, was guilty of any negligence. Wheelock v. Freiwald, 66 F.2d 694; Rowe v. M., K. & T. R. Co., 100 S.W.2d 480; Darby v. Henwood, 145 S.W.2d 376; Sec. 5274, R. S. 1939; Barry v. Kansas City Pub. Serv. Co., 108 S.W.2d 98. (b) There was no proof that any negligence on the part of the defendant, Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, was the proximate cause of the deceased's injuries. Atchison, T. & S. F. Ry. Co. v. Toops, 50 S.Ct. 281; Evans v. Massman Const. Co., 122 S.W.2d 924; Sweeney v. Wabash Ry. Co., 80 S.W.2d 216; Darby v. Henwood, 145 S.W.2d 376; Brainard v. Mo. Pac. R. Co., 5 S.W.2d 15; Sexton v. Met. St. Ry. Co., 149 S.W. 21; Markley v. Kansas City So. Ry. Co., 90 S.W.2d 409; Northwestern Pac. R. Co. v. Bobo, 54 S.Ct. 263. (c) The deceased assumed the risk as a matter of law. Arnold v. Scandrett, 131 S.W.2d 542; Cincinnati, N. O. & T. P. Ry. Co. v. Brown, 12 S.W.2d 381; Mullen v. Lowden, 124 S.W.2d 1152; Grange v. Chicago & E. I. Ry. Co., 69 S.W.2d 955. (2) The court erred in admitting in evidence and permitting counsel for respondent, over the objection of the defendants, to read to the jury from a paper purporting to be the deposition of J. E. Nichols, unsigned by J. E. Nichols, and whose signature thereto had not been waived. Secs. 1936, 1944, R. S. 1939; Powell v. Hunter, 165 S.W. 1009; Brown v. Lafayette Land & Farming Co., 229 S.W. 242.

Robert W. McElhinney, Charles L. Henson and James E. Sater for appellant Berryman Henwood.

(1) The peremptory instruction offered by each defendant at the close of the testimony should have been given. Proximate cause was not shown. Carnahan v. M.-K.-T. Railroad Co., 88 S.W.2d 1027, 338 Mo. 23; Cain v. Humes-Deal Co., 49 S.W. 90. (2) The deceased assumed the risk. Martin v. Wabash Ry. Co., 30 S.W.2d 735, 325 Mo. 1107; Carfelo v. Delaware Railroad Co., 54 F.2d 475; Pennsylvania Railroad Co. v. Lutton, 29 F.2d 689; New York Central v. McDougall, 15 F. 283; Gilmer v. Yazoo Railroad Co., 4 F.2d 963; Toledo & St. Louis Western Railroad Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; Baldt v. Pennsylvania Railroad Co., 245 U.S. 441, 62 L.Ed. 385; Aerkfetz v. Humphreys, 145 U.S. 418.

Edward V. Sweeney and Sizer & Myres for respondent.

(1) The plaintiff established a prima facie case of negligence against the appellant, because: (a) The defendants stood on their demurrers at the close of the plaintiff's case and offered no evidence on their behalf. This court, in passing on the action of the trial court overruling the demurrers, must accept all the plaintiff's evidence as true, and must accord her all the most favorable inferences which can reasonably be drawn therefrom. Rowe v. M., K. & T. R. Co., 339 Mo. 1145, 100 S.W.2d 480; James H. Forbes Tea & Coffee Co. v. Baltimore Bank, 345 Mo. 1151, 139 S.W.2d 507; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Brock v. Mobile & O. R. Co., 287 U.S. 638, 77 L.Ed. 552, 53 S.Ct. 87, 330 Mo. 918, 51 S.W.2d 100; Maginnis v. Mo. Pac. R. Co., 268 Mo. 667, 187 S.W. 1165; Stevens v. Meadows, 340 Mo. 252, 100 S.W.2d 281. (b) The appellant owed the deceased the duty not only to promulgate reasonable rules for his protection, but to see that the rules thus adopted were enforced. Kelso v. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527; Case v. St. L.-San Francisco R. Co., 282 U.S. 893, 75 L.Ed. 787, 51 S.Ct. 107, 30 S.W.2d 1069; Hawkins v. St. L.-San Francisco R. Co., 189 Mo.App. 201, 174 S.W. 129; Torantolla v. K. C. R. Co., 226 S.W. 617. (c) There is ample evidence in the record to show that the appellant violated its transportation Rule 17, made and promulgated for the safety of its employees, and the violation thereof by the appellant constituted negligence under all the facts and circumstances disclosed by the evidence. Weed v. American Car & Foundry Co., 322 Mo. 137, 14 S.W.2d 652; Hughes v. Miss. River & B. T. Ry. Co., 309 Mo. 560, 274 S.W. 703; Rinard v. Omaha, K. C. & E. Ry. Co., 164 Mo. 270, 64 S.W. 124; Kurn v. Standfield, 111 F.2d 469; Martin v. Wabash R. Co., 325 Mo. 1107, 30 S.W.2d 735; Hill v. K. C. Southern R. Co., 182 Mo.App. 380, 170 S.W. 432; Lewis v. Wabash R. Co., 142 Mo.App. 585, 121 S.W. 1090. (d) The blinding headlight on the Missouri Pacific engine prevented the deceased from seeing the backing engine and cut of cars of the Cotton Belt creeping up behind him and thereby directly and proximately, in whole or in part, caused his fatal injuries. Kimberling v. Wabash R. Co., 337 Mo. 702, 85 S.W.2d 736; Coble v. St. L.-San Francisco R. Co., 38 S.W.2d 1031; Davis v. Buck's Stove & Range Co., 329 Mo. 1177, 49 S.W.2d 47; Diehl v. A. P. Green Firebrick Co., 299 Mo. 641, 253 S.W. 984; Northern v. Chesapeake & Gulf Fisheries Co., 320 Mo. 1011, 8 S.W.2d 982; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924. (e) Since the appellant failed to call any of his employees to testify whether the headlight on the engine was on bright or dim, it is presumed that they, if called, would have testified unfavorably to this defendant. Kame v. St. L.-San Francisco R. Co., 254 Mo. 175, 162 S.W. 240; McCord v. Schaff, 279 Mo. 558, 216 S.W. 320; Alexander v. St. L.-San Francisco R. Co., 327 Mo. 1012, 38 S.W.2d 1023; Sullivan v. Gideon & N. I. R. Co., 308 Mo. 48, 271 S.W. 983. (f) Deceased was killed as a result of the negligence in whole or in part of his coemployees. Therefore, he did not assume the risk. Title 45, Sec. 54, U.S.C. A., as amended August 11, 1939, Chap. 685, Sec. 1, 53 Statutes 1404; Reed v. Director General of Railroads, 258 U.S. 92, 66 L.Ed. 480, 42 S.Ct. 191; Gately v. St. L.-San Francisco R. Co., 332 Mo. 1, 56 S.W.2d 54; Chicago, B. & Q. R. Co. v. Kelley, 74 F.2d 80; Great Northern R. Co. v. Nelson, 90 F.2d 184; Johnson v. C. & E. I. R. Co., 334 Mo. 22, 64 S.W.2d 674; Evans v. Atchison, T. & S. Fe R. Co., 345 Mo. 147, 131 S.W.2d 604; Owen v. Kurn, 148 S.W.2d 519. (2) The trial court committed no error in allowing plaintiff to introduce the deposition of J. E. Nichols. Broome County Farmer's Fire Relief Assn. v. New York State Elec. & Gas Corp., 264 N.Y. 614, 191 N.E. 591; Mobley v. Hamit, Vol. 1, Ct. of App. Ky., Marshall's Rep. 439; Celluloid Mfg. Co. v. Arlington Mfg. Co., 47 F. 4; Wood & Wood v. The Steamboat Fleetwood, 19 Mo. 529; Lowell's Estate v. Arnett, 90 P.2d 957; Colvert Ice Cream & Dairy Products Co. v. Citrus Products Co., 65 P.2d 455; O'Leary v. Schoenfeld, 152 N.W. 679; Lambert v. Security Mut. Fire Ins. Co., 58 Pa.Super. Ct. 624.

Bohling, C. Westhues and Barrettm CC., concur.

OPINION

BOHLING

Anna Smith, administratrix of the estate of J. D. Smith, deceased (hereinafter designated plaintiff), recovered a judgment in the total sum of $ 20,000 against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, a corporation (hereinafter designated Missouri Pacific), and Berryman Henwood, trustee of the St. Louis, Southwestern Railway Company, a corporation (hereinafter designated Cotton Belt). The defendants appealed.

J. D. Smith, plaintiff's husband, was a swing brakeman for the Missouri Pacific and operated between Paragould, Arkansas (his home), and Malden, Missouri. On March 27, 1936, having completed his run to Malden, he was waiting to return to Paragould on the next Missouri Pacific freight train south when he was struck by a cut of cars of the Cotton Belt in the yards at Malden. He died the following day. Plaintiff's petition was in three counts. Counts one and two were under the Federal Employers' Liability Act (U.S.C. A., Tit. 45, Ch. 2); the first being for damages to plaintiff as the surviving widow and the second was for pain and suffering on the part of plaintiff's husband. The third count, in the alternative, was for damages under the Missouri death statute (Sec. 3652, R. S. 1939, Mo. Stat. Ann., p. 3353, sec. 3262). Plaintiff suffered an involuntary nonsuit with leave as to the third count. A nine juror verdict was returned for $ 15,000 on the first count and $ 5,000 on the second count.

I. Plaintiff seeks the dismissal of the appeal of the Cotton Belt because of alleged violations of our Rule 15.

Plaintiff complains of the fact that the Cotton Belt's brief states on page 13 instead of preliminary to the statement of the facts that we have jurisdiction because the judgment for plaintiff was in excess of $ 7,500. We think the objection hypercritical. The requirement was promulgated that counsel give thought to the question of appellate jurisdiction to avoid unnecessary delay resulting from cases submitted being transferred for want of appellate jurisdiction here. Hicks v. La Plant (Mo.), 145 S.W.2d 142[2]. If it be better form to make the jurisdictional statement prior to the "statement of the facts," its statement at the beginning of the "brief" proper is of insufficient moment to the dispatch of appellate work to call for the drastic action of dismissing the appeal.

The Cotton Belt's brief may not measure up to the formalities required by our Rule 15 with respect to the statement, in numerical order, of the points relied on, with citation of authority. As hereinafter...