Soderstrom v. Missouri Pac. R. Co.

• Decision Date: 29 April 1940
• Docket Number: No. 19517.,19517.
• Citation: 141 S.W.2d 73
• Parties: SODERSTROM v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

141 S.W.2d 73

SODERSTROM v. MISSOURI PAC. R. CO.

No. 19517.

Kansas City Court of Appeals. Missouri.

April 29, 1940.

Rehearing Denied May 20, 1940.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

Action by F. A. Soderstrom, administrator of the estate of Willis J. Bynum, deceased, against the Missouri Pacific Railroad Company, a corporation, for death of intestate while an employee of defendant engaged in interstate commerce. From a judgment for the plaintiff, defendant appeals.

Affirmed.

Thomas J. Cole, of St. Louis, L. J. Bishop, of Butler, and D. C. Chastain, of Kansas City, for appellant.

Clarence C. Chilcott, of Kansas City, and Will H. Hargus, of Harrisonville, for respondent.

SHAIN, Presiding Judge.

This is an action for damages for the death of William J. Bynum; said death is alleged as due to negligence on the part of defendant while deceased was an employee of defendant engaged in interstate commerce.

The death occurred in the State of Kansas and the suit is brought by the duly appointed administrator of deceased. The appointment of administrator was made by the Probate Court of Barton County, Kansas, and the suit is brought for the benefit of the estate of said Willis J. Bynum and his dependents, and it is alleged that he was duly appointed administrator, qualified and entered upon the discharge of his duties as such before the institution of this action.

This action was brought in the Circuit Court of Pettis County, Missouri, and was taken on a change of venue to Cass County, Missouri, and there tried in the circuit court of that county before a jury. There was a verdict for plaintiff and against defendant, and judgment was duly had and entered for plaintiff and against defendant, and from said judgment defendant has appealed.

We will continue to refer to respondent as plaintiff and to appellant as defendant.

We are at the outset confronted with a motion to dismiss defendant's appeal, based upon the alleged grounds that defendant's statement in its brief violates rule 16 of this court. Defendant's statement contains surplusage as to matters over which there appears to be no controversy, but by eliminating same we are able to grasp the issues of fact presented by the testimony and we, therefore, conclude that we would not be justified in dismissing the appeal for reason of violation of rule.

Plaintiff's action is in two counts. Count one alleges:

"* * * that deceased in the performance of his duty to defendant was assisting defendant in the operation and movement of a train of cars then being moved in interstate commerce by defendant when and where he was caused, by reason of the negligence and carelessness of defendant, its agents, servants, and employees, and also by reason of the defective equipment then being owned and used by defendant in interstate commerce, to so be caught and held between the couplers of two freight cars and crushed and mangled in and about his body to such an extent as to cause his death.

"5. Plaintiff further alleges that at said time and place defendant was moving certain railroad freight cars against other of defendant's railroad freight cars for the purpose of coupling onto and moving the same and that defendant carelessly, negligently and unlawfully caused and permitted the couplers of two of the cars which defendant and its train crew were attempting to couple to be at said time and place out of order, defective, unsafe and dangerous in that they failed to couple on impact; that thereupon it became necessary in order to make said coupling and in the performance of his duties to said defendant for deceased to go between the ends of said freight cars to adjust and work upon said coupler, and that while deceased was so between the ends of said cars defendant negligently and carelessly caused and permitted said cars to be moved and brought together catching and fatally crushing and injuring deceased as stated elsewhere herein and that defendant carelessly, negligently and unlawfully used said cars upon its said system of railroad without the same being equipped with couplers that would couple automatically upon impact and which could be coupled and uncoupled without necessity of said deceased going between the ends of said cars.

"6. Plaintiff further alleges that at said time said deceased's place of work was rendered highly dangerous and not reasonably safe by reason of the acts herein stated and that defendant knew or by the exercise of ordinary care could have known of all the facts, dangers and conditions in this petition alleged at the time said deceased was so injured and for a long time prior thereto and long enough prior to said time for defendant, by the exercise of ordinary care, to have removed or remedied said dangers or conditions or have kept said cars from being moved or to have warned deceased of any moving of them before said deceased was injured and thereby could have prevented his injury and death notwithstanding which defendant ordered and directed deceased to do said work in the manner herein described and to go between said cars and with further negligence caused and permitted and signalled and ordered said cars to be moved against one another and to come together while said deceased was between said cars and without giving any sign or signal for any movement of said cars and failed to warn or notify said deceased of any movement of said cars.

"7. Plaintiff further alleges that at said time and place said deceased was in a place and position of imminent danger and peril from the approach or movement of any of said cars and oblivious thereof until too late by the exercise of ordinary care to extricate himself therefrom and escape injury and that defendant knew or by the exercise of ordinary care could and would have known of all of the aforesaid facts in time thereafter by the exercise of ordinary care to have stopped said approaching cars or slackened the speed thereof or warned deceased of the approach and movements thereof all in time by the exercise of ordinary care to have prevented his injury and death, all of which defendant negligently and carelessly failed and omitted to do.

"8. Plaintiff further alleges that said deceased, Willis J. Bynum, left no surviving wife, child or parent and left surviving him next of kin dependents who were minors and dependent upon deceased for maintenance and support, as follows: Janis Evelyn, Cecil Eugene and Martha Frances Vaughn, and by reason of his death, in the manner aforesaid, said dependents have been and will be deprived of their maintenance and support."

It is further stated that deceased left no surviving wife, child or parent, but alleges that he did leave Janis Evelyn, Cecil Eugene and Martha Frances Vaughn who were minors and next of kin and dependent upon deceased. On the first count, damage is asked in the sum of $75,000.

Plaintiff's second count embraces all allegations, as set forth above, and asks damages in the sum of $25,000 for physical pain and mental anguish suffered by deceased after injury and prior to his death.

The record discloses that there were interposed motions and a cross bill by defendant. However, defendant joined issue by answer, to which plaintiff filed reply, and on the issues so made up trial was had.

Defendant by answer makes admissions and general denial as follows: "Comes now the defendant and for its amended answer to the second amended petition filed in this case admits that Willis J. Bynum was killed on the 25th day of November, 1932, while in the employ of this defendant, and denies each and every other allegation in said petition and each count thereof contained."

The defendant further answering alleges a compromise settlement entered into by it with the alleged dependents of Willis J. Bynum, deceased, which said compromise was perfected by suit filed, judgment rendered and satisfaction made and entered of record in the Circuit Court of Clay County, Arkansas, where the alleged dependents resided.

Said aforesaid suit was filed and proceeding therein had after appointment of administrator of estate of Bynum, deceased, and after institution of this suit.

Defendant, in its answer, further alleged that Bynum, deceased, had secured his employment with defendant by misrepresentation of his age, which greatly impaired him in performance of his duty as brakeman, and that said inability contributed to the injury. It was further alleged that employment was obtained by fraud and that therefore he did not in fact occupy position of employee of defendant. The aforesaid point is not followed up in defendant's brief.

Defendant further alleged in its answer that Bynum, deceased, received his injury from falling off of a car.

"Further answering, this defendant avers that even if the deceased received injury in the manner claimed by the plaintiff that the same was occasioned and was the result of the deceased's own negligence and not due to any negligence on the part of the defendant.

"Further answering, this defendant avers that if the coupling on the car upon which the deceased was working failed to couple by impact, which the defendant denies, that the deceased nevertheless knew of such fact and if the deceased thereafter went between the said cars to adjust the said couplers, which the defendant denies, that he did so unnecessarily and in violation of both the operating and safety rules of the defendant, of which he had full knowledge, and that if the said couplers failed to work upon impact the same was the result of accident, of which this defendant had no notice, and was because, if at all, the said couplers had become closed without fault or knowledge on the part of the defendant and, if so, the said coupler was provided with a lever at the outer edge of the car by which the coupler could be opened without the deceased going between the cars or taking hold or approaching near the said coupler and the deceased, in attempting to...