Stottle v. Railway Co.

• Decision Date: 02 March 1929
• Docket Number: No. 27245.,27245.
• Citation: 18 S.W.2d 433
• Court: Missouri Supreme Court
• Parties: BURR S. STOTTLE, Administrator of Estate of STEVE MARTIN, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

18 S.W.2d 433

BURR S. STOTTLE, Administrator of Estate of STEVE MARTIN, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

No. 27245.

Supreme Court of Missouri, Division No. 2.

March 2, 1929.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

AFFIRMED.

Luther Burns, Henry S. Conrad, L.E. Durham and Hale Houts for appellant.

(1) The court erred in not directing a verdict for the defendant. (a) Plaintiff abandoned and there was no evidence to support the allegations of plaintiff's petition that the defendant was negligent in failing to warn deceased of the switching movement and that defendant was negligent in failing to avert the accident after it knew or by ordinary care could have known of deceased's peril. Railroad v. Allen, 48 Sup. Ct. Rep. 217; Hoch v. Ry. Co., 315 Mo. 1199; Degonia v. Railroad, 224 Mo. 591; Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257; Hammontree v. Payne, 296 Mo. 497; Aerkfetz v. Humphreys, 145 U.S. 418; Boldt v. Railroad, 245 U.S. 445; C.M. & St. P. Ry. v. Coogan, 271 U.S. 472; Railroad v. Wells, 48 Sup. Ct. Rep. 151. (b) Plaintiff was not entitled to recover because of a defective coupler. If deceased at the time of his injury was engaged in effecting a coupling of the two cars, he was not at such time engaged or employed in interstate commerce. Schueren v. Railway, 192 S.W. 965; Poindexter v. Railway, 4 S.W. (2d) 1065; Illinois Central Railroad v. Behrens, 233 U.S. 478; Pedersen v. Railroad, 229 U.S. 151; Railroad v. Harrington, 241 U.S. 177; Railroad v. Barlow, 244 U.S. 183; Griggsby v. Railway, 3 Fed. (2d) 990, certiorari denied 268 U.S. 704; Shauberger v. Railroad, 25 Fed. (2d) 297; Schauffele v. Director General, 276 Fed. 115, certiorari denied 257 U.S. 661; Railroad v. Welsh, 242 U.S. 303; Murray v. Railroad, 107 Atl. 21; Mayor v. Railway, 26 Fed. (2d) 905, affirmed 26 Fed. (2d) 907. Assuming there was evidence in the support of the allegation that one or both couplers were defective, and assuming that deceased was engaged between the cars in preparing for or making a coupling, still plaintiff was not entitled to recover because in such a case deceased was not acting within the scope of his duties, and failure of the defendant to comply with the safety appliance act with respect to the couplers was not the proximate cause of his death. Trust Co. v. Railroad, 5 S.W. (2d) 368; McCalmont v. Railroad, 283 Fed. 736; Railroad v. Conarty, 238 U.S. 243; Railroad v. Layton, 242 U.S. 617; Lang v. Railroad, 255 U.S. 455; Rittenhouse v. Railroad, 299 Mo. 199; Great Northern Ry. v. Wiles, 240 U.S. 444; Johnson v. Railroad, 8 S.W. (2d) 891; Flack v. Railway, 280 Mo. 50; Davis v. Kenney, 266 U.S. 147; Talbert v. Railway, 314 Mo. 371; Freese v. Railroad, 290 Mo. 501, affirmed 263 U.S. 1; Phillips v. Rail road, 283 Fed. 381; Nelson v. Railway, 246 U.S. 253; State ex rel v. Ellison, 271 Mo. 472; Pankey v. Railway, 180 Mo. 197. The evidence was insufficient to warrant recovery on the theory that the couplers on the cars in question were not in compliance with the Safety Appliance Act. Degonia v. Railroad, 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 653; Bonnarens v. Railway, 309 Mo. 76; Brainard v. Railroad, 5 S.W. (2d) 18; Midland Valley Ry. v. Fulghan, 181 Fed. 94; St. Louis-S.F. Ry. Co. v. Mills, 271 U.S. 347; Talbert v. Railway, 314 Mo. 368; Railway v. Charlton, 247 Fed. 34; Weekly v. Railroad, 4 Fed. (2d) 312; Yarnell v. Railway, 113 Mo. 579; Looney v. Railroad, 200 U.S. 488; Cook v. Railroad, 162 Mo. 659; Talbert v. Railway, 314 Mo. 371; Ry. Co. v. Coogan, 271 U.S. 472. (2) The court erred in giving plaintiff's Instruction P-1. (a) The instruction submitted a ground of recovery not embraced within the petition. Degonia v. Railroad, 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 653; Bonnarens v. Railway, 309 Mo. 76; Brainard v. Railway, 5 S.W. (2d) 18. (b) The instruction failed to submit any facts warranting the conclusion that deceased was engaged in interstate commerce. Brock v. Ry. Co., 305 Mo. 525. (3) The court erred in giving plaintiff's Instruction P-3. Trust Co. v. Davis, 288 Mo. 585; Kidd v. Railway, 310 Mo. 47; Railroad Co. v. Putnam, 118 U.S. 545; Railway v. Kelley, 245 U.S. 485; Lorton v. Railway, 306 Mo. 146; McCord v. Schall, 279 Mo. 566; Morton v. Construction Co., 280 Mo. 379; McIntyre v. Railway, 286 Mo. 258; Brown v. Railway, 315 Mo. 422; Kidd v. Railway, 310 Mo. 1. (4) The verdict was excessive. Brown v. Ry. Co., 315 Mo. 422; Kidd v. Railway, 310 Mo. 1.

Atwood, Wickersham, Hill & Chilcott and Elon J. Levis for respondent.

(1) Plaintiff's petition alleged and her proof unquestionably established a violation of both the Federal Employers' Liability Act and the Federal Safety Appliance Act and amendments thereto. Therefore, the defenses of contributory negligence and assumption of risk could not be set up to defeat plaintiff's recovery. (a) Lorton v. Mo. Pac., 306 Mo. 125; Gill v. Railroad, 302 Mo. 317; Wolfe v. Payne, 294 Mo. 170; affirmed in Davis v. Wolfe, 263 U.S. 239; Callicotte v. Ry. Co., 274 Mo. 689; Jordon v. Ry. Co., 271 S.W. 1000; Railroad v. Schendel, 267 U.S. 287; Railroad v. Taylor, 210 U.S. 295; Railroad v. United States, 220 U.S. 559; Railroad v. Conarty, 238 U.S. 243; Railroad v. Rigsby, 241 U.S. 33; Railroad v. Gotschall, 244 U.S. 66; Railroad v. Donat, 239 U.S. 50; Railroad v. Parker, 242 U.S. 13; Lang v. Railroad, 255 U.S. 455; Davis v. Wolfe, 263 U.S. 239; Railroad v. Layton, 243 U.S. 617. (b) The evidence is conclusive that both knuckles were closed on the cars standing uncoupled on track 7. An eyewitness testified that Martin pulled the pin-lifter two or three times on one of the cars before going between the two. This evidence was sufficient to justify the jury's finding that the coupling was defective. Sacre v. Ry. Co., 260 S.W. 87; Foster v. Davis, 252 S.W. 433; Ry. Co. v. Brown, 229 U.S. 317; Railway Co. v. Campbell, 241 U.S. 497; Railway Co. v. Hosey, 247 S.W. (Tex.) 327; Railroad Co. v. Wagner, 241 U.S. 476; Lovett v. Terml. Ry. Co., 316 Mo. 1246. (c) The deceased was acting within the scope of his employment and engaged in interstate commerce when he attempted to effect the coupling between the two cars standing on track 7. The point to the contrary made by appellant is without merit. Laughlin v. Railroad, 248 S.W. 952; Railroad v. Carr, 238 U.S. 261; Ry. Co. v. United States, 222 U.S. 20; Foster v. Davis, 252 S.W. 433; Ry. Co. v. Brown, 229 U.S. 317; Hood v. Ry. Co., 259 S.W. 471. (d) The evidence clearly showed plaintiff's deceased husband was within the scope of his employment when he met his tragic death. Moreover, defendant having pleaded contributory negligence and assumption of risk is estopped from making the defense that Martin was not acting within the scope of his employment when he received his fatal injuries. Grott v. Johnson, 2 S.W. (2d) 789; Healy v. Railroad, 205 N.W. 260; Hatch v. Term. Co., 125 Me. 96; Ry. Co. v. Berman, 295 Fed. 658; Lierness v. Railroad, 216 N.Y. Supp. 656. (2) Plaintiff's Instruction P-1 was correct. It followed the allegations of the petition and required the jury to find from the evidence that plaintiff's deceased husband was engaged in carrying on interstate commerce in order to entitle plaintiff to recovery. Lorton v. Railroad, 306 Mo. 125; Ry. Co. v. Kelly, 241 U.S. 483. (3) Plaintiff's Instruction P-3 on the measure of damages was in exact accord with the decisions of both the State and Federal courts as to the proper measure of damages in a case of this kind. Lorton v. Ry. Co. 306 Mo. 125; C. & O.R. Co. v. Kelly, 241 U.S. 483; Gill v. Railroad Co., 302 Mo. 317. (4) The verdict was not excessive. The evidence justifies the finding of the jury in accordance with many decisions of this State and the decisions of other states and the Federal courts. Oglesby v. Railroad Co., 1 S.W. (2d) 180; Porterfield v. Terminal Assn., 5 S.W. (2d) 452; Lorton v. Ry. Co., 306 Mo. 125; Gill v. Railroad Co., 302 Mo. 317; McIntyre v. Ry. Co., 286 Mo. 234; Shaw v. Railroad, 314 Mo. 123; Kidd v. Railroad, 310 Mo. 1; Crecelius v. Railroad, 284 Mo. 26; Stotz v. Gen. Railroad, 185 N.Y. Supp. 73; Railroad v. Otos, 239 U.S. 349; Railway v. Bennett, 233 U.S. 80.

WHITE, J.

Steve Martin was killed about August 18, 1923, while employed by defendant company in switching cars in defendant's yards in Kansas City, Kansas. He left a wife and two small children. Burr S. Stottle, his administrator, filed this suit for damages on account of that death, alleging among other things that Martin and defendant were engaged in interstate commerce at the time of his death and that it was caused by violation of the Safety Appliance Act. Other allegations of negligence appear in the petition.

Defendant in its answer, after a general denial, pleaded assumption of risk and contributory negligence.

On a trial in the Circuit Court of Jackson County, May 8, 1925, a jury returned a verdict for plaintiff in the sum of twenty-eight thousand dollars. The court rendered judgment on that verdict, and the defendant appealed.

Martin at the time was a member of a switching crew in the employ of the defendant, and was engaged in "breaking up" a "transfer" of cars that had been brought from the yards of the M.K. & T. Railway Company (called the Katy), in Rosedale, Kansas. The string of cars, called a "drag," was brought from the Katy yards in Kansas across the state line into Missouri, and then into what was called the transfer yards, in Kansas, where the accident occurred. The drag was brought along the "lead" track which ran from the southwest to the northeast. From this lead nine spur tracks branched off from the south side and ran nearly due east. The seven cars composing the drag brought in from the Katy yard appeared in a list in the possession of the foreman who testified that a like list was in possession of Martin, the deceased. The list was as follows:

                   x
                   3
                   8
                   3
                   7
                   9
                   x
                

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