Talbert v. Chicago, Rock Island & Pacific Railroad Company

• Citation: 284 S.W. 499,314 Mo. 352
• Decision Date: 21 May 1926
• Docket Number: 24026
• Parties: ROLLIN E. TALBERT, Administrator of Estate of CLYDE N. LILLARD, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

284 S.W. 499

314 Mo. 352

ROLLIN E. TALBERT, Administrator of Estate of CLYDE N. LILLARD, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant

No. 24026

Supreme Court of Missouri

May 21, 1926

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Reversed and remanded.

Luther Burns, Guthrie & Conrad and Hale Houts for appellant.

(1) The court erred in failing to direct a verdict for defendant on account of the receivership. (a) The court was without jurisdiction and plaintiff was barred from recovery by reason of the receivership, plaintiff's failure to file and present his claim therein, and the final decree entered in said proceeding. Phipps v. Ry. Co., 284 F. 945; Chicago, R. I. & P. v. Lincoln Comm. Co., 284 F 955. (b) The failure of the court to recognize the receivership, and the decree therein rendered, was a failure to give full faith and credit under Sec. 1, Art. 4, Constitution of the United States. Supreme Lodge K. P. v. Meyer, 44 S.Ct. 432; Hancock Natl. Bank v. Tarul, 176 U.S. 640; Embry v. Palmer, 107 U.S. 3. (c) The judgment tends to deprive defendant of its property without due process of law, in violation of Article 5 of the Amendments to the Constitution of the United States, and Sec. 30, Art. 2, Constitution of Missouri. (2) Defendant's peremptory instructions should have been given for the reason that under the pleadings and the evidence deceased's injury was not due to actionable negligence on the part of defendant. (a) Defendant owed deceased no duty in regard to the maintenance of the roadbed at the point in question, and the condition of the roadbed was not the proximate cause of deceased's injury. (b) If deceased had no right to be in front of the moving car, if his presence there was due to his negligence, defendant was under no duty to anticipate it and the condition of the track was not the proximate cause of his injury. State ex rel. v. Ellison, 271 Mo. 472; Pankey v. Ry., 180 Mo.App. 197; Nelson v. Southern Ry., 246 U.S. 253. (c) Deceased had no right to be upon the track in front of the moving car. Because in going there he violated Section 2 of the Safety Appliance Act. Gilbert v. Railroad, 128 F. 535; C. & O. Ry. v. Charlton, 247 F. 34. Because he violated defendant's rule. Francis v. Railroad, 110 Mo. 395; Flack v. Ry. Co., 285 Mo. 49; Great Northern Ry. v. Wiles, 240 U.S. 444; McCalmont v. Ry., 273 F. 231; Patterson v. Director General, 105 S.E. 746. Because he unnecessarily placed himself in a position of peril. Pankey v. Ry. Co., 180 Mo.App. 185. (d) The negligence of deceased in going in front of the car was the sole proximate cause of his injury. Flack v. Railroad Co., 285 Mo. 49; McCalmont v. Ry., 273 F. 231; Patterson v. Director General, 105 S.E. 746. (3) The court erred in admitting testimony of the statement made by deceased after his injury. Prior v. Payne, 263 S.W. 985. (4) The court erred in giving plaintiff's instructions numbered 4 and 5. (a) To submit the issue of whether there was a violation of the Safety Appliance Act by defendant permitted a departure, since the allegation of such violation was first made in plaintiff's reply. Ham v. Ry., 149 Mo.App. 200; Mathieson v. Ry., 219 Mo. 542. (b) The submission of the issue was improper for the reason that there was no evidence that the coupler was out of alignment so as to prevent a coupling by impact. St. L. & S.W. Ry. Co. v. Bounds, 244 S.W. 1102; State ex rel. v. Cox, 298 Mo. 433; Yarnell v. Ry. Co., 113 Mo. 579; Guthrie v. Holmes, 272 Mo. 215.

Rosenberger, McVey & Freet for respondent.

(1) The opinion in division entirely overlooks the established rule that, after verdict, where no question has been raised at the trial, and exception saved, every reasonable intendment and inference is given to the petition and the evidence in favor of the judgment, and that all defects are cured by the verdict, save only that the petition does not state a cause of action. Bliss on Code Pleading, sec. 437; State ex rel. v. Webb, 177 Mo.App. 60; Oglesby v. Ry. Co., 150 Mo. 137; Lee v. Ry. Co., 195 Mo. 400; Dodge v. Coal Co., 115 Mo.App. 501; Powell v. Sherwood, 162 Mo. 605; Duerst v. St. Louis S. Co., 163 Mo. 607. (a) A general plea of negligence, whether in the petition or answer, is sufficient, without specifying the particular acts, unless objected to by motion or otherwise before trial. Geninazza v. Auction Co., 252 S.W. 417; Pattison on Code Pleading (2 Ed.) sec. 1026. The petition charged that "Lillard, in the discharge of his duty and in the exercise of ordinary care, stepped upon the roadbed and track for the purpose of adjusting and opening said coupling knuckle on said ballast car." This is sufficient even though a conclusion. (b) An issue raised on the statement of a legal conclusion, which presents the real point in controversy, will be regarded as sufficient after verdict. Jackson v. Ry. Co., 80 Mo. 147; Nicholson v. Ry. Co., 82 Mo. 75; Salmon Falls v. Leyser, 116 Mo. 51; Nabe v. Schuellman, 254 S.W. 731; Lockhart v. Moss, 53 Mo.App. 637; Slaughter v. Slaughter, 106 Mo.App. 104; Young v. Prentice, 105 Mo.App. 563; Geninazza v. Auction Co., 252 S.W. 417. (c) If a matter material to plaintiff's cause of action be not expressly averred in the petition, but be necessarily implied from what is expressly stated therein, the defect is cured after verdict. Hurst v. City of Ash Grove, 96 Mo. 168; State v. Gromer, 252 S.W. 705; Williams v. Ellis, 239 S.W. 157; Black v. Crowther, 74 Mo.App. 480; Davis v. Watson, 89 Mo.App. 27; Snyder v. Electric Co., 223 S.W. 911; Schubach v. McDonnell, 179 Mo. 163; Stivers v. Horne, 62 Mo. 473; Coulter v. Coulter, 124 Mo.App. 149; 31 Cyc. 714. (d) Even if there was a departure, it is too late to complain of it after verdict. Mortland v. Holton, 44 Mo. 58; Sec. 1550, R. S. 1919; Bank v. Assurance Co., 106 Mo.App. 114. (2) There is no presumption to be read into the petition, under the circumstances in this case, that the cars were equipped with automatic couplers. The presumption of right acting on the part of the railway company is rebutted by the presumption of due care and right acting on the part of the deceased. Yarnell v. Ry. Co., 113 Mo. 579; Buesching v. Gaslight Co., 73 Mo. 233. (3) The petition fairly presents a cause of action, based upon the Federal Employers' Liability Act (35 U.S. Stat. 65). The answer met the issue by pleading contributory negligence and assumption of risk, and the reply pleaded a violation of the Safety Appliance Act, so that "plaintiff had a right to show that the cars were not equipped with automatic couplers, not for the purpose of showing additional negligence, but for the purpose of showing that it was necessary for Lillard to go between the cars." (4) Both the Commissioner and appellant's counsel are grossly in error in stating that the plaintiff's own witness testified that the coupler was in perfect order, and in stating that the testimony of the company's witness to the same effect is uncontradicted, and in stating that there was no evidence tending to prove that the coupler would not act automatically by impact or that it was out of alignment. There is no presumption to be read under the circumstances in this case, that the cars were equipped with automatic couplers. (5) The question of proximate cause is not in the case on this appeal. Federal Employers' Liability Act, 35 U.S. Stat. 65; Annotation, 8 Fed. Stat. Ann. 1208; Spokane Ry. Co. v. Campbell, 241 U.S. 497; Grand Trunk Ry. Co. v. Lindsay, 201 F. 836; L. & N. Ry. Co. v. Weine, 202 F. 887. (6) Plaintiff's Instruction 4 was sound, and the inharmonious criticisms of the divisional opinion are not warranted. Defendant's Instruction R is vicious, in that it attempts to deny the right of the jury to base their verdict in any part, on the defective coupling apparatus.

OPINION

Higbee, C.

This is an action for damages for the killing of Clyde N. Lillard, a single man, aged twenty-three, brought in December, 1914, by the administrator of his estate, under the Federal Employers' Liability Act, for the benefit of his dependent mother, his only surviving parent. Lillard was a brakeman on a local freight train on a branch line of defendant's railway, and was killed on January 8, 1914, at Walter, Oklahoma, while engaged in interstate commerce, the company being an interstate commerce carrier. The case was tried to a jury at the January term, 1922, resulting in a verdict for plaintiff for $ 10,000 on the first count, and $ 2,000 on the second count. The first count charges negligence as follows:

"Said injury was sustained as follows: At the time he sustained said injury said Lillard was employed as a brakeman on defendant's north-bound local freight train No. 782 and was discharging his duties as such in the switching yards of defendant at the town of Walter, Oklahoma. Upon the arrival of said train at Walter on said day it became necessary for the train crew of said train of which said Lillard was a member, to do certain switching, that is, to set out certain cars, to pick up certain other cars and to rearrange the order of said cars in said train; to this end the cars were pulled out upon the main line beyond and north of a certain switch in said yards and then said cars were backed or 'kicked' south over and upon said switch so as to distribute said cars upon the various tracks leading from the main line; said operation of kicking was accomplished by detaching certain cars from the rest of the train and engine and by the engine then giving said cars a shove or push, causing them to run by their own momentum over said switch and upon the track desired; at the time in question certain cars had been kicked south from the main line over said switch and upon what was called the passing track and said cars...