Valleroy v. Southern Ry. Co.

• Decision Date: 09 May 1966
• Docket Number: No. 2,No. 51466,51466,2
• Parties: Nathan A. VALLEROY, Respondent, v. SOUTHERN RAILWAY COMPANY, a corporation, Appellant, and Terminal Railroad Association of St. Louis, Defendant
• Court: Missouri Supreme Court

Page 553

403 S.W.2d 553

Nathan A. VALLEROY, Respondent, v. SOUTHERN RAILWAY COMPANY, a corporation, Appellant, and Terminal Railroad Association of St. Louis, Defendant.

No. 51466.

Supreme Court of Missouri, Division No. 2.

May 9, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 3, 1966.

Gray & Sommers, Charles E. Gray and Jack C. Terry, St. Louis, for plaintiff-respondent.

George E. Lee and Doris J. Banta, St. Louis, Carter, Bull, Baer, Presberg, Lee & Stanard, St. Louis, Roberts, Gundlach, Lee & Stubbs, East St. Louis, Ill., of counsel, for defendant-appellant, Southern Ry. Co.

STOCKARD, Commissioner.

Southern Railway Company, hereafter referred to as 'Southern' has appealed from a judgment entered against it in the amount of $60,000 for personal injuries sustained by plaintiff as the result of a train collision.

Plaintiff's petition was in two counts. The first purported to state a cause of action against Southern and against Terminal Railroad Association of St. Louis, hereafter referred to as 'Terminal,' under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The second count, alleged in the alternative, purported to state a cause of action only against Southern based on common law negligence. At the close of plaintiff's evidence the trial court directed a verdict for Terminal and for Southern on Count I. The case then proceeded to trial against Southern alone on Count II, and a mistrial was subsequently declared when the jury was unable to agree upon a verdict. Following plaintiff's motion for a new trial as to Terminal and Southern on Count I, the trial court denied the motion as to Southern and sustained it as to Terminal. The trial in which the judgment was entered from which this appeal was taken was against Terminal on Count I under the Federal Employers' Liability Act, and against Southern on Count II on common law negligence. The jury verdict was against plaintiff and in favor of Terminal on Count I, and in favor of plaintiff and against Southern on Count II in the amount of $85,000. The trial court thereafter sustained the motion of plaintiff for a new trial against Terminal, it overruled the motion of Southern for judgment notwithstanding the verdict, and it overruled Southern's motion for new trial on condition that plaintiff enter a remittitur in the amount of $25,000, which was done. Plaintiff's cause of action against Terminal was subsequently dismissed without prejudice. It is from this judgment against Southern in the amount of $60,000 that this appeal is taken.

The accident in which plaintiff was injured occurred between 12:30 and 1:00 o'clock in the morning of April 9, 1963, in an area known as the 6th Street yard of Southern in East St. Louis, Illinois. During switching operations by a Southern crew a boxcar owned by Seaboard Air Lines was 'kicked' onto track 3 so that when other switching work was completed the boxcar could be placed on a nearby track in a reversed position. Both the conductor and the brakeman of the Southern switching crew were aware of the fact that the boxcar had come to rest on track 3 in a position where it 'fouled' or did not clear what was referred to as the running track. Plaintiff was employed by Terminal as a fireman-engineer, and reported for work on the night of April 8 with other members of his crew at the switching and classification yard of Terminal. The first and usual course of business for this switching crew was to take a 'cut of cars' to the switching and classification yard of Southern. The line of track used for this operation was the running track. When Terminal engines were operating on this track in the Southern 6th Street yard they were governed by Southern's operating rules which required that engines were to be operated at a speed which would permit stopping within one half of the distance of visibility. The Terminal engine, with plaintiff acting as fireman, was pulling twenty-two cars and a caboose. The headlight was lit and it threw a beam of light 600 feet ahead. As the engine approached the place of the accident, the running track made a slight 'dog leg' curve to the right at a switch point, referred to as a 'frog,' and then curved back to the left to a second 'frog' 476 feet distant and which led into track 3 where the boxcar was standing. There was a dispute in the testimony as to when the engineer and plaintiff could and should have seen the boxcar fouling the running track. There was also a sharp dispute as to the speed at which the terminal engine with its twenty-two cars was being operated. In any event, the Terminal engine struck the boxcar and plaintiff was injured.

Southern's first point on this appeal is that Count II of the petition failed to state a cause of action for common law negligence against it because plaintiff affirmatively pleaded facts showing that the cause of action, if any, arose in Illinois, but he did not allege that he was in the exercise of due care for his own safety at the time of the accident.

Civil Rule 55.23(b), V.A.M.R., provides that 'In every action or proceeding wherein the pleading states that the law of another state is relied upon or contains allegations which show that the law of another state must be applied, the courts of this state shall take judicial notice of the public statutes and judicial decisions of said state. The court may inform itself of such laws in such manner as it may deem proper, and may call upon counsel to aid it in obtaining such information.' (Italics added.) The petition affirmatively alleged that the cause of action arose in the State of Illinois, and this fact was established by proof at the trial, and by reason of the provisions of the above quoted rule the substantive rights of the parties must be determined by the law of Illinois. Hall Motor Freight v. Montgomery, 357 Mo. 1188, 212 S.W.2d 748; Graham v. Illinois Terminal R. Co., Mo.App., 260 S.W.2d 846; Hughes Provision Co. v. La Mear Poultry & Egg Co., Mo.App., 242 S.W.2d 285. The trial court was and on appeal this court is required to take judicial notice of all statutes and judicial decisions of that state relevant to the issues presented.

In Redick v. M. B. Thomas Auto Sales, Inc., 364 Mo. 1174, 273 S.W.2d 228, this court reviewed Illinois cases and prior decisions of this court and held: 'It is also clear that under the law of Illinois it was incumbent upon plaintiff to allege and prove that he was in the exercise of ordinary care for his own safety at the time of the accident.' In this case plaintiff did not so plead in his petition. Southern filed a motion to dismiss Count II on the ground that it 'fails to state facts therein sufficient in law to entitle him to the relief prayed for therein and fails to state a cause of action against this defendant.' This motion was overruled. Whether or not the deficiency in the petition now asserted by Southern was expressly called to the attention of the trial court in oral argument on the motion is not revealed by the record. Southern's answer to Count II consisted of certain admissions concerning plaintiff's employment and the occurrence of the collision, and an allegation that plaintiff's injuries, if any, 'were directly and proximately caused and contributed to be caused by his own acts of negligence and carelessness in failing to exercise ordinary care for his own safety in that he failed to keep a careful lookout and watch ahead and laterally ahead for obstacles and obstructions situated on or near the track on which his engine was being operated and in failing to observe and comply with applicable yard rules.' No reply was filed, but by reason of Civil Rules 55.01 and 55.11, V.A.M.R., none was required to be filed to put in issue plaintiff's contributory negligence.

Southern contends that a petition which states no cause of action presents a jurisdictional defeat which may be raised at any stage of the case, and this ordinarily is true. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; Civil Rule 79.03, V.A.M.R. Plaintiff contends, on the other hand, that by reason of Southern's answer and Civil Rules 55.01 and 55.11 the issue of his freedom from contributory negligence or exercise of due care was made an issue in the case, and that the omission in the petition was thereby cured. A similar situation developed in Bean v. Ross Manufacturing Company, Mo., 344 S.W.2d 188 but there a reply was actually filed. It was held that 'the answer affirmatively put in issue the question of plaintiff's due care, and it seems that under the law of both Missouri Company, Mo., 344 S.W.2d 18, but there a in the issue, this cures the omission of an element from the petition.' By operation of Civil Rule 55.11 the averments in the answer that plaintiff was contributorily negligent, that is, that he was not in the exercise of due care, were 'taken as denied or avoided.' Therefore, under our procedural rules the issue of plaintiff's contributory neglibence was joined, whether or not a reply actually was filed. We conclude, as was done in the Bean case, that the omission of the essential element in the petition as to plaintiff's exercise of due care was cured. However, it was further stated in the Bean case that even though the error of omission in the petition was cured, plaintiff still 'had the burden of proving his freedom from contributory negligence, notwithstanding defendant's affirmative plea.' This presents Southern's second point in its brief; that the trial court erred in giving Instruction 5 over its objection by which the jury was told that 'it does not devolve upon plaintiff to disprove said claim (of contributory negligence), but rather the law casts the burden of proof in reference to said claim...