Voorhees v. Railroad Co.

• Decision Date: 03 July 1930
• Docket Number: No. 29565.,29565.
• Citation: 30 S.W.2d 22
• Parties: FRANK M. VOORHEES, Administrator, and DORA VOORHEES, Administratrix, of Estate of OTTO VOORHEES, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

30 S.W.2d 22

FRANK M. VOORHEES, Administrator, and DORA VOORHEES, Administratrix, of Estate of OTTO VOORHEES, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.

No. 29565.

Supreme Court of Missouri. Division Two.

July 3, 1930.

Appeal from Grundy Circuit Court. — Hon. L.B. Woods, Judge.

REVERSED.

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's right to recover is to be determined solely upon a consideration of the question of whether the evidence was sufficient to authorize a verdict upon the theory that the engineer actually discovered and identified deceased as a human being in a position of peril in time thereafter by the exercise of ordinary care to have stopped the train and avoided running over deceased, and upon this question the decision and opinion of the Court of Appeals is not binding upon this court. Henson v. Railway, 301 Mo. 426, 7 S.W. (2d) 743; Parker v. Ry., 297 S.W. 146; Chesapeake & O. Ry. Co. v. Nixon, 46 S. Ct. 495; Hammontree v. Payne, 296 Mo. 497; State ex rel. v. Ellison, 271 Mo. 474; Talbert v. Railroad, 284 S.W. 503; Great Northern Ry. v. Wiles, 240 U.S. 444, 36 S. Ct. 406; Newport News & M.V. Co. v. Howe, 52 Fed. 362; Sears v. Ry., 266 S.W. 403; N.Y., N.H. & H. Railroad v. Kelly, 93 Fed. 745; L.N.O. & T. Ry. Co. v. Williams, 12 So. (Miss.) 957; Tucker's Admr. v. Railroad, 24 S.E. (Va.) 229; Ry. Co. v. Prewett, 59 Kan. 734; Murch v. Railroad, 29 N.Y. Supp. 490; Manley v. Railroad, 94 N.C. 655; Burg v. Ry., 57 N.W. (Ia.), l.c. 684; Goodman's Admr. v. Railroad, 77 S.W. (Ky.) 174; L. & N.R. v. Ison's Admr., 288 S.W. (Ky.) 668; Keele v. Santa Fe Ry., 258 Mo. 62; DeFord v. Johnson, 177 S.W. 580; Murphy v. Barron, 286 Mo. 390; Davidson v. Railway, 301 Mo. 79; Georgia Ry. v. Decatur, 43 Sup. Ct. Rep. 615; Washington ex rel. v. Coats-Fordney Co., 37 Sup. Ct. Rep. 297; Davis v. O'Hara, 45 Sup. Ct. Rep. 107. (b) There was no evidence sufficient to warrant the court in submitting the case to the jury upon the theory that the engineer actually discovered and identified deceased as a human being in a position of peril. Indeed, it conclusively appears as a matter of law from the record that the engineer did not so discover and identify deceased. Newport News & M.V. Co. v. Howe, 52 Fed. 362; Sears v. Railway, 266 S.W. (Tex.) 400; N.Y., N.H. & H.R. Ry. Co. v. Kelly, 93 Fed. 748; Goodwin, Admr., v. Railroad, 77 S.E. (Ky.) 174; L. & N. Railroad v. Ison's Admr., 288 S.W. 688; L.N.O. & T. Ry. Co. v. Williams, 12 So. (Miss.) 957; Tucker's Admr. v. Railroad, 24 S.E. (Va.) 229; Railway v. Joyner, Admr., 23 S.E. (Ky.) 773; Soles v. Ry. Co., 114 S.E. 509; Mockowik v. Railroad, 196 Mo. 517; Rashall v. Railroad, 249 Mo. 509; McCoy v. Wabash, 203 S.W. 249; Chicago M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; Gulf, M. & N. Railroad Co. v. Wells, 48 S. Ct. Rep. 151, 275 U.S. 455; Patton v. Texas & Pac. Ry. Co., 179 U.S. 663; Toledo S.L. & W. Railroad v. Allen, 276 U.S. 173, 48 S. Ct. Rep. 218; Atlantic Coast Line Railroad v. Driggers, 49 S. Ct. Rep. 490; Great Northern Ry. Co. v. Wyles, 246 U.S. 444. (2) The court erred in giving plaintiff's instruction 3. It was unsupported by the evidence. Cases cited 1 (b) supra. (3) The court erred in giving plaintiff's Instruction 5. (a) The instruction is a comment upon the evidence and an expression of opinion by the court that Engineer Graham had actual knowledge of the presence of a human being in a position of peril in time to have avoided the accident. Beave v. Transit Co., 212 Mo. 331; Davidson v. Transit Co., 211 Mo. 361; Thompson v. Livery Co., 214 Mo. 490. (b) The instruction is also erroneous in that it permitted the jury to consider the duty of the engineer and find that he had knowledge and information which he "should have known as a fact." Cases cited 1 (a) supra.

E.M. Harber and L.A. Warden for respondents.

(1) Appellant waived its right to demurrer, and is now estopped to except to the overruling of demurrer at the close of the plaintiff's case, for the reason that it introduced evidence and proceeded with the trial. Highley v. Noell, 51 Mo. 145; Ware v. Johnson, 55 Mo. 500; Union Bank v. Deldine, 75 Mo. 380; Spillane v. Ry. Co., 111 Mo. 555; Stone v. McConnell, 187 S.W. 884; Wolz v. Venard, 253 Mo. 67. (2) We accept appellant's challenge that the "right to recover is to be determined solely upon a consideration of the question of whether the evidence was sufficient to authorize a verdict upon the theory that the engineer actually discovered and identified the deceased as a human being in a position of peril in time thereafter, by the exercise of ordinary care, to have stopped the train and avoided running over deceased" with the additional condition that actual knowledge, however, may be imputed and charged from surrounding facts and circumstances so as to hold one to have known as a fact that which he could have discovered and learned by the exercise of ordinary care. Vandeventer v. Ry. Co., 177 S.W. (Mo.) 838; Rittenhouse v. Ry. Co., 252 S.W. (Mo.) 945; Paul v. Ry. Co., 275 S.W. 575. The plaintiff having made a prima-facie case, then, regardless of defendant's evidence, the case could not then or thereafter be taken from the jury. Barz v. Yeast Co., 271 S.W. 361; Peterson v. Ry. Co., 265 Mo. 462, 178 S.W. 182. Defendant's plea of contributory negligence on part of deceased admitted negligence on part of defendant. There could be no contributory negligence on part of deceased unless there was negligence on part of defendant. 45 C.J., "Negligence," sec. 506; Ry. Co. v. Bryan, 157 Pac. (Ariz.) 376, affirmed 37 Sup. Ct. Rep. 241. There is no necessity of plea of contributory negligence when deceased's negligence is sole cause of injury, and in such plea of contributory negligence the sole question is amount of damages. Likewise, defendant's plea of assumption of risk by deceased admitted he was engaged in performance of duty at time of injury, and defendant was estopped to deny that injury was within the scope of his employment. Cases supra; Stottle v. Ry. Co., 18 S.W. (2d) 433; Grott v. Shoe Co., 2 S.W. (2d) 789. (3) Actual knowledge upon part of Engineer Graham of perilous position of deceased, Otto Voorhees, "may be imputed and charged from surrounding facts and circumstances so as to hold one to have known as a fact that which he could have discovered or learned by the exercise of ordinary care." The undisputed evidence was that Engineer Graham had a perfectly plain, unobstructed view of this "publicly used" crossing; that he was "looking right that way," that a pig eight inches high or a rabbit running across this crossing could be seen by a person on the ground for half a mile; that he could see and distinguish such object, it being his duty under the rules of defendant, to see and observe such object. It was not only Graham's duty to see and know deceased's perilous position for this full half mile, but he was, and Instruction 5 might well have said, "conclusively" presumed to know the condition and situation of deceased. But instead of so saying, said instruction left it to the jury to determine Graham's knowledge. We adapted ourselves to the opinion in this case. Voorhees v. Ry., 7 S.W. (2d) 744, which was in accord upon this point with: Rittenhouse v. Ry. Co., 252 S.W. (Mo.) 947; Lee v. Boevman, 55 Mo. 400; Ry. Co. v. Joyner, 23 S.W. (Va.) 118; Tucker's Adm. v. Ry. Co., 24 S.E. 229; Soles v. Ry. Co., 114 S.E. (N.C.) 305; Soward's Adm. v. Ry. Co., 272 S.W. 32, 208 Ky. 840; 2 Thompson Com. on Negligence (4 Ed.) sec. 1710; Penn. Ry. Co. v. Cole, 214 Fed. 948; Anvil v. Ry. Co., 19 Fed. (2d) 30. (4) There was abundant evidence to warrant the submission of the case to the jury on the proposition that Engineer Graham actually discovered, saw deceased in position of peril, oblivious to danger, in time to have averted his death; in fact, this is shown, conclusively appears, from the evidence, even aside from defendant's admission, by answer, of its negligence. Authorities supra; Privitt v. Ry. Co., 300 S.W. 726; Burton Adm. v. Ry. Co., 176 Mo. 14; Lyrica v. Ry. Co., 208 Mo. 24; Payne v. Ry. Co., 136 Mo. 575; Eppstein v. Ry. Co., 197 Mo. 270; State ex rel. Ry. Co. v. Cox, 293 S.W. 122.

BLAIR, P.J.

This is an action under the Federal Employer's Liability Act for the death of Otto Voorhees. Trial by jury in the Circuit Court of Grundy County resulted in a verdict for plaintiffs in the sum of $8,000. Defendant was granted an appeal from the judgment entered on such verdict. This is a second appeal. On the first trial, plaintiffs secured a judgment for $6,000 and the same was reversed and the cause remanded for another trial by the Kansas City Court of Appeals.

Plaintiff's deceased son was twenty-one years of age and was unmarried. He lived with plaintiffs and contributed to their support. They were appointed as personal representatives of his estate and prosecuted this action in that capacity. Most of the facts are undisputed.

Defendant is engaged in interstate commerce. Its railway track between the Iowa state line and Kansas City was used in such commerce. The train which caused the fatal accident was an interstate passenger train moving westward between Trenton and Kansas City. Deceased was employed by defendant as a member of a weed-cutting gang engaged in clearing the weeds from defendant's railway track and right of way. He was killed between three and four o'clock in the afternoon of June 24, 1925, while lying apparently asleep between the rails of the track a few feet west of Turley private railway crossing about a mile from Wabash crossing.

The engineer of the train had received notice that the weed-cutting gang was at work in that vicinity and had been ordered to be on the lookout therefor. As a further precaution, the foreman of the weed-cutting gang had posted deceased at Turley crossing to flag the westbound...