Wallingford v. Terminal R. R. Ass'n of St. Louis

• Citation: 88 S.W.2d 361,337 Mo. 1147
• Parties: Stella Wallingford, Administratrix of the Estate of R. Wallingford, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Decision Date: 12 November 1935
• Court: Missouri Supreme Court

88 S.W.2d 361

337 Mo. 1147

Stella Wallingford, Administratrix of the Estate of R. Wallingford, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

Supreme Court of Missouri

November 12, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Reversed and remanded.

T M. Pierce, J. L. Howell and Walter N. Davis for appellant.

(1) In a case where the Federal Employers' Liability Act is applicable, neither the kind nor amount of evidence required to establish a fact are subject to the control of the several states. C. & O. Ry. Co. v. Stapleton, 279 U.S. 587 73 L.Ed. 861, 49 S.Ct. 422; C. M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041, 46 S.Ct. 564. (2) The abstract of the record shows that plaintiff failed to make a submissible case for the reasons following: (a) A case may not be made on one presumption deducible from another. Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, Ann. Cas. 1918E, 1127, L. R. A. 1918C, 715; Yarnall v. Railroad Co., 113 Mo. 570, 21 S.W. 1, 18 L. R. A. 599; State v. Lackland, 136 Mo. 26, 37 S.W. 812; State ex rel. v. Cox, 298 Mo. 427, 250 S.W. 551. (b) Where the proven facts give equal support to each of two inconsistent inferences, judgment, as a matter of law, must go against the party having the burden of proof. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819, 53 S.Ct. 391. (c) If the evidence shows that Wallingford's death may have resulted from two or more causes, for one or more of which defendant was responsible and for one or more of which it was not, a submissible case was not made for the jury. It is not sufficient for the employee to show that the employer may have been guilty of negligence, but the evidence must point to the fact that it was. Patton v. Railroad Co., 179 U.S. 658, 45 L.Ed. 361, 21 S.Ct. 275; Atchison, etc., Railroad Co. v. Saxon, 284 U.S. 458, 76 L.Ed. 397, 52 S.Ct. 229; Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819, 53 S.Ct. 391. (d) A scintilla of evidence is not sufficient to carry a case to the jury. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819, 53 S.Ct. 391. (e) A verdict for plaintiff in a negligence action cannot rest on mere speculation and conjecture. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819, 53 S.Ct. 391. (f) If the death of plaintiff's intestate was caused by his stumbling over the switch stand in question, it must be held that he assumed the risk, for the evidence shows that he had full knowledge of the surrounding conditions. York v. Ry. Co., 333 Mo. 105, 62 S.W.2d 475; Webber v. Terminal Railroad, 70 S.W.2d 863; Northwestern Pac. Railroad Co. v. Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 535. (3) Plaintiff's witness, Devine, was permitted by the court to testify that, about thirty-six hours before the accident, the lights on the three switch lamps mentioned in the evidence were out. This was offered for the purpose of showing that the light on the middle switch lamp was out just prior to and at the time of the accident to Wallingford. The time was too remote as a basis for a presumption or inference of that fact. Halle Bros. Co. v. Rolls, 19 Ohio App. 427. (a) Plaintiff's witness, Devine, was permitted to testify that day after the accident, the middle switch stand was equipped with a new lamp. Even if a new lamp was placed on said switch stand, it does not show or tend to show that defendant was negligent in any respect. Bailey v. Kansas City, 189 Mo. 503, 87 S.W. 1182; Derrington v. Ry. Co., 328 Mo. 283, 40 S.W.2d 1069. (4) One Block, defendant's witness, reported the investigation of Wallingford's death before the Illinois coroner. One Amos J. Lee, defendant employee, testified at the coroner's inquest. The court permitted plaintiff to cross-examine said Block as to what Lee said in his testimony before the coroner. This constituted error. Bello v. Stuever, 44 S.W.2d 621.

Bert F. Fenn and James E. Dame for respondent.

(1) There was substantial and convincing evidence, under either State or Federal rules, to support the verdict. Derrington v. Ry. Co., 328 Mo. 283, 40 S.E.2d 1071; Chase v. Ry. Co., 156 Mo.App. 696; Chicago, R. I. & P. v. Ward, 252 U.S. 18, 64 L.Ed. 430; C. & O. Railroad v. De Atley, 241 U.S. 310, 60 L.Ed. 1016. (2) Plaintiff's case is not made by basing one presumption on another. It is not a case where one inference rests upon another inference, but where different inferences point to the same result. It is a case where inferences join and lend their combined strength, greatly augmented by their union, to the support of the charges of negligence against the defendant. The independent inferences point to the same cause of Wallingford's death, namely, the nearness of the switch stand to the tracks and the fact that the switch light was out. Whittington v. Westport Hotel Operating Co., 33 S.W.2d 967; Adams v. Railroad Co., 229 S.W. 795; Bond v. Railroad Co., 315 Mo. 987, 288 S.W. 777. (a) The facts do not support inconsistent inferences, but agree in supporting inference that Wallingford struck the switch stand. Adams v. Railroad Co., 229 S.W. 795. (b) The facts in evidence, as well as by inference, show employer's negligence. Bond v. Railroad Co., 315 Mo. 987, 288 S.W. 777. (c) Plaintiff's case is supported by substantial evidence -- more than a scintilla of evidence. Washington R. & E. Co. v. Scala, 244 U.S. 630, 6 L.Ed. 1360-1365. (d) Plaintiff's case does not rest upon mere speculation and conjecture. (e) The facts do not support defense of assumption of risk. Westover v. Railroad Co., 6 S.W.2d 847; Doyle v. Railroad Co., 31 S.W.2d 1010; Central Railroad Co. v. Davis, 7 F.2d 270; Fish v. Railroad, 263 Mo. 106; Chicago, M. & St. P. Railroad Co. v. Riley, 145 F. 137. (3) Plaintiff's Instruction 1 is not erroneous by being in the alternative. There was evidence of the most convincing kind that the switch standard was unreasonably near the track and that the switch light was not burning. If the defendant was guilty of negligence in either one or both of these particulars, it was sufficient on that score to sustain the verdict. Westover v. Railroad Co., 6 S.W.2d 843; Doyle v. St. L. Merchants' Bridge Term. Railroad Co., 31 S.W.2d 1010; Kamer v. Railroad Co., 32 S.W.2d 1075; Whittington v. Hotel, 33 S.W.2d 967; Bond v. Railroad Co., 315 Mo. 987, 288 S.W. 777. (4) It was admissible to show by witness Devine that the middle switch stand was equipped with a new lamp the day after the accident. It has immediate bearing upon the question whether the lamp was damaged at the time Wallingford was killed, and upon the possibility of proof of the condition of the lamp after the accident. 45 C. J., pp. 1232-1236; Derrington v. Ry. Co., 40 S.W.2d 1072.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

Raleigh Wallingford a switchman employed by the defendant in its railroad switch yards in East St. Louis, Illinois, was killed on January 25, 1930, when he fell under a moving train while engaged in a switching operation. His widow Stella Wallingford as administratrix brought this action for damages under the Federal Employers' Liability Act. It was stipulated and agreed that, at the time, Wallingford "was engaged in his duties as a switchman for the defendant in interstate commerce" and that the Federal Employers' Liability Act applies. The cause was filed, and a trial had, in the Circuit Court of the City of St. Louis. The jury returned a verdict for plaintiff assessing damages in the amount of $ 10,000 and from the judgment thereon defendant has appealed.

Defendant as appellant here assigns as error; (1) the refusal of the trial court to give an instruction, in the nature of a demurrer to the evidence, directing a verdict for defendant, which defendant requested at the close of all the evidence in the case; (2) the admission, over defendant's objection, of certain evidence which it is alleged was incompetent and highly prejudicial to defendant; and (3) the giving of plaintiff's principal instruction numbered 1 covering the whole case and authorizing a verdict for plaintiff. Of these in order.

The first assignment necessarily requires a review and examination of the evidence in the light most favorable to plaintiff. It seems the defendant company maintains extensive switch yards and switching facilities in East St. Louis Illinois. Wallingford was employed as "an extra," that is he was not assigned to any regular place or crew. He worked as "an extra" on a night shift "that started at 11 P. M. and went off at 7 A. M." and would be assigned to some switching crew from which "a regular man" was "off" duty. Wallingford reported for work at eleven P. M. the night of January 24 and was assigned to work as "pin puller" with a certain crew; we shall presently describe his duties as "pin puller." He fell under a moving train and was killed about five-forty-five the morning of January 25 while engaged in the performance of his duties in a switching operation on defendant's track No. 17. Cahokia Creek runs through the yards and is spanned by a wooden railroad bridge in that section or part of the yards involved in this case. The creek runs in a general east and west direction and the bridge north and south. North of the bridge are three parallel north and south switch tracks, numbered from west to east, as 16, 17 and 18. The immediate switching operation in which Wallingford was killed was made on the center track, numbered 17. This track extends south across the bridge. There are three switch stands along the west side of track 17 north of the bridge. A square shaped oil burning lamp is affixed to the top and is a part of each switch stand. These lamps are supposed to be lighted continuously, both night and day. The sides of the...