Williams v. St. Louis-S.F. Ry., 32989.

CourtUnited States State Supreme Court of Missouri
Citation85 S.W.2d 624
Decision Date30 July 1935
Docket NumberNo. 32989.,32989.

Appeal from Circuit Court of City of St. Louis. Hon. James F. Green, Judge.

REVERSED AND REMANDED (with directions).

Bartley & Mayfield for appellant.

(1) The rules of pleading and practice of the state courts of Missouri are applicable to and govern the trial of this case. Federal Employers' Liability Act, 45 U.S.C.A., sec. 56; Norfolk So. Railroad Co. v. Ferebee, 238 U.S. 269, 35 Sup. Ct. 781; Ches. & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 36 Sup. Ct. 630; Lopez v. Hines, 254 S.W. 37; Pipes v. Railroad Co., 267 Mo. 385. (a) Federal decisions furnish the exclusive rules of substantive law applicable to cases of this kind. Mondou v. Railroad Co., 233 U.S. 55, 32 Sup. Ct. 169; M., K. & T. Railroad Co. v. Wulff, 226 U.S. 576, 33 Sup. Ct. 135; N.C. Railroad Co. v. Zachary, 232 U.S. 256, 34 Sup. Ct. 305; Seaboard Air Line v. Horton, 233 U.S. 492, 34 Sup. Ct. 635; C.M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; St. L.I.M. & S. Ry. Co. v. McWhirter, 229 U.S. 265; St. L.-S.F. Ry. Co. v. Mills, 271 U.S. 344; Moran v. Ry. Co., 48 S.W. (2d) 881. (b) Under the rules of pleading of Missouri, plaintiff's petition stated a cause of action. Ash v. Woodward-Tiernan Ptg. Co., 199 S.W. 994; Gordon v. Muehling Pac. Co., 40 S.W. (2d) 693. (2) Defendant's instruction, in the nature of a demurrer to the evidence in behalf of plaintiff, should not have been given. The doctrine of res ipsa loquitur applies to actions between master and servant for alleged negligence on the part of the master, and this is true both as to actions under the Federal Employers' Liability Act and our Missouri decisions. Central Railroad Co. of N.J. v. Peluso, 286 Fed. 661, certiorari denied, 261 U.S. 613; Southern Ry. Co. v. Bennett, 233 U.S. 80; Sweeney v. Irving, 228 U.S. 233; Manning v. Railroad Co., 135 Minn. 229, 160 N.W. 787, certiorari denied 243 U.S. 643; Roberts' Fed. Liab. of Carriers, sec. 820, p. 1573; Phil. Ry. Co. v. Briscoe. 279 Fed. 680; Cin., etc., Ry. Co. v. South Fork Coal Co., 139 Fed. 528; Ridge v. Norfolk So. Ry. Co., 167 N.C. 510; Southern Ry. Co. v. Derr, 240 Fed. 73; Gordon v. Muehling Pack. Co., 40 S.W. (2d) 693; Blanton v. Dold, 109 Mo. 64; Ash v. Woodward-Tiernan Ptg. Co., 199 S.W. 994; Nelson v. Heinz Stove Co., 320 Mo. 655: Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179; Uhl v. Century Elec. Co., 295 S.W. 127; Lowe v. Fox Laundry Co., 274 S.W. 857; Heckfuss v. Am. Pack. Co., 224 S.W. 99; State ex rel. v. Reynolds, 287 Mo. 697; Eckhardt v. Wagner Elec. Co., 235 S.W. 117. (a) The rule or doctrine of res ipsa loquitur is one of evidence. Central Railroad Co. v. Peluso, 286 Fed. 661; Sweeney v. Irving, 228 U.S. 233; McCloskey v. Koplar, 46 S.W. (2d) 564; Bond v. Ry. Co., 288 S.W. 777; State ex rel. v. Bland, 64 S.W. (2d) 641; Walsh v. S.W. Bell Tel. Co., 52 S.W. (2d) 839; Zichler v. St. Louis Pub. Serv. Co., 59 S.W. (2d) 655. (3) The evidence in behalf of plaintiff made a question of fact for the jury, and not one for the court, as a matter of law, to say whether the derailment and wreck were caused by defendant's negligence. (a) The evidence in behalf of plaintiff should have been taken and treated as true, all reasonable inferences drawn therefrom, and the evidence in behalf of the defendant should have been treated as untrue, except where the same was beneficial to or helped the case of the plaintiff. Anderson v. Asphalt Distrib. Co., 55 S.W. (2d) 693; Morton v. Ry. Co., 20 S.W. (2d) 34; Nelson v. Heine Boiler Co., 20 S.W. (2d) 906; Coble v. Ry. Co., 38 S.W. (2d) 1031; Smith v. K.C. Pub. Serv. Co., 43 S.W. (2d) 548, 328 Mo. 979. (b) The instructions in behalf of plaintiff conformed to both the pleadings and proof. Plaintiff by showing some acts or conditions from which the jury might or could have found negligence on the part of the defendant, is not thereby precluded from relying upon, nor does such evidence remove the case from the application of the doctrine of res ipsa loquitur. Unless plaintiff's proof showed "specifically" the cause of the wreck, the above rule still applied. Glasco Elec. Co. v. Union E.L. & P. Co., 61 S.W. (2d) 955; Bartlett v. Pontiac Rlty. Co., 31 S.W. (2d) 281; Malone v. Greyhound Lines, 22 S.W. (2d) 201; Smith v. Creve C.D. & M. Co., 296 S.W. 457; Fowlkes v. Fleming, 17 S.W. (2d) 513; Stegman v. Peop. Mot. Co., 297 S.W. 189; Price v. Met. St. Ry. Co., 220 Mo. 435; Porter v. St. J. Ry., L., H. & P. Co., 277 S.W. 913; Gibbons v. Wells, 293 S.W. 89; Heidt v. Peoples Motorbus Co., 284 S.W. 841; McAnamy v. Shipley, 189 Mo. App. 396. (c) The causal connection between the wrecking and derailment of the defendant's train, and the condition of the tracks, ties, rails, or speed of the train, need not be shown by direct and positive testimony. Anderson v. Asphalt Distrib. Co., 55 S.W. (2d) 688; Settle v. Railroad Co., 127 Mo. 336.

J.W. Jamison, A.P. Stewart and C.H. Skinker, Jr., for respondent.

The court did not err in sustaining defendant's motion for a new trial. The res ipsa loquitur doctrine, upon which plaintiff relies, is not applicable to plaintiff's case. 45 U.S.C.A., sec. 51; Patton v. Ry. Co., 179 U.S. 663; Seaboard Air Line v. Horton, 233 U.S. 502; New Orleans & N.E. Railroad Co. v. Harris, 247 U.S. 367; Looney v. Railroad Co., 200 U.S. 486; Delaware, etc., Railroad Co. v. Koske, 279 U.S. 11; N.Y.C. Railroad Co. v. Ambrose, 280 U.S. 490; Mo. Pac. Railroad Co. v. Aeby, 275 U.S. 429; Atl. Coast Line v. Temple, 285 U.S. 143; Payne v. Bucher, 270 Fed. 40; Waldhier v. Railroad Co., 71 Mo. 516; Smith v. Railroad Co., 113 Mo. 82; Hamilton v. Railroad Co., 123 Mo. App. 619; See v. Railroad Co., 228 S.W. 518: Removich v. Construction Co., 264 Mo. 48; Wilson v. Railroad Co., 319 Mo. 315, certiorari denied, 278 U.S. 622; Fryer v. Ry. Co., 63 S.W. (2d) 47; Grindstaff v. Structural Steel Co., 40 S.W. (2d) 702.


Action under the Federal Employers' Liability Act for personal injury received in a wreck. The cause was tried to a jury resulting in a verdict for plaintiff for $15,000. Motion for new trial was sustained and plaintiff appealed.

The petition is bottomed upon the res ipsa loquitur doctrine and alleges that plaintiff had no knowledge or means of knowledge of the cause or causes that operated to bring about the wreck; that the derailment and wrecking of the train and plaintiff's injuries were directly caused by the negligence of the defendant. The answer is a general denial.

The motion for new trial was sustained on the ground that the court erred in refusing defendant's peremptory request for a directed verdict. The contention is that under the law and the facts the res ipsa rule cannot be invoked. It was conceded that both plaintiff and defendant, at the time of the wreck and plaintiff's injuries were engaged in interstate commerce.

Plaintiff for several years had been employed by defendant as train auditor and his sole duties were to collect tickets and fares. He boarded defendant's passenger train, the Texas Special, at Union Station. St. Louis, about six-ten P.M., Sunday, August 31, 1930. The train consisted of twelve coaches, six of which were Pullmans, which were in the rear. About fifteen miles out at what is called Osage Hills, while passing around a curve at a speed between forty and fifty miles per hour, a disastrous wreck occurred resulting in serious injury to plaintiff, and the amount of the verdict is not challenged in defendant's brief. The engine and five or six forward coaches left the track. Plaintiff had no control over the management of the train and knew nothing about the condition of the equipment, the track, roadbed, etc. His duties were confined solely to the fares.

At the place where the wreck occurred, defendant maintained two tracks designated as the outbound and the inbound. The train was going west on the north or outbound track. The evidence for plaintiff was to the effect that there were wheel marks on the ties north of the north rail of the outbound track and also north of the south rail of the same track: that these marks extended some 200 feet west from the point of beginning to a switch on the north side of the outbound track; that about two feet east of the point where these marks on the ties first appeared, the north rails on the outbound track and on the outside of the curve were joined with angle bars which had four holes for bolts; that two of these holes were without bolts, and the nut on each of the two bolts in the bars was sheared off: that there was a spike about eighteen inches west of the angle bars mentioned and this spike was bent over from the rail; and plaintiff's evidence tended to show that about seventy-five per cent of the ties from the switch east to the point where the wheel marks first appeared on the ties "were in a more or less deteriorated condition." The condition of the ties east of the point where the wheel marks first appeared on the ties is not clear. Plaintiff's evidence also tended to show that the train at the time of the wreck was about four minutes behind schedule.

Plaintiff testified that after leaving the station, he had worked the train and had gone "to what we call the office or combination ... that is, the office where we unload our stuff, and had just got my stuff out of my pockets like this and had not yet gotten it all out, I don't think, when I felt some sudden jar and leaving the track and a kind of lurch that way, and a lot of dust, and that quick, I went out." Plaintiff was rendered unconscious and was in the hospital some time thereafter.

George D. Schroeder, chief of police of the city of Kirkwood, and a witness for plaintiff, testified that he arrived at the scene of the wreck about seven o'clock and shortly after the wreck and that about eight o'clock, he made an examination of the track from the switch east...

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