Wilson v. Thompson

• Decision Date: 22 November 1939
• Docket Number: No. 35615.,35615.
• Citation: 133 S.W.2d 331
• Parties: EDITH M. WILSON, Administratrix of the Estate of THOMAS M. WILSON, v. GUY A. THOMPSON, Trustee of THE MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

133 S.W.2d 331

EDITH M. WILSON, Administratrix of the Estate of THOMAS M. WILSON, v. GUY A. THOMPSON, Trustee of THE MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 35615.

Supreme Court of Missouri.

Division Two, November 22, 1939.

Appeal from Jasper Circuit Court. — Hon. Ray E. Watson, Judge.

REVERSED AND REMANDED (with directions).

Thos. J. Cole and David E. Blair for appellant.

(1) Defendant, in any case, is entitled to know from the trial petition what issues he is called upon to meet in the case and the plaintiff cannot allege one set of facts in his petition creating liability on the part of defendant and recover judgment or procure a verdict upon a different set of facts. Sec. 765, R.S. 1929; 49 C.J., secs. 140, 1187, pp. 132, 804; Buffington v. Railroad, 64 Mo. 246; Waldheir v. Railroad, 71 Mo. 517; Price v. Ry. Co., 72 Mo. 414; Overton v. Overton, 131 Mo. 566, 33 S.W. 1; Cole v. Armour, 154 Mo. 350, 55 S.W. 476; Hirst v. Ringen Realty Co., 169 Mo. 199, 60 S.W. 368; Haines v. Pearson, 100 Mo. App. 555, 75 S.W. 194; Epstein v. Wells, 284 S.W. 847; Hughes v. Kiel, 100 S.W. (2d) 50; Winkelblock v. Mfg. Co., 187 S.W. 97; Gilliland v. Bondurant, 332 Mo. 896, 59 S.W. (2d) 679. (2) A party to a lawsuit is always entitled to have instructions on his theory of the evidence given by the court and, in refusing Instruction C, requested by the defendant, the court erred and did not permit the jury to pass upon defendant's theory of the facts in the case. 64 C.J., secs. 470, 531-532, pp. 518, 592; Sec. 967, R.S. 1929; Dorman v. Ry. Co., 75 S.W. (2d) 854; National Warehouse, etc., v. Toomey, 181 Mo. App. 70, 163 S.W. 558; Wilmot v. Ry. Co., 106 Mo. 543, 17 S.W. 490; King v. Railroad Co., 211 Mo. 14, 109 S.W. 671; Collins v. Rankin Farms, 180 S.W. 1054. (3) The trial court also erred in refusing to give Instruction D requested by defendant. If the deceased was negligent in going between two of defendant's freight cars standing on the passing track and the employees and servants of defendant were also negligent in kicking other cars against said standing cars, and deceased came to his death in such fashion, as claimed by defendant and not claimed by plaintiff, the defendant was entitled to have the jury consider the negligence of deceased, if any, and reduce the damages plaintiff could recover accordingly. Secs. 51, 53, Title 45, U.S.C.A.

Clarence C. Chilcott and Grant Emerson for respondent.

(1) There was no variance in this case. Respondent made a case under the Federal Employers' Liability and Safety Appliance Acts and the issues were properly submitted by the court to the jury. Sec. 2, U.S.C.A., Title 45; Secs. 817, 1001, R.S. 1929; Harlan v. Wabash Ry. Co., 73 S.W. (2d) 755; McAllister v. St. L.M.B.T. Ry. Co., 25 S.W. (2d) 795; Callicotte v. C., R.I. & P., 204 S.W. 530; Henry v. C., C., C. & St. L., 61 S.W. (2d) 341, certiorari denied, 54 Sup. Ct. 70, 290 U.S. 627, 78 L. Ed. 546; Noel v. C. & E.I., 21 S.W. (2d) 937; Hale v. Terminal Railroad Assn., 12 S.W. (2d) 941; Gould v. C., B. & Q. Ry. Co., 290 S.W. 139; Westover v. Wabash Ry. Co., 6 S.W. (2d) 843, certiorari denied, 278 U.S. 632, 73 L. Ed. 550, 49 Sup. Ct. 31; Roberts v. Schaper Stores Co., 3 S.W. (2d) 243; Swift v. St. L. & S.F. Ry. Co., 15 S.W. (2d) 964; Black v. Mo. Pac. Ry. Co., 72 S.W. 561; Meek v. N.Y.C. & St. L. Ry. Co., 88 S.W. (2d) 333; McGowan v. Wells, 24 S.W. (2d) 633; Stottle v. C., R.I. & P., 18 S.W. (2d) 433; T. & P. v. Rigsby, 241 U.S. 33, 36 Sup. Ct. 482; C., B. & Q. v. United States, 220 U.S. 559, 55 L. Ed. 582, 31 Sup. Ct. 612; St. L., I.M. & S. v. Taylor, 210 U.S. 281, 52 L. Ed. 1061, 28 Sup. Ct. 616; St. L.B.T. Railroad Co. v. Schrieman, 237 Fed. 1; Kimberling v. Wabash, 85 S.W. (2d) 738; Christie v. Wabash, 191 S.W. 241, certiorari dismissed, 246 U.S. 656, 62 L. Ed. 924, 38 Sup. Ct. 424; L. & N. v. Layton, 37 Sup. Ct. 456, 243 U.S. 617, 61 L. Ed. 931. (2) The court properly refused to give appellant's Instruction C. Secs. 53, 54, U.S.C.A., Title 45; Noel v. Q., O. & K.C. Ry. Co., 182 S.W. 787; Hood v. B. & O. Ry. Co., 259 S.W. 471; Henry v. C., C., C. & St. L., 61 S.W. (2d) 341, certiorari denied, 54 Sup. Ct. 70, 290 U.S. 627, 78 L. Ed. 546. (3) The court properly refused to give all instructions offered by appellant based upon negligence or contributory negligence or not elaborated upon in the brief. Doody v. Cal. Woolen Mills Co., 216 S.W. 531; Arnold v. Alton Ry. Co., 124 S.W. (2d) 1096; Henry v. C.C.C. & St. L., 61 S.W. (2d) 340; Kiger v. Sanko, 1 S.W. (2d) 222; Peake v. Taubman, 158 S.W. 656; Mahmet v. Amer. Radiator Co., 294 S.W. 1016; Hamilton v. Crow, 75 S.W. 389.

WESTHUES, C.

Respondent, plaintiff below, obtained a judgment in the sum of $10,000 against appellant Thompson, trustee of the Missouri Pacific Railroad Company, for the death of her husband, Thomas M. Wilson. The trustee duly appealed.

[1] The case was brought under the Federal Employers' Liability Act and the Safety Appliance Act. It was admitted by the defendant that at the time Wilson met his death the train crew of which he was a member was engaged in work directly connected with interstate transportation. Wilson lost his life in a switching movement in the yards at Paola, Kansas, on June 5, 1935. The points briefed by appellant, on which a reversal of the judgment is sought, pertain in the main to an alleged variance between the allegations of plaintiff's petition and the proof offered by plaintiff and the refusal of instructions on the defendant's theory of the case. The conceded facts with reference to the switching movement in which Wilson was fatally injured may be stated as follows: Two freight cars were standing upon what was termed a passing track. An engine, operated by the crew of which Wilson was a member, kicked a number of cars toward the standing cars on the passing track. Kicking cars, as explained by the witnesses, is done in the following manner: Cars are pushed by an engine until they attain sufficient speed to roll of their own momentum to the point desired; the engine is then uncoupled and the cars are permitted to roll to their destination. When these cars struck the cars which were standing on the passing track Wilson was run over and fatally injured. The disputed question at the trial was whether deceased was riding the leading car of the string of cars which had been kicked or whether he was between the standing cars on the passing track. Plaintiff introduced substantial evidence that Wilson boarded the leading car of the moving cars. Witnesses stated they saw Wilson jerking the lever of the pin lifter; that when the rolling cars were about a car's length or so from the cars standing on the passing track Wilson, with his left hand holding to a rung of the ladder of the car, reached with his right hand toward the coupler; that when the moving cars struck the standing cars Wilson fell. It is appellant's contention that plaintiff in her petition alleged that Wilson was between the standing cars on the passing track, and when the moving cars struck the standing cars Wilson was knocked down and run over. Appellant contends that since the petition alleged that Wilson was between the standing cars, the evidence offered and introduced by plaintiff, over appellant's objection, that deceased was on the moving cars, was inadmissible because fatally at variance with the allegations of the petition. The case was submitted to a jury solely on the theory that the coupler, on the moving car on which Wilson allegedly was riding, was defective and failed to function, and for that reason Wilson reached toward the center of the car for the purpose of opening the coupler.

Plaintiff in her petition charged a number of acts of negligence. An instruction offered by plaintiff and given by the court withdrew all of these charges from the jury save and except the one pertaining to a defective coupler. We are of the opinion that plaintiff offered substantial evidence to sustain a verdict for her upon the theory that the coupling device failed to function, and Wilson, while attempting to adjust the coupler, fell from the car and was injured. The applicable rule was well stated in Kimberling v. Wabash Ry. Co., 337 Mo. 702, 85 S.W. (2d) 736, l.c. 738 (3), where this court said:

"We do not agree with this contention. Plaintiff testified that when the pin was pulled up, the coupling devices were then free to separate if they were working properly. The pin was pulled up, thus placing the coupling devices in a position to separate if they were working properly. Their failure to separate, under the conditions shown, tends to show that such failure was due to some defect in, or improper construction of, the coupler. Both State and Federal courts hold that the test of the observance of the duty imposed by the Safety Appliance Act is the performance of the appliance. In Henry v. Cleveland, C.C. & St. L. Ry. Co., 332 Mo. 1072, 1076, 61 S.W. (2d) 340, 341, we said: `The test of the observance of the duty imposed by the Safety Appliance Act is the performance of the appliance. A failure of the appliance to work efficiently will sustain a charge that the act has been violated, and render the carrier liable for an injury which results from such failure. The question of negligence in the sense of want of care is not an issue in the case. Where an injury results from the inefficient operation of an appliance, whether or not such inefficiency was due to the negligence of the carrier is wholly immaterial. [Spokane & I.E. Railroad Co. v. Campbell, 241 U.S. 497, 36 Sup. Ct. 683, 60 L. Ed. 1125, 1134; Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874; San Antonio & A.P. Ry. Co. v. Wagner, 241 U.S. 476, 484, 36 Sup. Ct. 626, 60 L. Ed. 1110.]'"

[2] We need not determine the question of a variance between the allegations of plaintiff's petition and the proof, as the case must be remanded upon another ground. We may note,...