Woodward v. Missouri Pacific Railroad Company

• Decision Date: 11 April 1927
• Docket Number: 25530
• Parties: Martin Woodward v. Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

295 S.W. 98

316 Mo. 1196

Martin Woodward v. Missouri Pacific Railroad Company, Appellant

No. 25530

Supreme Court of Missouri

April 11, 1927

Motion for Rehearing Denied May 24, 1927.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

Edward J. White, Thomas Hackney and Leslie A. Welch for appellant.

(1) The court erred in admitting evidence on behalf of the plaintiff to the effect that it was the custom of the field switchman to notify the plaintiff of the intended movement before kicking a car on a track while he was making inspection of a refrigerator car thereon. The petition contained no averment of such a custom and without pleading the existence of such a custom the plaintiff should not have been permitted to introduce any evidence thereof. Kirkland v. Bixby, 282 Mo. 462. This evidence was palpably prejudicial to the defendant because, if such a custom was in force, it would necessarily require the field man to keep watch of the yard clerk and to see when and where he was making inspection of refrigerator cars. And this testimony had a direct and important bearing before the jury in the consideration of the plaintiff's first instruction predicated on the question of the field man's knowledge of plaintiff's peril and of his obliviousness thereto and the likelihood of injury in permitting the car to be kicked in on the track on which he was inspecting the refrigerator car. Bruce v. Mo. Pac Railroad, 271 S.W. 762; Gabal v. Railroad, 251 Mo. 257; Degonia v. Railroad, 224 Mo. 564. (2) The court erred in overruling defendant's demurrer to the evidence offered at the close of the evidence. Gabal v Railroad, 251 Mo. 257; Bruce v. Mo. Pac. Railroad Co., 271 S.W. 762; Degonia v. Railroad, 224 Mo 564. (3) The court erred in giving plaintiff's Instruction 1, submitting the case to the jury under the humanitarian rule. The testimony was wholly insufficient to authorize the submission of the case to the jury on this theory.

Hogsett & Boyle for respondent.

(1) The court committed no error in admitting evidence to the effect that it was a custom of the switching crew to notify plaintiff before kicking a car in on a track while he was making an inspection of a refrigerator car thereon. (a) The answer pleads assumption of risk and likewise that plaintiff's injuries were caused by his own carelessness and negligence. The evidence as to custom was clearly admissible on these allegations. Erie Railroad Co. v. Purucker, 244 U.S. 321; C. & O. Railroad Co. v. DeAtley, 241 U.S. 310; C. & O. Railroad Co. v. Proffit, 214 U.S. 462; Osborne v. Wells, 211 S.W. 892; Lackey v. United Rys. Co., 231 S.W. 963; Rawie v. Railroad, 274 S.W. 1031; Swigart v. Lusk, 196 Mo.App. 473. In this connection defendant's counsel both on cross-examination and from his own witnesses proved numerous customs and practices existing in regard to the manner of doing this work. (b) Evidence of custom was admissible without being pleaded as one of the evidentiary facts tending to show negligence. Kinney v. Met. St. Ry. Co., 261 Mo. 97; State ex rel. Pelligreen Const. Co. v. Reynolds, 279 Mo. 493; St. Mary's Mill Co. v. Illinois Oil Co., 254 S.W. 738; Train v. Ry. Co., 253 S.W. 497; Foster v. Rys. Co., 235 S.W. 1070; Majors v. Rys. Co., 228 S.W. 518; Lightner v. Dunham, 195 S.W. 1057; Raber v. Rys. Co., 204 S.W. 740. The so-called "section hand rule" does not apply to the facts of this case and the switching crew owed a duty to keep a lookout for the plaintiff while he was engaged in the inspection of a refrigerator car at night when on account of darkness he could not see the cars being kicked in on the various tracks, but when they could clearly see his lighted lantern on the car and when they set the car there for the express purpose of enabling him to inspect it. This case is under the Federal Employer's Liability Act and the duty of defendant is to be determined by the rules of the common law, supplemented by that act as interpreted in the Federal decisions. Pryor v. Williams, 254 U.S. 43; Brimer v. Davis, 245 S.W. 404. Both under the Federal decisions and under the decisions of this State the switching crew owed a duty to keep a lookout for the plaintiff. Brimer v. Davis, 245 S.W. 404; C. & O. Railroad Co. v. Proffit, 241 U.S. 462; Erie Railroad Co. v. Purucker, 244 U.S. 320; Hines v. Knehr, 266 F. 340; Erie Railroad Co. v. Healey, 226 F. 342; Tetwiler v. Railroad, 242 Mo. 178; Greenwell v. Ry. Co., 224 S.W. 407; Knippenbrock v. Wabash, 270 Mo. 479; Crecelius v. Railway Co., 284 Mo. 26; Brock v. Railway Co., 266 S.W. 698; Winkler v. Terminal Railroad Assn., 227 S.W. 625. The case was not submitted to the jury on the question of custom; the evidence was not offered to create a duty where otherwise none would exist, but was admissible as an evidentiary fact tending to show negligence. (2) The court did not err in overruling defendant's demurrer to the evidence offered at the close of the case. The undisputed evidence shows that Morris, the field man of the switching crew, who customarily warned plaintiff when making inspections of this character, gave the signal for this car to be kicked in on the track in question, and the case was submitted to the jury on the theory that Morris actually saw plaintiff in a position of peril on top of this car and oblivious to his peril in time to have warned him and negligently failed to do so. Such admission would be a proper one even under the strictest application of the so-called section hand rule. Degonia v. Railroad, 224 Mo. 565, 592; Gabal v. Railroad, 251 Mo. 257. The evidence shows that when plaintiff climbed this car to make this inspection with his lighted lantern on his arm Morris was standing only twenty feet south of the car facing the plaintiff with no obstructions between him and the plaintiff and nothing to prevent him from seeing the plaintiff, and there was ample evidence to justify the submission on this ground. Rine v. Railroad, 100 Mo. 228; Reyburn v. Railroad, 187 Mo. 565; Lynch v. Railroad, 208 Mo. 21.

OPINION

Gantt, J.

This is a suit under the Federal Employers' Liability Act for damages for personal injuries sustained by the plaintiff while working as a yard clerk for the defendant in the yards located at the state line in Kansas City. Judgment was for plaintiff for $ 9800, and defendant has appealed.

Respondent alleged in the petition several grounds of negligence, but at the close of all the evidence amended the petition to conform to the proof by charging that the employees of appellant were negligent "in carelessly and negligently causing, suffering and permitting said car to be kicked in upon said track and in failing to warn respondent of said fact when they saw this respondent on top of said refrigerator car and in the act of inspecting the same and in a position of imminent danger and peril in which he would be likely to be hurt and injured by the kicking of said car in on said track and when they knew or by the exercise of ordinary care on their part could reasonably have anticipated that respondent was oblivious to his peril and of the fact that said car was being kicked in upon said track."

The answer was a general denial with pleas of assumption of risk and contributory negligence. The reply was a general denial.

About three o'clock A. M. on the 28th of July, 1921, respondent was on top of a refrigerator car on switch track No. 24, inspecting the ice bunkers, when another car, consigned to the Fowler Packing Company, was switched onto the same track, striking two cars standing east of the refrigerator car, and they in turn struck the refrigerator car, and respondent was thereby hurled off the car to the ground and injured. The yard in question was an active switching yard, consisting of tracks numbered 19 to 41. Other facts will be noted.

We will approach a solution of the questions involved by conceding, without deciding, that the case falls within the general rule announced in the section-hand cases. The trial court so ruled. The respondent abandoned all grounds of negligence excepting the one covered by the amendment, and the case was submitted to the jury under the humanitarian rule, requiring the jury to find that the field man saw respondent on top of the car in peril and oblivious thereto; that the field man knew or by the exercise of ordinary care on his part could reasonably have anticipated that respondent did not know said car was being kicked onto said track -- all in time thereafter by the exercise of ordinary care on the part of said field man to have warned respondent in time to have prevented injury; that the field man failed to so warn respondent; that said field man was thereby guilty of negligence; that respondent's injuries were directly caused by said negligence; and that respondent did not assume the risk as defined in other instructions.

I. Assignment of error No. 1: "The court erred in admitting evidence on behalf of the plaintiff to the effect that it was the custom of the field switchman to notify the plaintiff of the intended movement before kicking a car on a track while he was making inspection of a refrigerator car thereon. The petition contained no averment of such a custom, and without pleading the existence of such a custom the plaintiff should not have been permitted to introduce any evidence thereof."

In support of this contention it directs our attention to Kirkland v. Bixby, 282 Mo. 462. In that case a section hand "was killed in a collision between the hand car upon which he was going to his work and one of defendant's trains." The defendant was charged with negligence in failing to ring the bell and sound the whistle while running through the fog to warn the crew of the hand car of the approach of the train. Plaintiff...