51 S.W.2d 100 | Mo. | 1932
Lead Opinion
This is an action for damages for the death of Will Brock, a section foreman employed by defendant. Brock was killed in a collision between a motor car used by the section crew, and one of defendant's trains near Berkley, Kentucky. His widow, Tennie Brock was appointed Administratrix and instituted this action in the Circuit Court of the City of St. Louis under the Employers' Liability Act. Plaintiff had verdict and judgment for $10,000 and defendant appealed.
Brock was foreman of a section crew employed in the maintenance of defendant's track on a section, about six miles in length, extending north and south from the town of Berkley, Kentucky. This is a single track and a part of defendant's main line over which it operated trains in interstate commerce. The section crew traveled to points where work was to be done on a motor car propelled by a gasoline engine. The railroad track at Berkley runs north and south. North from Berkley the track crosses two trestles, runs through deep cuts and curves to the northwest and then to the northeast. The two trestles are about 600 feet apart and between them the track runs in a cut. The north trestle, at the north end of which the collision occurred, is referred to in the evidence as the second trestle. This trestle is about 100 feet long and at the highest point is about thirty-five feet above the ground. About 200 feet north of the north end of the second trestle the track curves sharply to the northeast through a deep cut and around a high embankment on the east side thereof. This northeast curve around the embankment is about 800 feet in length. On the morning of the collision the section crew composed of eight men, including the foreman Brock, left Berkley sometime after seven o'clock, on the motor car, for Laketown, a town four miles north of Berkley, to lower a boiler at the pumping station there. Defendant's southbound train No. 15 was scheduled to pass Berkley at four o'clock A.M. but on this morning was running late and had not passed Berkley at the time the section crew started north along the single track. The station agent at Berkley did not go on duty until eight o'clock and there was no telephone connection with other points along the railroad nor was a block system in use. When they started north from Berkley the section crew did not know that train No. 15 had not passed. As the motor car, proceeding north, entered upon the south end of the second trestle southbound *925 train No. 15 came into view around the embankment about 200 feet north of the north end of the trestle. Some of the section men at that instant jumped from the motor car as it ran upon the south end of the trestle; others including the deceased remained on the car as it was driven at increased speed across the trestle in an attempt to reach a vantage point for escape at the north end where the men remaining on the car, except Brock, did escape by leaping from the speeding car an instant before it collided with the on-coming train. Brock was killed in the collision.
Plaintiff having abandoned all other assignments of negligence made in her petition the case was submitted to the jury on the one assignment that defendant's employees in charge of the train negligently failed to sound a whistle as the train approached the curve and at intervals while rounding it in violation of a long standing custom to sound the whistle in such manner as trains traveled around this curve and that Brock's death resulted in whole or in part from such negligence of defendant's employees. The defendant made a general denial of the allegations of the petition, pleaded assumption of risk and that deceased's own negligence in violating a rule of the company, designed for the protection of section men in such a contingency, precluded a recovery. Counsel for appellant do not assign error in the admission or rejection of evidence or in the instructions but state in their brief: "we are assigning only the one ultimate error, that of refusing the peremptory instructions requested by the defendant." In this connection appellant's contentions may be summarized as follows: (1) That the violation by the deceased of a standing rule designed to prevent the occurrence of such an accident was the primary cause of the collision and bars a recovery. (2) That there was not sufficient substantial evidence of the alleged custom to sound the whistle as trains approached and passed through the cut and around the curve "to justify a submission of the case" to the jury. (3) That even if the evidence be sufficient to support a finding that such a custom existed it does not appear that "the custom was intended to apply to a class to which section men belonged." (4) That there is not sufficient pleading or proof that decedent "knew of the alleged custom to warn and relied upon it." (5) That it appears as a matter of law that Brock "assumed the risk and danger of the collision." In this summary we have enumerated appellant's arguments in the order in which they are presented in its brief, however, as we view this case, a determination of the second, third and fourth propositions is necessary to a proper discussion and disposition of the first proposition.
[1] In considering whether there was any substantial evidence tending to show the existence of the custom alleged and relied upon *926 by respondent we must accept as true all evidence in the record relating thereto which is in respondent's favor and also every reasonable inference favorable to her which can be drawn from the evidence. [2] Looking to the evidence tending to show the custom relied upon as the basis of plaintiff's cause of action we find one of the section men, Lepchenski, upon inquiry relating, as is apparent, to the practice alleged to have prevailed of sounding a warning whistle as trains passed through the cuts and around the curves immediately north of Berkley, testified, that trains "have all whistled" in such "curves and cuts." A public road crossed the railroad track about three-fourths of a mile north of the north end of the trestle where the collision occurred, and was known as Gamble crossing. The whistling board for Berkley station was about one-fourth of a mile north of the north end of the trestle and 308 feet north of the north end of the curve. This signal board had formerly been located south of this trestle and between it and the first trestle north of Berkley but sometime during the preceding year had been moved to the point north of the second trestle. Witness Sams testified that he "lived three-fourths or a half mile" from the point where the track curves through the cut and around the embankment; that "the trains always whistle as they travel that track and the curve there;" that he had observed the operation of trains at that point for fourteen years; that trains whistled for Gamble crossing and from the crossing "all the way to the trestle" and that they "whistled from two or three hundred yards north of it to the trestle." Witness Collier stated that he had lived in the vicinity of this trestle, where the collision occurred, for two years preceding the collision and had observed that during that period trains "whistled before they went around the curve and all the way down." It is a reasonable inference from the testimony of this witness as a whole that this statement is to be understood as meaning that trains whistled before entering the curve and all the way from there to the trestle. Witness Woods testified: "I have been around the vicinity of that trestle all of my life and have seen trains going through there" (meaning through the cut and around the curve) and that the trains whistled for the cut and curve north of the trestle. Witness Long stated that he "had lived a half mile from the scene of the collision for about four years." We quote from his direct examination:
"Q. Had you ever been down to the vicinity of this trestle and noticed trains pass there? A. Yes sir, lots of times.
"Q. Can you tell us what, if anything, the trains do approaching that trestle? A. Well I don't think I ever saw one go through there without whistling. *927
"Q. Did that apply to all trains? A. Yes sir.
"Q. All kinds of trains? A. Yes sir."
It was stated by witness Anderson that he had lived in that vicinity for twenty years; that he had observed trains "passing through the cut immediately north of the trestle" and "never heard them go through there without whistling for those trestles and curves." Witness Perry, who worked for two years near that point on the railroad at which the collision occurred, testified that he had observed trains passing around the curve north of the trestle and that trains "usually whistled as they came around the curve there." Though the testimony of respondent's witnesses was to the effect that for a long period of time trains had whistled upon approaching and entering the cut and in traveling the curve through the cut and around the embankment north of the trestle and that the whistling board 308 feet north of the north end of the curve had been placed at that point only about a year before the collision appellant argues that the testimony of these witnesses is too vague and indefinite to be considered and accepted as substantial evidence of the custom pleaded and that it is evident that their testimony refers to the whistle required and which appellant says was sounded at the whistling post. Appellant offered evidence that there was no rule, custom or practice to sound whistles as trains entered the cut and at intervals in passing around the curve. The existence of a usage or custom "being a matter of fact may be proved as any other fact" (17 C.J. 524) and a mere conflict in the evidence does not render the proof insufficient but makes a question for the jury. The weight of the evidence, which appellant seems to argue, was also for the jury. We think there is substantial evidence tending to show the existence of the alleged custom and to make a submissible issue of fact for the jury.
Witnesses in a position to observe, hear and know testified that the train involved in the collision did not whistle upon entering the curve or cut or at any time thereafter while traveling around the curve and approaching the trestle. The trainmen admitted that such signals were not sounded and denied that such a custom or practice existed. [3] While it is an admitted fact that a whistle was not sounded as the train passed through the cut and curve and around the embankment, according to the alleged custom and practice, appellant asserts that the evidence does not show that had such signals been given they "could have been heard by the deceased under existing conditions and therefore a negligent failure, if any, to sound the whistle could not have changed the result" and for that reason the demurrer to the evidence should have been sustained. Respondent's evidence tended to show a custom to sound the whistle as trains entered the cut and at intervals while passing through the cut and around the curve; that *928 the section crew when traveling along the track on the motor car would listen for the sound of an approaching train and members of the section crew testified that on the morning of the collision the engine of the motor car was shut off and the car was permitted to coast as it approached the trestle reducing the noise caused by the car moving over the rails to a minimum and that they were "listening for whistles and looking as we drove north." Appellant's evidence was that at the time a strong wind was blowing from the southwest, the opposite direction from which the train was moving, and appellant argues that the high embankment east of and around which the track curved not only hid the southbound train from view but would also have obstructed the sound of the whistle had it sounded and that the adverse wind, the high embankment intervening and the noise caused by the wheels of the section car running over the tracks combined to make it "impossible to have heard a whistle a safe distance away if it had been sounded at the curve." This argument takes into consideration only the sounding of a whistle at the north end of the curve while respondent's evidence, reasonably construed, tended to show a long standing custom for trains to whistle at intervals while traveling around the curve and up to or near the north end of the trestle. The evidence relating to this question merely made another issue of fact for the jury and was ample to support a finding that the section men could have heard the customary signals had they been given. The trial court could not properly have sustained appellant's demurrer to the evidence on the ground thus assigned that the evidence conclusively shows that had the whistle been sounded according to the alleged custom it could not have been heard by deceased and members of the section crew.
[4] We next consider appellant's contention that the evidence does not sufficiently show that the custom for trains to sound a whistle on approaching and while traveling around this curve was intended as a warning to section men and intended for their benefit. Appellant says the evidence does not allow that "such custom was intended to apply to a class to which section men belonged." Cases are cited by appellant holding that it is not enough to prove a rule or custom for trains to sound a whistle upon approaching a road crossing or station or upon starting or making other movements but that it must be also shown that the deceased or the injured party, as the case may be, had a right, as one within the class meant to be protected, to rely on such custom being observed. Norfolk R.R. Co. v. Gesswine, 144 F. 56, is illustrative of this line of cases. In that case it was held that, "The custom of a railroad to give signals for crossings as required by the statute of Ohio was for the benefit of persons using or about to use the crossings, so that a failure to comply with such custom did not *929
constitute negligence of which a trackman working near the crossing could complain." Another case cited that of C.N.O.
T.P. Ry. Co. v. Harrod's Admr.,
[5] The next assignment of error made by appellant is that the petition does not allege nor the proof show that the deceased relied upon the alleged custom and that the court therefore erred in overruling appellant's motion in arrest of judgment. Of these questions in reverse order. We have held that there was substantial evidence *931
to support the finding of the jury that section men were within the class of persons for whose benefit and protection the customary warnings were intended and that deceased had a right, in view of such long standing custom, to rely upon the observance of the custom. The opinion in Koonse v. Mo. Pac. Railroad Co.,
[8] It must be taken as a conceded fact in the case that Brock did not observe rule 1273, set out supra, requiring that in the operation of "hand or push cars" by section men "where there is not a clear view of the track far enough to insure absolute safety" the foreman "must see that . . . flagmen are sent out with stop signals to protect them." Appellant contends that assuming negligence as to deceased, on the part of the trainmen in failing to sound the whistle according to an established custom, and notwithstanding that in an action under the Employers' Liability Act contributory negligence is not a defense, nevertheless the disobedience by Brock of rule 1273, designed for his own safety, precludes recovery. Appellant cites the following cases decided by the Supreme Court of the United States, as sustaining this contention, Great Northern Railway Co. v. Wiles,
"Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . or, in case of the death of such employee, to his or her personal representative, . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier." [USCA, Title 45, Chapter 2, Sec. 51.]
"The fact that the employee may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." [USCA Title 45, Chapter 2, Sec. 53.]
Though it is suggested by some of the testimony in the case yet respondent did not so plead in her reply and does not urge here that rule 1273 had been abrogated. It seems that the custom for south bound trains to sound whistles while traveling around this obscured and particularly hazardous curve was a precaution taken for the safety of the trains as well as persons, such as section men, who might lawfully and rightfully be upon the track south of the curve. We have held that there is substantial evidence in the record tending to show the existence of the custom pleaded and that the failure to sound the whistle in conformity therewith was negligence as to deceased. There is also ample evidence from which the jury could find that had the customary whistles been sounded they could have been heard by the section crew at a sufficient distance and in time, the conditions considered, to have removed the section car from the track and avoided the collision and, considering the situation as a practical unit, that the collision resulted at least in part from the negligence of the trainmen in failing to observe the duty imposed upon them by the custom. At most Brock was guilty of contributory negligence and we cannot, upon the facts, say as a matter of law that his failure to comply with the rule was the sole cause and that the failure of the trainmen to sound the customary whistle was no part of the causation. Though Brock's negligence contributed to the collision when we reflect that the evidence shows a situation which warrants a finding that the collision could have been averted had the customary whistle been sounded it "would be emptying the statute of its meaning" and nullifying the express provisions thereof "to say that his death did not `result in part' from the negligence of any of the employees of the road." *939
[Union Pac. R. Co. v. Hadley, Admr.,
[9] As to assumption of risk. The evidence tending to show the trainmen to have been guilty of negligence as to deceased in not sounding the signals required by custom, whereby a sudden and unexpected danger was created, is such that we cannot declare, upon the facts and as a matter of law, that he assumed the risk arising therefrom. Assumption of risk does not include risks "arising from the noncustomary, unknown and not to be anticipated negligence of a fellow servant." [Montgomery v. Baltimore O.R. Co. (6 C.C.A.),
The trial court having correctly ruled the peremptory instructions submitted by appellant its judgment is affirmed.Sturgis and Hyde, CC., concur.
Addendum
The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All of the judges concur.