JOSEPH G. CANTLEY V. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.
No. 38606
Division Two
September 5, 1944
Rehearing Denied or Motion to Transfer to Banc Overruled, November 13, 1944
183 S. W. (2d) 123 | 353 Mo. 605
Under the evidence in this record, there can be no doubt that this appellant believed that if he pleaded guilty he would get a parole. We think that he was lead to believe he would get a parole from the conversation he and the members of his family had with the prosecuting attorney. Appellant was uneducated, he could not read or write,-in fact, according to the prosecuting attorney, “he is not mentally what he ought to be.” The prosecuting attorney testified, “I have told him, in my opinion, he would get a parole.” The holding out of this false hope made his confession in open court involuntary.
We do not mean to say that we think the prosecuting attorney intentionally misled the appellant, but we do think that he was misled. The question before us is: was the appellant misled? “It is immaterial whether the misleading was intentionally or unintentionally done. The material inquiry is: Was the defendant misled, or under a misapprehension, at the time he entered his plea of guilty? While it may be true, as stated by the prosecuting attorney, that he did not in so many words tell defendant that if he would make a confession that he would be paroled, yet we think the statements made by the prosecutor to the defendant were such as did cause him to believe that he would be paroled if he entered a plea of guilty.” State v. Dale, 282 Mo. 663, 222 S. W. 763.
Since we are of the opinion that the statements made by the prosecuting attorney to appellant did cause him to believe that he would be paroled if he entered a plea of guilty, the judgment should not be permitted to stand. “The law is not composed of a series of snares and pitfalls for the unwary, neither does it favor what Judge Bliss terms ‘snap judgments.‘” State v. Stephens, 71 Mo. 535, 1. c. 536.
The judgment is reversed and the cause remanded. All concur.
Cooper, Neel, Sutherland & Rogers and Carl S. Hoffman for appellant.
Plaintiff was injured about 6:50 P. M., September 21, 1940, on an in-bound switching movement on the Daly sand plant spur track in defendant‘s yards and about a mile south of Osage, Oklahoma. Plaintiff was in charge of the movement; being defendant‘s engine or switch foreman and footboard yardmaster. The crew consisted of plaintiff, engineer McGinty, fireman Eccles, and switchmen Spears and Ritchie. Locomotive No. 716 had been brought into Osage on September 21, 1940, from Parsons, Kansas, as part of a freight train for switching duties, was made ready and was turned over to plaintiff‘s switching crew at 3 P. M., they being on the 3 P. M. to 11 P. M. shift. There had been a “drizzling rain” but plaintiff did not recall whether that condition continued at 6:50 P. M. The locomotive headlights and the switchman‘s lanterns were lighted. The crew had picked up a car of gasoline 4 or 5 miles south of Osage, which was attached to the front or south end of the engine. The movement north was a back-up movement, the locomotive tender being the lead or north car. Five cars were destined out-bound from the Daly sand plant and plaintiff intended to pick them up on the return trip. The Daly sand plant was located on the Arkansas river and its spur track led off of defendant‘s main line to the east at a point where the main line is on a 6 degree curve to the west, or left proceeding northwardly. The track was banked, the outer (east) rail being 5 inches higher than the inside rail. The switch track was on a 1.36 degree curve to the right with a .38 per cent ascending grade for a distance of 73.2 feet, to the switch frog. The next 30 feet were practically straight and on a .15 per cent descending grade. Then the spur track entered a 10 degree curve to the left for 133 feet, and was on a descending grade varying from
The evidence established a submissible fact issue on actionable negligence. Defendant‘s brief concedes the speed of the movement occasioned the injury. Defendant‘s general assertion of no actionable negligence is without merit.
Defendant insists plaintiff, under the evidence, was not entitled to submit his case under the res ipsa loquitur doctrine: Because the locomotive and tender were being operated at the time under the supervision and control of plaintiff. Because the facts bearing on negligence surrounding the derailment were as available to plaintiff as to defendant. Defendant does not question the applicability of the doctrine to master and servant cases under the Federal Employers’ Liability act in appropriate instances.1
Plaintiff‘s answer is that the case was properly submitted under the res ipsa loquitur doctrine because he made a res ipsa loquitur case under the Boiler Inspection act and also made a res ipsa loquitur case under common law negligence.
A reason why plaintiff may not prevail on the theory of defendant‘s liability under the Boiler Insection act is that this was not plaintiff‘s trial theory.
The Federal Employers’ Liability act imposes liability on railroads for injuries suffered by employees while engaged in interstate commerce arising out of the negligence of officers; agents, or employees, or negligence connected with any defect or insufficiency in its equipment. See
The Boiler Inspection act provides: “It shall be unlawful for any carrier to use or permit to be used on its line any locomotive
The charge in plaintiff‘s petition was that while assisting the defendant in “its business of interstate commerce and interstate transportation“; “that said engine and tank, by, through, and on account of the negligence of defendant, was caused to jump the track and become derailed, and injure the plaintiff in the respects hereinafter described;” that the locomotive and tank were owned and used by defendant and that plaintiff “had nothing to do with the inspection, operation, maintenance, or repair of said” locomotive, tank, or any part or appurtenance thereof, or the track or the road bed, his duties being concerned only with switching movements in the Osage yards. This was followed by a charge “that on account of the aforesaid negligence of the defendant,” plaintiff suffered specified injuries.
The Boiler Inspection act was enacted for the safety of railroad employees and by the terms of
Plaintiff‘s main instruction, insofar as material, required the finding that plaintiff was engaged in interstate commerce and certain enumerated facts and concluded: “. . . then you are instructed that such facts . . . are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find, unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to any negligence of the defendant, and if you do find and believe from all of the evidence in the case that the defendant was negligent and that the plaintiff‘s
The recitals in the petition respecting plaintiff‘s want of control over the “inspection, operation, maintenance, or repair” of the locomotive, tank et cetera only negative plaintiff‘s control under the res ipsa loquitur doctrine. Plaintiff‘s instructions recognized the defenses of contributory negligence and assumed risks. Two related to the assumption of the risk; the main instruction being quoted supra and the other being cautionary in nature. Two related to contributory negligence; one required a finding that plaintiff‘s negligence constituted a contributing proximate cause and the other, if the jury found defendant “so negligent,” authorized a proportionate diminishing of the damages if they also found plaintiff negligent. It is inescapable from the pertinent portions of this record that plaintiff proceeded upon the theory his res ipsa loquitur case was grounded in common law negligence as distinguished from an absolute and continuing obligation on defendant in the nature of an insurer against enumerated defects under the Boiler Inspection act; and he may not, upon appeal, prevail upon a different theory-a theory not passed upon by the jury. Consult: Keele v. Atchison, T. & S. F. Ry. Co., 258 Mo. 62, 73, 75(a), 167 S. W. 433, 436[1-3]; Kilburn v. Chicago, M. & St. P. Ry. Co., 289 Mo. 75, 88 (III, IV), 232 S. W. 1017, 1021 (III, IV).
We are of opinion plaintiff was entitled to submit his cause on common law negligence under the res ipsa loquitur doctrine. The views of the Federal courts, not State courts, constitute the supreme law on questions arising under the Federal Employers’ Liability act. Chesapeake & O. Ry. Co. v. Kuhn, 284 U.S. 44, 47, 52 S. Ct. 45, 76 L. Ed. 157. The writer has experienced considerable hesitancy in reaching the stated conclusion and some apprehension as to the final scope of the doctrine under the Federal authorities; but the holding is within the trend of the governing decisions to liberally extend its application. Defendant‘s State cases3 are not controlling. Central Rd. Co. v. Peluso, 286 Fed. 661, 663, one of the early Federal cases applying the doctrine to an action under the Federal Employers’ Liability act, quoted Francey v. Rutland Rd. Co., 222 Ν. Υ. 482, 119 N. E. 86, with approval: “The phrase usually employed to express the rule, res ipsa loquitur-the thing speaks for itself-may at times tend to obscure rather than to make clear what the rule means. All that is meant is that the circumstances involved in or connected
The jury was privileged to find and especially so under plaintiff‘s evidence that plaintiff‘s control was not such as to necessarily deprive him of the benefit of the res ipsa doctrine under the Federal decisions. Eker v. Pettibone, 110 Fed. 2d 451, 455, was an action for the death of the engineer when the pony-truck of the engine jumped the main track and derailed 16 cars of a 41-car train. In disposing of the argument that the engineer was in control of the engine and for that reason res ipsa loquitur was not applicable under
Plaintiff testified throughout that he did not know just what caused the derailment. Plaintiff‘s witnesses Spears and Ritchie, members of plaintiff‘s crew, each testified in substance that the speed of the movement was 5 or 6 miles an hour; that there was nothing unusual about the movement except the fact of the derailment, and that he did not know the cause of the derailment. Plaintiff had been railroading since
Several of defendant‘s witnesses testified they did not know the cause of the derailment. Some never tried to determine the cause. The next afternoon the same crew, with the exception of plaintiff, took the locomotive and tender to the Daly spur and ran it in and out on the spur several times at different speeds but was unable to derail the tender. All conditions, save for the weather being dry, were the same. Defendant‘s witness Burris, who was designated by other witnesses as defendant‘s “wreck specialist,” testified he was defendant‘s mechanical foreman: “Q.: have you been able to determine what could have caused that accident there at that place? A. Nothing-I couldn‘t determine exactly. There could be several things. It could have been that he was going in too fast and hit the curve with the condition of the weather and everything.” He explained that the use of sand, made necessary by the grade, would cause the track to become more or less rough; that 4 or 5 miles an hour would be a safe speed there; that the speed could cause the derailment, that the down grade, the curve, the rough rail, and the weather conditions would make a derailment easier, but gave as his opinion that the speed caused it.
Defendant‘s contention that plaintiff‘s testimony with respect to a derailment possibly resulting if the wheels were very rigid should have been excluded is not well taken. We understand from the record a derailment would not result from wheels that “would sing” on curves if new but not rigid. We think the jury was entitled to the fact for what it was worth that the wheels “did sing” on curves on this trip, the probable cause of such singing and the possible results from such cause in a res ipsa loquitur case, where a plaintiff by establishing the extraordinariness of the cause of his injury meets his burden of the proof and shifts the onus of going forward with the evidence and exonerating himself from all negligence to the defendant.
Defendant complains of the portion of plaintiff‘s main instruction italicized infra. The instruction directed a plaintiff‘s verdict upon findings, so far as material to the instant issue, that plaintiff was injured while in the employ of the defendant and engaged in interstate commerce “as foreman of a switching crew and that said crew was in charge of defendant‘s locomotive engine and . . . tender“; and “that said locomotive and tender and said main line and spur tracks were owned, maintained or under the control of the defendant” et cetera. The instruction authorized a plaintiff‘s verdict upon a finding that defendant owned the locomotive and tender, or upon a finding that defendant maintained the locomotive and tender. This is not the law. Defendant contends the instruction necessarily should have required a finding that defendant was in control of the locomotive and tender through some employee other than plaintiff. This is an employee-employer controversy; not a passenger-carrier controversy. It is an essential element of a res ipsa loquitur case that the defendant have control of the injuring instrumentality. This court en banc in McCloskey v. Koplar, 329 Mo. 527, 533 (I), 46 S. W. 2d 557, 559 [1, 2], 92 A. L. R. 641, conceded the following to be law: “(2) In general and on principle the doctrine res ipsa loquitur does not apply except when: (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.” (Italics ours.) Brown v. St. Louis County Gas Co. (Mo. App.), 131 S. W. 2d 354, 359[11], states that if one essential element be absent the doctrine is
Plaintiff‘s petition was to the effect that defendant owned, maintained, operated, i. e., controlled, et cetera the locomotive and tender. Defendant‘s answer included a general denial putting this plea in issue and specifically alleged that said locomotive was being operated “in accordance with signals and directions given by the plaintiff and under the direction, supervision and control of the plaintiff” and that plaintiff “negligently directed said operation, and negligently failed to direct that said locomotive engine be operated otherwise . . .” This put in issue the constitutive element of control; i. e., whether plaintiff or defendant, through some employee other than plaintiff, was in control.
The rule of law is that controverted fact issues essential to a plaintiff‘s cause are to be established and so found by juries and that a verdict directing instruction omitting such a controverted essential fact cannot be cured by other instructions. In such cases there exists a fatal conflict in the instructions. State ex rel. v. Shain, 341 Mo. 733, 740[1], 108 S. W. 2d 351, 355 [1-3], stating “The Jenkins case and many others . . . stress instructions that omit an essential element and authorize a verdict. Where an instruction does that, all the cases say the error is incurable.” State ex rel. v. Shain, 344 Mo. 57, 63, 124 S. W. 2d 1194, 1196; State ex rel. v. Ellison (Banc), 272 Mo. 571, 583, 199 S. W. 984, 988; McDonald v. Kansas City Gas Co., 332 Mo. 356, 364, 59 S. W. 2d 37, 40[6, 7]; 1 Houts, Mo. Plead. & Pr., p. 614. In this connection Carpenter v. Kurn, 345 Mo. 877, 895, 136 S. W. 2d 997, 1007 [12], points out in discussing a like error that if the court may assume the existence of an essential controverted fact because defendant offered no evidence, it may with like propriety assume every essential fact not specifically controverted by evidence.
The instant record, considered as a whole, established the speed of the movement as an important causative factor. There was direct evidence and the jury could find the speed was the sole causative factor. The only witness undertaking to state a cause testified that “speed” was the cause. The jury, of course, was privileged to believe defendant‘s witnesses. The engineer testified that the locomotive was operated by signals, which included, among others, signals to “slow down” and “go easy“; and that it was plaintiff‘s duty to and he relied upon plaintiff to give the “slow” signal if he were going too fast. Also, if the jury might infer defendant was negligent from plaintiff‘s evidence establishing the occurrence of the derail-
We deem it unnecessary to discuss other matters.
The judgment is reversed and the cause is remanded. Westhues and Barrett, CC., dissent.
PER CURIAM: - The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.