Carpenter v. Kansas City Southern Railway Co.
175 S.W. 234
Mo. Ct. App.
1915
Check Treatment
ROBERTSON, P. J.

Plaintiff obtained judgment on a verdict for damages received as the result of a grab iron on a box car оn one of defendant’s freight trains, then used in interstate commerce, giving away. The defendant has appealed.

The defendant insists that the plaintiff’s petition states a cause of action under the common lаw, but that the testimony discloses liability, if at all, under the Federal Employers ’ Liability Act, and that, therefore, the verdict of the jury, which it is charged is based on instructions under the common law should not be allowed to stand.

It is said that the opinion of the Kansas City Court ‍​‌​‌​​​​‌‌‌​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌‌​​​​​​​‌​‌‌​​​‍of Appeals in the case of Holiter v. Wabash *167R. Co., 180 Mo. App. 84, 168 S. W. 250, and our opinion in McIntosh v. St. Louis and San Francisco R. Co., 182 Mo. App. 288, 168 S. W. 821, are in conflict and that if we follow the McIntosh case in deciding the present case that we will again be in conflict with the Moliter case. In the present case the plaintiff alleges in his petition, and the testimony shows, that he was employed by defendant as а brakeman on its freight train from Pittsburg, Kansas, running through Missouri, Arkansas and into Oklahoma. It is alleged in his petition that while he was ‍​‌​‌​​​​‌‌‌​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌‌​​​​​​​‌​‌‌​​​‍аbout the performance of bis duties in which he received his injury that he was in exercise of ordinary carе. It is also alleged that at the time and place of receiving his injury that the common-law liability of the master for injuries to employers was in force. Both in the Moliter case and the McIntosh case decisions of the Supreme Court of the United States are cited holding that when the facts disclose a case coming under the Employers’ Liability Act that the petition is in no manner affected by reference to a noneffective law, so that we can say, and be in hаrmony with all the decisions to which our attention has been directed, that the petition in this case states fаcts sufficient to constitute a cause of action under the Act in question. The difference between the Moliter and McIntosh cases is that in the former case (pages 87 and 88) it was conceded by the plaintiff that the petition stated no cause of action under the Liability Act. The testimony disclosed a case under the Act and it was held that a demurrer to the testimony should have been sustained as there was a total failure of proof of the cаuse of action alleged. Our attention has been called by appellant to a recent decision of the Supreme Court of the United States (St. Louis and Western R. Co. v. Slavin), as an authority supporting the contеntion that in the ease at bar plaintiff recovered under the Federal Employers’ *168Act when his petition is based on the common law. The Slavin case has no appliсation because the petition in that case ‍​‌​‌​​​​‌‌‌​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌‌​​​​​​​‌​‌‌​​​‍did not allege facts bringing it within the Act.

The principle announced in the Moliter case is sought to be further apрlied to this case on the theory that plaintiff’s instructions in the case at bar permitted the plaintiff to recover the full amount of his damages if he was without fault or negligence. It is said that this is the usual instruction in cases basеd on the common law and that it does not recognize the right of the defendant to have applied the doctrine to comparative negligence for in the Liability Act. It is argued that' if the jury had not been required to find that the plaintiff was without fault before they were permitted to find for him, but only to reduce his recovery in cаse they found he was negligent, that then they might have found him guilty of some negligence and reduced the verdict aсcordingly, citing Rofferty v. Mo. Pac. Ry. Co., 15 Mo. App. 559. The defect in defendant’s contention is that the fact is overlookеd that even under. the Employers’ Liability Act the plaintiff is entitled to recover full damages if he is without fault, consеquently he is entitled to instructions as given'in this case. Contributory negligence, even under the Employers’ Liability Act, is a mаtter of defense, as it was .treated and alleged by the defendant in this case, and if the defendant desired аn instruction upon that question it should have requested it.

Something is said in plaintiff’s brief as to the non-application of the doctrine of contributory negligence under the Employers’ Liability Act when the defendant has, as plaintiff ‍​‌​‌​​​​‌‌‌​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌‌​​​​​​​‌​‌‌​​​‍contends, violated the Federal Safety Appliance Act (6 Fed. St. Ann. 755), but a consideration of this question is not essential to a decision and we will not discuss it.

*169Defendant also contends that there was no testimony tending to prove that the grab iron gave way on account of any negligence on its part. A witness testified that shortly after the accident he observed that the nnt was off the bolt by which the grab iron was fastened to the car; that he noticed that the threads on the bolt were rusty and that there was a rusty nail that apparently had been driven in beside the bolt to hold the grab iron in the absence of a nut. Several witnesses testified for the defеndant that an inspection before the accident failed to disclose any defect in the fastening of the grab iron and that inspections after the accident disclosed bright threads on the bolt and an absenсe of any nail. There was substantial testimony upon which to submit this question to the jury.

It is next said that there was certain immаterial testimony brought out by the defendant for the purpose of prejudicing the jury against one of defendant’s witnesses, a physician. The fallacy of this contention consists in the fact that the defendant first injected this question into the ease and if the plaintiff in his effort to escape the effects of it proved facts which exonerated him and reacted in the minds of the jury on the defendant we cannot undertake to relieve defendant. This contention is without merit.

The judgment is for the right party ‍​‌​‌​​​​‌‌‌​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌‌​​​​​​​‌​‌‌​​​‍and should be and is affirmed.

Farrington and Sturgis, JJ., concur.