Fitzsimmons Ex Rel. Fitzsimmons v. Missouri Pacific Railroad

1922. Ry. v. Mo. Pao. Fitzsimmons Co. Swamp. an- This of west side this West , ¿«r» (cid:127)

Ratification. . <i i i township hoards ratified swer avers that the -i i not survey evidence line thus found. The does this go further. Union support need not and we answer, this township through Township its board, ratified, never line. something There is also said about Cottons Hill Township having expended $3,000 bridges some for survey, road construction work after wbich was upon territory adjudged Township, now to Union and no disposition as to this is made ~nthe decree. Construction. say Suffice it to the answer does riot Bridges. question, except by way estop- raise the pci, and this is answered the fact that Union Town ship line, denied at all times this and that what was done was done in the face of this denial. judgment previously stated the the reasons For except affirmed. All concur, Woodson, be and should P. Jabsent. by Next MAR FITZSIMMONS, Friend,

HAROLD FITZSIMMONS, v. MISSOURI PACIFIC GARET D. COMPANY WALKER HINES, RAILROAD Appellants. Railroads, Director General One, 16, June 1922. Division Railroad Under Government DEFENDANT: Control. Un- PARTY 1. August 29, 1916, 21, Control Acts March the Federal der Railroads, 1918, No. Director General of and-Order proper party action railroad June, brought injuries personal sustained January, 1919, while of Missouri said railroad was circuit court operated by being under said acts the Director General and the proclamation President. Freight in Switch Movement Cars Yard. Violent NEGLIGENCE: extraordinary dangerous unusual, unnecessary, use of shunting from one to another track and violence force MISSOURI, OP SUPREME COURT negligence; facts of this case a switch and the constitutes made a case for the defendant on the whether great drove its and unusual force car with such him, duty required negligence, as to constitute where actionable his seventeen-year-old boy, engaged a service as defendant’s months, pass among twenty-one clerk for about nine set to tracks, initials, numbers, check their contents and seals and fasten upon showing route, where, card a each destination its and and car, passed cars, as he ten feet below the end a without warning him, were its other driven end such force him, being and suddenness to strike there evidence that lie had yard chief, upon employ- been told the he entered before such ment, pass necessary safety that it was for his he ten feet stationary crossing from the end of and a car in a track engine would be warned bell when cars were be kicked track, down the and that he had never seen or known of so violent rung. a movement and that no bell was Contributory Negligence: Knowledge 3. Danger: Apportion- -: injuries ment: personal No Instruction. In an action for based on Employers’ Act, Liability the Federal it will not be assumed that knowledge danger plaintiff’s subjected mere of the to which work contributory negligence part; him although constituted on his required jury, they his him, instruction could find before for youth inexperience to further find that because of his he was unacquainted dangers with and was not warned of the of the situation, there was which evidence to base such re- quirement, complain the defendant cannot the instruction did knowledge danger not such announce that constituted con- tributory negligence require apportionment liability an of the according negligence respective parties, to the of the whore de- present ap- fendant did not to the trial court defense propriate instruction of its own. Liability 4. -: Instruction: of U. S. Government: Favoritism. In brought against an action Director General of Railroads for injuries operating sustained while the S. Government IT. railroads, attempts impress jury an instruction which Government, being primarily liable for verdict they may render, is entitled to more favorable consideration at would be hands than the railroad were it the de- fendant, should be refused. Looking: 5. -: Unobstructed View: No Evidence: Instruction. defendant, telling jury An instruction if by looking ap- an unobstructed view and could have seen the car 1922. him, duty proaching his it was which then cross struck car, properly there is no refused where track in front of said support it. evidence remarks of JURY: Withdrawn. Where TO Remarks AKtfUMENT were, upon argument respondent’s ob- in his counsel withdrawn, definitely distinctly jection, if and it is doubtful they improper, no further under the circumstances asked, respect remedy not be deemed will to them was appeal. error on hoy Leg. plaintiff, a seven- 7. EXCESSIVE VERDICT: Loss yard, years age, was knocked switch work in a railroad at teen car, suddenly over by being ran a wheel a unconscious hit amputated leg leg, three- four and and as result trial, knee; sixteen time fourths inches below performance later, of the manifest in the neurosis months part bladder, much soreness and there was functions severed, leg nec- which made it limb was from pres- essary possible leg from the much as he relieved limb; using but evidence does artificial sure incident judgmnt recovery. Held, delay unusual indicate greater ought permitted ten for amount than to stand not to be thousand dollars.

Appeal Darnel E. Court.—Hon. from Jackson Circuit Judge.

Bird, condition). (upon Affirmed A; Haclmey Leslie White, Thomas

Edio. J. appellants. Welch

(1) Missouri Pacific The demurrer Company sustained, have been because should Railroad injuries properties ex- were of the its at the time (cid:127) possession States control of the United clusive employee of said was not Grovernment, company. v. North 250 Dakota, Pac. Railroad North 264 Fed. Caldwell, 947; Erie Railroad v. 135; U. S. 263 v. 543; Fed. Hanbert States, v. United Erichman 945; 258 Hines, Mardis v. Fed. 361; 259 Fed. Railroad, 107; S. Cravens 219 W. v. Union, v. "Western Foster Hines, (2) The demurrer defend- 218 W. S. 554 SUPREME OF MISSOURI, COURT Ry. v. Mo. Pac. ant Hinos should have been sustained because there competent negligence part was no evidence of on the defendant, (a) competent of said There evi- that, deuce the cars unusual ra- moved with force and pidity. plaintiff’s The conclusions of the witnesses that moving car-length of the cars one one-half to contrary undisputed physical unusual was facts and the laws of nature, and constituted no evidence question negligent crew at the time cut the approaching off in an unusual manner. In recognition this court must start with a repeated of its oft duty rule that there nowas on the part keep give defendant to a lookout for nor to warning signals approach of cars to a legal right clerk. The had the to assume in switching cars that would look out for safety keep way his own moving out of the cars. Rashall v. Railroad, 249 Mo. 520; State rel. ex Ellison, Lusk Humphreys, v. 463; 271 Mo. Aerkfetz v. Degonia 145 418; U. v. S. 224 Railroad, Mo. Gabai 564; Railroad, v. 251 Mo. Nivert 257; v. Railroad, 232 Mo. Nugent Cahill 626; Railroad, v. 393; Mo. v. Mill- ing Ry., Co., 131 252; Sexton v. Met. St. 245 Mo. Railway, 272; Raker v. 122 Mo. 589; Hook v. Mo. Pac. “Any especially Co., Mo. 580. evidence, opinions, yield when based on estimates or must physical facts.” Underwood v. West, 187 S. W. 86; App. Wray v. E. 68 Mo. L. 389; Beaton Co., Rail- way, Ingle, 178; 123 Minn. Penland v. N. C. 456; (b) Adams v. Co., Ins. 76 Pa. 411. There was no negligently substantial evidence that defendants failed plaintiff “dangers to ordinary warn of the of his duties.” Under decisions of the courts of this plaintiff’s testimony State and own this court can- negligent failing give hold the defendant to this plaintiff warning dangers further necessarily yard Nugent his incident to duties as a clerk. v. Mill- ing 131 Mo. Herbert App. Co., 241; v. Co., Shoe 90 Mo. W, Steg-man 305; 123 only v. S. The Gerber, 555 TERM, 1922. v. Mo. whether this feature the ease at bar on dangers glaring and obvious were so this right presume plain- that railroad had the experience, through familiar tiff ten months’ was, his ipse was not or them. that he His mere dixit go safely ten feet be- that Sullivan him could' told Dyrcz Packing help Co., v. hind him. will not unfamiliarity 764. Fitzsimmons’ S. "W. claims D. 506. are untenable. Gwinn Power S. Co., v. plain- (3) undisputed physical facts show that up negligence failing own to look tiff’s clear stepping behind the cars unobstructed track before injuries. plaintiff tes- was the sole of his Yet, cause and saw or heard tified nothing he looked and listened although it

as from track to 29, he walked morning. quiet has was rather But this court probative repeatedly no could held that force attach that he looked and didn’t see a statement of a witness duty to look, and to look was neces- was his when sarily Railway, 272; v. 245 Mo. Baker see. Sexton Hayden Railway, 589; v. Railroad, 122 Mo. 124 Mo. (4) Sanguinette v. Mo. 494. Plain- Railroad, 196 566; erroneous, submitting (a) 1 was In tiff’s Instruction negligence allegation jury support though it, even submit- evidence to substantial heading conjunctive. we Under raise ted question, court before, one never before this so a new Plaintiff It is this: submitted far we can ascertain. negligence upon two different theories of case conjunctive. strenuously deny We stated go evidence entitle was sufficient there supposing jury But either one. this court to'the jury issue on was a one not the hold there should g\, suppose should hold is- this court e. other, instruct none the unusual on failure .on sue theory, In event or vice versa. violence Em- in an under the Federal harmless action error fully Liability aware of the de- ployers’ Act? areWe where to the effect that this court cisions MISSOURI, SUPREME COURT OF Ky. Fitzsimmons v. Co. negligence

submits bis on case two theories of stated conjunctive, in only supported by one which is go jury, sufficient evidence to the error is harm- plaintiff required less jury because has more find necessary than was entitle him to recover he merely unnecessary took unto himself an burden. But those decisions under the state where the law jury plaintiff order for all, find had to find plaintiff negligent that the defendant was and that was contributory negligence, free from all and where con- tributory negligence, if it existed at com- all, was a plete plaintiff recovery by regardless bar negligence plaintiff’s of defendants’ or how negligence might compare. and defendants’ un- questioned appli- rationale of those decisions is not Liability cable to the Federal Act cases, because of comparative negligence the latter’s rule. Under the plaintiff wholly negli- state if the law, is free from gence guilty only charge and the defendant is one negligence, plaintiff then entitled to is his full dam- age and the fact that there was no evidence of the charges negligence conjunctively stated instruction could not be harmful. But, under the Fed- negligence part eral act, the more on the of the defend- jury permitted greater ant the is find, shall be plaintiff’s retíovery.- guilty If the of as negligence much as the defendant then the verdict damage. be for should ant one-half the But if the defend- guilty negligence of nine was times as much as the plaintiff then the verdict should nine-tenths damage. palpably Therefore would it not be er- permit jury roneous a Federal Act case to find negligent respects that the defendant ten when negligence respect there was evidence of one only? plaintiff strenuously Take the instant case: The damaged contended to the he was to the extent negligent $30,000; claimed defendant was respects; clearly two the evidence showed the negligence guilty going failure to look before Mo. Pao. jury, instruction, the track. Now under the respects obliged guilty in in two to find defendant (cid:127) plaintiff. instruc- Therefore the order find for the yon plaintiff jury: believe tion in effect told the “If plain- damaged $30,000 was to the extent respect negligent was tiff negligent in defendant one was your respects for in verdict should be two plainly jury that told $20,000.” Said instruction negligence guilty thqy could the defendant find respects many of; evidence twice as as there was they required negligence it to find fact told them respects they all, if be- in both found you “plaintiff can if the instruction said recover cause submitting two the trial this and this.” In issues find competent jury legal there was court effect told the. respects negligence in both and the most evidence plausible explanation of of the is the amount verdict erroneously just jury what court told did this court should be Therefore, could do. if them jury opinion made issue one of the a deny, theory, strenuously other, and not the which we certainly lay down ac- should the doctrine permitted Federal Act a cannot be tions under negligence guilty of than more to find a (b) justified, Because there evidence evidence finding justify the “defendant knew ordinary care would have known” that exercise plaintiff dangers not familiar with the elementary neg- it is not ordinary duties. It employer ligence warn unless should have fail warning, (c) employee needed Because known improp- force violence” “unusual issue of any erly evidence unusual con- submitted without part switching crew in mak- on the duct Ry. question. v. ing Beaton Great Northern cut (5) verdict The was excessive. 123 Minn. 178. Co., Railroad, 46; Railroad, W. Newcomb 227 S. v. Kibble v. Kinney v. 249 Mo. Railroad, 227; Farrar 726; Mo. 182 Railway, Brady Mo. Mo. v. 206 Railroad, 261 97; v. Applegate 202. v. 252 Railroad, 509;

558 SUPREME OF MISSOURI, COURT v.

Fitzsimmons Mo. Pac. Popharn Atwood, Wickersham, Hill & B. and Burr respondent. Stottle for

(1) The'whole matter control of Federal rail- over recently roads has been reviewed this court. Hite v. Railroad, 225 S. W. Kersten v. 916; Hines, S. McGregor 590’; W. Hanks v. Hines, 219 S. v. W., 978; Railroad, N.G. 172 N. W. 841, A. R.L. 1635; Fed. (2 (1919 (a) Ed.) Supplement), Ann. Stat. The may court affirm the case one as to defendant and re- verse it as other. Craven v. Hines, 218 S. W. (b) judgment a case of kind is not entirety, may considered as affirmed as one defendant and reversed as to the other. Adair Ry. K. Term. Co., C. 220 928; S. Hines, W. Craven v. (2) ample 218 neg- S. W. 915. There was evidence of defendant, ligence part (a) on the The unusual handling negligence. of the cars constitutes Provance Ry. v. Co., 955; 186 S. v. W. Patrum Railroad 259 Co., (N. S.) 109; Mo. L. R. A. Ry. Note, 7 1076; Farmer v. App. 178 Co., Mo. v. 579; Gobal Railroad, 251 257; Mo. Ry. Chicago (b) Co. McGrath, v. 203 511. There Ill. ample competent was evidence unusual movement of the cars. Daniels Railroad, v. 181 S. W. Farmer 600; Railway, App. Henry v. Ry. City 178 Mo. 584; v. Sioux Ry. L. & Co., Iowa, 88; N. Ala. 75 Co. v. 90 Watson, Pipes v. 71; Railroad, 184 82; S. W. Stotler v. Railroad, Wigmore 124; 200 Mo. 1 on Ev. art. 436; Farmer v. Ry. App. Yongue Co., 178 Mo. 579; v. Railroad, 133 Mo. App. (c) negligent 141. failing Defendant was give plaintiff proper warning instruction concern- ing dangers employment of his and how to avoid Dowling them. v. 74 Allen, 13; Bulson Mo. Co., v. Shoe App. Ry. App. 191 v. 133; Mo. Goins Co., 37 233; Mo. v. Ehrlich, Czernicke 212 Mo. Hearon 396; v. Himmel- berger (3) Lbr. 224 Co., S. W. 67. Plaintiff inwas ordinary safety. the exercise of care his own Sul- livan v. 218 Hines, S. W. Benedict 408; Co., v. 104 App. App. Mo. v. 218; Goods Coal Co., 167 Mo. 172; n 559 1922. By. Co. v. Mo. (4) was Pennsylvania There 214 Fed. 950. v. Cole, Cooper- plaintiff’s 1. Brasel v. instruction no error 224 Co., age v. Troutman Cotton Oil 988; 220 Co., S. W. (5) excessive. was The verdict 1016. S. W. Hoop- Railway, 404; Miller v. v. S. W. Greenwell Mo. Roth 252; Railroad, 60'5; 273 Mo. Yost ster, Mullery v. Tel. Depot 525; 13 Wash. Co., Union v.. App. Co., Employer’s under the is a suit

BROWN, C. This injuries Liability personal received Act for employment the Missouri the defendant while en- while Company clerk, as a Pacific Railroad Bridge Transfer cheeking in the Kaw gaged cars City, The Kansas. Kansas Yard west bottoms leg, right complained injury of the of the of consists loss ran over of car wheels a which which was crushed amputated be- three-fourths inches four and it. It was Thirty dam- asked knee. thousand dollars low the ages. accident, the time occurred

Plaintiff, at employed by been 1918, June railway company months, about nine work same messenger during previous four months. and as a injury seventeen at the time years car knocked and run over He down old. sitting the transfer tracks, on one of while which, placed being suddenly on the same moved charged negligence was on which case track. The neg- cars were substance, three was, submitted great ligently the track unusual force kicked into with and warning, al- so two cars violence, and without and plaintiff ready standing which on the across track, duty, discharge suddenly moved passing his causing injury, knocking down and him him, inexperienced young and and and negligently had failed respect danger. a him with to such or instruct warn him COUNT OF MISSOURI, SUPREME Fitzsimmons Mo. general

The consists a denial, answer charge, negligently substance, placed position danger, which himself in the from negligence appellants injury resulted. The state “(1) there these issues as follows: "Whether competent dead that the cars were kicked evidence with (2) plaintiff, unusual whether violence, and nine experience yard or ten months’ clerk, in addition as experience, dangers his other was unfamiliar with the warning and instruction.” entitled further layout twenty-one extending The consists of tracks an east west numbered from direction south to north from to 39 inclusive. These tracks are used making connecting transfers cars to both lines, east line, and west the state which extends north and through yard, being south the east end of the track a as- signed company participating to each in the business. They are from Missouri reached side of the state roughly by line, which marked the James Street via- approaching under which duct, the tracks from the Mis- pass.. yard souri side enter and cars leave the over passing a ladder track, it in from leads, seven three which connect north of the viaduct and four twenty-one south of it. These reach all leads trans- fer tracks switches, which are shunted they by gravity, enter, and are moved having slight gradient a downward from the east end to the transfer at the tracks west. This accident on track occurred middle transfer track of yard, which we will over follow its óourse west from'its over, end the ladder which cars destined to it re- are Passing ceived. fifty east about four hundred feet, frog enters track, number 30, the next track to passing north; thence ain curve to the south about ninety-five feet it along track 31; enters thence track 31 practically straight ain line, one hundred ten feet to track under along viaduct; thence tracks 27 and 26-to the connection with the ladder. These transfer 561 TEEM, Vol. APEIL Ey. v. Mo. Pac. apart, including 29 feet 30, numbers and were nine tracks, making from to center. of fourteen feet center a distance say, from gravity to tracks,

These tracks were slight slope they entry so to west, had a the eastern yard been down the cars had started after the run to engine continue would released weight slowly down and momentum of their own already on the transfer car same track. If there was and, it down, switchmen would ride track one position, proper the brakes, set would when it reached the bumper stop If car. the next a to so that it act as would set one car the bunch he would more than there was car. When switch front or west the brakes on the engine yard upper with or end of the east came into pass a down would it, or cars ahead of switchman its car position into switches to throw the shunt tracks and engine proper move track. The then them the to shoving when front of it, them track, down the stop speed proper let attained would been position. process This was called their them move to “kicking and the'movement was handled in them,” way collision sudden or to avoid blow as might injure live stock, whether contents, could fragile machinery, eggs, other the most delicate handling. requiring freight careful duty clerk to examine It by taking their their num- cars initials, and check these their the number their contents, seals and bers, their already carded and if not destina- destination, to 33 two them. He track check went tion to card having track, and live stock on that he finished tracks 31 and 30, 29, across track went south together track, that stood on that two loaded cars check being of them of the west one set the east the brakes being just led clear of switch which end of go he had south To work the track. do this on he looked the cars. tracks side of When coming anything was see if west that track, east to nothing. When he see came track 29 and could SUPREME COURT OF.MISSOURI, Ry. v. Pac.

Fitzsimmons Mo. Co. nor looked east could neither see listened, and also and began walking anything coming, the hear around and bang car ten feet There was an awful from the west end. says, just like the car and him in the back as he struck any- gun. a shot out of a He had time think thing. lying Pie himself his found with toward head leg. passed plain- over his east, and car had The tiff testified that when he went to work Mr. Sullivan, passing in clerk, told him that rear of cars standing go on the track he ten should feet behind clanger, car to avoid and when dead be cars were to warning by given engine moved there would abe plaintiff bells. The also stated had never that he been dangerous manner that warned the it .was cross tracks accordance with these instructions. testimony Further reference will be made necessary. theAt all the close of evidence the defendant following railroad asked instruction: jury plead- “The court instructs that under the plaintiff ings and all evidence this case the is not to recover from entitled Missouri defendant Pacific de- Company, your and Railroad verdict must be for the Company.” fendant Missouri Pacific Railroad excepted. Which refused and said defendant Director Hines, as General of also Railroads, instruction, asked similar defendant which was said refused, and excepted.

duly Thereupon plaintiff asked gave following and the court instruction: jury “The court instructs that if the find and believe from the evidence that on 25, 1918, June employ of defendants aas check- car yards er in the of the Missouri Pacific Com- Railroad pany into evidence referred and that at the time of injury, any, plaintiff, if referred to in evidence, way standing you was on to check two if cars, find, so 29, track mentioned in evidence, and that said cars you been moved defendants, if so from Mis- find, into souri, Kansas, and were to be and checked moved you if defendants, so find, back into Missouri were and you if and find, at so times, loaded for said transit injury, any, if the time of said defendants and you engaged if and so find, commerce, interstate you negligently, caused find, if so defendants against standing said cars kicked cars shunted other extraordinary you unusual, on track so with find, if you rapidity unnecessary violence, force and if negligent, thereby if so defendants were find, standing you thereof said reason find, so violently shunted cars were struck said unusual excessive, and set motion and moved you dangerous rapidity, find, if on to so by- plaintiff, you said run over find, if so and he plaintiff you injured, and that at said find, and if so employment, you performing so time the duties his if of performance any, if and the duties, said find, and performance of his usual duties car checker as yards required him to cross and be said around and you moving and cars and if so trains, about tracks ordinary performance his duties in find, and that the yards dangerous great danger and you said involved plaintiff plaintiff person, if find, and liis so and years age time and was was at said about'seventeen inexperienced, as unwarned and uninstructed to such dangers, you by any, his if so and that reason of find, if any, inexperience, any, youth, if such if and his toas any, appreciate dangers, and if he was unaware of not did you any, dangers, find, if if so that defend- such and ordinary by exercise of care would ants knew or any, of the above if time facts, known of all have by ordinary to have care, exercise of thereafter plaintiff dangers, as to if such warned and instructed injured, you any, if find, he was so that de- before and you negligently, if so find, fendants failed exercise plaintiff ordinary instruct or care warn as negli- thereby any, dangers, defendants if and that you gent, aas direct result find, if so negligence, any, part defendants, if as herein- injuries any, plaintiff sustained set if out, before MISSOURI, OE SUPREME COURT injured you if tliat fie was as result so find, the risks assumed you if so as firm, find, set your out verdict then fierein, instructions plaintiff must be defendants. ‘negligent,’ ‘negligently’ ‘negligence,’ “The terms ‘ordinary care’ as in this instruction and the used other instructions other instructions fiere- are defined in given you.” assigns

Defendants for error the refusal of also instructions number are follows: six, five and as you jury find

“5. The court instructs the that if believe while on either track 31 an unobstructed view to the east could looking alleged seen have the cars to have been kicked they approached onto track 29 said track, then it was duty attempt, not to to cross track approaching in the face of said cars.

“6. court instructs the that while Company Missouri Pacific Railroad is a defendant this action, it. is established the evidence and admitted pleadings that the Director of Railroads General operating of the United States was railroad at question, you time of the accident in are instructed primary liability, any, that the if this case is on Government of the United States and not railroad said company, judgment any that if and is in rendered plaintiff judgment cause in of favor the said would be payable by the Government, and the Government obliged indemnify be said railroad ac- on judgment against count of it. in Therefore, weighing testimony the trial of this cause and the and determining you disregard the issues herein should the corporation fact that one of the defendants a is railroad try impartiality and should the case the same if as the case between the and the Government of the United States.” respect the alleged action of the

Also court with testimony, errors in the admission of remarks of counsel during the trial and the excessive amount of the verdict. Ry. Co. v. Mo. Pac. agree perfectly the seem to I. Both defeüdants upon- evidence, the not, proposition is the judgment hut either, verdict and entitled to diverge. railroad com- paths The here their pany injury charged wrong and that the contends States the Government act United of through Director its the railroad control of asaparty. consequently and Railroads, General of solely presents involved the first liable. This briefly appeal, consider it. in this will we Congress passed August the act which On 29, 1916, giving designated Act, has been Federal Control as the possession power, to take the President of war, time systems transportation country use and to of the of traffic purposes of all them for war to the exclusion necessary military purposes. so far War de- as for Germany April, 1917, 26, on December clared with power, proclaimed referring to this President, day Decem- as the 28th every system of of o’clock twelve noon possession trans- ber, 1917, took ap- portation with its act, included in the of said terms purtenances, utilized be end that transportation troops, war material transfer equipment may be exclusion all as desirable subject employed other traffic to such uSe transportation other traffic. all Congress proclamation act of This only seques- terms, President thereunder not systems, property transportation tered the entire of'these operating working organizations owning but including far its directors, who in so same, officers and respect their service was involved became under Director of the Government servants General proclamation. appointed power same absolute power, under war Government, its availed conscript compensation itself provided the service for the only applied acquisition, law, was transportation properties, of of these but the services of constituting personnel of directors the officers and MISSOURI, SUPREME COURT OF By. Fitzsimmons Mo. corporate compensation ownership,

tlie for sub- sequently according to the terms of the act fixed power sequestration. upon No doubt cast question Federal to do nor has been this, Government power corporate owner cast raised as its transportation property liability damage for corporate might by through its inflicted owner operation property directors officers in the un- supervision der the the Director Gen- direction-and wrongful resulting damage eral, unless the act in such by express had been order done latter. The question suggesting power we are not relate to the does through acting of the Federal Government the Director only actually General; relates to' what it has done pursuance power. of that Nor does it relate ul- injuries liability charged timate for such as are in this corporate case, between the Government own- by er. All matters these left are the terms of Fed- proclamation justly eral Control Act and of 1917 to be only equitably parties. settled between the The already is as to has what been done acts Congress, proclamations relating orders determining way proper (not matter the neces- sary) parties in such a defendants suit. corporation proper party gen-

That the ais has been erally including held the courts of the several states, Joseph [Hite Missouri. v. St. & Grand Railroad, Island propriety 225 S. 916.] W. of this is evident, what be more reasonable might could than that those who finally controversy be affected the result of a should permitted be somewhere and somehow defend conduct as well as their interests? right

That their frequently so, do which had been questioned although always sustained, had its influence upon Congress is shown Federal Control Act of March 21, which is as follows:

“Carriers while under Federal Control shall be sub- ject to all laws and liabilities as common wheth- carriers, arising er under State or Federal laws or common 567 TERM, 1922. Ry. v. Pac.

Fitzsimmons Mo. Co. provi- except, may with the inconsistent be insofar law, applicable any to such Fed- or sions of act act this any the President. Actions eral order control or brought by may equity and be or at law suits provided judgments as now and rendered carriers equity against anjr by or law suit law; action upon the shall made thereto carrier, defense instrumentality agency ground or carrier is an that the ” Comp. [U. 1918, Stats. the Federal S. Government. 31153/4j.] sec. Nothing just reasonable more or more than could be which, child simple provision in words this couched shortly yet., 28, 1918, understand, could October under the Act of Con- before action was instituted this gress Director General issued we cited, which have purporting repeal the section we order 50 Number quoted by following provision: have suits at law, “It therefore actions ordered, is brought proceedings admiralty'hereafter equity, any binding Di- on contract, court based injury claim for death or Railroads, rector General of damage property, arising person, for or loss and pos- growing out of the 31, 1917, since December operation .or railroad or control session, use, transportation system Director General proceeding for but action, suit, which or Fed- Railroads, brought against might been eral control have the car- brought against company, the Director rier shall be Gen- Railroads, otherwise; Provided, however, eral of not pro- apply this order shall actions, suits, ceedings recovery penalties, fines, and forfei- for (Italics ours.) tures.” been

Had this order issued the President there holding supported might been for it reason that was have provision 10 of the Control Act of of Section quite Upon March it is unneces- 21, opinion, sary us intimate sufficient MISSOURI, 568 OP COURT SUPREME Ry. v. Co. disregarded generally' say state it was Railway, [Franke void. v. which it to be courts, held D.) (N. Railway, McGregor N. W. 71; v. Wis. (S. D.) Railway, 293; W. 841; 178 N. Parkinson v. (Miss.) Lavalle 910; Mobile So. Jobe, Railway, 1918, v. having March 74.] 143 Minn. Act of Legislature

already applied remedy levy expedient just by providing that no considered should upon corpora- property carrier be made the the Director the the tions without consent General, question the seems reasonable the whether United respond corporation railroad or the States should judgments such ing be left for determination accord- should particular to the facts of each case. array

Notwithstanding the of authorities con trary Supreme the su States, Court United the preme judicial arbiter in such cases, held the con trary in Pacific Railroad Ault, Co. v. Missouri S. C. Rep. Supreme 593, decided 1, 1921, June error judgment Court Arkansas, which affirmed the against company the trial court both the and the Director Although a General. this suit for what court de penalty, during termined to be a which accrued Govern judgment operation, ment was reversed as to both point fully but now defendants, before us was con sidered and as we determined have stated. The same conclusion result and has been reached in Mardis v. August Hines, 171, 267 Fed. us 23, decided 1920, Quincy, in Adams K. O. & C. R. Co., S. W. 790, de April 1921. cided

Upon controlling authority of these we cases proper party that the hold railroad a was not in this case. Proceeding

II. to the merits of the are case, we confronted with the whether or not. the evidence sufficient to a against authorize verdict for the say, injury Hines; tois whether the resulted from driving'its the act of defendant car v. Mo. great force and unusual with snch constitute as to such circumstances under violence negligence. that, admitted It is

actionable injury, receiving plain- time at the Actionable years had been old, tiff seven^een unusuainCe: corporation the defendant the service of Movement capacity of of cars. about nine months pass among duty requiring him to clerk, his upon empty, loaded tracks which both cars, numbers, checking tkéir initials, were set for transfer, fastening card the number of the seals contents, upon bearing them route from destination yard. necessary that he To was, do this it course, giving go among among the tracks, should the cars and necessary de- all time and attention to work. The argument, urged at- in their have our fendants, great simplicity of the earnestness, tention with operation danger in this work, constituted regard age made it to all alike with little obvious experience. impressed special view are We impression physical give and will heed to our own attempt roughly facts in the evidence. consider yard This as we have the transfer used, said, empty, of cars loaded the defendants’ railroad from twenty-one on other lines. There were in all tracks lying by which cars were set for four- transfer, side side, consecutively teen from center feet to center, numbered extending from south north from 19 to 39, from west approaches, yard which entered the south- at the terminating east corner and at west. dead ends hump yard, It is called sometimes a because from point gradient several leads tracks where slightly, are set. descends once cars so that cars keep being running by gravity, released started and by connecting from track to track shunted switches with system, stopped other tracks of the until their career is at end. The on the west track which this accident oc- system curred was number 29, middle track of the MISSOURI, OP SUPREME COURT v. Mo. say, twenty-one; ten of these tracks were that is to pre- the statement on either side of it. In which situated opinion throughout track this followed this cedes we have place length west end to the where from the its entire southeast a distance corner, it enters the at the eight may roughly feet. at hundred which stated be fifty along track from feet this About four hundred frog a which connects the west is the end switch lying track 30 storage capacity next of it. This distance limits north then

of each of these two tracks. It swings upon a switch to the southeast a curvature straight practically a connection with track thence on southeasterly passing more direction, course a two switching ladder, connections with other tracks, yard. by enter which all cars this track leave The track from west end of this the switch connection with track 30 end level, to the dead for the used Burlington transfer of cars to from lines, upon day accident two loaded sat it, being point the east of the eastern one end about of clearance between the two tracks. This seems to parties, practically both as is conceded shown in plaintiff, during there cross-examination of the which accepted photograph practically was shown a him as coupled together, correct.. two cars were and the according brakes were set on the west car, to a custom placed switchman rode the first or west car upon setting the transfer the brakes track, to hold it position, leaving placed before it. As other cars were the same track en- shoved the switch gine hump, having over all the switches been set to proper position, it into the shunt then “kicked” and was keep with sufficient force to it in motion until it should couple already with the east ear track. on that Sometimes fail "to make run would then have position by engine. shoved the switch years plaintiff, age,

When at sixteen entered the company messenger boy, service of the as a defendant Pao. v. Mo. messages carrying the between his consisted duties took yard general This offices. several the office and yard yards, chief Sullivan, clerk, Mr. him into £‘ always' says he told him to be careful then give good words, in clearance; the car a end any step them on front of a dead ear never ring.” stated, Mr. further tracks in the Sullivan bull that, boy after his with the never talked substance, position yard his promotion in which clerk, to the among pertained the cars. work duties all his Mr. the advice of some detail states with Plaintiff says Sullivan that told Mr. He that he was Sullivan. kept the cars he be from the ends of would if he ten feet perfectly down cars were kicked that before safe, and give warning. yard engine bell Mr. Sul- testimony, no of this his denial livan makes direct assuming fully justified the truth the plaintiff’s was before if the them statement insists that it was consideration. The upon solely that the case tried them, before should upon run car issue whether this dangerous well manner, in an unusual, as adopted dangerous method had been, however there practiced recovery habitually no it could be if was particular yard. theory rela- This has of course no contributory negligence, which doctrine of tion like this, Federal founded, is no defense'in actions Liability Employer’s Act. freely

It and its evidence defendant, stated speed that cars were kicked down at a shows, per equal which is to about fifteen hour, of ten miles warning per signal or to those without second, feet performing duties about the their tracks. One engaged ex- movement the same switchmen respect presses attitude of the sworn statement the effect sometimes respect prevent injury in that careful paid employees, contents, but attention to the 572 SUPREME COURT OF MISSOURI, Ry. v.

Fitzsimmons Mo. Co. theory upon and this seems to be the which the defense placed. is will In other take words, fragile freight, care of while live stock and cars, employees must look out for themselves. The facts tendency this case will trine. illustrate of this humane doc- occupying being two cars that time track at just anything clear was room for switch, there no just else on that track. The lined switchman who had the switch for track 29 knew it, and those cars knew car-lengths they must be moved three before clear would speed track 30. Had these cars kicked at a of ten been per they miles passed hour at that time have thirty track 29, and struck the two cars in about seconds. car-lenghts by Should these be moved three the blow, the movement a success. would be en- Otherwise, the gine must come down clear track 30. progress, prog-

While this movement was and its boy ress had short, was finished his work on track making way pass 33, on foot to his south lay. side of track next work 29, where his There way step evidence whatever to that one show sight yard, southeast corner of the where the drag yard, which included these ears three came into the or of the lead over which must come to be shunted to track 29: Plaintiff we us, tells can no reason see simple story, proceeded to doubt the that he from the cars of stock he on track checked 33 across tracks 30 to the rear end of the anchored car on 29, ten feet to the rear of the two cars, when suddenly he heard terrific noise of a collision most of who have us been to the clamor of a switch- used ing yard many have times, heard and the car him, struck and when he surroundings, became conscious of his lying parallel was position side of and with the track in the struggled.

to which he had, no The im- doubt, pact heavy Eight was, of violent. course, im- draw-bars mediately together. powerful springs came Their Vol. Pao. car

compressed anchored recoil their and with gun.” “just He plunged aof like a out forward shot anything car was it” and the “did not know about injury. producing the him,

IJpon com- learning of the accident inspector, pany Mr. Barnwell, sent Mr. car inspect appliance safety place to Dixon, man, perfect They and draw-bars the car. the brakes found upon rail the east énd the order, and some blood striking plain- indicating the that it after car, had, west fifty stopping. length, before feet, run at its tiff, least car ten behind the that he feet Plaintiff’s statement sixty distance to feet, when it increased the moved, how he was thrown himself, no one can not far tell, even struggled he went outside the rail or stumbled before or upon leg finally under the wheels. The which his rested keep- testimony company in its own defendant had that stopped, they ing. It saw the knew where where car by they the thrown before stood were struck cars testimony con- them. The necting shows that from the switch west, point the to clearance be- tracks 29 and one hundred and ten feet, tween those tracks was about point may which we assume was the where east end jury right to had the stood, of these two cars object em- evidence that the of the force infer from the ployed down the track move to kick the three was to give to the three to in the so far as room for sit two it succeeded or not is not but clear. Whether disclosed, jury right the evidence tends to had the show, dangerous only that it but unusual find, to a operation yard, that even in the blow, described testimony the witness to defendant, Johnson his already have referred. which w.e upon engine, it.

That the sound of the bell had rung, plaintiff, been have been heard would given ample opportunity him to save himself from in- jury may be The defendant testi- assumed. introduced prove tending customary kick mony it was MISSOURI, SUPREME OP COURT Pao. speeds up all ten cars onto these transfer tracks at per warning without times, miles at all what- hour, plain- being the custom ever, and contends that required protect tiff against to take himself notice and dangerous might be. however it On

it, during thirteen his hand, testifies that months experience yard never seen known of he had chief so violent that he been a told movement, pass standing that he the rear those should not of cars taking precaution tracks closer than feet, ten perfectly he by be warned safe, would be engine were to bell when cars be kicked down incline. made the defendant If these statements were through company clerk fixed its chief upon management plain- standard of careful which the rightfully rely, negligence tiff dis- could and was regard, without fixed, standard so before his notice, injury. place defense seems its ground required, as a matter employees law,

of to believe the of stories who testified customary displayed handling to the in of violence the story these movements, disbelieve and to the reasonable plaintiff contrary. of the carefully testimony The more we this examine and map Bridge the excellent of the Kaw which ac- Yard companies part ap- plainly and forms the more it, it pears to our mind the that instructions which the defend- company gave plaintiff through ant railroad to this Mr. his Sullivan, chief, included the statement that he would engine be warned the of the bell switch when it was about to kick storage down the into cars incline these warning necessary that tracks, was a and reasonable precaution, given that had it been and in this the case accident not have occurred. We also think that strongly prove the evidence tends to that the movement standing of the three cars two the on track rapidity number 29 inwas its force and of movement April term, Mo. Pac. particular dangerous yard, in and even that and unusual, respect plaintiff, negligent to this with was therefore performance right jury of their had the the the duty facts to so as triers the find. given the for

In the fourth instruction defendant jury, substance, the that the defendant owed told court duty by ringing engine plaintiff no him to warn the to the its intention to kick cars down incline. hell of negligence jury with for This left unnecessary, extraordinary respect unusual, use dangerous constituting as ele- force violence upon negligence their for consideration, ments of charges they found for these returned accordingly.' That verdict well verdict was already supported we have the evidence stated. plaintiff’s appellant instruc III. The contends given it one the court erroneous, number tion negligence which an element of submitted upon sustain. This founded no evidence to there theory tend- the ing no evidence there was famil show was not Negngence!y dangers ordinary iar duties employment. That the evidence tends show his negligent making the movement defendant was injury plaintiff, have we held in resulted paragraph, preceding but the contends plain requiring jury, find before could youth in further find that reason tiff, unacquainted experience and was not he was warned with, dangers ren situation, instruction appellants freely erroneous. The admit that dered negligence, where con founded common-law suits tributory negligence the constitutes absolute defense, error, been well settled no rule has constitutes Employer’s Li ingenuously argue that under the but requires apportionment ability Act, which proportion respective liability negligence in to MISSOURI, OP SUPREME COURT v. Mo. Pac. injury, causing ele- parties it is the number of the negligence the amount must determine ments importance those apportioned than the to rather each necessarily argument assumes that the elements. knowledge danger sub- to which the work mere contributory negligence jected him constitute negligence, Contributory under plaintiff. whether is a statute, law the Federal defense, the common or part may the railroad as the case be, whole present company opportunity to it the trial had its to appropriate point upon instruction. is court This ruled respondent. The sixth instruction asked IV. properly company mere refused. It was a

railroad impress attempt the Federal Govern- upon any primarily respondent being liable ment, they might verdict render, entitled Liability of more consideration their deliberation Government. than would be railroad party. such distinction. it There the -interested is no impart- Both alike were entitled to fair defendants ial trial. by appellants assigned Error the re-

V. give their instruction the court number five, fusal you jury that “if find and believe which toJd that the plaiptjff 31 or while on either track 30 had an unobstruct- by looking, east and could, view to

ed alleged have seen have been viewlooking, approach track 29 as onto kicked said duty then was the track, to at- tempt approaching cross 29 in the track face of said already cars.” as we have instruction, This said, sub- opinion, paragraph stance, second of this has up- foundation in the evidence. whatever It is founded photograph introduced evidence, and the testi- mony photographer who took that had one it, place upon track 31 at the where his stood, stood camera Vol. 294] Ry. plain along have over view the track except

which the so three cars came office, might interrupted by the far this have as view been say, already said, viaduct. It is sufficient to we have tending that there is no that evidence show occupied position ever track that or crossed 31 at point, testimony while he in his states he did both actually point look and listen at the where he crossed approaching and neither nor saw heard cars. The stock might cars on track 33 from which he came have been at. any point on that three track within hundred feet west only twenty-eight of the camera, and were feet north of it. presented points Among defendants’

VI. statements accordance the rule court with of this following: were denied a fair “The defendants impartial jury, trial before the both on account improper plaintiff’s conduct counsel at and the during

titude trial court,” printed argument presents course of its faf!rury.nt specifications following argument from the plaintiff’s (1) counsel: “The mother sat here boy; you told mother of she was the this work, father had rheumatism had been unable to boy, working and the there winner, down bread money.” sweat of wanted his face—of course he more (2) you say, client “And been a ‘Oh, Mr. Johnston has poor pay Yes; of mine.’ hurt had to Johnston and (3) pull him.” “Let’s of stuff under sort don’t jury.” (4) your the noses the court “If verdict is for there $30,000, be, this case as I think it. should will be another there railroad never child down those yards yards or in other railroad com owned ’ ’ pany. nothing points

There is authorities indicating the action of court brief, defendants’ respect in which or the manner matters,. these points cau- were made but out trial, and saved at

294 MÍ. —37 MISSOURI, SUPREME COURT OF

Fit~siinrnonsv. Mo.Pac. Co. arguments objec- tion we have read the of counsel and remarks, tions of defendants to the above and the action thereon, dignified, of the court which was at all times generally considerate in accordance with the re- quests of the defendants.

Defendants counse in the cross-examination testimony showing witnesses elicited that two of them employees pending against who had been its had suits it. properly brought out, jury This was as the should know existing party the relations between the witness and the against for or whom he testifies. That in these suits the charged personal injuries defendant was with for which damages were asked and that the witnesses were or had represented by attorneys appeared been the same who may in this case for was also shown. It be that pertinent degree this matter also was of credit giyen statements, to be but it would be unreason- say any properly able to that this or other evidence presented for the consideration of the should be too subjected legitimate sacred in its character to be com- ment counsel. complained objected In the cases of the matters plaintiff's sug- in the remarks of counsel were at gestion definitely distinctly of defendants' counsel jury. withdrawn from the consideration ~fthe No fur- remedy resj~ect asked, ther i~ that and it is unneces- sary that we should encumber the record with fur- propriety impropriety. ther discussion of their appellants

VII. The insist the verdict is ex injury, tangible definite, cessive. The so far as con leg sists in the loss of a four and three-fourths inches below the knee. At the time of the trial neurosis was performance exhibited in the of the fnnc~ Excessive bladder, tions of the and there was much Verdict. part soreness in the from which the limb severed, necessary which made it the limb should, possible, pressure as much as be relieved from the i,ncid~nt using an artificial limb. The cause ~wastried 579

Main v. Lehman. injury think we about months after the sixteen knowledge general reference the evidence as well as justifies such condi- conclusion that to such matters indicate natural, time and did were, tions recovery. delay in unusual practice this

In the well-established deference to permitted judgment ought stand court the not to greater [Kibble v. Railroad amount than $10,000. Railroad, v. Mo. 46; l. Newcomb S. W. c. Co., Kin 227; l. 726; l. c. v. 249 Mo. c. Railroad, Farrar ney Brady Railway, v. Railroad, 97; v. 261 Mo. Applegate 252 Mo.

509; Railroad, 173.] plaintiff will, if the within therefore We hold days thirty trial court a re- enter date, from judgment mittitur as said of the date $10,000 judgment and costs $10,000 for the sum of court, hereby D. Hines will Walter affirmed, be and is as Railroads, alone; otherwise, Director General pro- for further will be reversed and is and remanded opin- ceedings trial in accordance with court said Paragraph result as to ion. concurs Small, C., paragraphs; Ragland, G., concurs all other One, and only. Paragraph result concurs One as to the opinion foregoing by BeowN, PER CURIAM: The opinion adopted Woodson, as the court. is C., JJ., P. J., Blair, Graves, Elder, T. concurs; James concur result. Appel- LEHMAN, H.

ISABELLA MAIN v. MAURICE lant. One, 1922.

Division June Invitee: of Toilet. the toilet de- NEGLIGENCE: Use Where hy as used his customers well was allowed fendant’s store employee customer, employees, plaintiff, where aslced third floor it was on the toilet was was told the customers’

Case Details

Case Name: Fitzsimmons Ex Rel. Fitzsimmons v. Missouri Pacific Railroad

Court Name: Supreme Court of Missouri

Date Published: Jun 16, 1922

Citation: 242 S.W. 915

Court Abbreviation: Mo.