LEON FLOYD, a Minor, by IVENA N. FLOYD, Guardian and Curator, Appellant, v. FRANK A. THOMPSON, Trustee for ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Corporation
No. 39952
Division One
April 21, 1947
201 S. W. (2d) 390
The judgment is reversed, and the cause remanded with directions to award the injunctive relief prayed. All concur.
M. G. Roberts, E. G. Nahler, A. P. Stewart, and C. H. Skinker, Jr., for respondent.
Plaintiff‘s decedent, Durace A. Floyd, and İvena N. Floyd were partners doing business as Floyd Brothers, and were engaged in the business of salvaging “scrap” metal, which they shipped by rail to St. Louis. They had requested defendant, an interstate carrier, to “spot” two coal cars for loading with scrap on the Elayer spur connected with defendant‘s railroad line аt Salem. At Salem defendant‘s line runs in a general north-south direction and the Elayer spur is west of and extends in a northerly direction from defendant‘s line. The track level of the spur declines northwardly at a grade of about three per cent. An earthen loading dock is situate east of the spur, enabling the cоntents of trucks to be unloaded into open coal cars on the spur. On the day of the fatality, two coupled coal cars had been spotted on the spur by defendant, the north end of the north car being at the loading dock; and “junk” automobile motors (weighing an average of about 350 pounds) were being unloaded by Floyd Brothers and their employees from the elevated bed of a dump truck into the north car. The “B” ends (brake ends) of the two cars were together. The bed of the dump truck had been so elevated and extended that the “tail end . . . would stick over into the car.” It was contemplated Flоyd Brothers or their employees would move and reset the cars when necessary in loading. As the loading progressed and the north end of the north car had been filled with scrap motors, it became necessary to move the cars farther north. The deceased directed the movement, and he and an employee, Carl Parker, undertook to manipulate the brakes. Parker, with the assistance of deceased, released the brake on the south car, and the cars started moving. Deceased was then on the east side and near the north end of the south car. The elevated dump truck had not been moved away from the north coal car, and no scotches were placed on the rails at the point where it was planned the cars should be stopped. As stated, when the brake on the south car was released, the cars started moving, and Parker attempted to stop the сars by using the brake of the north car; but the cars moved too far. Parker has “an idea” that, when he moved to the brake platform of the north car, the deceased took a position on the brake platform of the south car. It was Parker‘s testimony
As we have said, it is assigned by plaintiff-appellant that the trial court erred in submitting issues of contributory negligence to the jury. Plaintiff-aрpellant contends an inefficient brake was the proximate cause of the casualty, and, the action being based on a violation of the Federal Safety Appliance Act, contributory negligence was not a defense; but it is further contended, if contributory negligence be an availablе defense, plaintiff was entitled to assume the cars were equipped with efficient brakes, and any omission on the part of deceased not connected with the failure of the brakes to operate efficiently would not be a proximate cause. Defendant-respondent contends that the defense of contributory negligence was available to defendant; and that the failure to put scotches or chocks on the rails, and the failure to move the dump truck away (so that the end of the bed was not over in the north coal car) were submissible to the jury as specific negligencе proximately contributing to the casualty.
It was stipulated that the defendant is a common carrier by rail engaged in interstate commerce; but, manifestly, decedent was not actually an employee of defendant. Plaintiff urges that although deceased was not in fact an employee he was sо in law. This argument is premised on the case of Stoutimore v. Atchison, T. & S. F. R. Co., 338 Mo. 463, 92 S. W. 2d 658. A reading of that case discloses that, in examining the duty (leaving out of consideration the Federal Safety Appliance Act) of a carrier to a shipper who was required by the shipping contract to move and load the provided cars, the court stated the carrier‘s duty to furnish safe appliances with which to move the cars was, at least, that of an employer to his employees, namely, to use ordinary care to see that safe and suitable means were provided. The court did not hold a carrier and a shipper in such a situation bеar the legal relation of employer and employee; but did hold that, since the plaintiff shipper was doing the work which would properly have been done by carrier-defendant‘s employees, the defendant had, at least, a duty to the shipper commensurate with defendant‘s duty to its own employees.
The violation of the Federal Safety Appliance Act may be the basis of an action for death or personal injury, although the deceased or the injured person was not an employee of defendant interstate carrier. Brady v. Terminal R. R. Ass‘n., 303 U. S. 10, 58 S. Ct. 426; Fairport, P. & E. R. Co. v. Meredith, 292 U. S. 589, 54 S. Ct. 826,
Plaintiff, relying upon defendant‘s primary negligence in failing to have its cars equipped with efficient hand brakes in violation of the Federal Safety Appliance Act, has instituted his action for wrongful death seeking compensatory damages under
It is tacitly conceded by defendant that defendant‘s failure (if so) to equip the coal cars with efficient hand brakes could be considered a proximate cause of the death of plaintiff‘s decedent; however, it is incorrect to say that only one of the acts of negligence, though of different parties, can be the proximate cause of an injury. The essential characteristic of actionable negligence is that the negligent act be a proximate cause of the injury, and the characteristic
It remains for us to examine plaintiff‘s contention that the evidence does not justify the submission of the specific defenses of contributory negligence. In examining this contention, we will view the evidence from a standpoint most favorable to defendant. It is the rule that we may consider only the evidence most favorable to a defendant recovering a verdict in determining whether an instruction given at defendant‘s request is supported by substantial evidence. Rothe v. Hull, 352 Mo. 926, 180 S. W. 2d 7, and cases therein cited.
Floyd Brothers and their employees had theretofore never unloaded scrap into cars at the Elayer spur, and there was testimony introduced tending to show they were not familiar with the type of hand brakes with which the cars were equipped. There was also testimony introduced tending to show a known practice to scotch or chock wheels оf cars set or moved at loading docks while loading. In view of the incline of the track and the positions assumed by deceased around, upon and between the two cars and the inexperience of deceased and the employee, Parker, in the use of the type of brakes with which the cars were equipped, it is our opinion the question whether deceased was in the exercise of ordinary care for his own safety in releasing or causing the release of the hand brake without taking the precautions of scotching the car wheels or without moving the bed of the dump truck away from the north car was a question for the jury. It is urged by plaintiff that the deceased was entitled to assume the hand brakes were efficient and was not required to anticipate that a dangerous situation would be created if the brake on the north car did not stop or slow down the cars. It is true the deceased was nоt bound to anticipate an omission of defendant in failing to equip the cars with efficient brakes, but, so far as “primary negligence is concerned, the obligation to exercise due care remains mutual and reciprocal. One may not disregard the laws of prudence and exact of others a primary obligation to protect him against his lack of caution. If he exercises due care for his own safety, then, absent information to the contrary, he may rely on the presumption that others will obey the law.” Dempsey v. Horton, 337 Mo. 379, 84 S. W. 2d 621.
It is also true that, before the event, it could hardly have been foreseen that such a сoincidence and sequence of circumstances would occasion the particular injury and fatality, or that a casualty would be occasioned in the identical manner; nevertheless, it can be reasonably inferred from the evidence that the precautions mentioned supra, or either of them, would have avoided a casualty, so that the failure to take such precautions was not only a cause but was a cause but for which the casualty would not have occurred. Now, numerous circumstances, additional to those emphasized supra, entered into the tragic situation—the fact that when the cars were moved there were junk motors remaining in the dump truck, which fact apparently had not been noticed by deceased nor by his brother, nor by their employees; the precise location or position of the junk motors remaining in the upper or front end of the dump truck bed; the particular angle of the elevated bed of the dump truck with reference to the positions of deceased and Parker, which angle had its part in causing the junk motor to slide or roll in the direction of deceased—these and other physical conditions and circumstances were involvеd in causing the particular casualty, some of which, doubtless, were not taken into account by deceased. Yet these facts and circumstances and their unforeseen combination and sequence, in our opinion, would not justify the ruling that the failure of deceased to take the precautiоns mentioned supra, if found to be negligence, could not be reasonably found to be the proximate cause of the fatality. It could reasonably be said deceased should have foreseen there was an appreciable chance some harm would come to him in moving the car without taking the precautions mentioned supra; and now, after the event, it appears that the casualty was, under the circumstances, a natural and probable consequence of the failure to take the precautionary measures. An actor‘s negligent conduct which may be considerеd as a proximate cause of a particular injury when viewed after the event is more commonly illustrated in cases involving the question whether a defendant‘s negligent conduct may be considered a proximate cause of an injury. See Gray v. Kurn, 345 Mo. 1027, 137 S. W. 2d 558; Freeman v. Terminal R. Ass‘n. of St. Louis, 341 Mo. 288, 107 S. W. 2d 36; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S. W. 2d 122; Funk v. Fulton Iron Works Co., 311 Mo. 77, 277 S. W. 566; Bowman v. Moore, 237 Mo. App. 1163, 167 S. W. 2d 675. See also Vol. II, Restatement of the Law of Torts, sec. 433.
The judgment should be affirmed.
It is so ordered. Bradley and Dalton, CC., concur.
PER CURIAM: — The forgoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.