181 Mo. App. 156 | Mo. Ct. App. | 1914
Lead Opinion
John Hardwick was an employee of the defendant and was killed by one of its trains running upon him. Plaintiff is his widow and was appointed administratrix of • his estate. She brought this action for damages; charging defendant with negligence and recovered judgment in the circuit court. There are several living children.
Hardwick was struck at a switch about two hundred feet east of defendant’s station building at Salis
A great deal has been said in argument about deceased contributory negligence in that there was no reason, short of heedlessness, why he did not observe the approach of the train on a straight track with a brilliant headlight, even if he was stooping over with his head down. But that part of defendant’s insistence is outside the case, except as it may lessen the amount of damages. In other words, whatever contributory negligence deceased may have been guilty of cannot be considered as affecting plaintiff’s right of recovery, though it may influence the amount. This for the reason that defendant is an interstate carrier and the case is founded on the Act of Congress known as the Employer’s Liability Act (35 Stat. 65, c. 149, and amended of April 5, 1910, 36 Stat. 291, c. 143); which, as against an interstate carrier, abrogates the rules of law obtaining in this State allowing an employee’s contributory negligence to bar a recovery of damages, and only allows such negligence to diminish the damages allowed; see section 3 of such statutes as set out in Second Employer’s Liability cases. 223 U. S. 7. And of this the jury should be informed by appropriate instructions. Though the authority of Congress as it relates to interstate carriers, is paramount to that of the State, yet where a state court has jurisdiction of the class of actions embraced within the Federal statute, resort may be had to such courts for the enforcement of claims arising on such statute. Second Employer’s Liability Cases, 223 U. S. 1, 59; Penderson v. Deleware, L. & W. R. Co., United States Supreme Court, 229 U. S. 146. It being understood that relief to be had or denied will be governed in such courts by the rulings of the Federal courts in the con
It is, then, of the first importance to ascertain if deceased was engaged in interstate commerce in sweeping the snow from the switch connections in defendants’ tracks. It was shown that defendant is a railway carrier extending from Illinois, through Missouri into Iowa. It was, as we have already said, an interstate carrier as defined by the Federal statute; but it whs likewise an intrastate carrier; and the record here shows that the train in controversy was engaged in both capacities. It was passing through Missouri from St. Louis on the east, to Kansas City on the west border of that State, and some of the cars in the train were to be attached at a divisional station to another engine and perhaps other cars to be thence taken to a point in Iowa, and others at another station were to be attached to an engine and other ears to be taken to another point in Iowa. The place involved in this controversy was between those points. The train was, therefore, actually engaged in both inter and intrastate commerce.
In these circumstances, deceased, though in a sense, a local employee doing only local work in Missouri, was engaged in interstate commerce. [Penderson v. Delaware, L. & W. R. Co., supra.] In that case the defendant carrier was doing both interstate and intrastate commerce, though the particular train which injured plaintiff, was engaged in the latter service only. The plaintiff in that case was carrying some bolts or rivets to one of the carrier’s bridges then being repaired and while walking across another bridge was negligently run down and injured by the intrastate
The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done.”
After referring to the Federal statute, the Justice proceeds: “But independently of the statute, we are-of the opinion that the work of keeping such instrumentalities in a proper state of repair while thus used,, is so closely related to such commerce as to be in practice and in legal contemplation, a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements, and the nature of each determined regardless of its relation to others, or to-the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged.” The Justice further said that it was “True, a track or bridge may be used in both interstate and intrastate commerce, but when it is sa used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.”
Though deceased was so engaged, and though his contributory negligence will not prevent plaintiff’s recovery, there yet remains the question whether defendant was guilty of negligence; for that, of course, is the foundation upon which liability must rest.
If defendant’s servants saw deceased and observed that he was oblivious to his danger, should they have attracted his attention by sounding an alarm? It is clear, as insisted upon by plaintiff, that they could have seen him, in time to have attracted his attention, if they had been on the lookout, and if they did not see him in time, it was because they failed to look. "We think the evidence sufficient to make a question for the jury whether defendant’s servants actually saw him and could have observed that he was oblivious to his danger, in time to have saved him. As has been stated, the fireman saw the semaphore light (which was small) as much as 900 feet away. That light was above the track but deceased and his lantern were between him and it, and we think it is a permissible conclusion or inference that he saw the lantern, and the deceased.
The circumstances have been mostly stated, including the time, the extremity of the cold, the character of the driving wind and the drifting snow. The engineer was not a witness, but the fireman testified that they knew section men on such nights would be at work clearing snow off the switches at stations. De
But defendant insists that not only was it not the duty of those in charge of the engine to he on the lookout, but that it owed him no duty even if its servant had seen him.on the track. We do not think that statement is justified, in its full breadth, by the rulings of the courts. Reliance for its support is placed upon Aerkfetz v. Humphreys, 145 U. S. 418. But that case, while stating that the duty owing to an employee on the track, is not to be measured by that owing to a passenger or stranger, by no means absolves the railroad company from all duty. The very fact that the court used the expression that, “the measure of duty to him (an employee in the yard) was not such as to a passenger of stranger, ” is a concession that there is some duty. And as a reason why the engineer was held blameless in that case it is well to notice that he was not in a position to see up to a point where he could have noticed the employee was oblivious to his danger, for he was pushing two freight cars ahead, and this was being done very slowly; the court said that from the noise and distraction from other bells and whistles in the yard, it would have but added to the confusion to have rung the bell or sounded the whistle of the engine, and that in such situation it could not be expected the railway company should have sent .a man in front of the cars to notify employees off the track. The face of the case, including the line of the reasoning supporting the conclusion, clearly shows the court recognized, that while no duty was owing under the particular facts of that case, a duty might be owing to trackmen, though of less strictness and comprehensiveness to that owing to a passenger or stranger.
That this is true is made apparent by a recent decision of the United States Supreme Court in Norfolk & W. R. R. Co. v. Earnest, 229 U. S, 114, based, as is this action, on the Federal statute, and must there
It is readily seen that these remarks will directly apply to the evidence in this case. Here the engineer and fireman knew of the terriffic and blinding snow storm then on; they knew that in such nights track or swithmen would be out in the storm at stations keeping the switches clear. They expected such men would be so engaged at this station on this night. It cannot be said as a matter of law, that with such knowledge those servants owed no duty to look out for the men thus engaged, so as to warn them of danger.
In Southern Railway Co. v. Smith, 205 Fed. 360, the party killed was a switch tender; and the court stated the question decisive of the case was whether the evidence showed “a lack of due care on the part of the engineer in not observing Smith (deceased) upon the track.” The court repudiated the statement that Aerkfetz v., Humphrey, supra, was authority for the position that no duty was owing to the trackmen from those in charge of the engine. Speaking directly of the case before it the court said: “We cannot say that there was no duty whatever to keep a lookout for Smith. Doubtless, it was primarily Smith’s duty to
It has been frequently held by the Supreme Court of this State in cases where those in charge of the engine saw an employee on or near the track, and saw that he was in peril and that he was oblivious to his danger, in time to warn him it was their duty to do so. [Hinzeman v. Railroad, 182 Mo. 611; Hinzeman v. Railroad, 199 Mo. 56.]
Defendant, however, contends that those cases, and others of like nature, are overruled in Degonia v. Railroad, 224 Mo. 564. "While plaintiff insists that by reference to the close of the opinion in that case it will be seen the majority of the court refused to interfere with the Hinzeman cases. She also insists that the cases are unlike in a vital particular, viz., that in the Degonia case the engineer did not see the injured party, while in the Hinzeman cases he saw such party from the time he was five hundred feet away until he was struck.
But we need not go into a discussion of those cases for the reason that since they were announced the Supreme Court has discussed and decided the question. [Gabal v. Railroad, 251 Mo. 257.] Undoubtedly the rule is stated in that case that it is the duty of
The law is settled by an unbroken line of decisions in personal injury cases other than in behalf of employees, that the injured person has a right to rely on the railroad company obeying the law or ordinance as to speed or as to ringing the bell. [Petty v. Railway Co., 88 Mo. 306, 319; Sullivan v. Railroad, 117 Mo. 214, 222; Hutchison v. Railroad, 161 Mo. 246, 254; Weller v. Railroad, 164 Mo. 180, 199; Riska v. Railroad, 180 Mo. 168, 190; Mockowick v. Railroad, 196 Mo. 550, 571.] It has, however, been repeatedly held, in this State, that the general statute requiring the bell to be rung does not apply in favor of employees upon the track — -that the statute itself limits its application to persons crossing a public highway. [Degonia v. Railroad, 224 Mo. 564, 592-594.]
But regardless of the presence or absence of statutory law, state or municipal, there is a general law, springing from the plainest dictates of common prudence, to say nothing of humanity, whether in behalf of a stranger or servant, that in running through populous localities, at high speed, those in charge of a railway train should be on the lookout. In Lloyd v. Railroad, 126 Mo. 595, 606, the court said “ther-e was nothing to obstruct the view and prevent the engineer, if he was at his post, as he should have been when coming into a depot or crossing a public road or street, from seeing both Lloyd and Gray.” The same thing is said in Kelly v. Railroad, 75 Mo. 138, 141, 142. In a town or city the servants in charge of a train ‘ ‘ should be at their posts, observant of the track, and ready at a moments notice, to avert, if possible, any apprehended danger.” [Frick v. Railroad, 175 Mo. l. c. 609.] These statements were made in cases where the injured party was not an employee; but our object in citing them is to show that it was the duty of defendant’s servants in charge of the engine, in the circumstances of this case already stated, in passing throug’h Salisbury on the night in question to be on the lookout. That being a general rule of law, not limited or restricted, as is our statute, it applies, as does an ordinance, to the protection of employees. And it has been so applied by our Supreme Court. In Schlereth
It may be said that deceased in regulating his conduct and care for his own safety, had no right to rely upon the performance of this duty by defendant’s other servants and that if he did, he was guilty of contributory negligence which will prevent his recovery. In a variety of cases in other jurisdictions it is held that he has such right. [Camp v. Railroad, 124 Iowa, 238; North. Ala. Railroad v. Key, 150 Ala. 641; Richmond Railroad v. Farmer, 97 Ala. 141; C. & A. Railroad v. Eaton, 194 Ill. 441, 445; Shoner v. Railroad, 130 Ind. 170, 177, 178; Graham v. Railroad, 95 Minn. 49, 53; C. & A. Railroad v. House, 172 Ill. 601; Pitman v. Railroad, 231 Ill. 581.] If it be conceded that in this State, evén in his situation, an employee could not so rely, and could not govern his conduct for his own safety in that reliance, without being- guilty of contributory negligence, yet that would not bar the right of recovery for deceased death; for the action is under the Federal statute which only regards contributory negligence as diminishing damages. But having shown it was the duty of defendant’s servants to be on the lookout we have justified the instruction to that effect as it relates to the question of it being negligence not to keep a lookout at such a time and place.
As has been already stated, this case appeals much more forcibly in behalf of an instruction to the effect if defendant was seen, or could have been seen if there had been a lookout, than does Cahill v. Railroad, su
Defendant has insisted that it was not guilty of negligence under the following cases, decided by the Supreme Court of this State: Degonia v. Railroad, 224 Mo. 564; Rashall v. Railroad, 249 Mo. 509; Van Dyke v. Railroad, 230 Mo. 259; Nivert v. Railroad, 232 Mo. 626 and Evans v. Railroad, 178 Mo. 508. Neither of these eases is like this one in essential governing-facts and neither was under the Federal Employer’s-Liability Act; and in each of them (except the Nivert case which was tried on the pleadings) the employees-contributory negligence barred a recovery, whereas,, under the Federal statute, already stated, such contributory negligence does not bar him. Those cases are bottomed on the idea that an employee, must take care of himself; whereas an interstate employee, may not be so careful and prudent and yet have a legal claim for damages.
In the Degonia case, the accident happened to a track employee at or near a little village (p. 569) inside the inclosed private yards of the railway company and the place had not been used by the public (pp. 590,. 591, 592). It is manifest from the discussion found in those parts of the opinion that the court regarded the failure to show a public user prevented an appli
In this case the place, both pleaded and proven, was within a few feet of the station building in Salisbury, a city shown by the census to be of more than 2600 population. It was a place, as we have shown above, where every dictate of prudence would suggest that there was no right to expect a clear track. Besides, that fact, in that case no one was expected to be engaged at work at the place of the accident; while in this case, it was conceded that those in charge of the engine expected that deceased, or some like person, would be at work in the storm. In that case the engineer did not see the deceased and he went on the track when train was within fifty or sixty yards of bim (p. 599). While in this case, as already pointed out, the testimony of the fireman tends to show that deceased could have been seen a long distance off. It is significant that the engineer was not called to testify, an omission of such significance as to require consideration. [Reyburn v. Railroad, 187 Mo. 565, 575; Baldwin v. Whitcomb, 71 Mo. 651; 22 Am. & Eng. Ency. of Law (2 Ed.), 1261.]
The Rashall case is wholly unlike this in its facts. There the injured party got upon the track in the
So the Van Dyke case has no likeness to this. There the accident happened in the private fenced yards of the railroad company (p. 262). The deceased stepped on the track “nearly directly in front of the train” (p. 282). And the engineer besides giving warning signals, used every effort to save him (p. 283).
The Nivert case was tried on the pleadings and it is also unlike this, though in the opinion of one of the concurring members of the court, it is said (p. ■648) “that on a steam railroad m the country, away from, congested populations and between crossings, there is no general duty to lookout for persons on the track.” (Italics ours).
The Evans case bears no resemblance to this. Section hands were cutting weeds on the right of way. The engineer was at his post and saw them, but did not see deceased get on the track. The bell was rung constantly, and the whistle sounded a number of times finally with three or four “quick blasts.” The men separated and deceased stepped in front of the engine (pp. 511, 512). No question in that case of duty to look, for the engineer was looking and gave every warning and did not see deceased in place of danger at all.
It is well to have analyzed these cases for they help to show plaintiff’s legal right on the facts of this case. It seems to us that the reasons given by the court for the rulings made in them clearly indicate, or, we may say, that in a negative way they assert, that if the court had been considering a case like this, the holding would have been that those in charge of the engine would have had no right to expect a clear track and that their duty was to be on the lookout. Besides it is significant that all these eases, dating since Cahill v. Railroad, 205 Mo. 393, 405, 406, supra, approve of thal; case.
These conclusions result in our approval of the trial courts action in overruling defendant’s demurrer to the evidence and in giving an instruction for plaintiff to the effect that it was liable though its servants in charge of the engine did not see the deceased, if they could have seen him, and that he was oblivious to his peril, in time to have warned him of his danger, had they been on the lookout.
The verdict was for a gross amount. Properly the evidence should show the pecuniary loss to each of the beneficiaries of the verdict and the jury should state the sum allowed to each. [Gulf, Colo. & C. Railroad v. McGinniss, 228 U. S. 173.] For, as the loss recoverable is the pecuniary loss only, it is apparent, that a child shortly to become of age could not suffer so great a loss in the father’s death as his younger brothers and sisters, and the verdict should respond to this obvious fact. But as no instruction of that kind was asked and no objection was made to the verdict and no exception taken, it is -not reversible error. [South. Railroad v. Smith, 205 Fed. Rep. 360, 362;
In Texas a statute requires an apportionment be made by the verdict; and it is held reversible error not to do so. [Railroad v. Moore, 49 Tex. l. c. 45, 46; March v. Walker, 48 Tex. 376; Railroad v. Legierse, 51 Tex. l. c. 199, 200; St. L., A. & T. Railroad v. Johnson, 75 Tex. 536, 542.]
But in the same State the omission is held not to be of real or practical interest to a defendant, since the judgment on a verdict in a gross sum would protect him from any future action and if he does not see-fit to ask an instruction to that effect at the trial it is not reversible error. [March v. Walker, 48 Tex. l. c. 377; M., K. & T. Railroad v. Evans (Tex. Civ. App. 1897), 41 S. W. Rep. 80; Railway Co. v. Hudman, 8 Tex. Civ. App. 309.]
The foregoing considerations lead to an affirmance of the judgment.
Rehearing
ON MOTION FOR REHEARING.
Since the decision and announcement of the judgment of this court the suggestion is made that we have-no jurisdiction. This is put upon the ground that our construction of the Employer’s Liability Act brings that statute into conflict with article 10 of the Constitution of the United States. And that such Act denies to the State of Missouri the fight to police its own territory and to govern the liability of its citizens-while engaged in lawful commerce within its own territory and is therefore in conflict with sections 2 and 3 of article 2, of the Constitution of Missouri known as the Bill of Rights.
This may be properly designated as, in effect, a statement that this court has no jurisdiction of the ease unless we decide it for defendant. The result of
No question involving the construction of the Constitution of the United States, or of this State, has been presented; nor have we construed either of these constitutions. The decisions of courts, in nearly every instance, deny some right or remedy claimed by the losing party. The constitution demands of the courts that they administer to him his rights and remedies. Therefore, according to this claim, whenever he loses, the courts have decided the case in conflict with and in violation of the Constitution.