Hough v. Chicago, Rock Island & Pacific Railway Co.

Hough Herbebt L. Railway v. Chicago, Rock Island & Pacific

Company, Appellant. S. W. (2d) 499. One,

Division December 1936. Culver, Phillip, ap- Luther Burns <&Smith Emfmcmn n n pellant. Beery and for respondent. Prince & H. Gamble E. brought C. Plaintiff

FERGUSON, August, this action in 1931, County, 'damages, Clinton for Court of the amount of the Circuit injuries personal alleges sustained, which he for on Feb- $50,000, ruary employment of his as a switchman the course yards Reno, at El Oklahoma. The railroad found court sustained The trial motion for a new defendant. certain requested error instructions trial on appealed granting has from the order defendant and defendant new trial. contends, first; appellant here did as Defendant evidence, its case, that demurrer to make a at the submissible case, should have of all of the been sus- conclusion error, given request any, the instructions at its that tained and further contention is that Appellant’s immaterial. it be held 1174 a

that case was made for F, G, that its H, instructions specified of which the grounds trial court granting for .trial, newa are not erroneous and that respondent here has not met the burden of pointing out set other out ought his motion for a new trial upon which it been sustained. to have determining In whether, a evidence, under case was made the jury for we of necessity must ascertain involved and the issues. review the El evidence. is a division point Reno the defendant company yards railroad In extensive are there. maintained yard of the involved there were at the time of accident thirty parallel south, east and west tracks from the numbered being 1, space southernmost track with numbered vacant south there yard yard of within the bounds for additional facilities. After the alleged injury parallel date five were additional tracks con resulting 1 space structed south the former track re numbering all the tracks from the southernmost track. However, look the situation as it at the Tracks then num we existed time. 11 writer 10 and are involved. As the understands the evi bered being of the tracks south of track dence construction completed prior or been some two three months inclusive, had and had since been These tracks of this accident use. were time yard” by plaintiff, “front to, referred claims yard.” to this “front At the principally work confined same his from track was constructed two new time “crossover” alongside and south of that track and installed had stands switch three months. Thereafter track 11 in use some two or been therefore through yards” engines” “road main line so that “was used coming “could come down line to roundhouse.” from a run newly evidence, two installed stands switch There was .these apart; stand, west or fifteen feet about fourteen were thirty-six injury, was says one-half contributed to ap track and the east stand rail of of the south inches south rail; projection that the south of same distance proximately the twenty- tank type.of involved was “overhang” or inches; ten and one-half “inside clearance six and the inches’y top lamp at the of the west stand was side of the north surface or inches south rail of of the south and one-fourth two nine but feet only seven and one-fourth leave a clearance which would track inches; thirty-three switch top west stand was that the step and the bottom of the sill of the rail top inches above the eighteen car, of a “stirrup” the side tender, one- tank or rail. Plaintiff top testified these half inches above ‘1 height switch same as other about the were stands stands two switch ordinary distance other “the usual yard” rail) (nearest yards” track from the in those stands

1175 any sixty sixty-five inches; of other switch to that he did “not know yard (the was as this one” stand as close to the track stand); after he did not “it set close” until the west know accident; that construc it was custom a switch or other when stand obstruction, or placed yard tion was so the as to constitute an board; danger, post warning the bulletin source bulletin on “regularly board,” the posted, and that he read bulletins watched warning In relating never saw these stands. and notice on principally was connection testified while his work along north him and tracks tracks south track 11 often took on 11 had occasion to thereof and over track that he had never use but testimony His this switch “never went over this crossover.” proximity of the knowledge to the no the prior effect that he had stands switch to the track. occurred,

There are the accident two witnesses as how con- Their versions are brakeman, and defendant’s Streams. eight tradictory. midnight a. M. shift. working Plaintiff was on a February Shortly eight morning before o’clock on the mak- plaintiff completed 8 with the his work track in connection on ing up Texas; he started Worth, of a train bound Fort yard my if there was no more report the office “to foreman yard slightly I going home.” office northeast work The be- intending 8 and 10 to walk track went north to track quarter mile” 10 11 of a tween tracks the of “about a distance the yard opposite 10 about point to the office. He crossed track at a 11 As east switch of track above described. stand on the south side engine 10 com- approached he track he a road and tender observed ing backing way from the on 11 “on its to the west and east” track ’’’ engine roundhouse. It that this had been detached is conceded freight El Brake- an interstate train which it had drawn into Reno. engine standing

man Streams the crew “was on the north end tender) (of engineer’s the footboard side.” Both engine” against plain- were “the movement of switches crossing engine stop tiff track about fifteen came to permit switch brakeman to “line’'’ west west stand to feet cus- switches. Both and Streams testified that “it was the tomary (in yard) were when for switchmen around to line switches) yards,” through (operate for train crews that “it getting engine work and time of off his save brakeman the would throwing coming Having down switches them.” observing point opposite track at a east switch crossed “against switches the movement” “lined” the east were “walked west it.” and then back switch and lined switch Plaintiff did testified that “all Streams off tender. engaged he “lining” and Streams were switches

time’’’ ‘ conversation; stepped right I lined the west I and that: 'When on switch, the west around side of west over to the middle of (11), engine track toward with the intention of advanced still; getting engine engine footboard, the ties while the stood off, were above the smoothed and in ad- there. It was not vancing glanced I walking, toward down where I was again I my eyes engine motion, jumped when I raised the was and get try myself back to the south to clear to off track, to and the right me, engine looked like to me I reached that the was on and up my grab with grabbed left hand south- and hold of the iron on the engine swung my tank, speed east corner of the so the doing, body tank; engine increasing speed to the side all and with the time, regain my of footing get myself the I safety, before could to to I dragged (the stand); across the west that broke switch stand my grab causing iron, down, hold on this and in so doing, me to fall there, part journal some the or ’ ’ me in the back as step, bos struck engine going passed the tank me. Plaintiff further testified that engine pass yard to the the in front of office roundhouse would the get engine purpose it was intention “to on for the riding yard office;” general practice to that “it for through engines yards switchmen to ride road and trains jobs go from discharge their wherever had occasion to duties;” of their that he track walked between the rails of along standing engine “the middle of track” toward the “and glanced before he Streams, standing down” on north end of the on the engine looking footboard back of the “was at me and I tank, give was in him;” any conversation (plaintiff) with that he did not signal any signal given engine nor see glanced up but when he moving him; toward and that it is- when a the custom switchman or is walking trainman toward the of an engine, footboard he was, engine with the boarding engine intention of “to let the stand gets still until he on.” only

Streams, defendant, eyewitness, other as a witness entirely relates an version happening. different He testified any get that along did not at time the track walk says engine the track toward the He stopped tender. that as the west switch stands he saw at the stands in the act throwing switch; that there was no conversation whatever be- plaintiff; plaintiff having tween him and lined the that switches and standing while “at side track the south between two gave signal gave . back-up switches . and I it to me engineer;” standing position remained that on the south side clear of the track between the two switch stands and Hough get got “as we even with Mr. on the tender- he tried to tank;” (plaintiff) grab grab “he started to hold of iron sight something had him and he went around out like knocked off I . . . kinda the tank saw he was in to the side of trouble and emergency engineer gave engineer”' stop signal; an quick stop;” plaintiff lying “made a found engine;” “up cylinder at the of the track about the head of the side get engine; on that he did not know that intended nothing by plaintiff said indicate such intention or done going (plaintiff) “had no that he intimation or belief he try on the tender.” Liability action is Act Employers’ This under the Federal damages”' an em company makes railroad “liable ployee “suffering injury” commerce, employed in interstate while defined, injury “in therein when the results whole or agents officers, employees of such car applicability questioned rier,” etc. The the act and as the is not theory parties, cause here was tried briefed both being question, as within the we shall so consider' it. without act (1) dangerous assigned negligence petition Plaintiff’s as follows: “unnecessary” proximity track; (2) of the switch stand dangerous stand; height (3) the switch failure warn of stand; (4) engine starting switch the while location of the toward, rails, walking intending, upon track, was the the between accelerating step (5) speed and the about, footboard, and “swing grab thereby engine after had iron seized ing gain place against him stand he could switch before safety.”' any, injuries, if Defendant’s answer denies that - by alleges employees its that were caused or of its and injuries any, if from sustained, that “whatever resulted moving engine negligence” under attempting his own to board the testimony by Streams’ manner circumstances and in the shown and “switch stand men defendant’s evidence and further that track,” dangerously plaintiff’s petition etc., to the was close tioned that assumed risk. hardly hold, upon As evidence we could to the demurrer to the urges, law, that and as defendant the ’evidence matter dangerous proximity of the switch arising risk from the assumed the certainly arising the risk track and not that he assumed stand to the according engine was, when tes- of the he to his from the movement advancing track, it, plain toward timony, in the middle of the signal starting brakeman, controlled the of the view whose of the and apparent purpose intention of engine, with the obvious getting tender. sustain defendant’s mo- To on footboard required the court would to discard tion for a directed verdict accept testimony disregard plaintiff’s positive and rule the testimony most and the evidence favorable to Streams’ motion on extending we think the discussion statement defendant. Without sufficies to show a case was we made submissible the evidence have jury. of fact issues for the that there were made and brings question This us to of error of cer tain instructions on trial specified defendant granting court as for testimony of a new trial. Plaintiff’s positive was alleged injury; to the cause manner of his having switches, thrown both last, the west he stepped switch around and to the west of track; the west that he switch stand standing west in walked the middle of the track toward the engine; looking conversing Streams was him him at with engine; engine he advanced toward the started an attempt engine getting “grabbed save himself oh grab hold of the iron on the southeast corner the tank” tried get stirrup” “foot his but at speed that instant the engine causing body swing was increased side tank “dragged and he was stand, across” the switch west “broke” grab causing” his “hold on iron him “to fall” to ground at the side of the track. We have recited the evidence most favorable to contention that west switch stand was dangerously close to the track. Defendant had evidence that both allowing switch stands were at a safe distance from the track safe riding and ample clearance for trainmen or switchmen on the side engines distance, at the same, cars or and were and usual from yard. the track other switch All stands height were of about same other as the switch stands yard. highly danger had Defendant also evidence that was engine get attempt ous for a trainman or switchman to on ear or moving point toward from a near the switch stand stand moving engine and on the side thereof which the car or approaching and that it the custom the trainman switch- or man the car passed after it had the switch stand. evidence, accepted jury, sustaining There theory employee that it its negligent, Streams, nor plaintiff’s injury, any, solely if negligence. resulted from his own As noted had defendants evidence that the switch stands were located reasonably át a safe and usual distance the track. Streams testified, that there was no conversation whatsoever between him and being against plaintiff; engine stopped, when switches that the the lining switches; movement, engaged plaintiff the he saw in the that having standing plaintiff lined the switches between the two side, gave him back stands at the and clear track the and south up signal relayed engineer; which he the that as the moved standing position plaintiff east in the same as the remained but ‘ ‘ ’’ got attempted tender even plaintiff with he tender as within a few feet moved east and was then of the east toward grab grab switch; plaintiff hold iron” and “he that “started sight tank, something like went the side of the had out of around (Streams) gave emergency off;” thereupon him and knocked

1179 signal. gives if tbe true version stop It follows defendant’s evidence event, jury, and was for defendant of the situation employee negligent plaintiff’s Streams, its were not and own injuries. act was sole canse That is the submitted1to of his issue jury by given E defendant’s and G-. instructions granted new "Whilethe record us shows that the trial before court F, ground G, in on of error defendant’s instructions conceded, parties proceed to be both H, it seems and the briefs of theory, E', H, that were the on that instructions G, defendant’s ruling. E, G, predicate basis of the trial court’s Instructions jury according facts and advise the certain to defendant’s version plain- in happening way that and that find occurred that negligent moving trying tiff was tender such to board manner, place “and under such circumstances and at such time negligence (if you solely part find he reason of such on his negligent) the verdict should be injured,” was thus plaintiff’s defendant. We here main instruction observe that conjunctive directing favor, 2, set out numbered a verdict his required finding' Plain- in accordance with his version. facts you jury, that “if find the tiff’s Instruction then told the facts negligence (that 2 as there- stated Instruction defendant’s injury), hypothesized “then proximately contributed to against plaintiff he was him- you not find must injury; guilty any negligence that his own but self contributed to negligent you was himself if from the find injury, produce his negligence directly own and such contributed recovery in proportion must his then diminish the amount of negligence negligence the combined that such bore to provision 4 follows the and the of himself defendant.” 53) (U. A., Liability Act S. C. see. Employers’ Federal contributory may guilty of have been employee “the fact that recovery, damages shall be negligence shall not bar negligence at- proportion amount of diminished plaintiff’s Instruc- If under employee.” therefore to such tributable defendant, its negligence em- found tion slightly, plain- cause contributed, however proximately ployee, great, proximate- however plaintiff, injury tiff’s recovery but would contributing bar ly would not thereto plain- damages recoverable, stated in only operate to diminish contributory negligence 4. While tiff’s Instruction however, is the cause recovery, act sole bar does not is no of the causation defendant injury act Assn., Mo. S. W. Railroad (Mech v. Terminal not liable case, pleads defendant instant (2d) as" 510), when, any negligent it was not its tends to evidence show act was the sole charged plaintiff’s cause against respects it injury certainly of his defendant is entitled to have that defense sub- jury by mitted a proper to instruction.

Complaint is not to made as the form of the so-called sole cause instructions, case, hypothesize or that do not facts and require finding specific a of acts part plaintiff, by shown evidence, defendant’s as the sole injury. posi cause Plaintiff’s tion seems to be that it is give error to the so-called sole in cause any contributory struction case in which negligence part on the (or óf a party) recovery third is a bar not and that this citing court has so a held number of which we decisions shall re view. cases, The first quoted of these which is in the sub cited sequent dealing a decisions sole instruction, with cause is v. Boland Ry. (Mo.), St. Louis-San Francisco Co. W. 141, S. 145. In that case the read: “If find and all believe from the evi instruction dence in the case that passenger the collision between train the automobile described evidence was the result the sole negligence (a automobile, guest) the driver of said against is not your entitled recover the defendant and verdict must for be the defendant.’’’ The court said: “Of course the de alleged nothing fendant negligence is not liable its had whatever way bringing' plaintiff’s injury. do with cryptic about But the conveyed jury which calculated, this information was to the not to but to enlighten, confuse.” It is evident that the court refers abstract manner in which proposition stated and it will specific hypothesized observed that instruction no acts on the part being injury of the driver as sole cause of nor required jury does it enumerate facts which the are to find. The opinion not does if there is hold to base such a defense is error to submit plaintiff, party, a plaintiff’s injury, third as the cause sole by the jury, properly predicating an facts. instruction such Gould Q. B. Chicago, Co., 713, v. & 315 Mo. 290 S. W. an 135, Railroad damages by injured action for when struck soldier who was one guarding bridge of defendant’s trains while line of solely duty. “The ease was submitted under the human requested instruction, itarian rule.” Defendant which the an trial “that, give, was not court refused to the effect exercis ing injuries solely safety were for his and his caused care own opinion The thereof, reason should find defendant.” properly the instruction for the holds that the trial court refused tending to show that reason: “There no evidence in concurring juries independent act, due his sole were Peppers St. alleged v. negligent with the of defendant.” Louis- act 757, Railway W. Co., 295 S. Mo. San Francisco child damages parents minor who killed an action for crossing train an automobile when struck at railroad

1181 relied, guest. riding in primary wbicb she was as a Plaintiffs invoking negligence negligence statutory “with both and common-law respect ringing blowing bell and whistle.” Defendant’s tbe negligent negligence it was position was not and that the of the The driver of the automobile was the sole cause collision. judgment

verdict and in plain- the trial court defendant was for assignments error, appealed. appeal, tiff One of on the given was directed to The defendant’s Instruction 6. instruction duty continuing ap- first declares the in of driver of an automobile proaching crossing if “So, track a railroad and then reads: you find and believe from said driver of auto- the evidence that said attempted mobile drive occasion mentioned' evidence to looking crossing listening over said tracks at said without then guilty negligence; said was if further and be- driver find any, lieve the evidence if of said driver from that such negligence, Mildred of said was cause of death of automobile the sole said recover, your be Peppers, plaintiffs should then cannot verdict shows for the defendant.” This court said: “An examination technically goes, as far but it is mislead- correct, instruction is as it ing. that, negligence if of the automobile It is true the driver plaintiffs Peppers, was the sole cause the death of Mildred embrace the en- however, cannot The instruction, recover. does neg- situation, jury tire for it fails inform the driver’s ligence determining whether imputed cannot be deceased negligence his The was the cause the collision. whole sole negligence driver as the sole tends show more than negli- collision, may it that the cause be for it inferred concurring gence cause or the sole of the defendant was either negligence that the explained cause. If the instruction had to-the determining imputed whether driver could not collision, a negligence, any, different was sole cause of given was error would have obtained. The instruction situation ruling sanction misleading. of Boland because it was Our has 141.” v. 320 (Mo.), v. 284 W. In Shumate Mo. Wells, Railroad S. injured

536, (2d) 632, 9 when an 635, plaintiff S. W. automo- by riding guest bile which she as a of the driver struck receiver, operated by at street intersection ear, street defendant solely city negligence Louis. was submitted of St. The case judgment was for under the humanitarian rule. The verdict and following which is quote We appealed. defendant and given all opinion about -the cause instruction said sole 6, request: at No. told “Defendant’s ‘solely injuries were caused that, believed automobile,’ she could not of the driver of similarly in Boland phrased An was condemned recover. instruction Peppers Railroad, again 284 v. (Mo.), v. S. Railroad W.

1182 295 Mo. W. 757.” in which a canse The next case sole S. instruction v. referred to is Smith 105, St. Louis-San Railroad Francisco 939; an Co., (2d) damages Mo. S. W. for the action ITaley death of James when who killed owned automobile, an another, riding guest, which was as a struck driven negligence. defendant’s train. primary It was submitted on The defendant., granted verdict was for and the trial court a new trial in giving at de of error certain instructions request among you “If fendant’s which was 0 as follows: wholly by find that the negligence care collision was caused lessness of the question, of the automobile in and defendant driver negligent, running was not in operating train, then, in. events, your either cannot be recover, and verdict should referring supra, for the defendant.” Peppers "Without case, citing case, Boland in in said, this court reference to the jury expressly by struction: “Thus the court was authorized impute Haley automobile, negligence of the driver of the to. any, they if found, jury that, if and thus the further advised negligence plain of the collision, driver was the of the sole cause tiff was not entitled in to recover this action. It is now well settled negligence this that the of an can State the driver automobile impute'd occupant not be to another automobile, unless the relation between them was such the driver’s acts or omissions were under the law or occupant the acts omissions such other automobile,' occupant or unless such other of the auto expressly mobile what sanctioned the driver did or failed to do. v. (Mo.), 284 W. Railroad. S. have We [Boland 141.]” heretofore upon commented case. We Boland come next City Co., Millhouser case of v. Kansas Service 331 Mo. Public (2d) injured S. W. 673. Plaintiff was when an automo riding bile another, passenger driven and in which he was guest, City by or was struck at a street in Kansas one intersection of defendant’s street The case was the hu ears. submitted under manitarian rule trial alone. verdict was for defendant. The The sustained-plaintiff’s ap motion for a defendant new-trial and court pealed order. “One of which the court the instructions gave defendant, doing granted in so new for error ‘ you jury trial, was to The court this effect:1 instructs place find and from the that at time and men believe evidence tioned in evidence the driver of the which automobile riding negligently carelessly driving in an in same condition; toxicated and if further find and believe from the evi dence that the- collision the street car mentioned in between solely negligence and said automobile carised of the driver said driving of said while in an automobile automobile intoxicated condition, you-find' condition, in an plain- he was intoxicated -your tiff cannot recover and verdict must for tbe defendant.’’” opinion says: clear, Our in that tbink, case is under “It we this . . record this . instruction erroneous. nothing

There was for the whether except consider this case negligent defendant was under humanitarian doctrine, as stated! plaintiff’s why . . . . instruction. The chief reason . . negligence, instruction is plaintiff’s erroneous or that negligence the driver automobile, is no defense where case based on humanitarian a violation of the negligence place and an rule, instruction in has no only case. The ease properly defense in a submitted’ on human disprove itarian rule facts on is to one or more of basic which that rests.” rule The last confines defense statement restricts and solely disproval in a humanitarian case one’or more of the rule elements the humanitarian rests. But even may a humanitarian case affirma defendant offer evidence tively showing the acts of either party plaintiff's injury third was the sole cause of and submit that appropriate an opinion issue instruction’? [See Doherty (2d) v. Co., St. Louis 339 Mo. 98 S. W. Butter 742.] Borgstede 337 Waldbauer, A later v. 88 W. case of Mo. S. (en banc), 373

(2d) by damages an action widow’ the was a for for walking street, who, of her while the was struck death husband across by city killed an at a in of automobile intersection the street solely jury the the St. Louis. The case was submitted to under judgment was humanitarian The verdict and for doctrine. appealed. assignment of error was to the refusal defendant One by stating,

by an the trial court of instruction offered defendant finding according in evidence to defendant’s requiring a the facts of, by which, jury, de occurrence, if found the absolved version Two) in liability. opinion “(Division the divisional of The fendant by that: opinion en Banc. The states adopted was the Court ease in the instruction finding “A as contained by a of the facts negligence was equivalent finding that' deceased’s . to a . was . . Continuing “In opinion the holds: the collision.” the sole cause of doctrine, a of a motorcar driver Missouri, the humanitarian under discovering highest in a degree of care required exercise the is peril danger. It immaterial whether that is peril in or pedestrian Contributory neg pedestrian. of negligence the created was solely under when it is submitted ligence passes out of the case cases.) However, question humanitarian, of (Citing doctrine. injured an issue party, where it made negligence of whether the A injury the case. of remains ease, the sole cause was properly sub right have that issue has the cases in such defendant (2d) W. Moussete, 337 Mo. S. v. jury.” Watts mitted to injured automobile damages guest a an 487, was an action in a collision between the riding automobile she alleged grounds automobile. Plaintiff specific several negligence. The general answer a contributory denial, negligence a plea plaintiff’s injuries solely by were caused neglig'ence Mabary, the driver of the plain- automobile in which riding, tiff was in the manner set out therein. The verdict was for defendant, the trial court sustained a trial, motion for new and the appealed defendant specified therefrom. trial court The as ground for granting giving order trial, new error defend- ant’s as follows: “You instructed, are further that if you find and believe from the evidence that collision mentioned complained proximately of was solely neg- caused ligence of the driver of the automobile in which was riding, you will find defendants, the issues for the are further negligence instructed that the of the driver the automobile in which riding, imputed determining is not to be negligence, proximate whether said if any, driver’s sole and complained cause of the of/’ It collision mentioned will be objections while meet noted that so worded as to instruction case, supra, set Peppers the instruction in the it does not out and finding require specific negligence or the of the driver facts by defendant’s up automobile in the answer and shown set injury being for that evidence sole cause of the instruction error. It reason this court held that the “ negligence case, who invokes A defense was said: defendant injury being the sole cause party of a third submitting issue, sub- of, in the instruction complained should, which the specific negligence party such third mit the pleaded specific defendant has support, whether such tends general by a answered denial party has negligence of 'the third course, against And of such an negligence charged him. toas clearly instruction, warrant, advise should the facts imputed party third cannot negligence, any, defendant, clearly recognizes right upon of This case plaintiff.” plaintiff or a third tending act either that the of to show evidence injury have such issue sub- plaintiff’s to of was the sole cause party by instruction. proper mitted to hold, do this court not foregoing decisions of As view we give in- a sole cause contend, that it is error to plaintiff seems contributory negligence on of any in which struction case recovery we adhere a bar and not party, a third or plaintiff, is not error to sub- supra, that announced, opinion supporting facts a instruction, by proper a jury, mit by jury, occurrence, accepted if which, version defendant’s acts of a third acts, own or finding that warrant party, plaintiff’s injuries the sole were cause of absolving and defend- negligence charged. We ant of the have heretofore noted that form the instructions is not assailed but we are not under- approving respect. merely stood their in that correctness We hold when are upon that there facts which to an in- base such struction defendant is entitled to have the issue submitted to the by proper might instruction. In this connection it be well G, for defendant to examine its Instruction as to whether it sufficient- ly finding specifies upon “neg- facts which to base a that ligently attempted which, board the tender’’’ and found any negligence charged. would jury, absolve defendant of H, specified Defendant’s Instruction is one of the instructions jury that; the trial court as error. The instruction tells the “If you charge find crew in evidence that none engine get attempted upon tender which . . . .to knew or the exercise of reasonable care would have known that attempt find in plaintiff intended make such cannot favor persons charge them in plaintiff on the that the or starting engine negligent in the same be were of said tender gotten charge engine The crew in plaintiff had fore thereon.’’’ composed engineer, an fireman the brakeman tender was engineer they did see fireman testified that not Streams. The subsequent movements; plaintiff at the switches nor his engine opposite track, side and the switch stands were length of the tender ob engineer and that the and tender from the that the fireman and .Plaintiff testified structed the view. fireman’s keeping with instruction is engineer him. The could see was, after version, be recalled which it will Streams’ gave back-up signal remained stand “lined” the switches he track; that clear ing and south and between the switch stands indicating intended or anything said did plaintiff neither nor he, “no engine that, had or tender and Streams wanted doing On the other intended so. intimation or belief” a reasonable while it seems accepted version be hand circumstances, must have known Streams under such inference that planitiff, ad causing to start gave signal when he engine, standing in track, toward the vancing, in the middle of jury. that was for the nevertheless the footboard to mount tended instruction, mere briefly upon this (respondent) touches Plaintiff “singling” “isolat that it is saying in his brief place ly at one splitting it is a “cause place at another ing” instruction and repeatedly have con approve, do not While we instruction.” out, upon, isolated single or comment demned, instructions finding a verdict direct the evidence portions detached case, in this E, cause sole (and thereon in view of the point), view examined from might well be framed, several, separate assignments of petition, error set out conflicting evidence, and the facts set out main instruc- tion the appear instruction does prejudicial plaintiff. to be to In this assigned motion for a new plaintiff trial as error the F. specified by of defendant’s Instruction While not the trial ground urges granting court as a plaintiff of the order a new trial here that under state of the evidence in the case the instruction highly prejudicial is error and him. “If to The reads: instruction you find plaintiff and believe from the evidence that was struck and injured by the switch stand mentioned evidence but further find injured and believe that and at and before time he was so struck stand, plain he was familiar with the location of said switch and that knowledge danger, tiff had full and was aware of there was being knowing that danger, of his struck such switch and stand, you attempted danger (if upon moving find), such so to engine place time and tender at the and the mamner which g'et you try did engine, the evidence that he said find from you being then are insinuated that the the risk assumed so struck cannot return a verdict for dangerous by its said switch stand was reason of location or that moving upon which said at the time.” nearness to the track (Italics ours.) tending There was evidence to show stands, took him daily, since the installation of the two work along track, yard this involved and into jury, along being such, if believed line dangerously stands close that if the switch were an inference warrant fully aware If have known and been thereof. he must to the-track finding “know had limited the instruction the ing moving engine danger get upon attempted of such by Streams, manner described place and time, tender” at the evidence, situa a different is, with defendant’s in accordance It will would not seem amiss. the instruction obtain and tion would without indication version was that that defendant’s be recalled position between the two so, plaintiff, from do intention to of an track, attempted side and clear of south, at the switch stands with” him moving east, came “even it, the tender to board gtab iron he went grab hold of out plaintiff “started him If believed off.” something knocked sight had like was struck therefrom might testimony conclude this by clearly if Now east “knocked off.” switch stand the east knowing track dangerously close to switch stand thereof, or east side of the stand where other going without moving tender toward and get on the attempted it, avoid he could time, place at the stand, feet of few within evidence, risk being he assumed by defendant’s shown manner to that not confined 'sitúa- instruction-is But stand. struck (see above) jury tion. It tells tbe italics if plaintiff “knowing danger (the dangerous of such proximity of the switch stand to the the n moving track) get attempted upon engine to and tender at thá place you time and in the manner which the evidence fmd from try get u-pon engine that he did to you sand then are instructed that plaintiff being risk (Italics ours.) assumed the so struck.” If the jury plaintiff’s find, believed version would evidence, the ‘‘ plaintiff attempted get moving engine to on the at the time and place follows; in engine the manner” as that after the stopped he lined the stand, west switch walked around to the west side of the track; west switch upon stand and the that he walked west the standing engine middle of the track toward the intending and tender get upon to the yard footboard tender and ride office; gave any signal; that he no time all at that he was at times full conversing view of with him; Streams and that he momentarily glanced down; up engine that when he looked the and tender was moving him; him upon toward and was close that in an effort to save being “grabbed himself from run down he grab hold of the iron on get the corner of and attempted upon moving the tank” “to the tender;” get and that he “tried stirrup” to foot engine “speed swung he increased” and to the side ag'ainst tender, struck switch the west stand and fall caused to ground. effect, This instruction tells that even jury, though they believe statement of the occurrence and that negligently gave signal stárting brakeman knowing intending get plaintiff on the tender and that he injured attempting in the manner claims he moving in an tender effort to save himself that neverthe- time, emergency plaintiff prior and at the in that less and under against stand which circumstances, those knew dangerously close to the track he “assumed the risk of struck was ’’ have being What we said we think suffices to demonstrate so struck. misleading confusing, is neces- instruction worded plaintiff. sarily prejudicial assigned giving- a new trial error Plaintiff’s motion for D proof, Instruction renews burden of defendant’s The instruction reads: “You are instructed that complaint here. preponderance upon prove a the burden 2, No. every plaintiff’s Instruction testimony fact stated credible verdict, him to recover unless would entitle jury satisfaction of to the reasonable said facts has established testimony, if find the of all the credible aby preponderance facts, your said verdict will as to equally balanced evidence tells the that unless The instruction the defendant.” be for credible “by preponderance proved has him which would entitle every fact stated recover a verdict” their verdict should Plain- be lor defendant. tiff’s Instruction as we have heretofore mentioned, plain- sets out conjunctive tiff’s version of the hypothesizes occurrence and bearing upon negligence charged. facts various acts of Some facts, enumerated, so are incidental or collateral. The could fail to find yet or disbelieve some facts set out and finding other properly facts stated plain- return verdict for tiff; example permits finding as for the instruction that the switch dangerous height; stand was jury might because of not have be- found, authorized, lieved this but have as the instruction that it was dangerous 'a obstruction on account of its location. But the instruc- convey tion is so idea worded as to found unless every each and fact set out their verdict defendant, qualification appended: should is “which however permitted him would entitle to recover verdict.” Thus the is speculate entitle particular as to what facts would long proof approved verdict. Burden have been instructions clearly subject adequately the law on the while define the instant think, tends confusion. we are inclined to instruction, granting a new order trial should be It our conclusion Hyde Bradley, GC., concur. affirmed. It is so ordered. foregoing opinion Ferguson, C., PER CURIAM: The concur, judges except All opinion the court. adopted as the J., sitting. Collet, Comp Empire District Electric

State of Missouri at the relation of Appellant, Corporation, Public Commission v. Service any, (2d) et 509. al. 100 S. W. 14, 1936. One,

Division December

Case Details

Case Name: Hough v. Chicago, Rock Island & Pacific Railway Co.

Court Name: Supreme Court of Missouri

Date Published: Dec 14, 1936

Citation: 100 S.W.2d 499

Court Abbreviation: Mo.