Laughlin v. Missouri Pacific Railroad

Yol. 297] OCTOBER 345 TERM, 1922.

Laughlin v. Mo. Pac. Railroad Co. having tention of residences construed thereon sold separately. foregoing, opinion,

In view we are assignment that the above is well taken and should be overruled. Appellant complains giving

Y. of instruc- tion one, numbered and the refusal of its instructions 4, 5, numbered 7. Said instruction Instruction. correctly number one law, and states the follows: reads as damages assessing

“In which the defendant will appropriation sought sustain reason of the of the land to be condemned, and erection and maintenance of you damages a school house will thereon, fix its at the actually actual market cash value of the land taken free of all liens clear tax and other incumbrances, your verdict in favor of the find defendant at sum.” refusing

The action of the court said instructions '5, 6 and for the reasons heretofore as- 4, 7, sustained, is signed. other com-

YI. We examined the matters plained appellant’s rulings of in no other briefs, and find complain. legally of which defendant can pointed On account heretofore out, errors cause is reversed remanded for new trial. Davis Highee, GG., concur. CURIAM:&emdash;The opinion foregoing

PER of Railey, adopted opinion 0., as the of the court. All judges concur.

JAMES LAUGHLIN v. RAIL- MISSOURI PACIFIC

ROAD COMPANY and MISSOURI RAILROAD Appellants. IN CORPORATION ILLINOIS, Banc, In March 1923. CONTRIBUTORY NEGLIGENCE: Interstate Commerce: Lex Loci ' may as Defense. in interstate re- A switchman commerce MISSOURI, OP COURT SUPREME

Laughlin Railroad Pac. Ma. sustained, though guilty personal injuries damages even cover contributory negligence being the track front of engine trying jump upon In such case in to its footboard. only by contributory negligence the can considered on his damages. question amount And the the of the reduction of the of commerce, being engaged the defenses in switchman interstate injury re- which the available the law of state in under the Liabiity Employers’ Federal are not available under the ceived Act. Making up Testi- Train: Switchman. -: Interstate 2. -: making up switchman, mony engaged a train in in Illinois that the ' freight switchyard corporation, a had ridden in an a of Illinois “hump” track to a in main Belt from the car of the the Cotton train, return- Belt it and attached to a Cotton switch track “hump” destina- for the same track and for another to car the track, engine that the main struck tion when he was an points, destined Illinois the carried no loaded cars for Cotton Belt Illinois, Missouri in used the of a but track and had track no jus- Missouri, corporation point evidence to in is sufficient to a employer tify finding and his the the switchman engaged his time of commerce at the both in interstate injury. as- if his next And would made no difference it signment shipment, had been in an intrastate since connection with complete duty he did not connection the interstate with in shipment “hump.” until he had returned to the Injury Neglect Stop 3. to NEGLIGENCE: Switchman: After to Train Signal: Testimony tending Member of Different Crew. to show engineer looking right standing the at the switchman between engine, the rails front of the switch and that the switchman gave stop signal who, engineer, response apparently to the signal, slowed down the to a rate of two three miles or until, hour, engine within three or four feet of the suddenly speed, switchman and then increased its out case makes negligence engineer; and, engineer having on the give stop signal, seen the switchman it no difference makes working whether the switchman was a member the crew with engine, that, where the to evidence further tends with .show knowledge acquiescence company, customary it “hump-riders,” making up switchman trains in the yard, engine signaled by to ride when them. Engineer’s Duty -: Instruction: to Look Out for Switchman customary hump-riders Different Crew. Where was or switeh- - switchyard making up signal men work in the to trains engine engineer stop, hump of the switch towards" the accept signal, stop- permit and for him to them to board Yol. OCTOBER TERM, 1922. 297]

Laughlin v. Mo. Pac. Railroad Co. engine requiring hump, and ride an instruction back actually engineer to find that switchman’s saw signal, engineer requiring and switch- without find that them to crew, man erroneous. were members was not same switchman, having placed on the track front himself customary, being stop signal, and it the usual circumstances, heed the for the under such stop his crew member of was a whether the switchman signal, engineer, duty another, saw the if he it was the or of rule, circumstances, rule, it;, be a under such to heed required for members be on lookout is file only, re- other crews are switchmen of and that his own crew themselv'esi, application. quired has to look out for .Engine: Opportunity. Boarding Reasonable An instruction -:5. customary signal engineer, requiring he had after received might stop board a switchman order that the switch it, a reason- the switchman and afford both objection subject it, opportunity to board able engineer company negligent in- if the the railroad declared it safely injured speed was before the switchman creased engine. ; Abrogation: Assumption Railroad Rules: Evidence: of Risk: 6. -- — company “all declared that Error. A railroad Harmless rule they engines strictly persons cars to board are forbidden rapid must no circumstances in motion” and “under are too approach- are when same or cars stand on track and board train, up making Plaintiff, in a switchman them.” track, gave backing the cus- when the switch tomary stop signal, tends to show which the evidence heeded, the'speed saw, until reduced and first track, standing switchman, then on the few feet within a switchman, being suddenly speed, too and then increased its .the himself, jumped track, jump for in order to save from the late to footboard, it, and was run over. rebounded backward reached voluntarily being that, proof Held, not that the switchman did jump compelled attempt but was to board by injury, neg- threatened caused to avoid a for the footboard suddenly increasing ligent after act of signal, promulgation of the rule could he had received disregard recovery, proof was inad- its habitual defeat proof allegations in- missible, of its existence but also prejudice immaterial; appropriate defendant but whatever abroga- concerning testimony by the admission suffered by clearly which re- instructions removed tion rule save quired jury for the switchman find that order jump imperative footboard. he for the himself it was 348 COURT OF MISSOURI, SUPREME

Laughlin Railroad v. Ma. Pac. Co. Hugo Appeal City J. Louis Circuit from St. Court.—Hon. Judge. Grimm, Affirmed. appellants. Larimore

J. F. Green and H. H. (1) “A” Instruction lettered request respondent erroneous the court at the (a) following particular: Because said instruction though plaintiff time even was at the told injuries, guilty negligence contributing cause any, be for but verdict still should might damages proportion to the amount be diminished plaintiff. negligence This attributable ttie proof reason.that does show alleged employed at the time it is com- interstate commerce and, therefore, rule parative negligence, Em- as laid down the Federal ’ Liability application. ployers has Erie Act, Railroad 303; 242. Welsh, Co. v. U. S. Patterson v. Dir. Gren.of Behrens, 105 E. Railroads, 746; S. 111. Railroad Cent. v. Harrington, 473; 233 B. & R. 241 Q. U. S. C. R. Co. v. U. Bishop 177; ,263; S. v. Fed. iMo.Pac. Rail- Delano, 265 755; road v. In- Mette, Fed. Cent. Railroad Shanley 920; 119 N. Board, dustrial E. P. R. Rail- v. & (b) road, Fed. 1012. instruction Said further following: erroneous submitted to the you “If further find and believe from the evidence that duty agents it of the said servants operating engine, you defendant were the said if that find operating engine, the said to look out for other em- ployees yards,” in the in the said track said for the respondent reason that was not a member of the crew operating engine question, employed in but was as busy yard, a in switchman a switch and under both operating Federal law those and State said were required employees, not to on the be lookout for other employees required but other were to look out for 349 1922. 297] TERM, Yol. OCTOBER Laughlin v. Railroad Co. Mo. Pac. Fed. 261 Mette, Pac.

themselves. Mo. Railroad v. Humphreys, v. Elliott 418; 145 H. S. Aerkfetz v. 755; Loring Ry. Ry. Co., 349; Mo. 245; 128 Co., 150 S’. v. U. Degonia Ry. 50®; Mo. v. 178 Co., (c) Evans v. Wabash Ry. Co., is also er- instruction Mo. 564. Said appellant required find the in to that it roneous charge corporation negligent, if those in Illinois up- safely speed engine before increased its charge rule that those on true long engine required stop engine to said enough plaintiff might reasonable afforded that Swigert safety. opportunity v. H. & to board the same Ry. Mo. Co., Barth v. Co., ; St. Railroad 75 Mo. 475 J. (2) App. It Railroad, 105 535; Mo. Stoddard give of its own court to was error on the exceptions appellants, objections motion, over the this, instruction that ‘‘B,” lettered instruction you other hand on the find told that: “If approached plaintiff, its it slackened locomotive, moving, speed, plaintiff, at- while it was still slipped tempted step on the footboard of same and case,” then are not liable this fell, defendants having re- that the his rieht reason based upon get solely cover that he fact intended tbe engine stop to a when should come engine coming stop speed, instead of to a increased its whereupon injured, he not to recover entitled attempted get on said whether same speed, in- its slackened or increased and this right struction confined defendants’ to a verdict at the jury upon proposition hands must speed, permitted which slackened its upon theory pleaded go recover County petition. Henry 208 Mo. Bank, 209; his v. Citizens Donahoe, 210 929; Commission Co. v. S. Reed v. Bott, W. right (3)' Respondent having 100 Mo. 62. based alleged negligence in to recover the sole act of injured by coming he was reason of the to a down, after had commenced increased slow 350 MISSOURI, SUPREME COURT OF

Laughlin v. Pac. Railroad Ma when, respondent respondent, when close stop signal purpose getting given only the; full after latter had come stop, reply, pleading intro- could not, a waiver objections testimony, exceptions of duce over appellants, showing the rule habitual violation employees prohibiting getting on switch from position from a track when such middle of the approaching only since the effect of him, say testimony would be to could get notwithstanding attempting recover, he on such footboard while the be motion, enaine was and thus allegations plaintiff’s petition inconsistent with general plaintiff’s reply, with the denial in also would incompetent permit plaintiff, by be to immaterial testimony, support reply of his which can only regarded surplusage. v. Mathieson Railroad, Mohney 219 Mo. 542; Fitch, Moss v. 212 484; Mo. App. 109; EGolladay-Klotz 40' Reed, Mo. Rhodes v. L. & App. L. Co., Mo. 279.

Sicktey Thorne Able Charles P. No re- ell for spondent.

(1) “A” Instruction the court at re quest given, respondent properly (a) A switch- employed switching man cars from interstate train (a containing shipments moving train from one state another)' is in interstate commerce within the meaning Employers’ Liability of the Federal Act. Evi dence that such cars are and are loaded en route out of the particular prima-facie state is sufficient to make case and proof burden of throw on defendant. A rid switchman switching cars with merchandise loaded out of a pulled train in Illinois, to be made train into employed out-of Illinois into- Missouri, interstate ’ meaning commerce Employers within the of the Federal actually he on such a car is not material Liability and the Act, mere fact the time was OCTOBEE, TEEM, 297] Yol.

Laughlin v. Pac. Railroad Co. Mo. Liability Employers’ Act if within the falls Ms case being broken train walking back to the engaged in get up switchman ear. A another such to yard hump riding in a switch is cars down to and are are loaded commerce such cars interstate Ey. Co., & P. go Chi., v. M. St. out of the state. Crecelius 415, 250 Fed. Downs, Eailroad Co. v. 671;. Mo. Erie 274 S. 233 Davis, v. Nat. Bank 522; Midwest 247 U. S. Zachary, 232 IT. v.Co. 406;W. North Carolina Eailroad Eailway 201 Mo. Co., v. L. Ed. 596 Eoberson 259, ; 58 S. App. Payne Louis- 879; Fed. 266' St. 680; Bearden, v. 1134; L. 57 Ed. Ey. 160, 229II. S. Seale, Francisco v. San Sup. Ct. 242 S. 37 Parker, 13, v. II. L. & N. Eailroad" Co. Eep. 268 Bennett, v. Eailroads 4; Director General Fed. v. 207 Porter, Co. 767; Fed. Illinois Cent. Eailroad Eail 787; 254 Fed. Central 311; Co., Hester v. Eailroad Sharkey, Co. 144; Fed. N. Y. O. Eailroad v. 259 road Co. (b) 59 L. Ed. 1299. Where 263, v. 238 S. Carr, U. an requires find that instruction employee, anything which the de it is seen, required rightfully complain if the instructon fendant can duty part on the that there also find employees operating to look out those for twenty that or the evidence shows such track. Where hump-riders hump twenty-five going up ‘Al hack ways go hurdy-gurdy this track” back over get only way up” switchmen to “this was by engines up are used that come this track get up quickly, hump an to ride switchmen back signals take from other car down, and men and act all the it would time, such them duty jury question be a as whether there was a least part operating on the of those to look out ‘ ’’ employees ‘thoroughfare track. Southern Eailway v. 205-Fed. Smith, 360; Frazier Eailroad Hughes, 96; 264 Fed. Co., Delaware Co. v. 240 Eailroad Ey. 941, Fed. 233 Fed. 232 118; White, Southern Go. v. Chesapeake Atley, 144; Fed. Eailroad v. De 'Co. Sup. Eep.'564. (2;)

II. S'. fifi Defendants’ se Ct. MISSOURI, COURT OF SUPREME

Laughlin Pac. Railroad v. Mo. Co.. (numbered 6) fa far more and were cured instructions they covered entitled wbicb to, vorable to them than very things they instruction lettered contend that right covered; therefore, “B” should have complain court covered instruction because this developed in another situation evidence. meaning appellants struction has. no such strained attempt give by only quoting discussing nothing telling it. instruction There plain that if the slackened hump-rider (3) tiff was entitled recover. Where a walking up thoroughfare hurdy-gurdy track return top hump is overtaken also going hurdy-gurdy seeks to recover track, engineer plaintiff because after had the of the the signal locomotive a to and after the locomotive, engineer recognized signal up had and slowed locomotive, when the then, locomotive had plaintiff, suddenly come feet of within few increased causing injured, locomotive, him to be testimony plaintiff and where of the his towas, use get “when words, jumped I away saw no chance I for me to allegation for the footboard,” and where the petition with to such matter is “he reference (plaintiff) ground, was thrown to the run in over jured,” up plaintiff and where the answer sets guilty negligence contributing injuries his cause in that against he violated a rule defendant board ing engines in motion from the track in front en gine, proper it, of plead course, was for reply prove and at the trial that there was no such (it rule habitually enforced had been violated), and that even if attempt upon there such a get rule, his been brought footboard was negligence about of the coming stop upon in not to a suddenly up starting faster coming plain toward the proper tiff. If it was for plead the defendant to prove the existence of proper rule, was, course, plead for prove the habitual violation OCTOBER, Yol. 297] TERM,

Laughlin Railroad v. Mo. Pac. proof pleading of the rule. If defendants’ complain they surplusage, rule was immaterial and cannot prove because the court allowed the habitual violation of the rule. per- damages for

DAVID' E. BLAIR, J. Action injuries. (re- judgment sonal From for the spondent here) appealed. defendants petition, the case which second amended organization corporate of the defend- tried, avers the ants as common carriers and that Mis- commerce; in interstate that defendant, hire Corporation in souri hereafter Illinois, Pacific Railroad oper- corporation,” referred to as “Illinois owned and Dupo, yards Illinois, ated classification at certain switch freight especially making trains; used for trains, provisions Missouri Pa- under the of a deed certain Company, “Mis- cific hereafter referred to as Railroad yards company,” souri said switch and switch- took over provisions Dupo, of said under facilities obligations pay agreed all deed assumed and corporation, arising whether liabilities Illinois point No is made otherwise. from contract or company not liable said under the Missouri brief agreement corporation in the event that the Illinois injuries plaintiff. For that liable for the sustained concerning transfer reason details no further merger out. be set need here classifying yards Dupo were used The switch

freight. “hurdy- They called a track, include a main hurdy-gurdy gurdy” track on each side of track, the large parallel side of tracks which a number were with operation sub- of- tracks connected. stantially method containing of a number train as follows: A point freight pushed by be an ato cars would ’’ yards cut then ‘“humo, the cars were called the passed the over train as off one at a time from said by stopped gravity the hump, at, to, and moved proper place ridden Each car was on track. side

297 Mo.—23 SUPREME MISSOURI, OP COURT

Laughlin v. Mo. Pac. Railroad Co. “hump- by hump down from the known as a switchman, a stopped place proper tbe rider,” who the car at the setting switch- nse of After the car the hand brakes. repeating hump, preparatory man returned to operation. hump-riders in re- To save the timé of- turning hump, It hurdy-gurdy car used. to the operated by gasoline on main track and used by gravity. yard on which no Some- cars were moved hump-riders hump switch times the on rode back happened moving- up' or which the main hurdy-gurdy tract at time. July employed by

On 3, 1917, .Was corporation hump- Illinois switchmen one twenty! twenty-five riders. Prom to- other men were similarly riding engaged. Plaintiff a car to track 81, where a train out Belt to be sent on Cotton being up. Railroad was made "When said" car reached proper place upon stopped he it, said track and went hurdy-gurdy pur- from such track to the track for the pose returning hump. It was then after dark, lighted yards- but electricity. by corporation well switch A engine operated by the Illinois hump. stepped backward toward the Plaintiff between signaled the rails in front of said get upon his intention to the rear footboard purpose of the riding locomotive for back hump. He directly looking claimed the gave stop signal toward him when appeared he immediately to see his speed reduced the point locomotive until it within few reached speed feet of suddenly when increased being brought instead permit plain- to a get tiff to Plaintiff footboard. claimed did opportunity get after, not have way out of the jumped was accelerated and foot- rapid save board himeslf, and reason of the motion injuries was thrown off. His resulted in amputation alleged petition left arm. The negligence corporation Illinois in fail- TERM' Yol. 297] OCTOBER Laughlin Ma Pac. Railroad Co. y. plain- response' bring to a permit and board

tiff’s Mm to engine. suddenly increasing of allega- generally corporation The Illinois demed injury pleaded petition, tions and of the attempting negligence plaintiff to board of due rapid while the locomotive footboard of standing plaintiff between was> wMle motion and pro- of wlrich Q-6, rails of in violation track, Rule vided follows: en- persons board strictly forbidden to

“All are they gines rapid motion. Un- while are in too or cars board track and on der no circumstances must stand approaching engines them.” when are cars same plaintiff alleged further Said defendant engine, operating said of crew member engine, operation of said connection with the had no was not to ride said was not instructed any performance said defendant when of duties for assumption pleaded injured. also defendant Said plaintiff those and that risk on operating un- and that fellow-servants, were in- is not liable for of Illinois the master der the laws through negligence juries servant received one alleged defendant then of a fellow-servant. Said permit recovery by violate several would of the United different of the Constitution seotionsi company Missouri The answer States.

general denial. reply Ill- of the the answer negligence contributory corporation denied inois denied that such violation rule Q-6, plaintiff’s knowledge, brought was in force or rule knowledge alleged thereof; had any rule, ever it was habi- that if defendant tually the habitual custom violated; engines get switch footboard switchmen them, toward all with superior acquiescence knowledge defendant’s SUPREME OF MISSOURI, COURT Laugblin v. Ma. Pac. Railroad Co. charge

officers in in switchmen; and control of said at in defendant business of carrying the time he' was and on his work in with accordance superior and instructions of directions at officers of said defendant such time. The Q-6 evidence been show Rule had tended promulgated possession plaintiff, in and was of the habitually disregarded that switchmen same and were upon get of accustomed footboard mov standing in toward them track, and superintendent yards foreman and full knowl of edge such custom. trial of A before resulted verdict for for $10,000. Appellants

I. that their contend instructions nature of demurrers the evidence at the close of the testimony plaintiff’s case at the close all given. should have been Since did stand defendants plaintiff’s their’ at the demurrers evidence, close of propriety submitting plaintiff’s case to the determined must be Demurrer all the evidence introduced. As teíbutory:Negligence:T0011 appears appellants’ Commerce, from brief, interstate plain basis for this contention employed failed to tiff show that he in interstate injured, time he having commerce so recovery neg shown contributory his is barred his ligence. employed If in interstate com may neg he contributory merce, recover, even if ligence contributory negligence be conceded, only question can be considered on of the damages. reduction of the [Federal Em amount ployers’ Liability April Acts, 2-2, set 1908, out Employers’ Richey Liability Acts, p. on Federal Erie 3; sec. Railroad Co. v. Downs, 250 Fed. l. c. 420.] testimony concerning Defendant no offered the acts operating engine. plaintiff’s The testimony looking tended to show that n right standing at him when' was between the rails OCTOBER, TERM, 2-97] Yol.

Rauglilin Pao. Railroad Co. v. Mo. appar- engineer, gave speed such'signal, response down ently slowed per hour, miles or three rate of two- of the three feet two or within until suddenly increased then judgment, testimony, a"case engine. made out our This engineer. makes negligence It on the member whether the difference testimony working or not. with said crew acquiescence knowledge with the that, to show tends hump-riders customary for it was defendant, of the said signaled engjne that the when to ride such signal. plaintiff give the saw freight testimony that the show tends to

Plaintiff’s hump 81 just to track down from the he had ridden car he was return- Belt and that Cotton car a loaded was ing and destination. for the same track for another car destined loaded cars Belt The carried Cotton Illinois in points. no tracks road Illinois That had. company Illmo, the tracks Missouri and used point Plain- tracks. its own which used Missouri, from returning for another car tiff testified that was sufficient evidence This was the same destination. plaintiff by justify finding at the injury engaged in commerce interstate his time employer engaged. likewise plaintiff been to had if the next work Even returning handling in his act from car, ride intrastate directly immediately con was so an interstate car to be a an interstate car as movement of nected with the necessary [Erie Railroad to such incident movement. case the 250 Fed. which United Downs, 415, Co. v. Supreme 247 a writ certiorari, Court denied States Zachary, 232 248, Railroad Co. v. U. S. S. 522; N. C. U. v. 244 Winfield, l. Erie U. 260; Co. Railroad S. c. Ry. (Mo.) Co., W. 170; 181.] v. S. Crecelius contribu- so then defense of found, If the damages, except negligence, tory in reduction negligent open was so even defendant, MISSOURI, OF COURT SUPREME Laughlin Railroad Mo. Pac. Co. v. decisions, re- bar Illinois as

under laws and refusing covery. not err in did The court therefore engaged jury. submit case to the If defend- available to defenses interstate commerce, the under available were not ants under the law Illinois Liability Employers’ the Federal Act, the Federal pleaded not be noticed. constitutional defenses need can The defendants oases cited relied disting’uished at bar. In Erie Railroad from the case been en 242 U. Welsh, S. yard gaged, conductor, as a as of his duties freight of the state. outside a car of destined completed. then caboose was. A movement yards, point and thereafter moved to another then tank and taken the water crew alight yard. Plaintiff returned to the yardmaster’s passed office, from as All going place orders. for further he was. which of the interstate with the connection movement orders completed, subsequently had car had then been and he appeared interstate. It been movements switching would crew that the next order another interstate but ear, have been to move yet. disposing this In had not received order Mr. case said: Justice Pitney perform question he was

“The remains whether directly immediately ing with an connected act so interstate, previous placing car1 in act of necessary yard’ part it or incident £F. D. as to be a of a York & Railroad [New thereto. Central Hudson River 264; Delaware, v. Carr, 260, Co. v. 238 S. Shanks U. 559.] Co., Lackawanna &Western Railroad 239U. 556, S. depends upon And whether the of acts that this series performed properly regarded a was last to be as separate single indivisible succession of tasks or as a interpretation task. It no of the act of turns Con gress, appreciation simply but involves testi mony inferences in order and admissible therefrom question there a whether be determine submitted TERM', OCTOBER. 297] Yol. y.

Laughlm Railroad Co. Mo. Pae.. employment in interstate as the fact to^ no. such held there was courts The state commerce. say concluding question, so cannot we proper in the error. It results manifest committed jurisdiction this court cases of exercise this ought [Great not to disturbed. be decision character, the Ry. Knapp, 466.]” 240 U. 464, Co. v. S. Northern point in language some on the indicates doubt used justice. learned the mind Harrington, 241 S.U. & Co. v. Q.

In C. B. Railroad plaintiff’s defendant’s switchman husband 177, City, yards The defendant Missouri. in Kansas commerce. ’intrastate interstate and iu both assisting a car killed while The deceased was belonging’ been stand- which had defendant, of coal entering days storage after track for several on the chute, bin or a coal The movement was this State. locomo- delivered, needed, would be as where coal com- and intrastate .engaged interstate both tives . said: merce. Mr. Justice Hughes pointed speaks the Federal act out, “As we practical sense suited of interstate commerce employment in com- ‘the true test occasion and employee is, was in the sense merce intended transportation injury engaged in interstate time of the practically closely related to or in so work Railroad, Del. Lack. 239 U. it?’ &West [Shanks v. 'Manifestly, there was cited.] there 558, cases 556, S. tranportation interstate relation to such close direct taking coal This the coal to the chutes. in the supply putting nothing in a of the coal than the more required place be taken as from could convenient which for use.” Bishop Fed. deceased

In Delano, duty. sleeping when he was in a caboose off killed while It one. was held that he run an interstate His engaged in tohile he was interstate commerce so off duty. C.) (S. 105 S. E. General, In Patterson Director SUPREME COURT OF MISSOURI, LaugMin Pac. v. Mo. Railroad Co. yard attempting conductor was

move an one outside of his act duties and which he was forbidden to undertake. His crew had just completed moved an interstate car and had duty, pas- awaiting siding were then on a sage through passenger taking aof train before duty, any empty express next which was movement appear. of, car, Held, destination which did engaged that he was not in interstate at the commerce injury, carry express time of his if even car was to freight interstate when loaded. distinguished above

The cases áre all from the case at bar the fact that the here would not have completed duty ship- his in connection with an interstate hump. ment until he had returned to would It make assignment difference his next had been in con- shipment. nection with an intrastate en- He still gaged in commerce until interstate he returned for fur- hump. ther tasks at the For this reason the demurrers of the defendant at the of all close the evidence were properly overruled. request plain-

II. Instruction "‘A” at the is criticised. tiff

(a) The first criticism is that instruction told though guilty that even contributory negligence, he could but the recover, still damáges might proportion negji diminished to the to him. attributable of this basis S’ence criticism is that the Damages proof does show employed interstate commerce at the injury. already time of his We found that the finding evidence warranted injury in interstate at the time commerce of disposes finding adversely of this criticism defendants.

(b) The second criticism such instruction is that question duty it submitted to the operating servants of defendant to look out ' Yol. 297] OCTOBEB 1922. TERM, 361

LaugMin v. Pac. Railroad Mo. employees yards, for other rea for switch o , a member son that was not ^ f , , ,. Lookout: Switchmen . engine operating the drew such of other Crews. duty of those therefore it not the was operating engine on lookout other em to be for ployees, employees required look to but other were out themselves. rely

The first Mo. case which defendants Ry. Pac. Co. v. a brake 261 Fed. Mette was Mette, employed switching gave man gineer the en with a crew. He stop signal throwing

a switch to en before siding. engine able the moved leave the The throwing switch, forward Mette injured. signal customary give It not a against target when the switch through open could not then leged negligence al move switch. The disregard consisted moving thereafter forward -with signal. out further It that the clearance shown was held target authority en switch was-sufficient for the gineer signal. move forward without further Humphreys, 418,

In Aerkfetz v. 145 U. S. injured by -a track worker movement at slow yard. freight in a He knew such cars switch likely yet any movements were to occur at con- time, disregard in the work track heedless tinued engineer approaching engine cars. The had right expect employees other yard, who knew likelihood of would movements, keep a lookout for themselves. Ry. P. Co.,

Elliott M. & in 150 S. does 245, St. U. C. appear point. duty not The of the train crew to be on be the lookout for the deceased was discussed. Loring Ry.

In v. K. Ft. M. Mo. C., Co., 349, S. & 128 glang and "was deceased was isecition member! switching movement. killed had The expect reason to him to on the track where be he was experienced struck. He was an man and .knew en gine likely moving cars track where MISSOURI, SUPREME OF COURT

LaugMin Pac. Railroad Co. v. Ma held he was struck. It was required him. lookout for be on the Ry. Mo. deceased Co.,

In Evans v. Wabash experienced sched- familiar with the hand, anwas section freight. through in re- ule of a He fast a station which the track near weeds from stop. for the whistled such train did not gave warning additional blasts station, afterward danger, listening looking whistle. Without approaching stepped train in front of deceased approached, nqt in was killed. train deceased was As the place stepped danger, the train in of when a but front away rapidly approaching. only yards it was a few Ry. Degonia 224 Mo. Co., L. M. & S. I. In St. working engaged in hand, deceased also a section was The killed. time he was the track at the struck and right expect point engineer at a clear track the had the presence injury. alter hands did not section employees look are such bound situation, the since for out themselves. distinguish from bar it in case at

The facts the tends cases. The evidence the followed the rule above hurdy-gurdy go car could not down to show that the yards hump-riders, when main track of the after such occupied engine, when the switch track was hump cus- were toward such tomary signal hump-riders accept signals permit them to board him to hump. engine back If the switch and ride clearly authorized to find that so then found, employees duty operating said it was the defendant’s engine hump-riders lookout to be on the for such switch hurdy-gurdy going engine track on the when the hump. toward Loring, Degonia cases

In Evans Aerkfetz, injured persons for whom defend- men, were section duty lookout. Mette on the In the ant was under no to be switching member of the crew Case, the engine! 'without movement of proper. TERM,

Yol. OCTOBER 297] Laughlin Pac. Railroad Co. v. Ma point on the facts of of these eases is None requirement In the additional case bar. view ac- that the find the instruction signal, plaintiff give stop- diffi- it is tually see the did any criti- merit in defendant’s substantial cult to see respect. cism in this

(c) is The third Instruction “A” criticism of required neg- corporation it ligent to charge Illinois find the engine

“if increased those safely upon before charge „ , true those in bf rule is that _ , , . -. . Reasonable . required stop opportunity. long enough afforded safety.” opportunity the same reasonable to board subject justly to this think the We do not instruction The-portion question follows: is as criticism. thereof you from the evi- ‘'‘And if further find believe just point dence that was about reach to- standing where in the that instead track causing -engine to slow down to continue you reaching plaintiff, if before find and believe from slow evidence he could continued carelessly stop, engine down the it and and cause to so negligently and it to slow to cause continue to failed stop, carelessly negligently down to so and and and engine to the to continue to come forward caused start and suddenly plaintiff with and move toward the you greater speed, you if further and find, so and if find duty the said believe the that it was from evidence agents defendant to slacken and servants speed plain- stop engine reaching before upon signal given by plaintiff, you if find that tiff signal given by plaintiff, in- there was á not to speed, you crease if its find that did increase its you speed, safely upon engine, plaintiff until speed plaintiff find that it did before increase safely upon engine.” (Italics ours.) required to failed find MISSOURI, SUPREME COURT OP

Laughlin Railroad r. Mo. Pac. only it but also to slow down opportunity plaintiff it. to afford board erred court III. Defendants trial contend permitting tend- introduce evidence forbidding disregard ing’ to Q-6 habitual of Rule show employees approaching cars while board to> occupying position which , , ,, . , i. . Rule of . Railroad: occupied immediately prior in- to lus Abrogation. liability jury. theory Plaintiff’s signaled corporation en- that he of the Illinois gineer engine (apparently in he down the slowed expected signal) obedience to such brought stopi would to a that when the suddenly speed within three feet him its two or in- him caused his. struck ^increased compelled jury. proof His he was tended show jump injury for himself from the footboard to save suddenly it was then when increased, get way. late him to too out of the cor- hand, On the other the answer of the Illinois poration (vol- charged attempting upon untarily) get approaching the footboard of the pleaded standing while was. the track and he forbidding part. Q-6' Rule such an act on his Defendants attending in- the facts witnesses offered jury. witness However, offered Lee, follows : testified as you

“Q. what occur there at Just state: saw Why, standing A. hit? time was the same the man was there, any other stand, and to switchman would myl knowledge, any catch best like man would put up, a train, foot I noticed him he started leaning I kind of lean back he fell, back—either or as. don’t which was.” know testimony,

This with later more details, elaborate was sufficient basis the contention of defendants plaintiff attempted voluntarily moving en- to board the gine giving authorize on the of instructions TERM', Vol. 297] OCTOBER y. LaugMin. Mo. Pac. Railroad Co. plain- theory if course, the accident. Of of

defendants’ attempt voluntarily ¡to hoard did tiff compelled jump foot- moving, for the but was negligent by injury him the threatened to board to avoid speed suddenly increasing of act of the get off too late for when was promulgation not defeat the rule of track, could recovery regardless force rule was in whether such his of disregard Q-6 Rule habitual of or of not. Proof state of admitted when the have been should proof allegation pleadings Indeed, is considered. of rule on the Illinois existence unnecessary. corporation entirely Plain- we think, was, by alleged in- injury his the sudden tiff caused after his crease. of accepted apparently by had been by proof emergency that in the created and his showed compelled jump. engineer, Under he was plain- general the defendant could have defeated denial, showing tiff’s untarily as thus ease stated vol- attempted to- as it board the moved allegation any any proof or rule. ward him without The existence rule therefore immaterial unnecessary plaintiff’s petition, the case as made proof by his to defeat the case made either pleading. permitted Nor should the court have proof abrogation tending to offer show the rule. any unable to how we are see substantial However, thereby. rights prejudiced If of the defendants gone with case without instructions proof abrogation the might rule before it, being

have been because the issues thus misled befogged. At the instance of the court defendants, gave instructions as follows: you find are also instructed testimony and believe from the that at the time alleges injured, defendant Missouri Pacific Corporation in Illinois force Railroad had in in the n SUBREMECOURT MISSOURI, OE Mq.

Lauglilin v. Pac. Railroad Co. regula- working plaintiff alleges yard he was in which providing as follows: Q-6,’ tion known as/Rule - strictly persons en- forbidden board ‘All are rapid they gines Un- in motion. are too or cars while on track and board must stand der no circumstances engines approaching them;’ are or cars when same plaintiff rule, in violation of herein, that

“and attempted moving standing en- to board a track, while gine on approaching- a result him, while and as same injuries, any, his in if set out action received your petition, then verdict must be the defendants. for you ‘‘ you find if 6. The court that instructs, further attempted standing while on the track, approaching engine moving when board a the same was by injuries, any, him reason thereof received complains, now of which he operated ordinary being

time the-usual man- operated moving ner in are which switch when n toand attempt- yard, plaintiff then fro switch being to- in- board such assumed risk of jured part, on result of such action is not as entitled you so find.” i to eco should ver, “ ” gave the court Instruction B motion, And on its own as follows: you can

“The court instructs before you plaintiff find for must believe from the evidence plaintiff gave men locomotive evidence a locomotive, tioned recogpized signal, that said slowed then when the same locomotive and had come within suddenly plaintiff speed feet increased fe\\ plaintiff; fan over if on locomotive and the other hand approached you the locomotive find that and that slackened while it was still attempted step moving of same and footboard /he slipped fell then the defendants are liable this case.” jhiry dearly

These told instructions not recover if could he was while at- TERM, OCTOBER 297] Vol.

Laughlin Mo. Pac. Railroad Co. t. to- it was tempting board the jury that in effect told the “B” him. Instruction ward not'require it did effect, in force Q-6 Rule any finding force. that was argument counsel During of the case to tending discussing evidence show disregard the trial court rule and of the said habitual counsel. objection defendants’ thereto overruled position Thereupon plaintiff’s as fol- counsel stated his lows : if is that even whole contention Our Able:

“Mr. and even if he known been such a had rule, there gave signal stop he a he violate it, such a didn’t rule, engine stop, he this, that is what intended he was 'forced—that the do, intended to that certainly then what occurred him, came towards any kind not be a of a rule. No rule of violation could prevent trying to im- save from a man would pending himself say

danger. is correct So I Mr. Larimore say but the our further rule contention; that is we that, yards was not those that violated enforced required rule to do.” men didn’t do this them as quoted of the instructions and the statement From appears quoted, issue clearly that also it' counsel jury sudden acceleration submitted expected speed plaintiff, reasonably of when imperative jump stop, making to save for him jury not himself and that have decided case could boarding theory intentionally on permitted approaching to re- an and should his, abrogated. forbidding rule cover because the act was sitúa,- by meet the The cases cited defendant do not necessary al- tion here. The rule the omission of a allegation legation petition in the cannot be aided reply and that no instruction should be proof jury authorizing recovery by on the a allegation apply reply be- here, such does given. contrary, cause no instruction On if violated, effect told that rule, SUPREME COURT OE MISSOURI, LaugMin v. Mo. Pac. Railroad Co. complete prejudice defense. Whatever the defendant

may testimony the admission of the suffered touching abrogation clearly rule removed by the instructions court the statement quoted regarded counsel above. The error must be prejudicial assignment and the overruled. portion IY. The criticism of that of Instruction (heretofore out) '“B” set which told plaintiff attempted step lo footboard moving* slipped comotive while it was still and fell, justified are not defendants liable, is not the in when entirety. struction is preceding part considered The Criticism required of the instruction instruction. to- g*ave find the en gineer signal, recognized that such up' and that the slowed until locomotive suddenly within a few feet and then increased plaintiff. ran over locomotive and portion simply criticised stated the converse. Proof that jump- in that situation, made for the foot- change board to save himself, did the Illinois cor poration’s liability liability greater or make its or less, under the circumstances, than had not at tempted jump.

Finding judg- reversible error the record, Higbee, the trial ment of is court affirmed. P. con- J., curs; Walker, J., absent. foregoing opinion

PER CURIAM:—The of D'avid hereby adopted E. Blair, J., Division Two, as Pie opinion of except Court in Banc. All concur, Woodson, C. who J., dissents.

Case Details

Case Name: Laughlin v. Missouri Pacific Railroad

Court Name: Supreme Court of Missouri

Date Published: Mar 3, 1923

Citation: 248 S.W. 949

Court Abbreviation: Mo.