*1 Walter A. Administrator de bonis non of the Estate Lavender, al., Trustees of St. Haney, Deceased, L. E. v. J. M. Kurn et Railway Company, Debtor, and Illinois Louis-San Francisco Railway 39174. 189 S. Company, Appellants. Central No. (2d)W. 253. 4, One, 1945. Division June Rehearing Denied, July 2, 1945. Modify September Overruled, 4, Motion 1945.
(196) *2 Jr., Skinker, Nahler, G. H. Roberts, E. G. A. P. Stewart and G.M. al.,
for M. Kurn Trustees. appellants J. et Company; Gentry appellant for Illinois Central Railroad Watts Jo John W. of counsel. Freels *3 Murry Edwards, N. Douglas James A. Waechter and Jones for U. A;
respondent Walter Lavender, Admr. *4 Lia- Employers’ Federal BRADLEY, the C. Action under bility damages for the Act, A., seq., 51 et to recover U. S. C. Secs. $30,000 for Haney. judgment
death of for went L. E. Verdict and plaintiff appealed. and defendants Memphis,
Haney yards Ten- was a switch tender in railroad of the duty, 1939, December about 7:30 nessee, killed, 21, and while on p. object. If by being by some struck in the back of the head m. defendants, an then it conceded employee deceased was of is Employers’ Liability properly cause is under the Federal Act. evidence; assigned to the (1)
Error is on the refusal of a demurrer evidence; (3) giving plaintiff’s (2) instruction on the admission of C; (4) on an No. instruction and refusing and defendant trustees’ alleged alleged incompetent evi- phase-of verdict. One excessive shall see. dence demurrer as we importance is of in connection with the plaintiff’s theory employee Haney was the trus- Central, tee defendants his death was Illinois and that by being arm, caused struck a mail herein- hook or mail catcher hook, swinging after for part, the most referred to as mail from the of a side Frisco mail car. Defendants contend that competent theory, was no substantial support evidence to such Haney is contended that was not Frisco trustees employee Central, Mis- of the Illinois but the Yazoo & employee was the of sissippi Yalley ques- Company. Railroad raises two The demurrer tions: competent Was there substantial evidence that struck and', the mail hook? Was evidence that there substantial employee was the of defendants? train, consisting train of passenger Frisco involved was cars, baggage of 3 to the cars, mail which next car tender; other were train was from cars Pullmans and chair cars. The Birmingham, Alabama, City, Mis- and its Kansas destination was yards souri. and the The Frisco tracks in the east and west extend Illinois Central tracks north Frisco train and south. The extend approached from east, stopped east the Illinois Central Haney’s shanty (office) tracks. Illinois was west Central tracks, north of the which Frisco track, Frisco mainline approached train The Illinois Grand the east. Central’s Central station There was about 2700 feet north of the Frisco track. mainline Haney’s awas Frisco switchstand about 200 west of track, shanty by which and on the north side Frisco mainline switch the back into the Grand tracks were so lined that train could Central Station. In order to Station reach the Grand Central passed west on its until the rear Frisco train moved mainline track switchstand, could this and then lined the switch so train back into the station. stopped up from it had point
The Frisco train started where tracks, rear was 20 east of the west until its Illinois Central moved switch; Haney, stated, or 30 lined switch feet west of this theñ track the train switch and there entered the backed east to the claim, 104, which north to the station. so defendants turned Rule required switch, he to cross the south Haney, after lined the standing track, conductor, who was and the train, (Haney) he did so cross after he rear his testified that standing switch, and the last he saw him “he was south lined switch when the duty But it was to close the the track.” shanty light give green cleared, then return to his *5 the tracks. The Frisco any wanted cross train that to lights at backing station, into the the red cleared switch but the Investigation by John Haney’s shanty remained on. was made Central, yard conductor of Illinois Joseph Bruso, the of the track with wound on the north side found unconscious was
201 called, but he was dead the back of his An was head. ambulance hospital. when the ambulance arrived the 2 about
On the north side of the track was a mound at the switch height rail. up- feet in which came about 3 feet of the north within the- 2 hence overhang feet, of the The Frisco mail car was about of up point came or about one foot north mound extended south to a passed the of mail as it evi- side the car the switch. the Rased plaintiff’s only tes- Farmer, infra, dence witness who of witness the knob like hooks, tified mail could was about it be inferred that there ring the mail iron mail on the of curl end of. hook the the the passed knob, when lined, which over switch which- car the feet resting against car, arm is about 6 is down and side of the the ties top high. 8 rail, inches above the of the which is 7 inches level at the so were about tops were imbedded switch that the thereof mail ground. against with Hence the rest the knob at the side ground 4 8 level, car was 6 8 inches feet inches feet above the 5 8 inches top of the about feet above mound. standing one foot
height, top on the his head was mound higher against ear. The than the knob at rest the side of the wound may inferred, about inches and, the back of head it be head, hence, Haney.standing top below the with erect on How- wound. impund, place knob was 8 inches below of the In it ever, as out. understand, as we mail hook ascends extends ap- omissions, made some stating witnesses, the evidence of we have pearing signs we usual of omission. record, in the but have omitted the to, supra, Farmer, plaintiff and referred Bruce a witness for
C. clerk; Missouri; railway postal Kirkwood, testified: “I live in am a running as railroad Burlington; run on the have been on the night railway 1925; some measurements mail clerk last since trains; mail I measured a Frisco car and it pouch hooks on top of from bottom the catcher arm to the feet inches swing closed, is arm could (side) When door catcher ties. 7 feet swung it was ways, a little and when the full distance
out With top the ties. from bottom the catcher arm the inches to have inside) it would open (and pulled handle down door car another Frisco top 9 feet measured been from the ties. (mail These hook) top feet 8 of the ties. was 6 inches top bottom from the of the ties to the measurements are arm catcher my experience I seen the hanging down. have iron (with open If closed) as a the door is swing out -door as far foot. swing (and arm out as far down) the catcher can pulled handle somebody swing unless they won’t inches, feet, get pull the handle
pulls has up; somebody hold of them (there swing'more without that up. They them won’t than 12 down); pulled open or handle no door was evidence *6 202 any sway They swing won’t pivots just from the train. the arms open.
farther with I never seen those catcher the door have swing any operator from mail more than one out without force ordinarily going car, be from the and would foot speed that it would around curve or at an of the train so a excessive rock. Louis, nearly
“In all coming Station at St. into Union going pull up trains and back a curve with the back end into around In back- station first. I have seen that done hundreds of times. ing switch, speed a hour a if the track at of miles an or less over the bot- smooth, mail catcher arm out from would not throw the might. might It all, wavy, tom of at but if track was the car ordinarily a much bottom, come out little distance from the not as as a foot from mail catcher- arm is about the side of the car. The itself the total inches, up but the bracket takes to inches and 26% 3% makes an bottom the extreme of about inches. The extension catcher arm I mean the is round and is about diameter. arm which I knob down at the extreme end. The end of the catcher designated loop. correctly designated have as a knob is as a more through a round, ring is but is like so and curved it won’t run ’’ pouch. engineer E. Mee, J. the Frisco train involved and a witness for on defendant, length testified: went a locomotive “We cars and beyond signal (Haney’s shanty) stopped from shanty and on got conductor the rear of the I a blast on train. of 3 whistles backing the air from up. start I- to couldn’t see the conductor my back train position end 'of the from in the cab because of curve. starting always movement I the backward looked back at the move- train, end, ment of the turned and faced rear in the direction we going, my and were watched the movement of train. That is duty, alongside my to look down to the back and I start backing. We lean out of the window to It is do that. the en- to gineer through whether he or looks leans the side the rear vision looking window. The I bag- first cars was at be mail and gage cars, looking and I was along back the north and side of them as far back Ias see.. As could we made that backward movement the conductor controlled the air brake the train from rear end stopped.the got the train. We train on that occasion before we signal with and, get into the station his which I to him I move, again. before could I I nothing started could see sight. rear end. It was on stopping the curve and out of After getting signal proceed, I his backed on clear into the I station. any did person or at I approached see that switch as (backing in) passed any person lying it. I-didn’t see ground standing up my or anybody at all near the side .of the rear looking my window toward train. I was at all times out of head baggage mail side of the cars past backing I the curve to the left and north train. around 8 miles an hour before upgrade. going approximately We were úp about got signal suppose we backed stop. *7 got I another After that
something stopped. I was like that when backing on into signal up and continued up to back and I backed station. have been Haney that could could be inferred from the facts It standing on the south side by mail hook knob were struck he if inches. far 12 or 14 and out as as the mound the mail hook extended questions: Was there sub- two But in this connection there are any extent as the stantial evidence that the mail hook extended out and, Was the switch? mail car was the mound and over backed standing when was any Haney, struck, substantial evidence that could have struck point a on mound where been place at he ? mound the switch and passed mail car the mail hook extended as the before it left examined Both of the Frisco train were sides As extending from the sides. nothing was found station and Central, Illinois Bruso, yard conductor for the appears, supra, shanty. change Haney’s light investigation an the red did when in- after was Haney he first, appears, far as to see Bruso was the so Haney was defendants, testified jured, as a witness for and 14 was south, and and stomach, body extending north lying on his and down right of his face was switch; that the west of feet measurement) north (determined by actual 5 his head feet 9 inches extending back feet track with the of the Frisco of the north rail right mouth; that at his pool of blood was small north; that there a drug (south) as the his space a where toes was small “there imagine marks I those fell forward. body, where he weight of his They track. north rail of were 12 or 13 feet north his head body back from length of his appeared to be about the no- him. There I first one to was the though slipped forward. time.” anywhere at that see I could around there that
body else dragging “immediately north of where pole telephone was a There feet was.” of his other “just back east seeing situation, went Bruso, after Arnold, Illinois Bundy and called Haney’s shanty”, and side of Bundy went hurt, and switchmen, told and them Central they arrived. Bruso; was there when no one with back Haney’s body and up raised Mr. turned. further testified: Bruso him “.We his chest with left was at him his hand we raised When over. of his stomach part lower right hand was in it. His lantern
his open pistol' his His hand was hand loose. in his pistol his with would so his head him to the northwest around We turned it. ’ ’ the mound. side of at be (Bundy “When plaintiff.Bundy testified: As witness for we ground, got Haney lying Mr. on the Bruso) to the switch we found it, west of north switch and a little to the face down. He was an pointed south, kind of probably feet west. His head was Haney’s angle. point. The Frisco track runs east and west at the extended north- pointed head was little south and east and his feet angle. ward, say an I head about kind of would west. . . . switch, it, feet from the that is north of and little to the lying Haney’s body. was about pistol saw a under I think height. 10 feet say 10 inches in I his feet were about straight north rail the Frisco track and extended north of the him, him. him Before back of not doubled under We turned over. right gash him I about we over saw on the back his head a turned bleeding. long. injury. I Mr. Bruso It saw no other only present I him Before ones, when we turned over. were him pistol. we turned over did not see his lantern or After turned body. pistol him I saw that his over lantern were under him pistol over indicated it When we turned came into view. might clothing slipped pocket, probably have out of his did. His *8 nothing struggle. just showed to indicate a The Frisco train had backed east and north into the station. After that Frisco turned my say I in, knowledge, train backed the best of it was to would body. up went Mr. minutes before we and found there During waiting signal I had been for a that Mr. that minutes shanty. Haney operates in his over up first man who came us to the Mr.
“The after scene was Cowan witness). (I. (Bruso Bundy) a C. The two of us and switchman —not very long, minutes, right. didn’t remain there not over if I remember Haney then went and called an ambulance. We around Bruso turned put up my lap, squatted him and his head in and I raised down and lap. alive, in put my his head He was but not able talk. to His ground. hitting from I face was bruised believe the bruise was his cheek bone there on the left side of and were cinders his face. on injury appears that to his face caused- hitting It was falling. I cinders with his face don’t think it was more than got or after the ambulance was called until 12 minutes it there. him -turning over we turned toward the east and turned around ’’ east, his head more to the north and turned to the north. deceased, Haney, of was at
Alvin son the Frisco switch father shortly ambulance, after his was removed and also went morning. shortly When there to the switch next after his father was well. removed, it was dark to see He testified too as to what ob- he morning: they next “From what me say showed I will served 6 to 8 spot a of blood from across. It was was east of the I Frisco tracks. say and north of the would it switch was between track around 6 north north rail of the Frisco and 3 and feet of the of or feet east that switch.” Bridge Gates, dispatcher Memphis Railway for the Arkansas &
E. L. that Company, plaintiff. a He said when Terminal was witness for switch, and top mound, north of the he arrived was on of the ‘1 lying track, 12 or 15 feet due from the north rail of Frisco north track, feet on back with his feet toward the his nearest track. his Someone, up. head That mound who, holding I don’t know his say, I two feet was, north the tracks near the switch would about say high, is, above rail I it was of the Frisco tracks. would rail of the possibly twelve feet the mound to the north ten just had thrown -tracks. loose dirt been height feet, and I possibly there until it was two built say within probably that the base of it came ten of the north That ground, rail. was down at the level of the and then a slopes peak nothing I more back little to the of the mound. know wearing cap about case other than that a white it was I practically new, soiled; not become looked new cap point dirty spot at the a back of it there was a cap. stains, just There were no black outside blood a spot, corresponded and was told later that that with the location injury head, right on the back of his little head, center of the and a little than the erown lower head. Possibly just a top cap little above the ear. The mark on the my finger possibly about long. the width an inch half angled just It seemed like it not across.” down, Turner,
Dr. E. Jr., plaintiff, W. witness for that at testified ‘the hospital autopsy body Haney night he assisted in the on the was killed and skull he “our conclusion was that was fractured moving object. guess possible round some fast small would be object moving something for that small round fast to be rod or *9 going projecting out from a train was 8 or 10 an that miles hour. anything it, Maybe,
don’t know about but think it -could be. an pipe.” iron Joseph ashman, Dr foreman, coach plaintiff’s
John was wit- deposition plaintiff ness. Plaintiff took his and when offered the objection deposition trial, at the was made because the witness was present. Drashman at the trial he place testified that went to the injury Haney’s superintendent of with the Frisco of terminals, but Haney that had been removed deposition when he arrived. In his he Haney he went before was removed said testified to where Haney lying wound, was and about the In deposition etc. the and at the trial he testified he examined the fireman’s side of the more carefully engineer’s than and did side so because he was told .the by an Illinois Central switchman that Haney supposed “was to have something on the of the train.” by protruding
been struck injury him the deposition place he was told to at the said that this ground.” “Haney’s body lying on the was while immediately about the appears the area It record that night, in this very lighted, dark, switch was not well was and that at freight area, .many “hop- tramps, colored, hoboes and white and get likely was trains and rides out of Such situation there.” Haney an having pistol. police squad for a The homicide made reason to,, investigation Haney’s referred death and the measurement by the in Bruso’s supra, Bruso, police evidence of was made presence. days Haney found Six after was killed his billfold was high railing place where board about a block fence Haney was money, killed. It contained no contained soiled; security things. social card and other billfold was not It appear lying “it did in the rain snow.” not to have been out Haney place placed was found near was in the ambulance. where ring. Haney gold had a watch and a were “still diamond These very him much hospital. money, at He never carried much more than $10.”
Plaintiff that contends the evidence Drashman as what by him competent was told to an Illinois Central switchman was under gestae, plaintiff rule res and that under all evidence question submissible case on as to whether struck evidence, expert mail hook. There was no or other wise, speed backup that the condition move of the track might ment, and was, together, whatever curve all There considered swing necessary hctve caused the mail hook to out the 12 or Haney, assuming, standing strike course, he was mound place and at swing where such him. reach Can such reasonably extension of mail hook be from the inferred evidence of Farmer and all the other facts and circumstances? an Would such speculation conjecture? Also, inference be based on there is assuming question, out, the mail hook so extended Was the. there Honey substantial evidence that it was the mail hook that struck ? would seem reasonable that if was struck mail hook parallel would have fallen at track, he least somewhat to the but the evidence of him is when those first to was found he was right angles north rail lying some north to thé with extending track his head toward track and his feet back the. dragged north. And evidence that his forward toes (south) few falling, some inches in as if the blow had come from the facing Haney, north when he south. Alvin however, said that blood between 3 or feet north the north rail. indicated, supra, competence As of thé evidence of witness *10 Drashman as to whát the unnamed Illinois Central switchman told something by being supposed that was struck him about importance is in connection protruding on the side stated, plaintiff As contends with the demurrer to the evidence. Many gestae. competent of res cases this under rule evidence is for gestae, on time in res but such we are cited element element as deciding, lapse that the time will assume without evidence to gestae. is It is not claimed that the sufficient under the rule of res speak- switchman statement unnamed who made the to Drashman ing from In other knowledge, his own what he heard. competent under words, the statement claimed to be the res itself gestae circumstances, hearsay. any such, rule was based on Can under gestae ? think competent be under the rule res We do not so. strangers ordinarily say: brief counsel “Statements of they if as hearsay gestae
classed as be as are made will admitted res closely a part the transaction connected therewith that the and so ’’ story not true. has no to make is witness time reflect to that Among, many In support of such Missouri cases are cited. contention (Mo. Sup.), City Company are Roach Kansas Public these v. Service 982; 800; Pryor Payne, 263 W. (2d) 560, 141 S. W. 304 Mo. S. v. (2d)W. Brinkley al., S. 1227, v. Biscuit et 349 Mo. United Co. 325; 362, (2d) v. 777. We have Jones, Sconce S. W. Mo. by all find that in each plaintiff examined the cases case cited competent gestae res was made statement held under the rule having has hand find no case where it information. We one first as hearsay, that based even been contended a statement gestae. present ease, is may competent of res be under the rule - exception to the hear gestae that the is an true res of evidence rule may gestae say res rule, but this term the does mean that what we may indicated in hearsay. quite clearly be This is evidence based gestae rule, case, dealing with the res supra, Sconce and in which, (2d) it is said S. W. c. l. [121 781].: testimony as to statements principal excluding “The reason for examination, cross by others out of court is the test of made made, as person making they are is unavailable them at the time safeguard against inaccuracy. is the basis falsification This in, hearsay involved, must come statements, rule. herein (res exception gestae) if of the all, under the classification testimony permits hearsay rule, which circumstances under certain involved, present at an in or acci- statements, person injury at or declaring of an (italics ours), dent the circumstances after its occurrence.” the statement quite
We think clear rule that and therefore by something Haney, been struck supposed have switchman res competent under the protruding side of was not the train gestae rule.
208
, A question court should never withdraw a from the jury un less all reasonable men in impartial the honest of a fair and exercise judgment would draw the conclusion from same the facts which Courtney
condition issue. Guaranty v. Ocean Accident & Corporation, 703, (2d) 858; 346 Mo. 142 W. S. is well settled may conjecture that verdicts speculation. be based on Ham Ry. Co., 787; ilton v. St. Louis-San Francisco 123, Mo. 300 S. W. al., 40, (2d) Mullen v. Lowden et 1152; Lappin Mo. S. W. al., Storage v. Prebe et 68, (2d) 511; Mo. S. W. Federal Cold Pupillo, 136, Co. v. (2d) 996, Mo. S. W. l. c. 1001, and Also, cases there cited. it is well possibility settled that mere negligence is not a sufficient negligence foundation for an inference of justify which will jury. submission of a case to a Mullen v. Lowden supra et al., (2d) S. W. l. c. 1156], [124 ; With hearsay eliminated, we think that all reasonable minds agree speculation say would be conjection mere that Haney hook, struck the mail and we are constrained to that plaintiff rule failed to make a question. submissible case on that And also rule we there was no substantial evidence that ground light uneven and insufficient were causes contributing Haney. causes of the death necessary It will not be to rule other questions. judgment reversed, should be and it is so ordered. Dalton Osdol, CG., and Tern concur.
PEB foregoing opinion CUBIAM:—The by Bradley, adopted C., is opinion judges court. All the concur. Pipeline Company Earl Stumpf, Appellant, v. Panhandle Eastern and Ossie W. (2d) Steele. No. 39314. 189 S. W. 223. One, July 2, Division 1945. Rehearing Denied, September 4, 1945.