*1 Yol. 299] APEIL TEEM, 1923. Railway Co. carefully reading
VI. After arewe record, satis fied that impartial defendant received a fair and trial, jury; before rulings conservative that no were adverse ma(^e ag’ainst legally him of which he can pair Trial complain; that he was convicted on substan testimony, light punishment tial received crime which he had committed. judgment accordingly below is Higbee, affirmed.
G., concurs. foregoing opinion
PEE CUBIAM: The of Bailey, adopted opinion 0., as of the court. All of the judges concur. RITTENHOUSE,
ETTA Administratrix of Estate of H. A. FRANCISCO RITTENHOUSE, v. ST. LOUIS-SAN Appellant. RA COMPANY, ILWAY Two, 11, 1923. Division June Anticipation Switching Crew: Law: NEGLIGENCE: At Common imputed may Inspector’s knowledge de- Presence. Actual if the surrounding fendant facts and from circumstances: ordinary dis- care the exercise of crew dangerous inspector situa- presence in the of the car covered the making track, they assembling aon the cars were tion between where imputed knowledge But up defendant. will be track, assembly coupler, on as it drifted whose defective, in that crew be foreman discovered high, auto- it would coupling pin so that been raised too had than less by impact, the track matically couple remained had couple; in less failed to drifted another a minute before impact against in, second and its a third drifted than a minute together in- crush the to come and first second caused the them; been seen gone had not spector, in between who hour; duties yard usual part his an for more than usually repairmen yard; did not part- of the were in another assembled, notifica- after inspect repaired usually up, and made had been the train tion that train- upon notice couplers only do called SUPREME COURT OF MISSOURI, Rittenhouse
men, knowledge presence inspector’s can- oí the the cars imputed, not be for these facts do not tend to show that the crew- presence. failed to exercise care to discover *2 Appliance Safety Repairing Coupler. Safety 2. -: Act: The Oar Appliance attempt repair coupler Act does not be- embrace an a stationary inspector tween cars. Where the car entered be- stationary cars, upon tween two which were assembled making up train, apparently purpose switch track of for repairing coupler thereon, a defective notice and did so without knowledge any crew, to or there- within minute after was crushed when a third in on the drifted track stationary Safety struck one it cannot that be held Appliance required Act safe to be maintained in such couple by impact, condition that the cars would for he stationary purpose them, coupling between the cars for repair coupler. Especially ruling should such be the where inspector, looked, the evidence demonstrates that had he engine, have that discovered third detached from the drifting in on the track and was sure to hit one of the sta-« tionary previously which he cars between had less than a minute totally entered, and fails that to show he would not have entered coupler, in between them there been no defective and the proximate his cause of death his failure warn the prevent drifting crew time to the third car from in on the assembly track. Appeal from Lawrence Circuit Court.—IIon. Charles L. Judge.
Henson, Reversed. appellant.
Mann & Mann and W. F. Evans petition (1) fails to state a cause of action un allege der the humanitarian doctrine does not defendant knew that deceased was between the place allege peril, in a neither does it facts charge knowledge defendant with sufficient to of his presence petition fails between the cars. to state a cause of action under the doctrine humanitarian because alleges it nowhere peril that the deceased was extricate from which he was unable to himself, APRIL TERM, 1923. 201 Yol. danger his oblivious to oblivious that was care the exercise of was, ness apparent a neces to defendant. Obliviousness is been, sary indispensable hu in a under the element case pe alleged in doctrine and manitarian unless is not stated. action under this doctrine tition a cause of Reynolds, Ru 222; 233 W. v. S. State ex rel. Railroad Railroad, v. 406; Haines W. Sandler, bick S. Pope 202 S. 436; W. Railroad, Kamoss 632;
S. W. Kinlen v. 239; Railroad, 242 Mo. v. Railroad, 232, (2) fails to facts The evidence show Mo. negligence charge under sufficient to defendant (3) no action There was doctrine. the humanitarian Appliance Safety Act and therefore able violation of the plaintiff submitted her case entitled to have allegation growing negligence out of jury on the *3 alleged an action To constitute of act. violation this or,for damages, for either Statute, able violation inopera coupler become penalty, must permit attempt or “to haul be an but there must tive, injured when No one was be hauled or used.” it to coupler inoperative, car be while the became coupler injury became ing after occurred This used. be hauled or had ceased inoperative and after cause, not a therefore The defective used. Comp. injury. U. proximate this S. of remote, either 4); chap. (Act April sec. 160, 14, 1910, sec. 8621 Stat. Ry. Ry. B. & O. 231; Fed. 273i Co., Penn. M’Calmont v. (4) violation of Fed. 425. 242 States, v. Hnited Safety Appliance not actionable Act is of Section was not the deceased the reason for in this case persons benefit the Safe for whose within that class equipped au required cars Appliance ty Act injury couplers; evils not within tomatic appliances provisions against which provisions against which evils directed. The necessary render those directed are act are couple or the cars to go ends of for men to COURT OF MISSOURI, Railway uncouple according evidence, them. deceased, coupling perform uncoupling no cars. Conarty, 59 L. 238 U. S. Ed. 243, 1290; Co. v. Lang 255 U. 65 L. Ed. Central, 729; York S. New Pennsylvania Fed. 231. Co., M’Calmont v. respondent. & Gardner for Siser (1) doctrine not in case, The humanitarian this upon petition, plaintiff it in her neither declare does invoke it in this suit. The humanitarian doc- she does well has cut defined channels and estab- trine, so called exceptions the nature of lished itself our law negligence general contributory rule that or concurrent recovery. negligence Tavis v. 280 Mo. bars Bush, ,390; (2) Degonia 224 Mo. Plaintiff Railroad, sues Employer’s Liability under the Federal wherein Act, contributory negligence alleges is not a two bar, against negligence grounds defendant: stat- First, keep failing utory negligence, in and maintain its automatically couplers by impact they would Safety Appliance required Laws; and, second, carelessly negligence negligently common-law upon against shoving string deceased attempting the cars stationed between while was adjust couplers, inspect, said fix knew, care could the exercise of have known, testimony engaged. If the he was so authorized jury either case to the under one of this submission *4 negligence, grounds then court in of erred sus- properly taining demurrer, corrected its defendant’s plaintiff (3) granting trial. We new will error negligence. ground of This first the second alle- notice charges negligence general gation terms, specific, is make more motion to certain- the absence of a ly enough submission to authorize a case on broad by any negligence in relation the evidence shown question. handling v. of the cars Williams Railroad, APRIL Yol. TERM, 1923. 203 tRailway 175 S. W. In this connection, on this feature we Young call attention casé, v. 268 Railroad, Mo. a case on all-fours with (4) the case at bar. clearly The evidence quired shows that the deceased was re- danger, in a work the de- employees handling fendant’s while the cars knew the danger, situation the deceased and knew the notify owed ap- him the to warn or him the proach Young of cars. v. 268 Lusk, Mo. 639; Moore v. 58 Mo. Koerner
Railroad,
588;
St.
v.
Louis Car Co., 209
141;
Mo.
Johnson v. Brick & Coal
Rittenhouse protection design ex- and its broader, the statute is *6 engaged employees in carrier of an interstate tends to though operation, and the movement even cars, the actually coupling engaged they the cars at are injury. S. 66, time of the Railroad U. Botschall, Layton, 61 L. 995; 61 L. Ed. Railroad v. 243 U. S. Ed. 931. negligence an action for
DAVIS, suit, C. This wrongful death, his the' administratrix of deceased for County the of Lawrence was instituted in Circuit Court day trial on 10th which A June, had, the plaintiff evidence. At the and defendant submitted both that the court indicated evidence, conclusion of the whole give of a demurrer the nature an instruction would involuntary plaintiff non- took an when evidence, to There- the same aside. move to set leave to suit, with upon, plaintiff the nonsuit aside, motion to a set filed appeals. and defendant sustained, the court which alleges petition under- that deceased The coupler inspect on one of an automatic and fix taken to going that de- freight a train into which was cars, up. making The time at that crew fendant’s switch during high pushed coupler pin too had been coupler operation, switching thereof the a result and as by impact; couple automatically that while the failed switching two the end of deceased was between against run down a third car to crew caused causing in- and them move, was, the deceased where jured him. negligence, assignments petition contains two keep maintain and that defendant failed first, appurtenances condition, in safe thereto necessity impact couple by without they
that provided employees going as the cars, between Congress; that the Safety Appliance second, ofAct negligently shoved crew members of the exer- against knew, when deceased, ears SUPREME COURT OF MISSOURI, part on their have known, cise of care conld engaged inspecting that time at two of said cars. over between said general sec. contained, first, denial; answer injuries solely and death were due deceased’s ond, “blue-flag rule,” violation of what known required inspectors repairers, car which ing work- flag by day a blue ears, under about light by night, on the or at the track, end of blue that workmen are at work or about said denote injuries the de- and death of ; and, third, negligence as- the result of own ceased were sumption going' the two cars, risk making in the time switched and were at that moved *7 knowledge up freight without notice to aof charge part in of the movement said cars. of those the allega- reply general an denial; Plaintiff’s abrogated blue-flag rule been aban- the and tion that by long habitual non-observance continued and doned knowledge employees, consent and with the the directly death was caused that deceased’s defendant; Appliance comply Safety with the failure to defendant’s coup- keep Congress, by failure to maintain and Laws of specific repair; that deceased denials in and lers contributory negligence guilty 'or that he assumed negligence assumption contributory that, and and risks, no defense. risk constitute yards Missouri, at east Monnett, The railroad up run tracks, made switch are west, and westerly easterly general direction. On and in a p. night m., about 10:45 switch 1920, 14, of June freight assembling train foreman, was under the crew, points In furtherance of and Texas. in Oklahoma points transportation, expeditious the nearest cars engine, those to the placed and to the next to be points train; and to so rear of the distant more them, became convenient it cars, assemble pur- With that tracks. temporarily, on certain switch APBIL 1923. TEEM, Yol. y. Railway
Rittenhouse pose to-wit: cars, in three H. D. view, Cars C. & 46723, St. L. and L. S. F. 31623, Dallas, O. S. billed Beggs, respectively, Texas, Okla., Dallas, Texas, known hereinafter as second and third first, following in one the above the oth'er at were, order, position lacked, short shunted drifted to intervals, position As on track drifted to number first car acting-foreman Wright, shouted .switchman Williams enough for deceased to have heard him if loud vicinity: pin Shorty; I “The knuckle is out there, pulled inspec high; [a fix or have Wallace car too Acting-foreman Wright, it.” about a car-and-a- tor] fix length away, by, car half the lock drifted observed up past pin pushed the knuckle, that the saw automatically. car As the so that it expecting passed grabbed shook the he him, lever, drop place, pin In it failed to do so. about kicked struck car was two second minutes, bumping together, then drifted oars, first car. Both juxtaposition stationary position, second Wright the two the first car. see whether coupled or not. third kicked
Immediately car was thereafter, drifting toward the other two on track number length. Wright a car-and-a-half of about distance immediately almost thereafter the crash, heard say, a car man.” “We have killed heard switchman *8 Going accident, he the to scene the found the immediate car-and-a-half a wrench about lantern and deceased (a inspector length-from re- the deceased oar where pairer) lying the unconscious. rails, then He the accident, minutes. Just after died about fifteen pin couplers together, were the second knuckle close cars were not shut, the knuckles closed, pin place. coupled, From was hoisted out of Wright accident, time the car went until after the first changed position. coupler had not The knuckles automatically, couple by impact, because it was failed to COURT OF MISSOURI,
RitterRouse proper place. car The with other deceased, of its out light yards, inspectors, performed work operating taking fixing off brake chains, levers, braise without the car to that, and such as chains, “rip” any (repair) Neither nor other the foreman track. employee for an a half, had seen deceased hour and any inspector he other car re- know that or or did or pairer or that he had heard Williams’ was around call Wright. inspection light, the train and re- to- the
Relative pair duty of the foreman if neces- call, work, inspector. sary, any the car The record is void of evi- inspector repairer that a car was called fix dence coupler. coup- evidence tended to show ling pin, pulled worn, first had on the that when high place, fall in too and the failed refused impact. process being- The train ready inspection. assembled, and was Wright, plaintiff’s Switch foreman witness, testified: requested no car man come fix [the “I coupler]. any car I had not a man seen around of those for an hour and a half or tracks two hours ac- before the ’’ cident. Donlady, witness, Plaintiff’s switchman testified that pin position, if he couldn’t fix knuckle out he would get repairer anything the car to do it, and he go get fix he them; that he never saw 'á car repairer adjust a knuckle, he them to called Wright Donlady come out and do it. 'Both testified, inspector inspect that when a substance, went in to' repair give engineer sign stop car, would signal, working or. and tell him that he was in there. The evidence tends to show that when deceased entered the employment given copy of defendant he was “blue-flag receipted copy. rule,” and for it on another provides part flag day rule “that a blue light by night, placed blue on a track or at the end of a car, engine denotes that workmen are at work under *9 APRIL TERM, Yol. 299]
Rittenhouse must employees engine and that train, or about the or so signal such blue places not work at unless must not -A train thus protected, or placed. car, engine is removed signal to or until the blue coupled moved, be any The is void of it.” record person placed who com- that deceased evidence or to showing, tending show, the employees or that he rule; with the above gave plied or notice warn- in charge switching, defendant of the between the first second intentions to enter ing But coupler. to fix the cars, stationary position, blue- respect evidence further to show tends been rule, enforced, that had not flag uniformly had its non-observance. that defendant waived use by under con-
The further tends that evidence to show nor tract with the railroad switchman company, yard- service except men required perform any of the the evidence further equipment; quite frequently show some switch- tends that adjust rather than call a men would and did knuckle pins, that call in- inspector, they car man or when did an or custom spector repairer adjust foreman, they notify engineer switch-crew the car repairer repair. had so called make negligence. common-law I. First, plain as neg the members the switch crew tiff maintains against shoved deceased ligently the exercise of care knew, ordinary at that was, time, engaged that he known, inspecting over the and was between two of said cars. record neith contains Ne™™g°ence?W er inferential nor positive, evidence, knew that actually deceased posi taken defendant cars. Actual may knowledge, however, tion from charged, surrounding facts and cir imputed one to have known to hold as a fact cumstances, he could have discovered learned that which care. Railroad, exercise [Vandeventer W. 177 S. 834.] Mo.—14. COURT OF MISSOURI, *10 Railway Co.
Rittenhouse v. up making train, a defendant, The that facts show assembling switching them different on cars and completed again a- train on them in tracks assemble to transportation points. In for to certain various track, pursuance it became convenient to intention, of the above on track number the cars for the farther stations doing, kicked were 10, and at cars intervals, short stationary position. first in and to a allowed drift having position, car was .twocars drifted to the third awith kicked in and suffered to strike the second thereby causing it the second first car crash and said, elapsed drifting to move and roll. The time between position second third caris estimated length of time it took on the switchman the second car sixty climb brakes, walk about down, feet, set sixty then suffer the third car to drift that feet to the im- pact judge intervening second car. We time thirty to be about seconds. circumstances Under it could not have been than a minute. In the in- more thirty terim of more or seconds, less, the time stationary impact the second car became third car with the deceased it, entered between the first adjust, may coupler. and second car to we assume, point position perilous. To this and time, was not his subsequently proved, That it the result so, but becam.e knowledge, without notice to the or defendant, actual or imputed. making up defendant, train, switching assembling cars. The record is of evi- void anticipatory, dence, either actual or that saw defendant knowledge or had that deceased was between the or cars vicinity. in that inspector Neither he, nor other car repairer, coupler. was called fix the t.o It is true he lantern, rays so constructed that the reflector threw point only, may to certain impossible, and it have been constructed for was, the switch crew have seen rays; having those recognize seen them, or realize inspector’s that was a car lantern. The evidence is clear that rays light. him saw neither nor the of his APRIL Yol. TERM, 1923. may be on cars what
The1defendant assigned to track. had been an called active Deceased yards. in the The accident occurred west yard, presence on the there is accounted east inspecting theory oil due which, that an he was up part placed length, east in the its was broken itof tending yards. to show While there evidence repairmen adjusted couplers, here sometimes yards performing fair duties, and there about the repairmen in from the evidence inference, is, spected been as train after it had notification repaired couplers, tracks, ; sembled and active *11 upon the when called to do or notice to defendant or so, its trainmen. The evidence defendant considered, anticipate presence no reason to the of deceased between expected, reasonably the not foreseen, cars. It could be might working that cir someone there. these Under duty de no warn cumstances, devolved on defendant to clearly guilty ceased. Defendant is not of common-law negligence, charged. 53.] [Yoakum as S. W. 223 Lusk, plaintiff, says
II. “the “But,” the defendant negligent failing keep in and maintain the appurtenances car H. C. & D. thereto, 46723, safe they im~ by that
condition, so Safety necessity employees pact without the of by Safety provided the between Act!iance say, Congress.” Appliance Act of That is upon liability coupler. rests a defective defendant’s brings inquiry us to as to whether deceased This Safety Appliance purview of the Act. within comes making go purpose between the cars for not He did stationary, coupling. The first two cars had become coupled desired, he he had if repair by purpose coupler. impact. was to sole His repair contemplated its use, is true that future It repair coupling be extended act but the could not therefore, did not come within Deceased, cars. protected act. As was said Railroad class COURT OF 212 MISSOURI, Conarty, quoting from v. Southern 243, U. S. Johnson coupling Pacific c. Co., U. S. “the risk 1, l. 19, uncoupling sought -and the evil remedied;” to be “Nothing gives any provision later on, warrant either saying* provide are intended to safety colliding cars.” aptly very David E. the distinction J., *12 the first car to such position. The evidence then demonstrates that he entered immediately between the cars thereafter. The surround- ing charge facts and seeing circumstances him with the switching work in engaged. the crew were That he saw the entertain,no entire situation, we doubt. We may surmise that he failed to realize this but situation, this did not duty him relieve of the to warn defendant of his intention to enter between the cars.
Irrespective blue-flag of the rule, which we think de- fendant waived habitual non-observance, the deceased was duty not. relieved warning switching of.the the crew of his intention to enter between the cars, defend- APRIL TERM, Yol. v.
Rittenhouse anticipating his charged ant with is not charged knowing with presence there. Not negligence presence no cars, knowledge between the of his engineer; switching and even or the crew attached to entry, they presence of his at time known of had his prevent have been car could that the it is shown third coming car, because into contact second ed from entry between the at the time of his power control the crew had lost the movement that even demonstrate third car. Nor the evidence does perfect though coupler condition, had been goes . prevented. no injury It or could have been point been that if the out, further than to perfect hot have entered the deceased would condition, his death would between the therefore cars and governing v. Railroad rule is found in resulted. The Conarty, l. c. 249: 238 U. S. principal question whether at in the case is
“The injured within the class the time he deceased was appliance persons safety acts for benefit re- whose couplers quired equipped car be with automatic putting height; in an- or, it drawbars standard against way, injury evil other whether his within appliances provisions are directed. which the such evidence, It is not nor it under the claimed be proximately collision attributable violation complied provisions, of those been that had injury it with, would not have resulted an to the de- [Lang ceased.” York R. R. Co., New Central 255 U. 455.] S.
In 265, 280, Railroad McWhirter, U. S. court said: necessary prove
“The character of evidence depend point causation we need not out, as must on the justify recovery, circumstances of ease. each To alleged negligence proxi- must shown that the was the damage.” mate cause object repair
The proximate of the deceased was the car. cause of death his failure to warn *13 COURT OF MISSOURI,
Hafner v. Miller. crew. hold that the We defective proximate injury of the and that the cause sustaining the motion to court erred set aside the granting non-suit and trial. new The cause is remanded, reversed and with directions granting- court aside order lower to set newa original judgment trial, and reinstate of nonsuit. Bailey Higbee, (7(7., concur. foregoing opinion PER CURIAM: The Davis, opinion hereby adopted is of the
C., court. All of judges concur. Appellants, MARY A. HAFNER et al., D. GEORGE MILLER. D. MILLER v. MARY A.
GEORGE HAFNER et al.,
Appellants. Two, Division 1923. June OF 1. WEIGHT Action EVIDENCE: at Law: To Title: Quiet Parti- quiet equitable tion: New Trial Granted. A suit to title in which no by party, partition suit, relief is asked either and a are actions at law, province weigh such it is trial court evidence, improper if an erroneous conclusion right reached the trial court is likewise its correct grant party against error and a new trial whom such error committed; grants been has if the court a new trial on finding ground contrary weight evidence, its appellate say court cannot that as a matter of law the trial granting it for court erred reason. Antenuptial ELECTION: Renunciation of Will: Contract: Common- Marriage: Substantial Evidence. law The childless testatrix gave will her husband one-third her cash her and securities. her death the husband will After renounced the in due time estate, her elected to take one-half of some of which was real es- sought right father to bar his tate. Testatrix’s sister to make antenuptial contract, pleading an election oral made notes Blair, Wagner Mfg. 400, Mansfield v. Electric Co., S. W. says: plaintiff’s l. c. where in “Admit that the juries consequence were received in fail of defendant’s ure to install such fan; hood with blower or suction still Legislature legislating protect employees was not against danger particles flying eyes, into their but altogether objéct purpose; for an regulate different its employers purposes, for all particular purpose, prevent for one inhalation to-wit, gas employed of smoke, and dust those about such wheels.” that, injured It is demonstrated im- deceased was mediately placing perilous position after himself in a be- ought tween two cars. knew, Deceased to have known, charged knowledge, and was therefore track active, because defendant was there- on. He must have seen the first and second car take to- gether stationary position, for the second bumps, pushed series knocked