*1 question is not before us. It is parties. the a Such real intention deed county position the in no have the clear, however, that to County, l. c. supra, 173 Stoddard canceled. v. [Simpson subject length said: the at it After the court reviewed etc.] longer disputed question a that the doctrine take it is no “We that.it county well municipal corporation, a as as applies laches other to individuals.” subject only estoppel. The motives one branch of
Laches is actuating bringing county in the name of were suit question was first tainted. will be noted that when also It sought it have the defendant deed presented to court tc parties theory county third on the that never had land to complied request, may ask, title. We if the defendant had with that this have that the parties backing would the real lawsuit contended quitclaim by county passed deed executed no title? It will be brought noted that the record disclosed suit was with an under- standing parties claiming third the land should bear expense.
Appellant in his brief asked court to this reverse the reforming a trial court with to enter decree deed directions convey seventy-five as to the defendant acres of land as so described difficulty with is that the his by his answer. this defendant question a answer did not ask for reformation of the deed. That presented by pleadings. question may the trial court Such proceeding. proper express any be settled in a Of course we do not subject opinion matter. Neither can this court in this case question settle the the island in contained more than of whether seventy-five acres, or surveyor whether the referred to land contemplation sand was land within of the law.
It is therefore ordered that the judgment of the trial court be plaintiff’s petition Bohling Barrett, GG., reversed and dismissed. concur.
PER foregoing opinion by Westhues, C., CURIAM :(cid:127) —-The adopted judges opinion as the of the court. All the concur. Deceased, Administratrix the Estate Smith, of J. D.
Anna Smith, Guy Trustee of the Missouri Pacific Railroad Thompson, A. Berryman Company, a Corporation, Henwood, Trustee of Railway Company, the St. Louis Southwestern Corpora- tion, Appellants. (2d) W. 232. S. Two,
Division March Denied, May
Rehearing 5, 1942. *2 ,<& McBeynolds Flanigan Thos. Guy J. Cole appellant A. Thompson. McElhinney, L. Henson and E. Sater for
Robert W. Charles James Berryman Henwood. appellant *3 Sweeney Myres
Edward V. respondent. Sizer *4 BOHLING, Smith, administratrix C. Anna of the estate (hereinafter designated Smith, of deceased plaintiff), J. D. recovered against Guy Thompson, A. $20,000 judgment a total sum of (here- corporation Company, Pacific Railroad a Missouri- trustee of-the Bérryman trustee Pacific), Henwood, designated inafter Missouri corporation Railway Company, Louis, of the St. Southwestern appealed. Belt). defendants designated The (hereinafter Cotton swing for the husband, brakeman Smith, was plaintiff’s J. D. Paragould, (his Arkansas operated between Missouri Pacific and 27, 1936, having completed March home), On Malden, Missouri. Paragould on the next waiting return to Malden, he his run to was by a he struck cut of freight train south when was following yards He died in at Malden. cars of the Cotton Belt and two day. in three counts. Counts one petition Plaintiff’s was (U. A., Liability Tit. Employers’ Act S. C. under Federal were 45, surviving being damages 2); plaintiff for Ch. the first suffering part pain for on the of widow and the second was count, alternative, was for plaintiff’s husband. The third damages (Sec. 3652, R. under Missouri death S. statute involuntary Ann., 3262). Plaintiff suffered an p. Stat. sec. juror A nonsuit with as to the count. nine verdict was leave third $5,000 $15,000 count. returned for on the first count and on second I. appeal Plaintiff dismissal of the of the Cotton seeks the alleged Belt because of of our Rule 15. violations complains Plaintiff of the fact that Cotton Belt’s brief states page preliminary on 13 instead of to the statement of the facts that jurisdiction plaintiff because the was in excess we have $7,500. objection hypercritical. requirement of We think the The was give thought promulgated question appellate counsel to the unnecessary delay jurisdiction resulting to avoid from cases sub- jurisdiction appellate mitted transferred for want of here. (Mo.), (2d) 145 W. La Plant S. If it Hicks be better 142[2], jurisdictional prior form to statement to the “statement of make facts,” beginning proper its statement at the “brief” dispatch appellate of insufficient moment to the work to call for the dismissing appeal. drastic action of The brief up Cotton Belt’s to the measure formalities re- quired respect statement, Rule 15 with our numerical on, order, points authority. relied with citation As here- th§ liability explained, the Cotton Belt’s inafter secondary the record made is derivative, being statutory, and the Missouri Pacific’s liability fact, argues In primary. plaintiff she was entitled under statutory provisions' “peremptory to a against instruction this if Pacific liable appellant” the Missouri and contends the Missouri negligent violating 17, quoted Pacific its Rule infra. assigned ruling error in demurrer its to the evi- *5 effect, dence, among thereunder to the others, with subheads that against make a plaintiff defendant; failed submissible case either
401 against case defendant plaintiff failed to make snbmissible that no connection between the Pacific, that there was causal Missouri and assign negligence jury and the accident. These as submitted to the authority they nor -are supported not citation of ments are authority. developed) points, as with the citation of (and reiterated Argument” points and are de However, caption “Brief under (as well authority. Apparently plaintiff veloped, with citation of understanding difficulty complaints we) experienced in no and- the motion to circumstances, has not In the dismiss been misled. Co., 695, 687, 335 Mo. 74 Pac. Rd.
overruled. Noell v. Missouri 7, & Davis. (2d)W. Farmers Elevator Grain Co. v. S. [2]; Co., 341 393, ; Polk v. Missouri-K.-T. Rd. (Banc), S. W. 398[2] 138, (2d) 111 W. 1213, Mo. S. 144[10], 1225[5], II. Plaintiff her ease and her brief to hold the submitted seeks ground viz., negligence, the Missouri Pacific’s one alleged (infra) violation its No. 17 dim on its of Rule question. locomotive on the occasion It is contended action (1st) negligence predicated not be so the rules able because: governed (2d) and of the Cotton Belt the movement that Sec. R. required (infra), operation of Missouri Pacific S. train ‘‘ nighttime an candle with electric of fifteen hundred any power brilliancy;” proof negligence that there no proximate injury, Pacific was the cause of Missouri Smith’s recovery may risk that Smith assumed the and' had. De be plaintiff’s fendants on their A more or stood demurrers evidence. necessary. less detailed statement of facts is yards
The railroad tracks and at Malden are the property operated Cotton Belt. trains thereover under agreement. proceeded theory lease Plaintiff on the the Missouri primarily liability Pacific was liable the Cotton Belt’s was deriva secondary, being tive or statutory provisions imposing founded liability on a for the lessor railroad delict of its lessee railroad. 5162, 5163, cites Secs. Ann:, R. S. pp. 2095, Stat. [Plaintiff secs. 4690.]- beginning At trial, plaintiff offered in docu- evidence ments consisting agreement and lease between the and the Missouri Pacific. In* abstracting lieu of the whole thereof parties stipulated that said exhibits contained the following: Trains, etc., “Control of on Joint Track. Section The South- Company western shall control trains, the admission and exit of en- gines joint and ears on said track, and shall control the movement the same thereon and Company’s trains, the Mountain engines, cars employes, thereon, subject while rules, to the regulations ’’ n discipline of said Company. Southwestern The Missouri Pacific rights, succeeded to the of the “Mountain Com- pany.” *6 objections evidence over put Rule
Said Pacific No. Missouri exceptions, and reads as follows: each train the front of displayed will be to “The out extinguished when a train turns night. be It must concealed or main or is stand- track stopped to meet another and'has ing clear the junction. or tracks or to meet a train at end of two more yard yards through the where “It while passing must be dimmed be stops are to at which engines employed; approaching are stations ap- discharging receiving passengers; or are or where trains made terminals, meeting points, signals, junctions, or train proaching order more two meeting and on standing points main or while on track at opposite direction.” approaching when trains tracks generally north and south direction The railroad tracks extend a boundary, corporate near east but, entering from the north the Malden through and near the Malden practically and west curve and run east is The station boundary proceed and south. corporate west curve line the main and south of immediately north the main line track track, also tracks, being passing first the track six switch the are 2, 3, sequence etc. in south known with tracks Nos. track No. Highway passing paralleling main line and tracks. State and the A station. street of the No. these tracks and is the first crosses east a track highway the main line short said and on distance east of another, east and passing track, farther east crossover switch to 62, which Highway No. said switches U. S. the easternmost of 2:No. line, passing crosses main and track freight Malden about A train arrived at north bound Belt Cotton night Stopping March 1936. front of eleven o’clock on the cars, station, station, pick up four west of it received orders to The required changing 2. on track No. This four switches. The Cotton Belt train cut cars back of the locomotive. four proceeded obscure, Belt are a it exact movements of the Cotton bit but along to the east the main and via the crossover switches line thei\ passing 2, part a movement a back- track No. of the to.track up opposite when movement. The was about the station locomotive coupling time, brakeman Mc- was made. About' this Cotton Belt Haney only long (the testifying actions) witness to Smith’s observed freight Pacific train from the around the approaching Missouri north passing stopped curve on the track. He went forward passing track, opposite easternmost on about blocking Belt switch, crossover main prevent line to of the Cotton Belt, cars, proceeded in on The eight the track Cotton with the No. track, passing over track No. and crossover switches onto point main line. The main north at this line curved «the headout,” MeHaney, lining after the “main line mounted switch car of fireman’s west the Cotton Belt on the north or side given signals might relayed engineer. fireman and fully east and developed. west distances are not The Cotton involved track, moving hour, the main seven an and the on six to miles working, ring- Missouri passing track, Pacific on with steam bell ing an sounding, moving hour, pro- four whistle at about miles westwardly station, starting ceeded toward the the Missouri Pacific testimony in the lead of the Belt. There was to the effect looking bright one at a electric when locomotive would be blinded for short time.
McHaney that, station, he testified as he looked toward the saw approaching; Smith that reached the main line crossover Smith 25, a Highway switch short lined the distance east of State No. and over, changing green. switch the target The distance from red between the main track passing line track and the twelve feet and the switchstand is four- feet south of the approximately and one-half main moving line around the track. Witness testified that Smith was passing switchstand between main line and and was never the tracks track; between the rails of the main line sometimes he would be south and of stand at other times between the the south rail stand and track; of main stooped “acting line in position, that Smith was a he dropped something on ground, looking like around on the ground he looking object something for an or he had like was dropped;” very something.” “like well couldn’t see down there he lengths away feet) When (67% witness was about car one-and-a-half he give signal hollered Smith and stop at commenced a when about Being ten feet nearer. on the north side of the Belt’s lead Cotton car, McHaney’s view of became Belt Smith obstructed as the Cotton neared Smith. a Belt had one-half Cotton secured lead of about length they car over Missouri Pacific as neared this crossover (cid:127)switch, by (inferential- injuries Smith received fatal when struck ly, overhang of) the Cotton Belt’s lead car.
(a) throughout right recovery Plaintiff predicated has her to a finding on a that negligently per was give blinding mitted to a light forth in Pacific violation of Missouri 17, Bule No. but specifically has not answered that contentions Belt, the rules of the Cotton of the Pa instead rules of the Missouri cific, governed movement, and that 17 Missouri Pacific Rule No. infra, in and, 5274, immaterial so far as it conflicted with Sec. (cid:127) grounds effect; was of no force opposition advanced in to its plaintiff’s establishing introduction evidence. With evidence applicability rules, plaintiff, Belt we think in the cir the Cotton record, may judgment cumstances predicated not maintain a on reason, a Pacific; and, violation No. 17 of Rule of the Missouri for this plaintiff’s expert to be reversed. Broad assertions of that the rules of all were witnesses railroads same not aid does plaintiff. cross-examination, they Upon a disclosed lack of testimonial familiarity rules, with the been the Cotton which would have Belt’s
404 violation negligence best in tbe evidence. petition pleaded Plaintiff’s However, Belt’s) (not rules. Missouri Pacific’s the Cotton plaintiff may recover able to jury received verdict of the or, under of the applicable possibly, of the rules Interstate of evenhanded In the interest Commerce Commission. justice let the cause be both defendants. remanded as to 2205,
(b) 1939,. Ann., sec. 5274, p. Section R. S. Mo. Stat. every 4845, requires upon maintain and use equip, railroads "to night locomotive operated road in this state service brilliancy, time an power electric candle of fifteen hundred ” measured failure to with the aid . . state a reflector . Cases (Sav statutory negligence observe age se requirement per this constitutes 628, (2d) Chicago, Ry. 44, v. 40 Co., 55, R. I. & P. 328 Mo. S. W. 629, 658, 672, 108 Berry City Co., v. Kansas Serv. Pub. 633[9]; (2d) S. W. 98, conflict It is contended that where a exists 104[9]). between a adopted by company rule of the railroad a statute State, negligence precedence statute takes and actionable predicated not be portion the rule nonobservance conflicting statutes; citing Katzenberger Lawo, with the 90 Tenn. 235, 611, Rep. 681, 185, 186; S. W. 25 Am. St. 13 L. R. A. J., p. p. C. proposition Sec. Sec. municipal analyses provisions contravening ordinance final state *8 law are requires ineffective. an applicable What rule of railroad may done, be evidence nature of an what be admission of should but what by be done is of due should measured what standard prudence requires by to be done or applicable what authoritative enactments, legislative other, require done, or rule or no rule. This, however, Liability an Employers’ action under Federal Act no respect being engaged issue is made with to Smith interstate commerce. 5274, statute, Section supra, a'State is not necessarily controlling. Napier Co., Rd. Atlantic Coast Line 272 605, 612, U. S. 432, Sup. 207; 71 L. Ed. 47 199, Ct. & N. Louisville Rd. Co. v. Alabama, 505, 16 Ala. App. 76 So. 208[4], 514[4], response of Supreme question; Court certified Franklin v. Nowak 53 App. 44, Ohio 4 N. 235 (2d) 232, E. Atlantic Consult Coast [1], Line Rd. Georgia, Co. v. 234 U. Sup. S. 58 L. Ed. 34 829; Ct. Vandalia Ind., Rd. Co. v. Public Service 242 Comm of U. 255, 259, S. Ed. Sup. against L. point Ct. is ruled defendants. (c) Defendants’ testimony that was no contentions there of
probative that headlight value of the Missouri Pacific was on bright, or that by Smith was headlight, being blinded or said that his proximate blinded was injuries cause of his for additional calls facts, the substance of which follows. Mcllaney testify would not headlight that the Missouri Pacific was bright on testify but did he anyway” could "half a mile see down headlight. Plaintiff’s by Pacific track of the Missouri reason on headlight when expert of locomotive testified that witnesses mile, light with the bright half a would show the track for down This sufficient dim, hundred feet. was turned on for two to three on was finding to sustain a the Missouri that Pacific’s bright. position that if one expert witnesses also testified
Plaintiff’s when of at of the Missouri Pacific Smith should look blinded a short bright on dim he if would be could but he see MeHaney’s testimony observed time. We recall that he here switch, Belt Smith; of that as the cars approached actions moving partly stooped Smith in a around between position, was main with passing tracks, part line and time his back facing him, “acting part dropped like he witness of the time something ground he ground, looking on the around on the like was looking object something for an “like he see dropped;” or he couldn’t very something. pencil well down there I think he his some- lost or thing. lose;” I what don’t know he did that witness could not tell going whether Smith lead hol- was to clear the Cotton Belt car -and lered him Smith; position prevented seeing at Smith that witness’ struck; when “from I him and that the time hollered at [one-and-a- half car length 67y2 up.” never look While he did away] — feet — Mctlaney Smith up looked in the interval after “hol- have McHaney’s lered” and time the lead car obstructed view of Smith, jury privileged was to find from a Mc- consideration Haney’s testimony covering plain- Smith’s actions and favorable to tiff Smith approaching had at while the were sometime trains testimony plain- faced the headlight; and from the expert to'duly tiff’s ap- witnesses failure Smith’s observe the proach by Cotton Belt cars was occasioned his blinded by bright headlight Pacific. the Missouri
We think this conclusion consistent with the established Mc facts. Haney, unaffected headlight, Smith, the Missouri Pacific could see. sight affected, unless his should approach have observed the leg, knee, Cetton cars. His left between the ankle and *9 right his hand were run over. presumed It not to he intended committing suicide. This has court had occasion the to consider lights blinding bright effect headlight; on a locomotive see Martin Ry. 1107, 1121, v. Wabash 325 Mo. Co., (2d) 30 735, S. W. 741. (d) With starting the the lead of the jury privileged Belt and Cotton to find Smith oblivious of observing being or not to observe the approach unable faster by bright reason headlight blinded of the Pacific, say Missouri we not a matter of law that he assumed ordinary employment an risk of fully his an obvious or known extraordinary arising appreciated greater risk speed from
406 bright headlight
of the conjunction Cotton Belt in with the of the Chicago Ry. Co., 22, Missouri Pacific. Johnson v. & E. I. 334 Mo. Gately (2d) 674, ; Ry. 64 S. W. 678 v. St. Louis-S. F. 32[6], Co., [9-11] 1, (2d) 54, ; Kurn, 332 56 S. W. 57 Owen Mo. v. 9[1, 2], [1-3] 516, (2d) 519, 347 Mo. 521 148 v. S. W. Grosvener [2-4], 522[2-6]; Co., 611, 619(I), (2d) 173, New York 343 123 Cent. Rd. Mo. S. W. Lehigh Mangan, Valley 85, 278 91 Rd. Co. v. Fed. 176[1]; [5, 6]. Co., 442, Consult v. Pac. 292 239 Preston Union Rd. Mo. 454[4], 1080, 496, 1082 denied, 753, S. W. certiorari 260 67 U. S. L. Ed. [4], 43 Sup. 14Ct. Nichols, admissibility
J. E. deposition infra, whose is ruled engineer charge was the Belt cars. He of the Cotton testified that passed as he the Missouri Pacific on the Cotton movement from Belt’s track 2No. to the main line the Missouri Pacific was on this, dim. From the Missouri Pacific was thereafter bright light. switched argue to Defendants that Smith was an experienced brakeman and after he threw the switch he had ample step place safety to a time to the north of main line or to passing south of the track. Smith was not at the switch for his own convenience operation but to facilitate the of the trains and he had the train orders for Missouri Pacific. argu- Defendants’ goes ment conduct of Smith and what he should have done but do, failed safety. appears his own It to be properly ap- more plicable to the contributory negligence defense under record made. Purucker, Rd. Co. 320, Erie v. 244 325, U. S. 61 L. Ed. 1166, Sup. 37 629; Ct. Kurn, Owen v. 347 516, Mo. 523 148 S. [5], (2d) 519, W. 523 2 Federal Carriers, Roberts [7]; Liabilities of sec. before the trial W. having been waived. sition of said 229 S. W. III. Error is 1010 J. [1] and without E. ; [6]. Nichols over Brown v. asserted Powell v. The record discloses that Mr. Nichols died having signed Lafayette Hunter, timely admission of the objection, L. 257 & F. Co. deposition. his 440, unsigned signature (Mo. 445, App.), 165 S. In St. depo Denker, Charles Sav. Bk. v. 275 Mo. 616(11), S. W. admissibility unsigned of the [3-5], deposition of a witness untimely whose following sickness and death prevented had his cross- examination completion deposition of the was before the court. Although deposition was held inadmissible reasons, for other we considered, discussion, after the fact that prevented death the cross- examination of the witness was insufficient of itself to exclude the deposition. A fortiori, a deposition complete as to cross-examination, as well as chief, examination in solely should not be excluded be cause an act of God deposition before signed by intervenes deponent. County Broome Farmers’ Fire Assn. [See Relief *10 N. E. 591. Corp., 264 N. Y. Con- & G. York State El. New Ky. Marshall, *590, 8 Hamit, 1 Mobley v. sult 439.] recovery on Missouri Pacific Rule No. predicating error in For the cause remanded. ~Westimes reversed and the 17, the CG., Barrett, concur. C., adopted foregoing opinion by Bohling,
PER CURIAM: —The judges All the concur. the court. opinion Taylor County, : Farmers Bank of Chariton Missouri John D. Holt, Finance; A. John Waldo Charles R. Commissioner Finance, Appellants. S. W. son, Deputy Commissioner (2d) 243. Two, March Division 1942.
Rehearing May Denied, Walsh, Jerome Merrill, Boy Louis E. Lionel Davis and Bucher W. for appellants.