Rashall v. St. Louis, Iron Mountain & Southern Railway Co.

155 S.W. 426, 249 Mo. 509, 1913 Mo. LEXIS 84

Opinion

OPINION.

BOND, J.

Action Arising in Another State. (after stating the facts as above). — I. If a foreign law is the foundation of a cause of action or a defense thereto, it must be both pleaded and proven. On the other hand, if such a law is only evidentiary, it may be proven though not pleaded; but it must be proven in both cases, for in no other way can this court apply to it a joinder of issues. The reason is, that our courts do not take judicial cognizance of the laws of sister States or foreign countries when they are issuable facts in any controversy. In such cases formal proof must be made just as of any other fact, and it is immaterial that the court may be possessed of independent knowledge of’ the foreign laws. In the present case there was neither proof nor pleading of the laws of Illinois other than a stipulation that there is in that State no statute governing the relation of fellow-servants; and, hence, in-ferably, that relation subsists as’ it did at common law. But the Illinois decisions declaratory of its com mon law were not offered in evidence. If that had been done, we should have applied their doctrines to the determination of the relation between the plaintiff and the persons in charge of the freight train. As that was not done, we must apply the common law as it is expounded in this State. For when a question arises as to the non-statutory law of a sister State which has not been proven, and whose territory was a part of that over which the common law of England prevailed, the rule is clear that we will apply our own exposition of that body of law. This will not, however, exclude from our consideration the interpretation of the common law, on points not covered by our own decisions, as it has been made in other States or in England. We may regard these as persuasive authorities depending for their force upon their intrinsic logic. We shall, therefore, consider this appeal from the viewpoint of the Missouri courts in cases to which our statutes abrogating the fellow-servants rule have no application, if it becomes necessary to advert to that doctrine in disposing of this appeal; and we overrule the contention of learned counsel for appellant that, as far as that doctrine is concerned, this case should he determined according to the construction of the Illinois common law as expressed in the decisions of its courts.

Negligence: Yard Clerk. II. This case presented "a simple issue as to whether the plaintiff got caught in the switch and was negligently run down by the engine.” [Respondent’s brief, last paragraph.] As has been seen from the preceding statement, this issue was presented in plaintiff’s petition in a form to invoke the application of the last-clear-chance rule, and was submitted to the jury in the following instruction:

“1. The court instructs the jury that if you believe and find from the evidence that on or about the 17tb day of June, 1907, plaintiff was employed by the defendant, St. Lonis, Iron Mountain & Southern Railway Company, as yard clerk, and that in the due course of his employment as such yard clerk he was passing over the track of the defendant mentioned in evidence, and that his foot was caught and held in the track at said point, and he was thereupon run over by an engine of said defendant and thereby injured, and that the employees of said defendant in charge of said engine saw, or by the exercise of reasonable care and diligence might have seen, the plaintiff in such position upon the track of said defendant at said point, if you so find, in time, by exercise of ordinary care with the means and appliances at hand, to have stopped said engine, and so have prevented said injury to the plaintiff, if any, but negligently and carelessly failed to do so,- and that thereby plaintiff was injured, and plaintiff was at the time in the exercise of ordinary care himself, then your verdict should be for the plaintiff, unless you believe and find from the evidence that the plaintiff assumed the risk of being so injured, as submitted to you in the other instructions.”

The giving of this instruction over its objection is one of the errors assigned by appellant. In considering its correctness we will leave out of view for the moment the other points pressed by appellant, that the plaintiff was a fellow-servant of the switching crew in charge of the engine, or that he was injured in consequence of a risk assumed by him when he entered in the employ of defendant, and give our attention to the correctness of the instruction as applicable to the undisputed facts and from the standpoint that the plaintiff was an employee of defendant whose proper work required his presence on its switching grounds and his crossing of the tracks thereon, over which its engines were constantly moving to attach or detach cars and to make up trains. Thus viewed, what was the rela tion between the plaintiff and defendant and what obligations did it owe to him?

In the application of the last-clear-chance doctrine a different rnle applies when it is invoked by one of the general pnblic for an injury sustained at a place where the railroad had no- right to expect “a clear track,” and where it is sought to be applied for an injury suffered at a place where a clear track was to be expected or where a workman on the track or grounds of the railroad is injured by the necessary movements of its trains. In the former instance the legal theory expressed in plaintiff’s petition and submitted in the above instruction would be correct. In the latter cases it is incorrect. The reason is, that railroads are' required to exercise at all times a degree of care and vigilance commensurate with the occasion. This implies a duty on their part correlative with the danger to be encountered. Hence, in passing portions of their tracks subjected to public use or license, they are charged with a knowledge of what is actually seen or what could be seen by proper care; but where no such conditions exist or where in the course of the necessary movements of their trains over their tracks or switching grounds a workman or employee is injured through an act of negligence on his part not to be expected, the railroad is not liable therefor, unless he was “actually seen” by its operatives in a position of peril in time, by ordinary care, to stop the train and avoid the injury. This distinction is shown by Graves, J., in a recent case, In Banc, upon an analysis of the decisions in this State and elsewhere, and is thus formulated: ‘ ‘ The rule as to an employee is different from the rule applied to a passenger or stranger.” [Citing Cahill v. Railroad, 205 Mo. l. c. 408; Evans v. Railroad, 178 Mo. l. c. 517; Aerkfetz v. Humphreys, 145 U. S. l. c. 419.] In that case the plaintiff was a section hand, who was at work upon the defendant’s track, and was injured by being run into by a passenger train without giving him any warning by ringing the hell or blowing the whistle. The court held that he was not entitled to these signals; that the duty attached to his calling to look out for his own protection; and, hence, that the doctrine applicable “to a clear track” measured the liability of defendant, under which rule it did not become liable for the injury unless the servants in control of the engine ‘ ‘ actually saw the deceased in a position of peril, of which position he was oblivious, in time to have averted the injury by the exercise of ordinary care.” [Degonia v. Railroad, 224 Mo. l. c. 592.] The court further ruled in that case, that the instruction which predicated the right of the widow to recover for the death of her husband, if the defendant’s agents “knew, or by the exercise of reasonable care could have known, that said Degonia was upon the track,” etc., was erroneous; and upon consideration of the entire record reversed the judgment in her favor without remanding. This ruling is conclusive of the present appeal, for there can be no distinction in principle between the relation of the plaintiff, who was a yard clerk employed to traverse all the tracks contained in defendant’s switching grounds, and that of the section hand in the Degonia case. The defendant in this case could not he held liable under the last chance doctrine in any other manner than was ruled in the Degonia case. It had the same right here to assume that the yard clerk would look after his own safety that the section man was required to do in the other case. In the case under review the yard clerk had completed his duties, and, according to his own testimony, walked across the track in front of a slowly moving train which he had passed as it slowed up. The physical facts in this case present stronger reasons for the application of the modified rule of the last clear chance to it than was presented in the Degonia case. There the section hand was at Ms work and unaware of the on-coming train. Here the plaintiff testified that he had got ahead of the train which had already passed him, and crossed its tracks wMle he saw it was slowly moving. In the Degonia case, the court said: “Plaintiff’s case, therefore, must proceed upon the theory that defendant’s servants saw the perilous position of the deceased, and saw such things as would lead prudent persons to believe that' deceased was oblivious to such perilous position, and after so seeing had time to obviate and avoid the accident by ordinary care and caution upon their part. It devolved upon the plaintiff to show these facts.”

In the case at bar the court instructed the jury that the defendant would be liable if its 'agents in charge of “said engine saw or by the exercise of reasonable care and diligence might have seen” the perilous position of plaintiff. The error of tMs instruction was the alternative submitted by the phrase “or by the exercise of reasonable care and diligence might have seen.” That would have been proper if the plaintiff had been other than an employee of the defendant engaged in work requiring him to cross its switcMng tracks and to take reasonable care of his own safety in so doing. That the trial judge wholly misconceived the theory on which plaintiff was entitled to recover, if at all, is shown by the further fact that he refused instruction numbered 3 requested by defendant, which submitted its liability under the last-clear-chance doctrine upon the assumption that the switching crew “saw the plaintiff in a position of peril in-time to have stopped the engine and prevented the accident, but carelessly and negligently failed to do so.” That instruction presented the only legal theory upon which defendant could have been held liable in this action, and should have been given if there was any substantial evidence upon which to base it. [Epp stein v. Railroad, 197 Mo. l. c. 733, par. c; Hufft v. Railroad, 222 Mo. l. c. 301, par. a.] The evidence for defendant tended to show that neither its fireman, its engineer nor its switchman in charge of the engine ever saw the plaintiff in a position of peril until the engine was upon him. The engineer testifies positively' he did not see him at all. The switchman states that he never saw him in a position of peril; and the fireman, who was on the west side of the engine, after having testified in his direct examination that he saw the whole conduct of the plaintiff in throwing the switch and his return and attempt to mount the platform in front of the pilot of the engine, stated on cross-examination (as noted in the brief of respondent) that the truth was the first time he saw plaintiff “was just as he was falling down.” If the statement of these three witnesses is to be credited, then the plaintiff was never' seen by any of them “in a position of peril at any time prior to the engine reaching his person; and under the rule announced in the Degonia case, the defendant would not be liable in this action. The plaintiff, himself, stated in general terms that the engineer and fireman were at their places. The testimony given for him only tended to show that he was in a position of peril at a sufficient distance from the approaching engine for it to have been stopped and averted the injury. Had he been actually seen at that time by the persons in charge of the train, and had they omitted to exercise ordinary care to prevent the injury, then the defendant would have been liable. As to this, the positive testimony of the three men in charge of the engine has been shown. That necessarily does away with any merely disputable presumption that plaintiff was seen in a position of peril, which might have arisen before the advent of that evidence upon his statement that he was within seeing distance. This-is a familiar rule of law. [Brown v. Brown, 237 Mo. l. c. 668; Burge v. Railroad, 244 Mo. l. c. 94 et seq.] Its application in this case shows that no ground existed for a recovery.

The judgment is therefore reversed.

Woodson, P. J., and Graves, J., concur; Lamm, J., concurs in the result.