Opinion
No. 38613.
November 1, 1943. Rehearing Denied, December 6, 1943.
1. RAILROADS: Federal Employers' Liability Act: Plaintiff Engaged In Work Connected With Interstate Transportation. At the time of the accident plaintiff was riding on a motorcar which was making a trip for the purpose of a bridge inspection on a line over which interstate shipments were transported, plaintiff's duties being to assist in taking the car off the track to permit trains to pass. He was engaged in work connected with interstate transportation.
2. NEGLIGENCE: Federal Employers' Liability Act: Submissible Case: Federal Rulings Govern: Common Law Applies: Illinois Law Immaterial, Though Pleaded. In determining the sufficiency of the evidence to make a submissible case under the Federal Employers' Liability Act the rulings of the federal court control. The question of negligence is governed by common law principles as applied in the federal courts. The Illinois law does not govern, though pleaded by plaintiff.
3. NEGLIGENCE: Appeal and Error: Failure To Slacken Speed or Stop: Ruling on Prior Appeal Adopted. The evidence on the issue of failure to slacken the speed or stop the motorcar before it hit a dog and was derailed was substantially the same on the second trial, and the ruling on the prior appeal is the law of the case.
4. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Excessive Speed of Motorcar: Submissible Issue. There was evidence to submit to the jury the issue of whether 25 miles per hour was excessive speed for the motorcar in view of the bad condition of the track.
5. NEGLIGENCE: Federal Employers' Liability Act: Assumption of Risk Not Pleaded. The defense of assumption of risk was not pleaded and may not be raised by defendant.
6. EVIDENCE: Animals: Prior Conduct of Dog Excluded. Evidence of previous cautious habits of the dog which ran in front of the motorcar was properly excluded, as the driver of the motorcar had no knowledge of such habits.
7. TRIAL: Instructions Proper. The instructions were proper and there was no error as to refused instructions.
8. RAILROADS: Federal Employers' Liability Act: Interstate Transportation: Instruction Properly Refused. Defendant's instruction "W" was properly refused as the facts therein stated would not so far remove plaintiff's work from interstate transportation as to prevent the application of the Federal Employers' Liability Act.
Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
AFFIRMED.
Charles M. Miller for appellant.
(1) The trial court erred in refusing and not giving defendant's peremptory instruction requested at the close of all the evidence for the reason plaintiff, at the time of the accident, was not engaged in interstate transportation or in work so closely related thereto as to be practically a part of it. Benson v. Mo. Pac. R. Co., 334 Mo. 851, 69 S.W.2d 656; Peterson v. D., L. W.R. Co., 229 U.S. 146; Shanks v. D., L. W.R. Co., 239 U.S. 556; Garrison v. Thompson, 344 Mo. 579, 127 S.W.2d 649; L. N. Rd. Co. v. Brittain, 93 F.2d 159; Kelly v. Penn. Rd. Co., 238 F. 95; So. Rd. Co. v. Pitchford, 253 F. 736; Middleton v. So. Pac. Rd. 61 F.2d 924. (2) The trial court erred in refusing and not giving defendant's requested peremptory instruction at the close of all the evidence, for the reason that, upon the pleadings and evidence, plaintiff made no case for a jury because Poynter, the operator of the railroad motorcar, was not guilty of any actionable negligence. The record on this appeal is different from that on the former appeal. This court is also not bound by its former decision if it made a mistake of fact or law. Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512; Monroe v. Chicago Alton, 297 Mo. 633, 249 S.W. 644; Lloyd v. Alton, 348 Mo. 122, 159 S.W.2d 267. (3) Plaintiff's petition for grounds of negligence, pleaded the law of Illinois and is bound thereby. The defendant's amended answer also pleaded the Illinois law. Davis v. Chicago E.J. Ry. Co., 338 Mo. 1248, 94 S.W.2d 370; Bruce v. Sims, 34 Mo. 246; Weil v. Posten, 77 Mo. 284; Knoop v. Kelsey, 102 Mo. 291, 14 S.W. 110; Davis v. Bond, 75 Mo. App. 32; Kelley v. Briggs, 290 S.W. 105; Farm Home Sav. Loan Assn. v. Stubbs, 98 S.W.2d 320. (4) Plaintiff made no proof of Illinois law, but defendant did, including cases where a railroad motorcar had been derailed by striking a dog, injuring occupants on the car, and in suits by the occupants the court denied recovery. Schmidt v. Litchfield Madison Ry., 179 Ill. App. 533; Bondy v. Litchfield Madison Ry., 196 Ill. App. 560, 210 Ill. App. 574. (5) Plaintiff, on cross-examination, judicially admitted he "didn't suppose dog was going to run on the track, maybe" (Court's former Opinion, 159 S.W.2d 270). McCoy v. Home Oil Gas Co., 60 S.W.2d 715; Behen v. Transit Co., 186 Mo. 430, 85 S.W. 346; Haddow v. Public Serv. Co., 38 S.W.2d 284; Madden v. Red Line Service Co., 76 S.W.2d 435; 9 Wigmore on Evidence (3rd Ed.), sec. 2594A. (6) Dogs are active, swift, alert and watch out for own safety and are different from other animals and more like a human being in this respect. Klein v. Transit Co., 117 Mo. App. 691, 93 S.W. 281; Flowerree v. Thornberry, 183 S.W. 359; Fowles v. Railroad Co., 73 S.C. 308, 53 S.E. 534; Owen v. Southern Ry., 133 So. 33; Jones v. Bond, 40 F. 281; Moore v. Elect. Ry., 48 S.E. 822. (7) Dog knew of approach of railroad motorcar and was in pursuit of it (Former Opinion of this court page 271). He was, therefore, not oblivious of approach of motorcar and could see it all the time. Judicial knowledge of action of dogs cannot be invoked as to a railroad motorcar, under the evidence in this case. In any event, such is not conclusive and may be disproved by evidence of habits of dogs. Wigmore on Evidence (3rd Ed.), sec. 2569; 1 Wigmore on Evidence, sec. 68A, p. 490, sec. 201, p. 688; Broderick v. Higginson, 48 N.E. 269; Mitchell v. Central of Vt., 158 N.E. 336; Goldin v. Rd. Co., 84 Mo. App. 59; Forsythe v. Kluckhohn, 142 N.W. 225. (8) Actionable negligence must be predicated upon reasonable probability, possibility not enough. Mullen v. Lowden, 340 Mo. 40, 124 S.W.2d 1152; Lotta v. K.C. Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296; Wecker v. Ice Cream Co., 326 Mo. 451, 31 S.W.2d 974. (9) At most, same rule should at least apply to dogs, as to a pedestrain at a public crossing, under facts of this case, with respect to knowledge of approach of a car on railroad track. Camp v. Kurn, 142 S.W.2d 772. (10) No evidence of excessive speed of motorcar and such as pleaded was not only inconsistent with plaintiff's first charge of negligence but was not a proximate, contributing cause. The petition was a "felo de se," as to negligence alleged. Gabriel v. St. Ry. Co., 130 Mo. App. 651, 109 S.W. 1042; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1; Campbell v. T. P. Ry. Co., 152 So. 351; Decker v. Rd. Co., 187 Mo. App. 207, 172 S.W. 1168; McGee v. Railroad, 214 Mo. 530, 114 S.W. 33; Grubb v. Railroad, 214 S.W. 256. (11) The trial court erred in refusing to admit in evidence, the ordinary habits of the collie dog on previous occasions, when a railroad motorcar would pass on the track which was to the effect he would approach to about 10 or 15 feet of the track and bark at the car as it passed, and would never get closer to the track. Such was, at least, some evidence of what like dogs would do, if not all dogs, and was admissible under the facts of this case, and bore on whether or not there was "reasonable probability" the dog would get on the track and collide with the car. Such also tended to disprove the "judicial knowledge" which this court applied on previous appeal. Other evidence of the ordinary habits and traits of the collie dog was also admissible for like reasons. Wigmore on Evidence (3rd Ed.), sec. 2565; also Vol. 1, sec. 68A, p. 490; sec. 201, p. 688; Broderick v. Higginson, 48 N.E. 269; Mitchell v. Central of Vt., 158 N.E. 336; Goldin v. Railroad Co., 84 Mo. App. 59; Forsythe v. Kluckhohn, 142 N.W. 225. (12) The trial court erred in giving plaintiff's Instruction 1, on the alleged issue of plaintiff being, at the time of the accident, engaged in interstate transportation, and also erred in refusing defendant's Instruction W, if plaintiff made a submissible issue thereon, defendant asserting the evidence made no issue for the jury thereon but, if so, then defendant's refused Instruction W should have been given for it properly declared the law, and plaintiff's Instruction 1 did not. Benson v. Mo. Pac. R., 334 Mo. 851, 69 S.W.2d 656; Shanks v. D., L. W.R. Co., 239 U.S. 556; Ill. Central v. Cousins, 249 U.S. 641; Garrison v. Thompson, 334 Mo. 579, 127 S.W.2d 649; L. N. Rd. Co. v. Brittain, 93 F.2d 159; Kelly v. Penn. Rd. Co. (C.C.A.), 328 F. 95; So. Rd. Co. v. Pitchford (C.C.A. 4), 253 F. 736; Middleton v. So. Pac. R. (C.C.A. 5), 61 F.2d 924. (13) The trial court erred in giving plaintiff's instruction No. 2, relating to alleged negligence that the operator of the motorcar was guilty of negligence in failing to slacken or stop the car. Said instruction disproves and conflicts with plaintiff's given Instruction 3 and is not supported by any allegation of negligence in the petition, the petition being "felo de se," as to negligence alleged. Gabriel v. Street Ry. Co., 130 Mo. App. 651, 109 S.W. 1042; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284. (14) The trial court erred in giving plaintiff's Instruction 3, informing the jury that they must return a verdict for plaintiff, if the jury believed and found that Poynter was guilty of negligence in operating the motorcar at a speed of "25 miles per hour or more." There was no evidence upon which to predicate said instruction. (15) The instruction was contradictory of plaintiff's Instruction 2, which proceeded upon the theory that Poynter was negligent in not slackening or stopping the car and it was error to submit the alleged issue of negligent speed. One conflicted with the other. One disproved the other. State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284. (16) But even if the instruction was not conflicting with plaintiff's Instruction 2, it cannot be the law Poynter had to operate the car at such a rate of speed that he could so control the car as to slacken or stop it, in the event a dog might run out on the railroad's private right of way, toward the track thus making Poynter guilty of actionable negligence. Campbell v. T. T. Ry. Co., 152 So. 351; McGee v. Railroad, 214 Mo. 530, 114 S.W. 33. (17) The alleged negligence of excessive speed was not a proximate contributing cause. Decker v. Railroad, 187 Mo. App. 207, 172 S.W. 1168; Grubb v. Railroad, 214 S.W. 256; Schmidt v. Transit Co., 140 Mo. App. 182, 120 S.W. 96; O'Bauer v. Katz Drug Co., 49 S.W.2d 1065. (18) The instruction was a roving commission to the jury and singled out and gave undue prominence to a "speed of 25 miles or more per hour." Also the instruction is indefinite and uncertain and does not follow the allegations of the petition and leaves the jury to determine in regard to excessive speed without any limitation or basis therefor. (19) The trial court erred in refusing defendant's requested instructions H, I, J, L, M, Q, and S for the reason that said instructions properly declared the law applicable to this case and should have been given, if plaintiff made a case for a jury as to his first alleged ground of negligence. These instructions were refused because they embodied therein the right of assumption on the part of Poynter, of the ordinary instincts of dogs to avoid danger and not come on the railroad track when seen approaching the railroad track, like the dog in question. Such assumption was made and approved in the consideration of instructions in the following cases: Flowerree v. Thornberry, 183 S.W. 359; Klein v. St. Louis Transit Co., 117 Mo. App. 691, 93 S.W. 281; Fowles v. Railroad Co., 73 S.C. 308, 53 S.E. 534; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Owen v. So. Ry. Co., 133 So. 33; Moore v. Elect. Ry., 48 So. 822. (20) The trial court erred in refusing defendant's requested instructions N, O, P, R, T, and U, for the reason that they properly declared the law and were clear, concise instructions, and should have been given particularly because of plaintiff's No. 2 long, involved instruction, as heretofore referred to. Jennings v. Cooper, 230 S.W. 325; Woods v. Southern Ry., 73 S.W.2d 374; Roth v. Roth, 142 S.W.2d 818. (21) The trial court erred in refusing defendant's Instruction V, for the reason this instruction properly declared the law and bore upon the question of excessive speed informing the jury that, if the jury found such speed was open and obvious to plaintiff and he made no protest or objection thereto, then he assumed the risk thereof. Heath v. St. Louis S.F. Rd. Co. (Mo. App.), 286 S.W. 148; Russell v. Mo. Pac. Rd. Co., 316 Mo. 1303, 295 S.W. 102; Arnold v. Scandrett et al., 345 Mo. 115, 131 S.W.2d 542.
Charno Drummond, John A. McGuire and Ira B. Burns for respondent.
(1) Under any view that may be taken of this evidence, plaintiff at the time of his injury was engaged in interstate transportation. This is so as a matter of law. Title 45, U.S.C.A., Ch. 2, Sec. 51; Poe v. Ill. Cent. R. Co., 73 S.W.2d 779, 335 Mo. 507; La Lone v. St. L., etc., R. Co., 293 S.W. 379, 316 Mo. 835; Mulcahy v. Term. Railroad Assn., 123 S.W.2d 235; Smith v. Payne, 269 F. 1; Montgomery v. Term. Railroad Assn., 73 S.W.2d 236, 335 Mo. 348; Hines v. Logan, 269 F. 105; Milburn v. Chi., etc., R. Co., 56 S.W.2d 80, 331 Mo. 1171; Geiseking v. Litchfield, etc., R. Co., 94 S.W.2d 375, 339 Mo. 1; Glover v. Union Pac. R. Co., 21 F. Supp. 618; McKay v. Monongahela R. Co., 44 F.2d 150; Minn., etc., R. Co. v. Winters, 242 U.S. 353, 37 Sup. Ct. 170; Industrial Acc. Comm. v. Payne, 259 U.S. 182, 42 Sup. Ct. 489; Sheehan v. Term. Railroad Assn., 81 S.W.2d 305, 336 Mo. 709; Pedersen v. D., L. W.R. Co., 229 U.S. 146, 33 Sup. Ct. 648; Overstreet v. North Shore Corp., 87 L.Ed. 423, 318 U.S. 120, 63 Sup. Ct. 494; Rader v. B. O.R. Co., 108 F.2d 980; McNatt v. Wabash R. Co., 74 S.W.2d 625, 335 Mo. 999; Geiseking v. Litchfield, etc., R. Co., 127 S.W.2d 700, 344 Mo. 672; Sibert v. L. M. Ry. Co., 159 S.W.2d 612; L. N.R. Co. v. Parker, 242 U.S. 13, 37 Sup. Ct. 4; Central R. Co. v. Monohan, 11 F.2d 212; Mayor v. Central, etc., R. Co., 26 F.2d 905; Penn., etc., Co. v. Donat, 239 U.S. 50, 36 Sup. Ct. 4; Hoffman v. N.Y., etc., R. Co., 74 F.2d 227; Atlantic Coast Lines R. Co. v. Williams, 284 F. 262; Ill. Cent. R. Co. v. Behrens, 233 U.S. 473, 34 Sup. Ct. 646; So. Ry. Co. v. Puckett, 244 U.S. 571, 37 Sup. Ct. 703; K.C. So. R. Co. v. Martin, 262 F. 241; Kinzell v. Ry. Co., 250 U.S. 130, 39 Sup. Ct. 412; O'Brien v. U.S., etc., 185 N.Y.S. 447, affirmed 132 N.E. 867, 231 N.Y. 511; Kepner v. Cleveland, etc., R. Co., 15 S.W.2d 825, 322 Mo. 299; N.Y., etc., R. Co. v. Bezue, 284 U.S. 415, 52 Sup. Ct. 205; 15 C.J.S. 292; Hughes Bros. Timber Co. v. State of Minn., 272 U.S. 469, 47 Sup. Ct. 170; N.Y., etc., R. Co. v. Carr, 238 U.S. 260, 35 Sup. Ct. 780; Brier v. Chi., etc., Ry. Co., 168 N.W. 339; Brown's Admstr. v. N. W. Ry. Co., 12 F.2d 319, affirmed 20 F.2d 133, certiorari denied, 48 Sup. Ct. 36, 275 U.S. 540; Director General of R.R. v. Bennett, 268 F. 767; Shaffer v. Western Maryland Ry. Co., 116 S.E. 747, 93 W. Va. 300; Callahan v. Boston, etc., R. Co., 106 A. 37; St. L., etc., R. Co. v. Seale, 229 U.S. 156, 33 Sup. Ct. 651; Atlantic, etc., R. Co. v. Tomlinson, 94 S.E. 909; Nicholas v. Reading Co., 24 A. 63; Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 Sup. Ct. 221; Lamphere v. Oregon, etc., R. Co., 196 F. 336; Grand Trunk, etc., R. Co. v. Knapp, 233 F. 950; Woosley v. Wabash, 274 S.W. 871; Odell v. St. L., etc., R. Co., 281 S.W. 456; La., etc., Ry. Co. v. Williams, 272 F. 439; Brewer v. Mo. Pac. Ry. Co., 259 S.W. 825; Lopez v. Hines, 254 S.W. 37; Yarde v. Hines, 238 S.W. 151, 209 Mo. App. 547; San Pedro, etc., R. Co. v. Davide, 210 F. 870; Wagner v. C. A.R. Co., 232 S.W. 771, certiorari quashed 291 Mo. 206, 236 S.W. 868; Hunt v. Chi., etc., R. Co., 259 S.W. 481, 303 Mo. 107. (2) There is no evidence of sufficient probative value to justify giving of Instruction W. Hughes v. Miss., etc., R. Co., 274 S.W. 703, 309 Mo. 560; Neal v. Curtis, 41 S.W.2d 543, 328 Mo. 389; Brosius v. Weber, 130 S.W. 134, 149 Mo. App. 181; Adelsberger v. Sheehy, 59 S.W.2d 644, 332 Mo. 954; State v. McCrackin, 162 S.W.2d 853; Stoll v. First Natl. Bank, 132 S.W.2d 676, 234 Mo. App. 364; Massey-Harris Co. v. Rich, 122 S.W.2d 858, 233 Mo. App. 509; Siegal v. Mo., etc., R. Co., 119 S.W.2d 376, 342 Mo. 1130; Roehl v. Ralph, 84 S.W.2d 405; Krause v. Pitcairn, 167 S.W.2d 74; Dixon v. Frazier-Davis Co., 298 S.W. 827, 318 Mo. 50; Masonic Home of Mo. v. Windsor, 92 S.W.2d 713, 338 Mo. 877. (3) The decision of this court on the prior appeal that plaintiff's evidence made a submissible case on the issue of the negligence of defendant's employee, Poynter, who was operating the motorcar, is the law of this case and should not be changed or disturbed. Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267; Clark v. A. E. Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Zukubinis v. Mo., K. T. Rwy. Co., 345 Mo. 943, 137 S.W.2d 504; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512; Moran v. Atchinson, etc., R., 330 Mo. 278, 48 S.W.2d 881; Williams v. St. Louis, etc., Ry. Co., 337 Mo. 667, 85 S.W.2d 624; Osment v. Pitcairn, 159 S.W.2d 662; Gorman v. St. Louis Merchants, etc., Co., 325 Mo. 326, 28 1162 S.W.2d 1023; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Arnold v. Alton, 348 Mo. 516, 154 S.W.2d 58; Carpenter v. Kurn, 348 Mo. 1132, 157 S.W.2d 213; Gracey v. St. Louis, 221 Mo. 1, 119 S.W. 949; Murphy v. Barron, 286 Mo. 390, 228 S.W. 492; Hunt v. C., B. Q.R. Co., 259 S.W. 481; Montgomery v. B. O.R. Co., 22 F.2d 359; Frizzell v. Omaha St. Rwy. Co., 124 F. 176; So. Ry. Co. v. Cook, 226 F. 1; Mo., K.T. Rwy. Co. v. Wulf, 226 U.S. 570; Title 45, U.S.C.A., Sec. 55; Vaughn v. St. Louis, etc., R. Co., 177 Mo. App. 155, 164 S.W. 144; N.Y. Central R. Co. v. Kinney, 260 U.S. 340; Esmar v. Haeussler, 234 Mo. App. 217, 115 S.W.2d 54; Sec. 958, R.S. 1939; Haddow v. Public Service Co., 38 S.W.2d 284; Scott v. K.C. Pub. Serv. Co., 115 S.W.2d 518; Tunget v. Cook, 94 S.W.2d 921; Young v. Travelers Ins. Co., 119 F.2d 877; Oceanic Steam Nav. Co. v. Aitken, 196 U.S. 589; Gaedis v. Met. St. Ry. Co., 143 S.W. 565; Pabst. v. Armbruster, 91 S.W.2d 652; Bailey v. Central Vermont Ry. Co., 87 L.Ed. 1030, 63 Sup. Ct. 1062. (4) Plaintiff's Instruction 2 is not subject to the objections urged against it by defendant under its point (5), because it properly declares the law and is supported by competent evidence. Pence v. K.C. Laundry Serv. Co., 332 Mo. 930, 59 S.W.2d 633; Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; Bales v. K.C. Public Serv. Co., 328 Mo. 171, 40 S.W.2d 665; Pabst v. Armbruster, 91 S.W.2d 652. (5) Trial court properly excluded evidence of actions and conduct of dog on prior occasions, at other places, and under different circumstances. To admit such evidence was to enter the field of collateral issues and was not relevant in its bearing on the main issue, and the court exercised a sound discretion in excluding it. Ellis v. Met. St. Ry. Co., 138 S.W. 23, 234 Mo. 657; Wilson v. Board of Education of Lees Summit, 63 Mo. 137; Ritter v. First Natl. Bank, 87 Mo. 574; Horr v. K.C., etc., R. Co., 156 Mo. App. 651, 137 S.W. 1010; Green v. Term. Railroad Assn., 135 S.W.2d 652; Schaefer v. Frazier-Davis Co., 125 S.W.2d 897; Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810; Haycraft v. Grigsby, 88 Mo. App. 354; Calcaterra v. Iovaldi, 123 Mo. App. 347, 100 S.W. 675; Lock v. Chi., etc., R. Co., 281 Mo. 532, 219 S.W. 919; Biener v. St. L.P.S. Co., 160 S.W.2d 780; Friedman v. United Rys. Co., 293 Mo. 235, 238 S.W. 1074; Klas v. Yellow Cab Co., 106 F.2d 935; 2 Wigmore (3rd Ed.), secs. 443, 444; 22 C.J., p. 162, sec. 90; Blackwell v. Newberry Co., 156 S.W.2d 14; Lake Sup. Loader Co. v. Huttig, etc., Co., 264 S.W. 396, 305 Mo. 130; Strother v. K.C. Milling Co., 169 S.W. 43, 261 Mo. 1; Kelso v. Lincoln Nat. Lf. I. Co., 51 S.W.2d 203, 227 Mo. App. 184. (6) Trial court did not err in giving plaintiff's Instruction 3. The evidence made a jury question on negligent rate of speed as directly contributing in whole or in part to cause plaintiff's injuries. Pence v. K.C. Laundry Serv. Co., 59 S.W.2d 633, 332 Mo. 930; Langston v. Howell County, 108 S.W.2d 19; Alcorn v. Chi. A.R. Co., 108 Mo. 81, 18 S.W. 188; Kinney v. Met. St. Ry. Co.,
261 Mo. 97, 169 S.W. 23; Bond v. St. L., etc., R. Co., 288 S.W. 777, 315 Mo. 987; Foster v. K.C. Rys. Co., 235 S.W. 1070; Montgomery v. B. O.R. Co., 22 F.2d 359; So. Ry. Co. v. Cook, 226 F. 1; Frizzell v. Omaha St. Ry. Co., 124 F. 176; Hunt v. Chi., B. Q.R. Co., 259 S.W. 481, 303 Mo. 107; Case v. St. L., etc., R. Co., 30 S.W.2d 1069; Great N. Ry. Co. v. McDermid, 177 F. 105; Stuart v. Dickinson, 290 Mo. 516, 235 S.W. 446; Owen v. Kurn, 148 S.W.2d 519, 347 Mo. 516; Yost v. Railroad Co., 245 Mo. 219, 149 S.W. 577; Title 45, U.S.C.A., Ch. 2, Sec. 51; Young v. Wheelock, 64 S.W.2d 950, 333 Mo. 992; Moran v. A., T. S. Fe, 48 S.W.2d 881, 330 Mo. 278; So. Pac. Co. v. Ralston, 67 F.2d 958; Kimberling v. Wabash R. Co., 85 S.W.2d 736, 337 Mo. 702; Hillis v. H.O.L.C., 154 S.W.2d 761, 348 Mo. 601; State ex rel. v. Haid, 62 S.W.2d 400, 333 Mo. 76; Haley v. Mo. Pac. Ry. Co., 93 S.W. 1120, 197 Mo. 15; Bramblett v. Harlow, 75 S.W.2d 626; Hughes v. Miss., etc., R. Co., 309 Mo. 560, 274 S.W. 703; Rigley v. Pryor, 290 Mo. 10, 233 S.W. 828; Westenhaver v. St. L., etc., R. Co., 102 S.W.2d 661, 340 Mo. 511; Johannes v. Laundry Co., 274 S.W. 377; Thom v. Northern Pac. R. Co., 252 N.W. 660; Rocha v. Payne, 187 N.W. 804; Mahoney v. Beatman, 110 Conn. 184, 147 A. 762; Vanderslice v. Chi., etc., R. Co., 23 S.W.2d 1111; Milwaukee, etc., R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Story v. St. L. Trust Co., 83 S.W. 992, 108 Mo. App. 424; Bradley v. Becker, 296 Mo. 548, 246 S.W. 561; Hunt v. Chi., etc., R. Co., 303 Mo. 107, 259 S.W. 481; State ex rel. v. Bank, 22 S.W.2d 185; Cluck v. Abe, 40 S.W.2d 558, 328 Mo. 81; Perry v. Van Meter, 176 Mo. App. 100, 161 S.W. 643. (7) There was no error in the refusal of any of defendant's instructions. Clark v. A. E. Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Crawshaw v. Sumner, 56 Mo. 517; Blanton v. Dold, 109 Mo. 64, 18 S.W. 1149; Bowman v. Standard Oil Co., 169 S.W.2d 384; Rucker v. Alton R. Co., 123 S.W.2d 24, 343 Mo. 929; Meese v. Thompson, 129 S.W.2d 847, 344 Mo. 777; Murray v. St. L. Tr. Co., 176 Mo. 138, 75 S.W. 611; Pentecost v. St. L., etc., R. Co., 334 Mo. 572, 66 S.W.2d 533; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Graefe v. St. L. Trust Co., 224 Mo. 232, 123 S.W. 835; Williams v. K.C. Elevated R. Co., 149 Mo. App. 489, 131 S.W. 115; Porter v. Stockyards Co., 213 Mo. 372, 111 S.W. 1136; Nixon v. Hannibal, etc., R. Co., 141 Mo. 425, 42 S.W. 942; Dutcher v. Wabash R. Co., 145 S.W. 63, 241 Mo. 137; Owen v. So. Ry. Co., 133 So. 33; Lloyd v. Alton, 159 S.W.2d 267, 348 Mo. 1222; In re Thomasson's Est., 347 Mo. 748, 148 S.W.2d 757; State ex rel. v. Shain, 159 S.W.2d 582, 349 Mo. 27; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Vrooman v. Hill, 147 S.W.2d 602, 347 Mo. 341; Melican v. Whitlow Const. Co., 278 S.W. 361; Lloyd v. Alton, supra; Homan v. Mo. Pac. R. Co., 70 S.W.2d 869, 335 Mo. 30. (8) Defendant's Instruction V properly refused because defense of assumption of risk was not pleaded. Adams v. Quincy, etc., R. Co., 287 Mo. 535, 229 S.W. 790; Grosvener v. N.Y. Cent. R. Co., 343 Mo. 611, 123 S.W.2d 173; Halt v. R.R. Co., 279 S.W. 148.
Action under the Federal Employers Liability Act, 45 U.S.C.A., Secs. 51 et seq., to recover for personal injuries. Verdict and judgment went for plaintiff for $15,000, and defendant appealed.
This is the second appeal in this cause. At the first trial the verdict was for defendant, but the trial court granted a new trial and defendant appealed. The order granting the new trial was affirmed. Lloyd v. Alton Railroad Co., 348 Mo. 1222, 159 S.W.2d 267.
Plaintiff was a bridge carpenter, and resided in Slater, Missouri, when injured. The injuries resulted when a motorcar on which he was riding struck a dog and was derailed in Carrolton, Illinois, about 7:30 A.M., June 8, 1938.
The negligence alleged and submitted was that Harry Poynter, operator of the motorcar, failed to exercise ordinary care to slacken the speed of or stop the motorcar, and excessive speed. These grounds were submitted in the alternative and in separate instructions. Defendant answered by a general denial, and an allgation that the cause "is governed and controlled by the law of the State of Illinois where the alleged accident occurred."
Error is assigned (1) on the refusal, at the close of the case, of defendant's instruction in the nature of a demurrer to the evidence; (2) on the admission of evidence; and (3) on giving and refusing instructions.
The demurrer to the evidence raises two questions, viz., Was plaintiff, at the time of injury, engaged in interstate transportation or in work so closely related thereto as to be practically a part of it? and, Was there substantial evidence to support submission?
[1, 2] Was plaintiff, at the time of injury, engaged in interstate transportation or in work so closely related thereto as to be practically a part of it? On the prior appeal, defendant did not contend to the contrary. In the present brief defendant says that on the prior appeal "we were confident that plaintiff made no case for the jury" on the question of negligence, and for that reason defendant did not press the question as to whether plaintiff's case was properly under the federal act. It is conceded that defendant is not precluded from now contesting the question, although such was not pressed on the prior appeal.
For about a week prior to June 8, 1938, the bridge gang had been engaged in rebuilding a freight platform or dock at East [821] Hardin, Illinois. W.J. Leeson was foreman of the gang and Harry Poynter was assistant foreman. June 7, foreman Leeson received a telegram from Chas. E. Horrom, the master carpenter, to meet Horrom at Roodhouse, Illinois, at 8 A.M., June 8, in order to make a bridge inspection trip on the Tonika line. It was stipulated that both intra and interstate shipments were transported over the Tonika line. The line from East Hardin to Carrolton is a branch line and Carrolton is about 19 miles northeast of East Hardin. Roodhouse is about 22 miles north of Carrolton. Godfrey is south of Carrolton, distance not given. The inspection was to be made between Godfrey and Roodhouse.
The bridge gang ate and slept in the cookcar, then at East Hardin, and there was also a toolcar. Plaintiff testified that about 7 A.M., June 8, he started to get his tools to go to work, and that Leeson said to him, "John, you come and go with me on this inspection. Q. He said, what? A. Come go with me on this inspection on the Tonika line. He first said, `Come and go with me', and I said, `Where to', and he said, `on this inspection trip on the Tonika line.' Q. On this morning that Mr. Leeson had told you to come go with him on this inspection trip, what did you do? A. I was getting my tools out of the box and I put them down and went and got on the car with him and Poynter. . . . Q. When you speak of this inspection trip, what do you mean? A. That means inspecting bridges . . . Q. On these inspection trips would the crew stop at those bridges? A. Yes, sir."
The weight of the motorcar was about 600 or 800 pounds, and it required at least two men to move it from the tracks in the event such became necessary to permit a train to pass, and it was plaintiff's understanding that he was going on the inspection trip for the purpose of assisting in moving the motorcar from the track in the event such became necessary while on the inspection trip. Plaintiff testified: "Q. Now, on your work there, you never went along and inspected bridges, did you? Inspection wasn't a part of your work, was it? A. No, sir, that would not have been part of my work. What I went along for was to assist to take the car on and off the track. . . . Q. You never did go on the trip to inspect bridges, did you, yourself? A. No, sir, that is not the men's job, inspecting bridges. Q. That was more for the bridge engineer? A. That is right."
Mr. Horrom was a witness at the first trial, but was dead at the time of the second trial. Plaintiff introduced from the record of the first trial a part of Horrom's evidence, and from that it appears that Horrom said that they were going on the inspection trip on the motorcar, and there is nothing to show that he did not mean the motorcar upon which plaintiff was riding at the time of his injury.
Defendant contends that plaintiff went along "solely for the purpose of assisting Poynter in taking the car off the track in case it became necessary when Poynter and plaintiff were returning from Roodhouse to East Hardin, Leeson remaining in Roodhouse." The evidence of Leeson and Poynter tends to show that such was the purpose of plaintiff's going, or starting, from East Hardin to Roodhouse.
It is pointed out in Shanks v. Delaware, L. W.R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797, that "the true test of employment in such commerce in the sense intended (by the statute) is, Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?" See also, Chicago N.W.R. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 61, 76 L.Ed. 173; Chicago, B. Q.R. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941; and Chicago E.I.R. Co. v. Industrial Comm. of Ill., 284 U.S. 296, 52 S.Ct. 151, 76 L.Ed. 304, 77 A.L.R. 1367.
In Pedersen v. Delaware, L. W.R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, the plaintiff was struck by a train while carrying a sack of bolts from a toolcar to a bridge used in interstate transportation, which bridge was being repaired. It was held that the plaintiff's case was properly under the federal act.
It is held in Montgomery v. Terminal R. Assn., 335 Mo. 348, 73 S.W.2d 236, l.c. 240, that "it is in harmony with the Pedersen case to hold that an employee, making a trip for the purpose of policing or inspecting tracks and bridges used by interstate trains for the purpose of insuring their [822] maintenance in operative condition, or supervising work for that purpose, is engaged in work so closely related to interstate transportation as to be practically a part of it", citing Chesapeake O. Ry. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914; Louisiana R. N. Co. v. Williams (C.C.A.), 272 F. 439; Sells v. A., T. S.F.R. Co., 266 Mo. 155, 181 S.W. 106; 2 Roberts' Federal Liability of Carriers, 1485, Sec. 774.
"It is settled that the repair of bridges or other structures constituting part of a railway in use as an instrumentality of interstate commerce is so closely related to such commerce as to be in legal contemplation a part of it, that a railway employee engaged in such work is to be regarded as engaged in interstate commerce, and that preparatory steps taken with the purpose of furthering the actual work of repair or reconstruction constitute a part of such commerce within the meaning of the act." Kansas City Southern Ry. Co. v. Martin, 262 F. 241, l.c. 242.
In the prior opinion we ruled [159 S.W.2d l.c. 271] that in determining the sufficiency of the evidence to make a submissible case for a plaintiff, in actions under the Federal Employers Liability Act, "we are governed by the test announced by the decisions of the federal courts", citing Weaver v. Mobile Ohio R. Co., 343 Mo. 223, 120 S.W.2d 1105. Of such ruling, defendant, in the present brief, says that we "overlooked the pleading in plaintiff's petition wherein he pleaded, as to his grounds of negligence, the Illinois law. . . ."
The Federal Employers Liability Act does not define negligence and the question of negligence in a cause under the act is governed by common law principles as established and applied in the federal courts. Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735, l.c. 741; Jenkins v. Wabash Ry. Co., 335 Mo. 748, 73 S.W.2d 1002, and cases there cited; Sweany v. Wabash Ry. Co., 229 Mo. App. 393, 80 1167 S.W.2d 216; Lynch v. New York, N.H. H.R.R. Co., 294 Mass. 152, 200 N.E. 877; Kansas City Southern Ry. Co. v. Larsen, 195 Ark. 808, 114 S.W.2d 1081, l.c. 1085, certiorari denied, 305 U.S. 621, 59 S.Ct. 82, 83 L.Ed. 307. It was not necessary for plaintiff to plead the Illinois law, but such would not make the Illinois law govern.
Plaintiff's evidence tends to show that, at the time of injury, he was on the way to assist in removing the motorcar from the track, if such became necessary, during the actual inspection of bridges used in interstate transportation, and the question as to whether he was engaged in interstate transportation or in work so closely related thereto as to be practically a part of it, was, we think, one for the jury.
Was there substantial evidence to support the charge that Poynter failed to exercise ordinary care to slacken the speed of or stop the motorcar? At the first trial the cause was submitted only on the alleged failure to slacken speed or stop. We held that a submissible case was made, and plaintiff, on the present appeal, makes the point that the prior ruling on the issue of failure to slacken speed or stop is the law of the case on such issues. Defendant says, however, that there was "new and different evidence", and additional witnesses; that "due to press of business" on the first appeal, we fell into error "in holding plaintiff made a case for a jury."
From plaintiff's evidence, in the present record, the pertinent facts on the issues of failure to slacken speed, or to stop, are these: On the way from East Hardin to Carrolton, operator Poynter sat about the center of the car, "just back of the levers", and faced to the front. Plaintiff sat at the right rear and Leeson at the left front. The operator's seat was about 4 inches higher than the seats of Leeson and plaintiff, and the operator was about three and one-half feet above the rails, and "had a good vision, except right up in front of the motorcar. Naturally, he could not see through the windshield." The windshield had been glass, "but the company (defendant) made them take the glass out of it and there was a black canvas cover where the glass was. He (the operator) had good vision to the sides. He could see right up to the car."
Plaintiff further testified: "Q. When you come into Carrolton, do you come in on a straight track or a curve? A. There is a curve as you come into Carrolton. Q. Did they ever slow down the speed of that car before this accident? A. Yes, sir. Q. When and where? A. About 300 or 400 yards back from where the accident happened, he slowed down just as he come around the curve. Q. That was just as you came around the curve? A. Yes, sir. [823] Q. And what was it slowed to? A. I would judge around 30 miles an hour. Q. Did it continue on at that speed to the accident? A. No, sir. Q. What happened then? A. About 150 feet — 125 or 150 back (from point of collision) he slowed it down to 25 miles per hour. . . . Q. Did you see any dog at any time there? A. I did, after we came around this curve there, yes, sir. Q. About how far before you got to the point of accident? A. About 125 feet (the track was straight at point of accident). Q. And where was this dog? Over in the back yard of a house there. Q. Which side of the track? A. On the right hand side of the track, south side, or southeast, whichever it would be there. Q. Did that back yard come close to the track? A. Yes, sir, right up to the right of way. . . . Q. So when you first saw this dog in that yard, how far were you from the point of collision? A. About 125 feet. Q. How far was he from the rail? A. From the rail, I would say around 50 feet, 50 or 60 feet. Q. What kind of a dog was it? A. He was a yellow shepherd dog. Q. How tall? A. Twenty-two or twenty-four inches. Q. When you first saw this dog, what was he doing? A. He was coming toward the railroad. Q. How was he coming? A. In a gallop (about 12 miles per hour). Q. What did you do when you saw him? A. I didn't do anything when I saw him. Q. Did you continue to watch him? A. Yes, sir."
Plaintiff further testified: "Q. Then what happened thereafter? A. Well, he kept right on coming headon right towards the railroad. Q. Directly toward it? A. Directly toward the railroad. Q. Did he change his speed any? A. No, sir. Q. What happened with respect to you and the car? A. Well, the car hit the dog. . . . Q. Now, Mr. Lloyd, after you saw this dog 125 feet away, did you say anything to anybody and if so, where? A. I did about when we got about 50 or 60 feet of where we hit the dog, I spoke to Poynter about the dog, I said, `Look out for the dog', and he said, `O.K., I see it.' Q. Where was the dog then? A. He was coming toward the railroad track just like the devil headon ("just like the devil" was stricken). Q. Did he change his speed any? A. No, sir. Q. Where was he with reference to the railroad track when you spoke to Poynter? A. He was about 18 or 20 feet from the track. Q. You were about how far from the point of collision when you spoke to Poynter? A. About fifty or sixty feet. Q. Other than Poynter saying, `O.K. I see it', was anything else said? A. That is all. Q. Did he slacken the speed of the car any? A. No, sir. Q. Did he make any movement to slacken the speed? A. No, sir. Q. Did the car change its speed any? A. No, sir. Q. Did the dog change its speed or direction any? A. No, sir. Q. Go ahead and tell what happened from then on after you spoke to Poynter? A. Well, the dog came right on to the track — . . . Q. What happened when the car hit the dog? A. The car hit the ground, was derailed. It threw me off the seat down onto the footboard and I don't know whether the car hit a high tie or what, but it swerved the back end and that is the last I know. I didn't know what happened from there on. Q. When did you next know anything? A. The next thing I knowed was in the hospital. . . .
"Q. Now take that car with you three men on it, going at that speed (25 miles per hour) on a rail like that, what distance could that car be stopped by use of all brakes and appliances there with safety to you men on the car? A. About 30 or 35 feet. Q. You have driven that car, haven't you? A. A little. Q. Did you drive any others like it? A. Yes, sir."
Plaintiff introduced defendant's rule 6 pertaining to the operation of motorcars. [824] Rule No. 6 provides: "Keep constant lookout for dogs, chickens, hogs, or other animals which are apt to be struck and derail car. Also, for objects such as stones and sticks on rails." Leeson and Poynter, as witnesses for defendant, testified that the motorcar, at the time of the accident, was running about 15 miles per hour, and each said that he did not see the dog prior to the collision and not until the motorcar stopped, some 50 or 60 feet from the point of collision and derailment. Also, each denied that plaintiff said anything about the dog. On cross-examination, each said that he was not looking to the side, but straight ahead.
The evidence at the second trial, on the issues of Poynter's alleged failure to slacken speed or stop, was substantially the same as at the first trial. It is true that there are, in the present record, some additional facts and some new witnesses were used, and there are some slight variations here and there, but basically the evidence is substantially the same. Plaintiff, at the second trial, introduced the rule, supra, and defendant used as witnesses the owners of the dog.
We are not convinced that the ruling on the question of negligence involved in the prior appeal was wrong, hence that ruling is the law of the case on the question of the alleged failure to slacken speed or to stop, and we make reference to that ruling without repeating here. Clark v. Atchison Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Kick v. Franklin et al., 345 Mo. 752, 137 S.W.2d 512.
Was there substantial evidence to support submission on the issue of excessive speed? Defendant says that the speed of the motorcar "was not a proximate contributing cause" of plaintiff's injuries, and that the evidence does not support submission on the theory of excessive speed. Plaintiff's instruction No. 3 told the jury that if they found that "said motorcar was operated at a speed of 25 miles per hour or more, and that under the facts and circumstances . . . the operator was negligent in running the same at an excessive and not reasonably safe rate of speed, and . . . that such negligence, if any, directly contributed . . . to cause the collision", then to find for plaintiff.
The line from East Hardin to Carrolton was a branch line, and not in condition to run the motorcar "very fast" thereon, according to Leeson. Of this, Leeson testified:
"Q. Then when you got onto the track after you left the Y (at Bakersfield, between East Hardin and Carrolton), you opened it up a little more, Mr. Poynter did, went faster? A. That track is a branch line and you can't run very fast down there. Q. I didn't ask you that. Did you run fast? A. We might have run 25. There is no speedometer on there. You can't tell how fast you run. Maybe some places we got up to 30. Q. And you might have gotten up to 35 some places? A. No, sir, not down there. Q. That car will run 35? A. Yes, sir, but whether it would stay on down there on that old — Q. (interrupting) It will run forty miles on that track? A. No, sir. Q. It will run 35? A. No, sir. Q. How fast will it run? A. It will run thirty."
Plaintiff, on the issue of excessive speed, introduced defendant's rule 8, which says "run carefully around curves and not to exceed fifteen (15) miles per hour at any time." Defendant says that the speed limit in the rule applies only to curves. It will not be necessary to rule the point on the application of the rule, and we do not.
It appears that the impact was so violent that both Leeson and plaintiff were thrown from the motorcar; Poynter was so upset he "couldn't get hold" of the brake; the motorcar ran some 50 or 60 feet on the ties before it stopped, and the front axle was bent. According to Leeson the speed limit for the motorcar on this branch line was 30 miles per hour, and clearly, when interrupted, he had in mind to say something about the motorcar staying on the track at a speed of 35 miles per hour. The implication is that he had his doubts about it.
The inference might be drawn from Leeson's evidence that the track, at the place of collision, was not in good condition. Had the motorcar been running at a lesser speed it might not have been derailed, and if it had not been derailed, plaintiff might have escaped injury. These, we think, are legitimate inferences. We do not think it was error to submit the issue of excessive speed.
Plaintiff was injured prior to the amendment of August 11, 1939, 45 U.S.C.A., Sec. 54, and defendant makes the point that plaintiff assumed the risk. That defense [825] was not pleaded, and the point is not before us. Defendant's demurrer to the evidence was, we think, properly refused.
On the admission of evidence: The evidence excluded pertained to the actions and conduct of the dog involved on prior occasions. In the brief defendant says: "The court refused to admit this evidence for the stated reason that it was not shown that Poynter, the operator of the railroad motorcar, had any knowledge of such prior action of the dog." Defendant sought to prove, by the owners of the dog, (1) that on prior occasions, the dog, when motorcars were passing, would approach to within 10 or 15 feet of the track and stop and bark; (2) that he had the habit of chasing automobiles, but that he never got in front of them. As supporting the assignment based on the exclusion of this evidence, defendant cites Golden v. Chicago, R.I. P.R. Co., 84 Mo. App. 59; Broderick v. Higginson, 169 Mass. 482, 48 N.E. 269; Mitchell v. Central Vermont Ry. Co., 261 Mass. 29, 158 N.E. 336; Forsythe v. Kluckhohn, 161 Iowa 267, 142 N.W. 225; 1 Wigmore On Evidence (3rd Ed.), Sec. 68a.
In the Golden case, supra, a team of horses became frightened at a pile of lumber. It was held that evidence that horses, other than those involved, got frightened at the lumber pile was competent. The Broderick case, supra, was to recover for personal injuries caused by the defendant's dog attacking a team driven by the plaintiff. In that case it was said that "there is a probability that an animal will act as he is accustomed to act under like circumstances. For this reason, when disputes have arisen in regard to the conduct of an animal, evidence of his habits in that particular has often been received."
The Mitchell case, supra, was to recover for injuries resulting from being thrown from a load of ties when a team of horses became frightened at the blowing of a locomotive whistle. It was held, in the situation, that evidence as to the disposition of the horses before and after the accident was competent.
The Forsythe case, supra, was to recover for injuries caused by being thrown down by the defendant's dog. Evidence that the dog, on other occasions, had committed the same acts charged in the complaint was competent as tending to sustain the charges made. 1 Wigmore On Evidence (3rd Ed.), Sec. 68a deals with the subject of the admissibility of evidence as to the disposition of animals.
We do not think that there is anything in either of the cases cited by defendant that supports the assignment on the exclusion of evidence.
In the prior opinion we said [159 S.W.2d l.c. 272]: "We must assume that the operator of the car was familiar with the ordinary habits and natural instincts of dogs, including collies (Restatement of the Law of Torts, Chap. 2, Sec. 290, p. 780) and particularly of their tendency to run after noisy moving vehicles and of their habit of running in front of stock (unless trained) and in front of teams and wagons, motorcycles and other motor vehicles. It is a matter of common knowledge that dogs will run beside or in front of vehicles in all cases, except where the speed of the vehicle is too great; and that they will run behind vehicles only when they cannot run beside or in front of them."
Defendant, in the brief, argues that the excluded evidence "tended to disprove what the court asserted as judicial knowledge that dogs would run in front" of vehicles. Such evidence would not have so disproved. It would have tended to show that the dog involved here may have been more cautious than the average dog, but unfortunately Poynter did not know about this and was not entitled to assume that the dog would repeat his prior acts of caution.
We find no merit to the assignment based on the exclusion of evidence.
On instructions: Error is assigned on plaintiff's instructions 1, 2, and 3, and on the refusal of defendant's instructions G, H, I, J, L, M, N, O, P, Q, R, S, T, U, V, and W.
Defendant says that there was no substantial evidence to support instruction No. 1. Instruction No. 1 submitted the question as to whether or not plaintiff was engaged in interstate transportation, or in work so closely related thereto as to be practically a part of it. In ruling the demurrer, supra, we disposed of this assignment.
Instruction No. 2 submitted the question of Poynter's alleged negligence in failing to slacken speed or stop. The principal complaint on instruction No. 2 is that it is not supported by the evidence. That question was also ruled in disposing of the demurrer to the evidence. It is also claimed [826] that instruction No. 2 is abstract and misleading and conflicts with plaintiff's instruction No. 3. We do not think that there is merit in these complaints.
Instruction No. 3 submitted the excessive speed theory. A complaint made on this instruction, as on instructions 1 and 2, is that it is without evidentiary support. That question was disposed of in ruling the demurrer. Also, it is contended that instruction 3 was in conflict with instruction 2, and was a roving commission. We find no merit in these complaints on instruction 3.
Defendant complains on the refusal of 16 instructions, lettered as above. "The prime object of instructions is not to test the accuracy of the circuit judge in passing upon them, but to afford the average layman of the jury a clear and plain view of the legal principles, applicable to the case, by which he may be guided to a just result. That is their true purpose. Trial judges should insist that it be kept in view. That important part of the proceedings on the circuit should not be allowed to degenerate into a mere wrestle for advantage on an appeal." Blanton v. Dold et al., 109 Mo. 64, l.c. 77, 18 S.W. 1149. Certainly a multiplicity of instructions is not to be commended. Crawshaw et al. v. Sumner, 56 Mo. 517.
To separately rule the complaints on all the refused instructions, upon which complaint is made, would extend this opinion beyond reasonable limit. We have endeavored to carefully examine into the complaint on each of the refused instructions of which complaint is made, and it is sufficient to say that we find no substantial merit in the complaints on these instructions. However, it is necessary to deal with refused instruction W, which follows:
"The court instructs the jury that if you believe and find from the evidence that plaintiff, at the time in question, was only to go on the railroad motorcar from East Hardin, Illinois, to Roodhouse, Illinois, for the purpose of taking Mr. Leeson to Roodhouse, Illinois, and then immediately returning from Roodhouse to East Hardin, on the motorcar with Mr. Poynter, then your verdict must be in favor of the defendant." This instruction is based on the evidence of Leeson and Poynter, as appears, supra.
In Garrison v. Thompson et al., 344 Mo. 579, 127 S.W.2d 649, the plaintiff was injured when a motorcar, upon which he was riding, jumped the track while water pocket ties were being transported. Ultimately, these ties were to be driven into the roadbed, and the work of driving the ties into the roadbed was admittedly work under the federal act. Eight separate movements of the ties were necessary before they were to be actually driven into the roadbed, and the plaintiff was injured in the second movement. It was held that the second movement was too remote to be practically a part of interstate transportation work.
In Fenstermacher v. Chicago, R.I. P.R. Co., 309 Mo. 475, 274 S.W. 718, the facts were these: It became necessary for the defendant to use two 45-foot telegraph poles in repairing its telegraph line at Trenton, Mo. Poles of that size, with other poles, were stored at Altamont. Plaintiff was a member of the bridge and building gang which was then engaged in work at Altamont. He, with others, was directed to assist in getting the two desired poles out of the pile of poles at Altamont, and to assist in loading the two poles on a flat car. It was necessary to move some poles in order to get to the two desired poles. While assisting in moving a pole, plaintiff was injured. The two 45-foot poles were loaded on a flat car and taken to Trenton where they were unloaded. In two or three days these poles were used in repairing the telegraph line. The only connection that plaintiff had with the repair of the telegraph line was the work he was doing when injured. It was held that plaintiff was not engaged in interstate transportation or in work so closely related thereto as to be practically a part of it. In ruling the question the court said [274 S.W. l.c. 720]:
"We are not in doubt that the telegraph line, by use in furthering and protecting interstate commerce, became definitely impressed with the character of an interstate facility, and that one engaged in operating or repairing such facility was at least engaged in work so closely related to interstate commerce as to be a part of it. But this does not mean that one engaged in work, which will ultimately enter into the repair of such facility and thereby become a part of it, no matter how remotely, is engaged in work so closely related to interstate commerce as to be a part of it."
In the Fenstermacher case it is pointed out that the work the plaintiff was doing, when injured, was removed from the actual work of repairing the telegraph line by at least three separate and distinct operations. [827] These operations are stated as follows: "After being loaded upon the flat car, the telegraph poles had to be hauled to Trenton. A second operation took place when they were unloaded there. A third operation took place when the poles were moved to the point where they were to be used. And, if the persons who removed the poles from the unloading place at Trenton were not employees engaged in the actual repairs, the work of still other employees was involved. At least three such operations must have occurred before the actual work of placing the poles in the telegraph line could begin." Then the court said [274 S.W. l.c. 721]: "It is not here necessary, and we will not undertake, to say where the line should be drawn; but we are convinced, from the trend of the decisions discussed, that such line must be drawn at some operation in the repair of a facility of interstate commerce nearer to and more closely connected with it than a task three or four times removed from actual work upon such facility."
In the present case, Horrom said that "we were going on an inspection on the motorcar to Godfrey, Illinois, and get the bridge engineer (Rich) and make an inspection of the condition of bridges and culverts on the way back to Roodhouse." And as appears, supra, Leeson and Poynter testified to the effect that the intention was that after the motorcar arrived at Roodhouse, plaintiff and Poynter were not to go any farther, but were to return on this motorcar to East Hardin. From the time Leeson left East Hardin he was on the way to make an inspection, and plaintiff, at that time, was doing work as closely related to interstate transportation work as was Leeson. Before the actual inspection could begin it was necessary to get Leeson to the point where it would begin, and from what Horrom said, the inference might be drawn that he and Leeson intended to make some character of inspection on the way from Roodhouse to Godfrey, and if so, then the inspection was to begin at Roodhouse. And if such be so, plaintiff's work, in getting Leeson to Roodhouse, was much closer to the actual inspection work than was the work of the plaintiffs in the Garrison and Fenstermacher cases, supra. And if the actual inspection was not to begin until Leeson arrived at Godfrey, the work of plaintiff in getting Leeson to Roodhouse was not as far removed from the work of actual inspection as was the case in the Garrison and Fenstermacher cases. Defendant's instruction W was, we think, properly refused.
The judgment should be affirmed, and it is so ordered. Dalton and Van Osdol, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.