Thursday, November 6, 2008

Whitaker v. Terminal R. Ass'n of St. Louis

This is a suit to recover damages for personal injuries against the Terminal Railroad Association of St. Louis, the employer of the plaintiff, and the Railway Express Agency. The defendants are charged with joint negligence and upon trial a verdict for $2,000 was returned against both of them. This amount was reduced by remittitur to $1500, for which sum judgment was entered, and both defendants appealed.

The plaintiff is a young man who was working at the time of his injury for the Terminal Railroad Association as a baggage handler at Union Station in St. Louis, Missouri. His work consisted of transporting mail by a hand truck from the post office to the trains through the station subway. The mail came in to the station subway in trucks from the post office and was taken by the plaintiff to the proper train. The subway was below the train tracks and the hand trucks were brought up to the train level by elevators. There were about twenty of these elevators on each side of the subway and the passage upon which they faced was approximately 19 feet in width.

The trucks used were a barrow type with two wheels in the center. They were 16 feet long and 4½ feet wide with a bar handle extending across the ends and with a space of 3 or 4 inches between it and the truck body. The Railway Express Agency had similar trucks that were used in the subway and some of them were pulled by tractors of about the same width as the trucks.

On the day in question, which was shortly before Christmas, there was a great amount of mail and express being moved through the subway. Trucks were parked along the north and south walls of the passage so that there was only room to move a truck between them with a clearance of a few inches on either side. Some of these trucks belonged to the Terminal Railroad Association and some belonged to the Express Agency. The plaintiff started to pull his truck, which was piled high with mail, to elevator No. 28 and he was assisted by another Terminal employee who pushed from the rear. The load upon the truck prevented the man who was pushing from seeing the passageway ahead.

In front of the plaintiff an empty Terminal truck was being pushed by another employee and about 4 or 5 feet in front of him was an express truck. This Express Agency truck was one of four which were being pulled by an Express Agency tractor. There was a space of about 10 feet between the plaintiff and the truck directly in front of him.

The line had proceeded in this order for about 120 feet and the truck which was being pulled by the plaintiff reached a point in front of elevator No. 33 where Express Agency trucks were parked on both sides of the open passage when the tractor suddenly stopped without any warning. The man pulling the truck behind those drawn by the tractor jumped aside and his truck hit the rear of those being pulled. The plaintiff could not stop his truck and was squeezed between it and the Terminal truck in front of him.

The plaintiff states that the hand tracks when loaded are heavy and hard to stop and it was the custom of those driving the tractor to shout "Whoa" or "Stop" before stopping as a warning to those behind. This gave the man pulling the truck time to stop or swing to one side, but no such warning was given and there was no room to swing his truck to the side.

Testifying for the Railway Express Agency, one of its investigators stated that he talked to all of the tractor operators who had been on duty on the day of the occurrence but none of them knew anything about it. He stated that he was unable to determine from his investigation who was driving the tractor involved.

It is unnecessary to set out any of the medical testimony as no question is raised respecting the plaintiff's injuries or the amount of the award.

This action is brought against the Terminal Railroad Association under the Federal Employers' Liability Act, and against the Railway Express Agency on common law negligence. The case was tried against the Terminal on the theory that it had failed to provide the plaintiff a safe place in which to work.

There is no allegation or attempt to prove that the subway was in itself unsafe. The case was tried and submitted to the jury on the theory that the place was made unsafe by the presence of parked trucks that narrowed the passage between them so that plaintiff's truck could not be turned aside in the event a tractor or truck stopped suddenly in front of him.

It is contended by the Terminal that plaintiff failed to make a submissible case against it in that it was not guilty under the safe place rule of any negligence that was the proximate cause of the injury. 45 U.S.C.A. § 51 provides that the employer shall be liable "for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

It will be noted that the act requires negligence on the part of the employer as a prerequisite to recovery. It fails to define negligence and so it is necessary to rely upon the common law in our determination of whether or not a case of negligence has been made. See Dow v. Carnegie-Illinois Steel Corp.; Watkins v. Thompson; and Ellis v. Union Pacific R. Co. We are obliged, however, to follow the decisions of the Federal courts in reaching our conclusion on any question of substantive law under the statute. See Joice v. Missouri-Kansas-Texas R. Co.; Webber v. Terminal R. Ass'n of St. Louis; and Williams v. Terminal R. R. Ass'n of St. Louis.

In Eckenrode v. Pennsylvania R. Co., the Circuit Court of Appeals of the Third Circuit stated:

"There is no dispute that the foundation of recovery under the Act is negligence on the part of the defendant.6

"6 `In this situation the employer's liability is to be determined under the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done.'"

As to the negligent failure of a master to provide safe appliances with which to work the Missouri Supreme Court stated in Wellinger v. Terminal R. Ass'n of St. Louis:

"It is a general principle that a master has the duty to provide a servant with reasonably safe appliances. There is a qualification of the principle, however — it is universally agreed that a master is not liable for a breach of this duty where the servant's injury was not caused by any defect in the appliance provided by the master which affected its safety when used in the ordinary manner and for the purposes for which it was intended."

The same rule is applicable to the safety of the place wherein the servant is working, if we add to it the proviso that the place must not present any features which make it reasonably likely that harm will come to the servant because of the misconduct of others. See Lillie v. Thompson. Or as stated by our Supreme Court in Kelso v. W. A. Ross Const. Co.:

"In other words, the employer's duty is not merely safety of the place of work of his employee, but also his safety in his place of work; in short, a safe environment as well as a safe place."

It is respondent's contention that with the passage narrowed by parked trucks a situation was created whereby the Terminal Railroad Association could reasonably foresee and anticipate that a truck might stop suddenly and bring about a collision with a following truck. He relies chiefly upon the cases of Lillie v. Thompson, supra, and Lavender v. Kurn.

In Lillie v. Thompson the plaintiff was a young woman telegraph operator whose duties were to receive and deliver messages to and from men operating trains in the yards. The defendant had reason to know that the yards were frequented by dangerous characters but plaintiff was required to work alone at night in a little frame building in an isolated part of the yards. This building was not lighted nor guarded. When crewmen desired to receive or send a message they would knock on the door for admission to the building. No window was provided so that the operator might see who she was admitting before opening the door. In response of a knock she opened the door and was criminally assaulted by an unidentified person. The Supreme Court held that the danger was foreseeable and that the defendant had a duty to make reasonable provision against it.

In the case of Lavender v. Kurn, supra, the employee was struck by a projecting mail hook which would not have been in range of striking him had he not been on high and uneven ground near the train. The United States Supreme Court held that the evidence that the place was dark and the surrounding ground high and uneven was sufficient to make a submissible case.

Other cases of like import are cited, but in all of them the condition complained of contributed to the cause of the injury and a situation was present whereby the danger could have been reasonably anticipated and guarded against.

In deciding whether or not a case was made for the jury, in the case under consideration, we must appraise the evidence by the yardstick given us in Lavender v. Kurn, supra:

"Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable."

There is no evidence that the aisle was not sufficiently wide for the passage of trucks and tractors. There is no evidence that trucks were occasionally stopped without warning and there is no evidence that anything occurred or might customarily occur in the area where the collision took place which would cause tractors to stop suddenly. How then can the Terminal Railroad Association be guilty of negligence?

We cannot predicate the negligence of failing to provide a safe place in which to work upon the theory that such negligence may be found to arise when the servant is injured by any cause or instrumentality, for the master is not an insurer of the servant's safety. The safety of the place must be commensurate with the work and the conditions that surround it, but it cannot be said that a passageway sufficient in all matters to afford room for the truck which plaintiff was obliged to pull is actionably unsafe because it became unsafe when a truck stopped suddenly in front of him without warning. If this were not true, then every alley or driveway permitting only room for the movement of vehicles in one direction would be an unsafe place because it would not afford space to turn aside if the lead vehicle in a line of traffic came to a sudden stop.

Because of the noted failure to prove that the collision of the trucks was a foreseeable thing likely to occur "there is a complete absence of probative facts" to support a verdict and it must be held that the plaintiff failed to make a submissible case against the Terminal Railroad Association.

The defendant Railway Express Agency contends that it was guilty of no negligence when its operator stopped the tractor without warning because the stop may have been necessary and that negligence can only be concluded from the evidence by conjecture and guesswork. We are cited to several cases uniformly holding that where the evidence is circumstantial and the plaintiff's injury arose from one of two or more causes, for only one of which the defendant would be liable, then no case has been made. These citations, however, are not applicable to the evidence before us for the physical cause of the injury is fully proven. The injury arose from a collision between the truck pulled by the plaintiff and the one in front of it when a tractor at the head of the line stopped suddenly without warning.

In Kimberling v. Wabash R. Co., our Supreme Court said:

"The test of whether there is a causal connection between the alleged negligence and the injury is that the facts show that, absent the negligent act, the injury would not have occurred."

Here the injury would not have occurred if the tractor had not suddenly stopped. So it appears that the causal connection between the act of stopping the tractor and the injury was fully established.

It remained for the jury to determine from the evidence the question of negligence and if it could conclude that the act of stopping without warning was negligent, then both the negligence and its causal connection with the injury were sufficiently established to support a verdict against the Railway Express Agency.

There was a great amount of traffic in the subway and the tractor operator knew or should have known that he was probably closely followed by hand drawn trucks. This was the usual and customary thing and because of it, it was also customary to shout a warning when a tractor was brought to a sudden stop. The uncontradicted evidence shows that the tractor was stopped without warning and since a reasonable and prudent man would not have done this under the existing circumstances, there was sufficient proof of negligence. There may have been some excuse for the stop and the failure to warn, but the plaintiff's evidence need not exclude causes for which the defendant would not be liable. In other words, the plaintiff's evidence need not exclude the possibility that the sudden stop was necessary and that no warning could be given. If such was the situation it was a matter of defense. See State ex rel. City of St. Charles v. Haid; Anderson v. Asphalt Distributing Co.; and Long v. F. W. Woolworth & Co. It follows that the court properly denied the motion on behalf of the Railway Express Agency for a directed verdict.

It is also contended by the Railway Express Agency that the court erroneously gave instruction No. 2. This instruction deals with the negligence in the sudden stopping of the tractor without warning, and the objection made to it is that there is no evidence that the driver of the tractor could have warned the plaintiff or made a slower stop so as to avoid the collision. This objection relates back to the point previously discussed which has been ruled against the appellant. The instruction appears in proper form and it follows that the judgment against the Railway Express Agency should be affirmed.

It is therefore recommended that the judgment be reversed as to the Terminal Railroad Association of St. Louis and affirmed as to the Railway Express Agency.


The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.

The judgment of the circuit court is accordingly reversed as to defendant Terminal Railroad Association of St. Louis and affirmed as to defendant Railway Express Agency.

ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.

Whitaker v. Terminal R. Ass'n of St. Louis, 224 S.W.2d 606 (Mo. App. 1949).

Williams v. State

The plaintiff in error, John Edward Williams (hereinafter defendant), was charged with battery to a police officer, in violation of sec. 940.205, Stats. 1 On June 3, 1968, defendant was arrested and bound over for trial after a preliminary hearing. Defendant entered a not guilty plea to the information and was tried before a jury. On August 22, 1968, defendant was found guilty as charged.

On September 3, 1968, motions for a new trial on the grounds the verdict was contrary to law, contrary to the evidence, and in the interest of justice, were heard and denied. The trial court sentenced defendant, and subsequently a writ of error was issued to review the judgment of the trial court.

The issues presented on review are: (1) Is there sufficient credible evidence to support the verdict of the jury; (2) should a new trial be granted because of inconsistent statements of complaining witnesses in the complaint and at the time of trial; and (3) should a new trial be granted in the interest of justice?


The applicable law, on appeal, to test the sufficiency of the evidence to support the jury's verdict is well established:

'The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.' See Lock v. State.

Earl Alfred Hill, a police officer employed by the Racine Police Department, was off duty on Saturday, June 1, 1968, and working in uniform as a guard at a wedding. He finished his work between 7 and 7:30 p.m., and he removed his hat and gun belt but continued to wear his uniform shirt and uniform pants. On the shirt was a shoulder patch bearing the insignia of the Racine Police Department. There is a conflict in the testimony as to whether he had on his police badge. He drove away from the wedding in his private car and as he approached an intersection he observed fifty or sixty people standing about where two men were engaged in a fight or struggle on the sidewalk, one of whom was the defendant. Upon seeing this Hill stopped his car, got out, and attempted to stop the altercation. There was no other police officer present. Hill was struck first near the scene of the struggle and again after he returned to his car. The second blow was inflicted through the open window of Hill's car as he sat in the front seat, after which Hill immediately looked around and saw the defendant standing next to the window.

Three witnesses testified on behalf of the State: Hill and two bystanders, Damartha Patterson and John Oatis. The record reflects some inconsistencies in their testimony; however, both Patterson and Oatis testified that the defendant struck the officer and Oatis further testified that the defendant followed the officer to his car and struck him again.

The defendant raises questions as to (1) whether the defendant knew or had reason to believe that Hill was a peace officer at the time of the alleged offense, and (2) whether Hill was 'acting in his official capacity.'

Hill testified he informed the defendant he was a police officer. Oatis testified that he heard the officer so state. Patterson did not hear the statement. The defendant knew what the uniform of the Racine police officers looked like and at the scene of the incident inquired of Hill as to who had called him. Hill testified at the preliminary examination and at the trial. There are some variances in his testimony on these two occasions. There was, however, sufficient evidence for a jury to reasonably conclude the defendant knew or should have known that Hill was a peace officer.

In raising the issue of 'official capacity,' our attention is directed to United States v. Heliczer, where the issue, inter alia, was whether federal narcotics' officers had acted within the scope of official duties:

''Engaged in performance of official duties' is simply acting within the scope of what the agent is employed to do. The test is whether the agent is acting within that compass or is engaging in a personal frolic of his own.'

Without deciding whether or not this definition of 'official capacity' is an appropriate one, it is clear that Hill was within such a rule and not on any 'frolic' at the time of the offense.

Hill was a veteran police officer of twenty years, and when he came onto the scene at the intersection he felt the fight had to be broken up 'before it got out of hand.' It is true that Hill was not on duty when he first saw the fight. However, as soon as he became aware of the situation and took action he was no longer off duty. Hill did what any officer of the law is supposed to do, and attempted to preserve public peace and order. 2 It was certainly no 'personal frolic' for him to stop his car, step into the middle of a crowd and on his own, attempt to break up a fight. There is, therefore, no merit in defendant's assertion that Hill was not acting in his official capacity when the offense took place.

The trial court properly instructed the jury on all issues including the elements of the alleged offense and they jury found the defendant guilty. The jury performed its function and although there are inconsistencies in the testimony, we are of the opinion that the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the guilt of the defendant beyond a reasonable doubt.


Defendant argues that Hill's statement made during the preliminary hearing of Harper (the order man involved in the altercation), wherein Hill concluded they might have stopped if Hill had been recognized as a police officer, vitiates the complaint signed by Hill on June 3, 1968. Defendant goes further and contends the trial court should have granted the motion to dismiss at the close of the state's case.

Hill's opinion is not conclusive of defendant's lack of knowledge that Hill was a police officer. In addition, what defendant is challenging is the personal jurisdiction of the trial court because of the invalidity of the complaint. However, it is well settled that such a defect is waived if not raised before pleading to the information. 3 See State ex rel. La Follette v. Moser. In this case a preliminary hearing was demanded and conducted. No motion to dismiss the complaint was made to the magistrate and defendant was bound over for trial. An information was filed on July 29, 1968. On that date the defendant was arraigned and a plea of not guilty was entered. No motion to dismiss the criminal complaint was made to the trial court prior to the entry of the plea and defendant made no such motion until after the state had presented its case at the trial. It is clear that any objection to the complaint was waived.


Under the provisions of sec. 251.09, Stats., this court can order a new trial if 'it is probable that justice has for any reason miscarried.' The trial took one day and the case was not given to the jury until late in the evening. After a deliberation of less than thirty-nine minutes they returned a finding of guilty against the defendant. Defendant argues that the nature of the case and conflict in testimony would seem to warrant a longer deliberation. However, neither this fact, nor anything else that transpired during the trial indicates defendant was denied a fair trial or that a new trial would probably result in his acquittal. See Lock v. State.

Judgment affirmed.


1 Battery to peace officers; firemen. Whoever causes bodily harm to a peace officer, as defined in s. 939.22(22), or fireman, acting in his official capacity and the person knows or has reason to know that the victim is a peace officer or fireman, by an act done with intent to cause bodily harm to the peace officer or fireman, without consent of the person so injured, may be imprisoned not more than 2 years.'

2 Sec. 939.22, Stats., 'Words and phrases defined. In the criminal code, the following words and phrases have the designated meanings unless the context of a specific section manifestly requires a different construction:

'(22) 'Peace officer' means any person vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes.'

3 Sec. 955.09, Stats., 'Pleas and motions before trial; waiver of jeopardy.

'(3) Defenses and objections based on defects in the institution of the proceedings, insufficiency of the information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence (except confessions) must be raised before trial by motion or be deemed waived. But the court may, in its discretion, entertain such motion at a later stage of the trial, in which case the defendant waives any jeopardy that may have attached. A motion to suppress evidence shall be so entertained, with waiver of jeopardy, when it appears that defendant is surprised by the state's possession of such evidence.'

Williams v. State, 45 Wis.2d 44, 172 N.W.2d 31 (Wis. 1969).

How Does the Fourteenth Amendment Affect Voters?

The eleventh article of the state constitution declares that certain enumerated funds, together with any sum that may be "raised in the state by taxation or otherwise for the purposes of education, shall be held inviolate for the purpose of sustaining a system of common schools. The interest and dividends of said funds, together with any sum which may be produced for that purpose by taxation or otherwise, may be appropriated in aid of common schools, but for no other purpose."

The Revised Statutes embody the first legislation on the subject of common schools after the adoption of our present constitution. They provide that the auditor shall each year apportion the revenue arising from the school-fund "among the several counties of the state according to the number of free white children in each between the ages of six and eighteen years, as shown by the returns of the assessors in his office."

By section 1 of article 8 of the same chapter the legislature declared that its object was "to carry into effect the intention of the people of Kentucky, as expressed in their constitution, in promoting the establishment throughout the state of a system of common schools which shall be equally accessible to the poor as to the rich;" and it further declared "that every school which is put under the control of trustees and commissioners pursuant thereto, which has been actually kept three months during the year by a qualified teacher, and at which every free white child in the district between the ages of six and eighteen years has had the privilege of attending, whether contributing toward defraying the expenses or not, and none other, shall be deemed a common school within the meaning of this chapter, or entitled to contribution out of the school-fund."

This contemporaneous legislative construction of this article of the constitution has been followed in all subsequent legislation, and has been accepted as correct by all the departments of the state government.

When the proposition to increase the school-tax fifteen cents upon each one hundred dollars' worth of taxable property was submitted to the voters of the state for ratification, the act provided that the annual tax should "be levied and collected only upon the property of white persons," and be "expended for the education of white children exclusively." This act was approved on the 22d day of January, 1869, after the thirteenth and fourteenth articles of amendment to the Federal constitution had been declared adopted.

Prior to December 18, 1865, when it was officially announced that the thirteenth article had become part of the constitution of the United States, the negro population in Kentucky was generally in a state of slavery. The free negroes were not citizens of the state. They were mere residents without political rights. See Amy v. Smith.

They were not citizens of the United States, and were not capable of becoming citizens thereof. It was held, in the celebrated Dred Scott case, by the Supreme Court of the United States that a man of African descent, whether a slave or not, was not and could not be a citizen of the state or of the United States; and, notwithstanding the criticism to which this adjudication was subjected, it was never overruled; and the primary object of the fourteenth amendment was to relieve this race from the disabilities therein declared to be inherent in and inseparable from the African blood.

Marshall v. Donovan, &C.

Marshall v. Donovan, &C., 73 Ky. 681 (Ky. App. 1874).

Marshall sued Donovan and Daum for the forcible seizure and conversion of a cow of the value of sixty dollars. They answered, and stated that Daum was the sheriff of Bracken County, that Donovan was his deputy, and that they seized and sold the cow to satisfy a tax-claim against Marshall arising out of a levy made pursuant to the provisions of an act of the General Assembly, approved March 11, 1873, entitled "An act for the benefit of the common schools in Bracken County."

The first section of said act provides "that in any common-school district in Bracken County in which the clearly ascertained will of the people shall be in favor of a district tax for the purpose of purchasing a site for a district school-house, of building a new school-house, of repairing an old one, or furnishing a school-house, or paying a debt that has been contracted for the purposes mentioned in this act, the levying of such a tax therein shall be lawful."

The second section provides that the will of the people, in any given district, shall be ascertained by the submission of the proposition to tax to "the white qualified voters thereof; and any widow or alien residing in any school-district who is a tax-payer, or who has children, within the ages fixed by the common-school laws, to be educated, shall be deemed a qualified voter."

The ninth section is in these words: "This act shall not apply to property owned by citizens of African descent."

The answer set out in detail the performance of every act essential under the law to authorize the imposition of the tax, and also the regularity of the steps taken by the sheriff and his deputy to enforce its collection.

Appellant filed a general demurrer to this answer; it was overruled; and the record shows that he admitted all the facts interposed by way of defense by standing by his demurrer, and that the court then dismissed his petition. He appeals, and insists that the act of March 11, 1873, is unconstitutional and void.

1. Because by the common-school laws of this commonwealth the negro is deprived "of his right to and interest in the school-funds of the state under the eleventh article of the state constitution."

2. Because the election provided for by the act is not "free and equal."

3. Because the property of citizens of African descent is not taxed as that of other citizens.

4. Because the state denies to persons within its jurisdiction the equal protection of the laws.

5. Because the act denies to citizens of African descent the right to vote on a question which concerns them as citizens, and thus violates the fifteenth amendment to the constitution of the United States.

We will not take up these propositions separately, preferring, as they are intimately connected the one with each and all the others, to treat them as subdivisions of the general proposition that the constitution of Kentucky has been so far modified by the adoption of the thirteenth, fourteenth, and fifteenth articles of amendment to the Federal constitution as to deprive the legislature of the power to maintain a system of common schools, under which moneys may be raised by the taxation of the property of the white inhabitants, and expended for the exclusive benefit of the white children of the commonwealth. If this proposition can be maintained, it results that our system of common schools as now organized is without constitutional sanction, and that the taxation annually levied and collected for school-purposes is so levied and collected without authority of law.