M.G. Roberts, A.P. Stewart and C.H. Skinker, Jr., for appellant. (1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) The evidence was insufficient to establish a causal connection between defendant's alleged negligence (alleged violation of blind shove rule) and the fatal injuries to Finley, except by resorting to speculation and conjecture. A., T. S.F. Ry. Co. v. Toops, 281 U.S. 351; Kansas City So. Ry. v. Jones, 276 U.S. 303; Byrd v. Mo. Pac. R. Co., 226 Mo. App. 708, 46 S.W.2d 221; Norfolk W. Ry. Co. v. Collingsworth, 32 F.2d 561; Mullen v. Lowden, 344 Mo. 40, 124 S.W.2d 1152; C., M. St. P. Ry. v. Coogan, 271 U.S. 472; Penn. R. Co. v. Chamberlain, 288 U.S. 333; Cain v. Fort Worth Denver City Ry. Co., 75 331 F.2d 103. (b) The fatal injuries to Finley were caused solely by his own negligence. Kansas City So. Ry. v. Jones, 276 U.S. 303; Robison v. Chicago E.I. Ry. Co., 334 Mo. 81, 64 S.W.2d 660, certiorari denied, 291 U.S. 682. (c) In any event, under the circumstances in this case, Finley assumed the risk as a matter of law.
The authorities are clear to the effect that, in the absence of rule or custom requiring it, no signal as to movement of cars need be given in the course of switching operations where, as here, there is nothing to show that those in charge of the operations know or have reason to believe that others are in positions where they will be endangered thereby. Chesapeake O. Ry. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 44, 74 L.Ed. 207; Toledo, St. L. W.R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 217, 72 L.Ed. 513; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758; McClellan v. Penn. R. Co. (C.C.A.2d 62 F.2d 61; Cain v. Fort Worth Denver City R. Co. (C.C.A.5th) 75 F.2d 103. And, even where those engaged in work about cars are entitled to notice of their movement, the duty to give such notice is owing to them alone and failure to give it cannot be relied upon as negligence by one to whom the duty is not owing. The Mihas Case, supra, is directly in point and is, of course, controlling upon us. In that case an employee was attempting to climb over a coal car, standing with a number of others on a switch track, when the cars so standing were struck by others forcibly propelled by means of a flying switch, with the result that the employee was thrown between cars and injured.
Plaintiff recognized that he was required to look out for any moving cars on any switch track and did not expect to be warned of any switch movement in the yard. He had no right to expect, and he actually did not expect, warning or notice that the cars were to be kicked in. Cain v. Ft. Worth Denver City Ry. Co., 75 F.2d 103; Reading Co. v. Haldeman, 20 F.2d 53; Martin v. Wabash R. Co., 325 Mo. 1107, 30 S.W.2d 735; and Freeman v. Term. R. Assn. of St. Louis, 341 Mo. 288, 107 S.W.2d 36. He had no duties to perform at the place he was injured; he was crawling under a car in violation of a safety rule. Cain v. Ft. Worth Denver City R. Co., supra.
State ex inf. v. Terminal Railroad Assn. of St. Louis, 182 Mo. 284. (11) Men working in railroad yards, as was respondent here, are ordinarily not entitled to warnings of switching moves, but must look out for themselves. Mayfield v. K.C. So. R. Co., 337 Mo. 79, 85 S.W.2d 116; Sumney v. So. R. Co., 89 Ed.2d 437; Connelley v. Penn. R. Co., 201 F. 54; Cain v. Fort Worth Denver City R. Co. 75 F.2d 103; Bruce v. Mo. Pac. R. Co., 271 S.W. 762; Gabal v. St. L. S.F.R. Co., 251 Mo. 257, 158 S.W. 12. (12) A duty to warn under the above circumstances arises only upon proof of violation of a rule or custom so to do. Mayfield v. K.C., So. R. Co., supra. (13) Moreover, the evidence herein is wholly insufficient to prove that the bell of the Wabash locomotive was not rung.
The jury could come to but one reasonable conclusion in light of the evidence, i. e., that defendant's negligence, if any, was not a proximate cause of decedent's death. A jury case is not made out unless reasonable minds could conclude from the evidence that defendant's negligence proximately caused injury. Cain v. F. W. D.C. Ry. Co. (5 Cir.) 75 F.2d 103. Consequently the trial court must be affirmed. Order affirmed.
Duty to line the switch (failure of performance of which caused the damage) rested, primarily, on plaintiff, and, in any event, only secondarily on other members of crew, and plaintiff's negligence bars recovery. G.N.R. Co. v. Wiles, 240 U.S. 444; Frese v. C.B. Q.R. Co., 263 U.S. 1; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; U.V.R. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 224; Cain v. R.R. Co., 75 F.2d 103; L. N.R. Co. v. Davis, 75 F.2d 849. The "negligence" on which plaintiff sought to rely in the court below was not defined in the instructions given plaintiff.