Colwell v. St. Louis-San Francisco Ry. Co.

• Decision Date: 19 June 1934
• Docket Number: 31121
• Citation: 73 S.W.2d 222,335 Mo. 494
• Parties: Mike J. Colwell v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 222

335 Mo. 494

Mike J. Colwell v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 31121

Supreme Court of Missouri

June 19, 1934

Appellant's Motion for Rehearing Overruled June 19, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Affirmed (upon condition).

E T. Miller, 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) Plaintiff's testimony that there was a hand brake at the end of the car from which he fell, although the other evidence, including the photographs taken the same morning, shows that there was no hand brake within forty feet of him, and plaintiff's statement of his conclusion that the dog and ratchet were defective in some way because the brake wheel turned, do not constitute sufficient evidence in kind or amount upon which to base the alleged violation of a Federal statute. Railroad Co. v. Wells, 275 U.S. 455; Railroad Co. v. Coogan, 271 U.S. 472; Small Co. v. Lamborn & Co., 267 U.S. 254; Fryer, Admx., v. Ry. Co., 333 Mo. 740. (b) While the Federal rule as to sufficiency of evidence is controlling in a case based wholly on the alleged violation of a Federal statute, plaintiff's evidence, both as to the presence of the brake staff and as to the alleged defects therein, is so unreasonable and so contrary to the physical facts that the court is not required to give credence to it under the state rule. Payne v. Railroad Co., 136 Mo. 579; Sexton v. St. Ry. Co., 245 Mo. 272; Weltmer v. Bishop, 171 Mo. 116; Alexander v. Ry. Co., 289 Mo. 622; Gurley v. Ry Co., 104 Mo. 233. (2) The court erred in permitting plaintiff to testify that the turning of the wheel on the brake staff was caused by a defective dog or ratchet. To permit a witness, expert or otherwise, to state his conclusion as to an ultimate fact which the jury must decide is a direct invasion of the province of the jury, and constitutes reversible error. Taylor v. Railroad Co., 185 Mo. 255; Deiner v. Sutermeister, 266 Mo. 521; Roscoe v. St. Ry. Co., 202 Mo. 595; Fields v. Luck, 44 S.W.2d 18; Castanie v. Railroad Co., 249 Mo. 192; Mahany v. K. C. Rys. Co., 286 Mo. 619; Langston v. Railroad Co., 147 Mo. 465. (3) The court erred in refusing to give instruction lettered C requested by defendant. This instruction required plaintiff to prove that there was a brake staff at the east end of the car. The presence or absence of a brake staff at the east end of this box car, which was admittedly the end of said car from which plaintiff fell, was a crucial and decisive question in the case. Instruction C told the jury in simple language the legal effect of their finding upon this question, and the court in upholding plaintiff's contention that said instruction was a comment on the evidence and in refusing to give the same, committed reversible error. Tyler v. Hall, 106 Mo. 323; Ward v. Fessler, 252 S.W. 671; Parker v. Ry. Co., 41 S.W.2d 388; Price v. Ry. Co., 170 S.W. 925; Robinson v. Ross, 47 S.W.2d 125. (4) The verdict of the jury is grossly excessive and the judgment is still grossly excessive, notwithstanding the remittitur. Vaughan v. Ry. Co., 18 S.W.2d 66; Clark v. Ry. Co., 23 S.W.2d 178.

Allen, Moser & Marsalek for respondent.

(1) The Safety Appliance Act places upon the carrier the absolute duty to have its cars equipped with efficient hand brakes and to maintain such brakes in good working order at all times. The test of the observance of such duty is the performance of the appliance. The failure of the appliance to function efficiently at any time suffices to sustain a charge that the act was violated, and warrants a recovery by an employee injured as a proximate result thereof. Railroad Co. v. Hahn, 47 F.2d 59, certiorari denied 283 U.S. 842, 75 L.Ed. 1452; Didinger v. Railroad Co., 39 F.2d 798; Philadelphia & R. Ry. Co. v. Auchenbach, 16 F.2d 550, 552, certiorari denied 273 U.S. 761, 71 L.Ed. 879; Lehigh Valley Railroad Co. v. Howell, 6 F.2d 784; Philadelphia & R. Ry. Co. v. Eisenhart, 280 F. 271; Minn. & St. L. Railroad Co. v. Gotschall, 244 U.S. 66, 61 L.Ed. 995; L. & N. Railroad Co. v. Layton, 243 U.S. 617, 61 L.Ed. 931; Chicago, G. W. Railroad Co. v. Schendel, 267 U.S. 287, 69 L.Ed. 614; Henry v. Ry. Co., 61 S.W.2d 340; Callicotte v. Ry. Co., 274 Mo. 689. (a) It was unnecessary for plaintiff to show that the failure of the brake to function normally and efficiently resulted from the loose dog or ratchet or other defect. Since the test of the observance of defendant's duty under the act was the performance of the appliance, evidence alone that the brake failed to perform efficiently, and that this caused plaintiff's fall and injury, sufficed to make a case for plaintiff. Didinger v. Railroad, 39 F.2d 798; Minn. & St. L. Railroad Co. v. Gotschall, 244 U.S. 66, 61 L.Ed. 995; Philadelphia & R. Ry. Co. v. Auchenbach, 16 F.2d 550, 552; Lehigh Valley Railroad Co. v. Howell, 6 F.2d 784; Detroit T. & I. Railroad Co. v. Hahn, 47 F.2d 59, 60; Henry v. Railroad Co., 61 S.W.2d 342; Philadelphia & R. Ry. Co. v. Eisenhart, 280 F. 271. (b) In passing upon a request of a defendant for a peremptory instruction, it is the duty of the trial court, under the Federal rule, to accord the plaintiff the benefit of all inferences in his favor that may be fairly and reasonably deduced from the evidence; and if uncertainty as to the existence of liability arises from a conflict in the evidence, or if reasonable and fair-minded men may honestly draw different conclusions from the facts in evidence, the case is one for the determination of the jury. Western A. Railroad Co. v. Hughes, 278 U.S. 496, 73 L.Ed. 473; Gunning v. Cooley, 281 U.S. 94, 74 L.Ed. 724; B. & O. Railroad Co. v. Groeger, 266 U.S. 527, 69 L.Ed. 423; Gardner v. Railroad Co., 150 U.S. 360, 37 L.Ed. 1110; Texas & P. Railroad Co. v. Cox, 145 U.S. 606, 36 L.Ed. 833; Richmond & D. Railroad Co. v. Powers, 149 U.S. 45, 37 L.Ed. 643; Line v. Railroad Co., 62 F.2d 659, certiorari denied 77 L.Ed. 675; Ry. Co. v. Stroop, 239 F. 75, writ of error dismissed 244 U.S. 649, 61 L.Ed. 1371; Detroit T. & I. Railroad Co. v. Hahn, 47 F.2d 60; Koonse v. Railroad Co., 18 S.W.2d 470; Henry v. Ry. Co., 61 S.W.2d 342. (c) Since plaintiff adduced evidence tending directly to show that the hand brake in question failed to function normally and efficiently, and that this directly and proximately caused his fall and injuries, the testimony of defendant's employees as to the location of the brake on this car, or what they claimed to have observed on subsequent inspection of the car, merely produced a conflict in the testimony and the inferences deducible therefrom to be resolved by the jury. "Issues that depend on the credibility of witnesses and the effect or weight of evidence, are for the jury." Gunning v. Cooley, 281 U.S. 94, 74 L.Ed. 724; Western & A. Railroad Co. v. Hughes, 278 U.S. 496, 73 L.Ed. 473; Detroit T. & I. Railroad Co. v. Hahn, 47 F.2d 60; Didinger v. Railroad Co., 39 F.2d 798; Lehigh Valley Railroad Co. v. Howell, 6 F.2d 784; Philadelphia & R. Ry. Co. v. Eisenhart, 280 F. 271; Koonse v. Railroad Co., 18 S.W.2d 470; Henry v. Ry. Co., 61 S.W.2d 342. (2) The refusal of defendant's Instruction C was not error. The instruction constituted a plain, unwarranted comment on a detached portion of the evidence. It singled out particular testimony of certain of defendant's witnesses for the purpose of specially calling the jury's attention to the same and giving undue prominence thereto in a manner highly prejudicial to the plaintiff. Zumwalt v. Railroad Co., 266 S.W. 717; Keppler v. Wells, 238 S.W. 428; Littig v. Urbaur Atwood Heating Co., 237 S.W. 785; Sturtevant Co. v. Ford Mfg. Co., 315 Mo. 1042; Burton v. Holman, 231 S.W. 634; Rice v. Bridge & Transit Co., 216 S.W. 751; Lewis v. Terminal Railroad Assn., 61 S.W.2d 236. (3) In view of plaintiff's age, loss of earnings, and the nature and extent of his injuries as shown by the evidence, the verdict, as reduced by the remittitur to $ 20,000 is not excessive. Woods v. Terminal Ry. Co., 8 S.W.2d 922; Manley v. Wells, 292 S.W. 67; Brickell v. Fleming, 281 S.W. 951; Grott v. Shoe Co., 2 S.W.2d 785; Taylor v. Railroad Co., 311 Mo. 629.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Appellant railway company appeals from a judgment for $ 20,000 damages which respondent Colwell recovered in the circuit court, city of St. Louis.

The cause of action was grounded on the Federal Safety Appliance Act. The amended petition charged that the hand brake on a certain box freight car which appellant was hauling in its St. Louis yards and on top of which respondent was performing his duties as a switchman, was so defective, insecure and inefficient that, while respondent was attempting to use the brake, it suddenly and rapidly spun around and caused respondent to lose his balance and fall to the ground and thereby to receive the injuries for which he sued.

I. Appellant stresses most vigorously its assignment that the trial court erred in overruling the demurrers to the evidence. It is insisted that respondent's evidence was insufficient in kind or amount to support the violation of the Federal Act charged. Both sides agree that on the night of September 11-12, 1928, respondent was a switchman employed by appellant. The crew consisted of an engineer, fireman and three switchmen. Of these switchmen H.S. Carrigan was the head man or pin-puller who worked near the engine. W.H. Akers was the foreman and respondent, Mike J. Colwell was the field man. About one o'clock in the morning of September 12, the engine was slowly pushing a box car eastwardly on track...