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

• Citation: 78 S.W.2d 851,336 Mo. 340
• Parties: Ernest W. Aly, Appellant, v. Terminal Railroad Association of St. Louis, a Corporation
• Decision Date: 07 January 1935
• Court: Missouri Supreme Court

78 S.W.2d 851

336 Mo. 340

Ernest W. Aly, Appellant, v. Terminal Railroad Association of St. Louis, a Corporation

Supreme Court of Missouri

January 7, 1935

Respondent's Motions for Rehearing and to Transfer to Banc Overruled January 7,

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Reversed and remanded.

Charles P. Noell, Charles L. Moore and Allen, Moser & Marsalek for appellant.

(1) The giving of Instruction 2, at the request of respondent defendant below, was prejudicial, reversible error. (a) Since the action is one for the violation of the absolute duty placed upon the carrier by the provisions of the Boiler Inspection Act, Section 23, Title 45, U.S. Code Annotated, to have its locomotives, tenders and all parts and appurtenances thereof in proper condition and safe to operate in the service to which the same are put, so that the same may be employed in the active service of the carrier without unnecessary peril to life or limb, the giving of Instruction 2 was highly prejudicial, reversible error, for the reason that said instruction erroneously informed the jury that the charge laid by plaintiff against defendant was one of negligence, and placed upon plaintiff the burden of proving, not only that the condition of the footboard was such as to constitute a violation of said act and that this proximately caused plaintiff's injury, but that such condition was due to negligence or want of care on the part of the defendant. Henry v. Ry. Co., 332 Mo. 1072; Callicotte v. Railroad Co., 274 Mo. 689; B. & O. Railroad Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 419; Minn. & St. L. Railroad Co. v. Gotscholl, 244 U.S. 66, 61 L.Ed. 995; Spokane & I. E. Railroad Co. v. Campbell, 241 U.S. 497, 60 L.Ed. 1134; Texas & Pac. Ry. v. Rigsby, 241 U.S. 43, 60 L.Ed. 874; San Antonio, etc., Ry. Co. v. Wagner, 241 U.S. 476, 60 L.Ed. 1110; Schendel v. Ry. Co., 159 Minn. 166, affirmed 267 U.S. 287, 69 L.Ed. 614; Philadelphia & R. Ry. Co. v. Eisenhart, 280 F. 271; Philadelphia & R. Ry. Co. v. Auchenbach, 16 F.2d 552; Lehigh Valley Railroad Co. v. Howell, 6 F.2d 784; Wolf v. Pavne, 294 Mo. 170; McAllister v. Ry. Co., 25 S.W.2d 795; Didinger v. Railroad Co., 39 F.2d 798. (b) The Boiler Inspection Act imposes upon the carrier an absolute duty to have its engines, tenders and appurtenances in proper condition and safe to operate in the service to which they are put. As to the absolute character of the duty imposed, there is no distinction between the Boiler Inspection Act and the original Safety Appliance Act or any of the later acts supplementing and enlarging the provisions thereof. A breach of the duty imposed by the Boiler Inspection Act authorizes an action for personal injuries sustained by an employee as a result thereof, irrespective of negligence. Central Vermont Ry. Co. v. Perry, 10 F.2d 134; B. & O. Railroad Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 419; Thornton v. Railroad Co., 187 Iowa 1158, 175 N.W. 71. (c) The question of negligence, in the sense of want of care, is not an issue in this case. Upon proof of the defective condition of the footboard such as to make it unsafe to operate in the service in which it was put, and that plaintiff's injury proximately resulted therefrom, plaintiff was entitled to recover. Whether or not such condition was due to negligence on the part of the defendant carrier was wholly immaterial; and consequently Instruction 2 conflicted with Instruction 1, and was highly erroneous, misleading and prejudicial. Henry, Admx., v. Ry. Co., 332 Mo. 1072; Callicotte v. Railroad Co., 274 Mo. 689; Spokane & I. E. Railroad Co. v. Campbell, 241 U.S. 497, 60 L.Ed. 1134; Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 43, 60 L.Ed. 874; San Antonio, etc., Ry. Co. v. Wagner, 241 U.S. 476, 60 L.Ed. 1110; B. & O. Railroad Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 419; Central Vermont Ry. Co. v. Perry, 10 F.2d 134; Thornton v. Railroad Co., 187 Iowa 1158, 175 N.W. 71. (d) The giving of said Instruction 2 was error prejudicial to appellant for the further reason that the closing language thereof, in directing a verdict for the defendant if "the truth as to the charge of negligence against defendant remains in doubt" in the minds of the jurors, had the effect of requiring the plaintiff to establish his case to the satisfaction of the jury beyond a reasonable doubt. An instruction of this type in a civil case is clearly erroneous and highly prejudicial. Payne v. Reed. 59 S.W.2d 49; Dietrich v. Brewery & Ice Co., 315 Mo. 521; Farmers Loan & Trust Co. v. Surety Co., 285 Mo. 653; Brooks v. Roberts, 281 Mo. 551; State ex rel. Ins. Co. v. Ellison, 268 Mo. 239; Farber v. Insurance Co., 215 Mo.App. 564. (2) The giving of Instruction 6 was likewise prejudicial error, since that instruction told the jury that "in determining whether or not defendant was guilty of any negligence." they could not consider the existence of a crack or cracks in the footboard; thereby again erroneously making it appear to the jury that the real issue in the case was whether defendant was guilty of negligence or want of care in the premises. See authorities cited under Point 1 (a). (3) Prejudicial error was committed below in admitting, over plaintiff's objection, defendant's Exhibit 1, being a report of inspection of the engine and tender made to defendant by its own agents after the accident. Such report was inadmissible under the hearsay rule and is purely a self-serving document. Gardner v. Ry. Co., 223 Mo. 415; Setzler v. Railroad Co., 227 Mo. 470; Southern Iron & Equipment Co. v. Smith, 192 S.W. 758; 22 C. J., sec. 192, pp. 220-226. (4) It was likewise prejudicial error to admit in evidence, over plaintiff's objection, defendant's Exhibit 2, consisting of thirty-one reports of engineers and others in defendant's employ made to defendant from October 1 to October 31, 1929, purporting to show what repairs were needed on the engine during that period. Such reports were hearsay, self-serving statements. Southern Iron & Equipment Co. v. Smith, 192 S.W. 758; 22 C. J., sec. 192, pp. 220-226. Furthermore, such reports did not purport to show that any such examination was made of the footboard and appurtenances during such period as would throw any light on the issue as to whether the footboard could and did move sideways when plaintiff attempted to board the engine. (5) The report of inspection signed by the witnesses Langreck and Martin, made after the accident, was likewise hearsay and self-serving, and its admission was prejudicial error. See authorities cited under Point 3, supra.

T. M. Pierce, J. L. Howell and Walter N. Davis for respondent.

(1) Plaintiff failed to make a submissible case as we show: (a) The kind or amount of evidence required to establish negligence is not subject to the control of the several states. C. & O. Ry. Co. v. Stapleton, 279 U.S. 587 49 S.Ct. 422, 73 L.Ed. 861; C., M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041. (b) Plaintiff's statement, to-wit: that the footboard, when he stepped on it as the train was coming toward him at about ten miles, moved about an inch toward the coupler, was tantamount to nothing more than an inference that the four bolts running through the metal strap and the beam were not tight, resulted that, with the engine moving toward him at a speed of ten miles an hour, it was a mere conclusion, or surmise, speculation and conjecture as to whether the footboard moved about an inch toward the coupler because the bolts were not tight or because the engine swayed on the track. It is well settled that where plaintiff's case is based upon an inference or inferences, that the case must fail upon proof of undisputed facts inconsistent with such inferences. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 503; Southern Railroad Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; George v. Railroad Co., 213 Mo.App. 668, 251 S.W. 720. (c) Where the evidence is so overwhelming on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury. Penn. Railroad Co. v. Chamberlain, 284 U.S. 190, 77 L.Ed. 503; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Patton v. Railroad Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Small Co. v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; N. & W. Ry. Co. v. Hall, 49 F.2d 692. (d) The footboard could have moved only, except as it swayed with the engine, because of loose nuts and bolts holding the metal straps to the beam. Obviously an inference that said footboard moved because of loose bolts was based on surmise and conjecture. Gulf, etc., Railroad v. Wells, 275 U.S. 455, 48 S.Ct. 151, 72 L.Ed. 370; Ristucci v. Ry. Co., 60 F.2d 28. (e) The fact that witnesses are in employ of a defendant does not impair their credibility. Penn. Railroad Co. v. Chamberlain, 288 U.S. 33, 77 L.Ed. 503; C. & O. Railroad Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983. (f) Insubstantial and insufficient testimony does not require the submission of an issue to the jury. Southern Ry. Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; A. T. & S. F. Ry. Co. v. Toops, 281 U.S. 351; Fryer v. Ry. Co., 63 S.W.2d 47. (g) Where there are several inferences deducible from the facts which appear, and equally consistent with all those facts, the plaintiff has not maintained the proposition upon which alone he would be entitled to recover. When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 503; Gulf, etc., Railroad Co. v. Wells, 275 U.S. 455, 48 S.Ct. 151, 72 L.Ed. 370; New York C. Railroad Co. v. Ambrose, 280 U.S. 486, 50...