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

• Decision Date: 17 August 1938
• Docket Number: 35100
• Citation: 119 S.W.2d 363,342 Mo. 1116
• Parties: Ernest W. Aly v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 363

342 Mo. 1116

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

No. 35100

Supreme Court of Missouri

August 17, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed (upon condition).

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

(1) The opinion of the former appeal is the law of the case on subsequent appeals, unless the pleadings have been amended so as to introduce new issues; or, unless the evidence on the retrial is substantially different; or, unless the opinion on the former appeal was manifestly erroneous because of a mistake as to the law or the evidence; or, because an injustice has been done. Davidson v. Railroad Co., 301 Mo. 79, 256 S.W. 169; Mangold v. Bacon, 237 Mo 496, 141 S.W. 650; Monroe v. Railroad Co., 297 Mo 633, 257 S.W. 469; Bagnell v. Railroad Co., 242 Mo. 11, 145 S.W. 469; Seibert v. Harding, 319 Mo. 1105, 8 S.W.2d 905; Nothstine v. Feldman, 320 Mo. 500, 8 S.W.2d 912; Crossno v. Term. Railroad, 62 S.W.2d 1092. (2) Plaintiff failed to make a submissible case for the reasons following: (a) Plaintiff's unequivocal and uncontradicted evidence establishes that all moving engines are bound to sway, even a little on a straight track. It as unequivocally shows that engines have springs and that they will sway some when going into a frog, a side track or on a curve. Plaintiff's Exhibit C demonstrates that the place of the accident was on a curve. Consequently, plaintiff's testimony that the foot board shifted an inch can be nothing more than a conjectured inference, for he was in no position to distinguish between the footboard shifting and the engine swaying. Gulf, etc., Railroad Co. v. Wells, 275 U.S. 455, 48 S.Ct. 151, 72 L.Ed. 370. (b) Plaintiff's case herein depends upon an inference or conjecture. It is the enunciated rule of the United States Supreme Court that even though an inference arises from plaintiff's evidence that, uncontradicted, invests him with a prima facie case, yet, where his prima facie case depends upon an inference, it becomes dissipated upon the advent of uncontradicted, unimpeached evidence showing affirmatively to the contrary, even though the uncontradicted and unimpeached evidence is introduced by the defendant. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; So. Ry. Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239. (c) Where the evidence is so overwhelming on one side as to leave no room for doubt what the fact is, the court should give a peremptory instruction to the jury. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Patton v. T. & P. Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Small v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; N. & W. Railroad Co. v. Hall, 49 F.2d 692. (d) Insubstantial and insufficient testimony does not require the submission of an issue to the jury. So. Ry. Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; A. T. & S. F. Railroad Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896. (e) 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, 53 S.Ct. 391, 77 L.Ed. 819; Gulf, etc., Railroad Co. v. Wells, 275 U.S. 455, 48 S.Ct. 151, 72 L.Ed. 370; N. Y. C. Railroad Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198, 74 L.Ed. 562; Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699. (f) Even if defendant was negligent, which it was not, plaintiff's negligence, irrespective of defendant's rule to the contrary, in stepping upon a footboard of a tank moving speedily towards him, when he knew, or ought to have known, that an added force would possibly make the footboard move or sway when it otherwise would not, was the sole proximate cause of his injuries. L. & N. Railroad Co. v. Davis, 75 F.2d 849; Great Nor. Railroad Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732. (g) The fact that witnesses are in the employ of a defendant does not impair their credibility. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; C. & O. Railroad Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983. (h) The evidence fails to show, first, that plaintiff was charged with the duty of boarding the footboard; second, that the footboard was put in the service for the purpose for which plaintiff used it. (3) The verdict was and is excessive. Schleappe v. Terminal Railroad Assn., 339 Mo. 562; Moore v. Railroad, 268 Mo. 31, 186 S.W. 1035; Waldhier v. Railroad, 87 Mo. 37; Markey v. Railroad, 185 Mo. 348, 84 S.W. 61; Turnbow v. Rys. Co., 277 Mo. 644, 211 S.W. 41; Babin v. S. & W. Board, 2 La. App. 517; Palmer v. Security Trust Co., 242 Mich. 163, 218 N.W. 677.

Wm. H. Allen for respondent.

(1) The issues tried at the last trial of this cause were identical with those tried at the first trial thereof and disposed of by this court on the former appeal, Aly v. Terminal Railroad Assn., 236 Mo. 340. And the evidence at the last trial was the same as that adduced at said former trial except that at the last trial plaintiff adduced the testimony of additional witnesses, making even a stronger case than at the first trial. The circuit court, on the retrial of the cause, followed this court's ruling on the former appeal that the case was one for the jury. That question, having been adjudicated on the former appeal, is not open for examination on this appeal. State of Kansas ex rel. Winkle Terra Cotta Co. v. U.S. Fid. & Guar. Co., 328 Mo. 299; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 727; Bradley v. Becker, 321 Mo. 413; Davidson v. St. L.-S. F. Ry. Co., 301 Mo. 79; Benton v. St. Louis, 248 Mo. 98; Bagnell v. M.-K.-T. Ry. Co., 242 Mo. 22; Wair v. Am. Car & Foundry Co., 300 S.W. 1049. (2) Where, as here, a retrial of the cause has been had after this court has ruled therein on a former appeal, and there has been, in the meantime, no amendment of the pleadings introducing new issues, and the evidence on retrial is substantially the same, the decision on the former appeal is the law of the case upon all questions and matters decided therein. State of Kansas ex rel. Winkle Terra Cotta Co. v. U.S. Fid. & Guar. Co., 328 Mo. 299; Wair v. Am. Car & Foundry Co., 300 S.W. 1049; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 727; Bradley v. Becker, 321 Mo. 413. (3) The evidence adduced by plaintiff at the last trial obviously made the issue of defendant's alleged violation of the Boiler Inspection Act (45 U.S.C. A., sec. 23) on for the jury. Plaintiff adduced positive testimony that this footboard failed to properly function, in that it slipped toward the drawbar when he attempted to step upon it in the course of his duties. And he went further and introduced positive and uncontradicted evidence showing a defective condition of the appliance in that the holes in the end sill of the tender and in the metal straps by which the footboard was suspended from the end sill were much larger than the bolt that went through these holes, thus accounting for the sideslipping or swinging of the footboard when plaintiff undertook to use it. And plaintiff's testimony affirmatively shows that such failure of the footboard to properly function was the proximate cause of his injury. This plainly made the case one for the jury, as this court held on the former appeal. Aly v. Term. Railroad Assn., 336 Mo. 348; Chicago, R. I. & P. Ry. Co. v. Brown, 229 U.S. 317; San Antonio Ry. Co. v. Wagner, 241 U.S. 476; Spokane & I. E. Railroad Co. v. Campbell, 241 U.S. 497, 60 L.Ed. 1125; Henry v. Cleveland, C. C. & St. L. Ry. Co., 332 Mo. 1076. (4) The Boiler Inspection Act (Title 45, Sec. 23, U. S. C. A.) places upon the carrier the absolute and mandatory duty to have its locomotives and the boiler, tender and all parts and appurtenances thereof "in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb." 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. Aly v. Term. Railroad Assn., 336 Mo. 348; Henry v. Cleveland, C. C. & St. L. Ry. Co., 332 Mo. 1076; Central Vt. Ry. Co. v. Perry, 10 F.2d 134; B. & O. Railroad Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 419; Detroit, T. & I. Railroad Co. v. Hahn, 47 F.2d 59, certiorari denied 283 U.S. 842, 75 L.Ed. 1452; Didinger v. Pa. Ry. Co., 39 F.2d 798; Philadelphia & R. Ry. Co. v. Auchenbach, 16 F.2d 552, certiorari denied 273 U.S. 761, 71 L.Ed. 879; Lehigh Valley Railroad Co. v. Howell, 6 F.2d 784; Calicotte v. C., R. I. & P. Ry. Co., 274 Mo. 689. (5) Issues that, as here, depend upon the credibility of witnesses and the effect or weight of evidence are for the jury. Aly v. Term. Railroad Assn., 336 Mo. 348; Hardin v. Ill. Cent. Ry. Co., 334 Mo. 1169; Gunning v. Cooley, 281 U.S. 94, 74 L.Ed. 724; Western A. R. Co. v. Hughes, 278 U.S. 496, 73 L.Ed. 473; Koonse v. Mo. Pac. Ry. Co., 18 S.W.2d 470. (6) There is obviously no merit in the contention that plaintiff's injuries were due to his own negligence in attempting to board the engine by stepping upon the footboard of the tender while the engine and tender...