Arnold v. Alton R. Co.

• Citation: 124 S.W.2d 1092,343 Mo. 1049
• Decision Date: 21 February 1939
• Docket Number: 35247
• Parties: Ernest A. Arnold v. The Alton Railroad Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

124 S.W.2d 1092

343 Mo. 1049

Ernest A. Arnold v. The Alton Railroad Company, a Corporation, Appellant

No. 35247

Supreme Court of Missouri

February 21, 1939

Appellant's Motion for Rehearing Overruled December 20 1938.

Appellant's Motion to Transfer to Court en Banc Overruled February 21 1939.

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge; Opinion filed at May Term, 1938, May 3, 1938; motion for rehearing filed; motion overruled December 20, 1938; motion to transfer to Court en Banc filed; motion overruled at September Term, February 21, 1939.

Affirmed.

Charles M. Miller for appellant.

(1) The trial court erred in sustaining plaintiff's motion for new trial for the reason assigned by the court that it erred "in giving instructions for defendant," which instructions were numbered C to M, inclusive, as the instructions properly declared the law and were not prejudicial to any right of plaintiff in the submission of the case to the jury. Schmitt v. Transit Co., 115 Mo.App. 445, 90 S.W. 421; Fife v. C. & A. Ry. Co., 174 Mo.App. 675, 161 S.W. 302. (2) The trial court erred in sustaining plaintiff's motion for new trial for the reason that it erred "in the admission of evidence of witness Naber," with respect to his evidence as to the reputation for truth and veracity of plaintiff for all of the evidence given by witness Naber, was competent and admissible under the law, and the fact that witness Naber did not live in Slater, Missouri, did not render his evidence as to the reputation for truth and veracity of the plaintiff, incompetent and inadmissible. Ulrich v. Burlington, 220 S.W. 683; Powers v. Presgroves, 38 Miss. 242. (3) The trial court erred in not giving the peremptory instruction requested by defendant at the close of all the evidence for the reason that plaintiff did not make out a case for the jury, and therefore, even if there was prejudicial error in the trial of the case, which the defendant denies, the verdict being for the right party, it should be re-instated and the order of the court granting a new trial, set aside. Federal Boiler Inspection Act, 45 U.S.C. A., Sec. 22; Zachritz v. Frisco Railroad, 81 S.W.2d 611; Satterlee v. Frisco, 82 S.W.2d 69; Dunn v. Alton Railroad, 104 S.W.2d 314.

Mont T. Prewitt, John C. Nipp, E. E. Thompson and William R. Barnes for respondent.

(1) The court properly granted plaintiff a new trial on the assigned ground of the giving of defendant's Instructions Lettered C to M, inclusive; all of said instructions were clearly erroneous, misleading, ambiguous, and confusing. The trial court in the exercise of its discretion sustained plaintiff's motion for new trial, which action should not be disturbed. Sec. 1002, R. S. 1929; Johnson v. St. Louis & Sub. Ry. Co., 73 S.W. 173, 173 Mo. 307; Rodan v. St. Louis Transit Co., 105 S.W. 1061, 207 Mo. 392; Doody v. Cal. Woolen Mills Co., 216 S.W. 531; Landon v. United Rys. Co., 237 S.W. 496; Foster v. Davis, Dir. Gen., 252 S.W. 433; Stafford v. Ryan, 276 S.W. 63; Head v. Leming Lbr. Co., 281 S.W. 441; O'Howell v. Miller, 11 S.W.2d 1068; Oliver v. Vandalia, 28 S.W.2d 1044; Baker v. Scott County Mill Co., 43 S.W.2d 441; Lee v. Shryack-Wright Gro. Co., 53 S.W.2d 406; Wolfson v. Cohen, 55 S.W.2d 677; Felts v. Spesia, 61 S.W.2d 403; Alcorn v. Mo. Pac. Ry. Co., 63 S.W.2d 55; Robison v. Chicago E. & I. Ry. Co., 64 S.W.2d 660; Young v. Wheelock, 64 S.W.2d 950; State ex rel. Berberich v. Haid, 64 S.W.2d 667; Jones v. Peterson, 72 S.W.2d 76; Crain v. Ill. Cent. Railroad Co., 73 S.W.2d 786; Oliver v. Morgan, 73 S.W.2d 993; Truesdale v. Wheelock, 74 S.W.2d 585; Brum v. Wabash Ry. Co., 74 S.W.2d 566; Best v. A., T. & S. F. Ry. Co., 76 S.W.2d 442; Benjamin v. Met. St. Ry. Co., 151 S.W. 96; Nelson v. Evans, 93 S.W.2d 691. (2) The court properly granted plaintiff a new trial on the assigned ground of admission of evidence of witness Naber, as to plaintiff's reputation for truth and veracity. This testimony was clearly inadmissible, and was highly prejudicial to plaintiff. Sec. 1002, R. S. 1929; State v. Houston, 263 S.W. 219; Young v. Corrigan, 208 F. 431; Commonwealth v. Baxter, 166 N.E. 742; Minkow v. United States, 5 F.2d 319; State v. Miller, 130 P. 356; Poe v. Poe, 124 S.W. 1029; Ulrich v. C., B. & Q. Ry. Co., 220 S.W. 682; Boswell v. Blackman, 12 Ga. 593; Johnson v. Martendale, 288 S.W. 970; Curtis v. Fay, 37 Barb. 69; Bright v. Wheelock, 20 S.W.2d 684; Greenleaf on Evidence, sec. 461. (3) The court properly overruled defendant's peremptory instruction offered at the close of all of the evidence. Kidd v. C., R. I. & P. Ry. Co., 274 S.W. 1079; Fryer v. St. L. & S. F. Ry. Co., 63 S.W.2d 47; Robison v. Chicago & E. I. Ry. Co., 64 S.W.2d 660; Crain v. Ill. Cent. Ry. Co., 73 S.W.2d 786; Aly v. Term. Railroad Assn., 78 S.W.2d 851; Hardin v. Ill. Cent. Ry. Co., 70 S.W.2d 1075; Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143.

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

OPINION

BOHLING

This action is founded upon an alleged violation of the Federal Boiler Inspection Act (45 U.S.C. A., secs. 22-34); Ernest A. Arnold seeking a judgment in the sum of $ 75,000 against the Chicago & Alton Railroad Company, a corporation. Defendant prosecutes the appeal from an order sustaining plaintiff's motion for new trial; and the issues involve the submissibility of plaintiff's case, the admissibility of certain testimony and the giving of instructions on behalf of the defendant.

Plaintiff was a fireman on one of defendant's local freight trains running west out of Slater, Missouri. He was injured on February 28, 1934, while engaged in making a "drop switch" of an interstate freight car at Marshall, Missouri, by the glass in the clear vision window on his side of the locomotive cab shattering and particles thereof striking him in the eye and face. The front of the cab on the fireman's side had a door of approximately four feet seven inches in height and twelve inches in width. The dimensions are taken from the door, an exhibit, submitted under stipulation for the consideration of this court and do not correspond fully with some of the testimony bearing thereon. This door was also constructed to serve as a window, having, in so far as here involved, a window space of a little over two feet in height by eight inches in width, commencing approximately eight inches from the top of the door. Within said opening and in a frame hung from the wooden frame at the top of the opening by means of hinges was a glass of approximately five inches in length, known as the clear vision window. Its regular equipment embraced a hook and screw eye, and, by means of braces on the door, it could be adjusted to three positions -- closed, partly open and open. It opened outward and upward, and when closed slightly overlapped, a fraction of an inch, the lower glass. A short distance west of Slater plaintiff discovered that the hook of this window was missing and reported the fact to his engineer, Stechman. Plaintiff testified that at the time of the accident they were making a "drop switch" with the engine proceeding west pulling the car; that he was seated about three and one-half feet from the window, looking forward through the clear vision window, which was approximately on a level with his eyes; that the engine had attained a speed of twelve or fourteen miles an hour; that about twenty or twenty-five feet from the switch the engineer put the lever in reverse for the brakeman to uncouple the car; that this caused a sudden jar, the engine to buckle up, and the clear vision window to fly outward; that then when the engineer started forward it caused the clear vision window "to slam 'back' and 'break.'" A small piece of glass, about the size of a pin head, struck plaintiff's eye and another particle of glass struck him about an inch below the eye. An inspection of the window after the accident revealed the absence of the hook and screw eye. Plaintiff also testified that the wind was blowing from the west and that on the trip to Marshall the wind kept the clear vision window closed.

I. Defendant contends that (a) plaintiff failed to prove any negligent violation of the Federal Boiler Inspection Act and (b) plaintiff failed to offer any substantial evidence that a movement of the engine, such as described, would cause the clear vision window to move as claimed, break and a piece therefrom to strike plaintiff in the eye.

(a) Defendant does not question the absence of the hook and screw eye from the clear vision window. Section 2 of the Federal Boiler Inspection Act makes it ". . . unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are 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. . . ." [43 Stat. 659; 45 U.S.C. A., sec. 23; consult U.S. Compiled Stats. 1918, secs. 8631 (36 Stat. 913), 8639a (38 Stat. 1192).] The act applies to and includes all parts and appurtenances of a locomotive. [Kidd v. Chicago, R. I. & P. Ry. Co., 310 Mo. 1, 24(a), 274 S.W. 1079, 1086(a).] The issue is not negligence vel non in the sense of lack of care. Aly v. Terminal Railroad Assn., 336 Mo. 340, 347(1), 78 S.W.2d 851, 853(1), states: "This is not a negligence case. . . . It was not necessary for plaintiff to prove negligence in order to make a case for the jury. If plaintiff adduced substantial evidence that the appliance failed to properly function and that this failure to function was the proximate cause of plaintiff's injury, then he made a case for the jury." [See, also: Henry v. Cleveland, etc., Ry. Co., 332 Mo. 1072, 1076(2), 61...