Brazell v. St. Louis Southwestern Ry. Co., 43073

• Decision Date: 02 February 1982
• Docket Number: No. 43073,43073
• Citation: 632 S.W.2d 277
• Parties: Curlee BRAZELL, Plaintiff-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 277

632 S.W.2d 277

Curlee BRAZELL, Plaintiff-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.

No. 43073.

Missouri Court of Appeals, Eastern District, Division One.

Feb. 2, 1982.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 19, 1982.

Application to Transfer Denied May 17, 1982.

John R. Musgrave, St. Louis, for defendant-appellant.

Don B. Sommers, St. Louis, for plaintiff-respondent.

LACKLAND H. BLOOM, Special Judge.

This is an appeal by St. Louis Southwestern Railway Company from a judgment in favor of Curlee Brazell in the sum of $265,000.00 rendered after jury verdict in this Federal Employers' Liability Act case. The parties will be referred to as plaintiff and defendant in accordance with their status in the trial court.

The evidence established that plaintiff, Curlee Brazell, was at the time of trial 33 years old. He was employed by defendant in Pine Bluff, Arkansas in 1972 as a machinist helper. On October 10, 1977 he was working as a machinist with J. D. Hill and was engaged in cutting a flange on one of defendant's switch engines at defendant's round-house facilities in Pine Bluff, Arkansas. A flange is the inside lip on a locomotive wheel that holds the wheel on the track. The part of the wheel in contact with the track wears down over a period of time but the flange does not. To prevent the flange from extending too far beyond the surface of the wheel which might cause a derailment, the flange must be cut or trimmed down. This is done by removing the brake shoe and placing a cutting tool in its place. The cutting process is obtained by the locomotive engineer or "hostler" applying brake pressure as the locomotive is slowly moved. As this is done the cutting tool peels off the excess length of the flange. Friction between the tool and the flange generates a great deal of heat and this is reduced by applying oil to the flange. As the wheel slowly turns, the oil on the flange comes into contact with the cutting tool lubricating it.

On the date of the accident plaintiff was cutting a flange on a wheel on one of two switch engines coupled together. The flange was being cut on the wheel of a trailing engine which was being pulled by the lead engine. The two engines were being operated in a southernly direction on what was referred to as number 10 rail at a speed of less than one mile per hour. As it was clearing number 10 switch it was collided with by a consist of two road engines coming south at one to two miles per hour on rail 10 and attempting to pass number 10 switch. The road engine clipped a corner of the switch engine causing some damage to the hand rails and steps. At the time plaintiff testified that he was on the ground bent over the locomotive wheel oiling the flange using a five gallon container with a spout furnished him by defendant which was placed above him on the locomotive running board. He was regulating the flow of oil through a rubber hose by means of his fingertips. Plaintiff testified that the collision caused the far side of the switch engine to come a few inches off the tracks and lean toward him. His head was forced downward by the running board pushing his chin into his chest and "popping" his neck. Plaintiff attempted to free himself but his arm was pinned. He pushed away freeing his arm and ran clear fearing the engine was going to fall on him.

Shortly after the collision, a number of defendant's employees including the hostler who was operating the switch engine and his foreman asked plaintiff if he had been hurt and he said he was not.

That evening after he had gone home plaintiff called in and complained of a pain in his neck and was told to come in and make out an accident report. He did so and was then taken to the hospital.

Defendant does not challenge the sufficiency of the evidence to support a jury finding that the accident was caused by its negligence but, among other alleged errors raised, asserts that the court erred in not submitting the issue of plaintiff's contributory negligence to the jury and further briefs and argues points of alleged error which will require a detailed review of the evidence pertaining to plaintiff's injuries. To avoid unnecessary duplication, evidence pertaining to such issues will be set forth in connection with a discussion of the points raised.

I.

Defendant's first point charges the trial court with prejudicial error in not permitting it at the close of all the evidence to amend its answer to charge plaintiff with contributory negligence and thus refusing to read to the jury defendant's Instruction Nos. 12 and 14 submitting to the jury the issue of plaintiff's contributory negligence.

This accident occurred, as heretofore indicated, at Pine Bluff, Arkansas on October 10, 1977. Suit was filed on November 21, 1978 and defendant filed its answer, a general denial on April 17, 1979. Thereafter there was extensive discovery, including depositions of plaintiff, a number of employees of defendant, and medical witnesses for both plaintiff and defendant. The trial commenced on April 7, 1980. Defendant made no effort to amend its pleading to allege contributory negligence of plaintiff until the instruction conference held just prior to the conclusion of the evidence, at which time it tendered to the court Instruction No. 12 charging plaintiff with contributory negligence in that "plaintiff failed to use the oiling equipment provided by the defendant."

Prior to the case being submitted to the jury the next day, plaintiff testified in rebuttal and defendant's employee H. K. Kalkbrenner, testified in surrebuttal. As a consequence of this testimony defendant again requested the court for leave to amend its answer to assert plaintiff's contributory negligence on the additional ground that plaintiff placed his arm up under the engine. " Said request was denied. Defendant also orally dictated into the record its requested Instruction No. 14 which was refused. The court granted defendant's request to later file the instruction in written form. Plaintiff objected to both requests for amendment of the pleadings and to the giving of Instruction Nos. 12 and 14 on the ground that plaintiff's contributory negligence was neither pled nor supported by the evidence.

Defendant concedes that contributory negligence was not pled but argues that it became a contested issue for the first time during trial and was tried by implied consent of both parties and that under Supreme Court Rule 55.33(b) the court erred in not granting leave to amend the pleadings to conform to the evidence. Plaintiff, on the other hand, argues that defendant's defense and its evidence was always, before and during trial, that plaintiff was not in a position at the time of the accident to sustain any injury and that he was not hurt.

Before reviewing the evidence on which defendant relies, we set forth certain established applicable principles of law.

Defendant was entitled to have the issue of contributory negligence submitted to the jury if the pleadings and evidence supported it. Wyatt v. Southwestern Bell Telephone Co., 573 S.W.2d 386, 390 (Mo.App.1978); Orloff v. Fondaw, 315 S.W.2d 430, 434 (Mo.App.1958). The spirit of our rules is to permit amendments when justice so requires. Rule 55.33(a). The trial court has wide discretion in granting or denying leave to amend which discretion will not be overturned on appeal unless there is an obvious and palpable abuse thereof. East v. Landmark Central Bank and Trust Co., 585 S.W.2d 222, 225-6 (Mo.App.1979). Trial courts have been admonished to be liberal in allowing such amendments. C. S. v. J. W., 514 S.W.2d 848, 854 (Mo.App.1974). Where evidence is admitted without objection, on appeal we will consider that the pleadings were amended to conform to the evidence. Moranz v. Schiller, 525 S.W.2d 785, 787 (Mo.App.1975). Issues not raised by the pleadings but tried by express or implied consent shall be treated in all respects as if they had been raised by the pleadings. Such amendments can be made to conform to the evidence at any time even after judgment. Middleman v. Complete Auto Transit, Inc., 486 S.W.2d 456, 461-2 (Mo. banc 1972); Rule 55.33(b). Before evidence admitted without objection will give rise to amendment of the pleadings by implied consent under Rule 55.33(b) such evidence must bear only on that issue and not be relevant to an issue already in the case. Smith v. Heisserer, 609 S.W.2d 485, 486 (Mo.App.1980); Gee v. Gee, 605 S.W.2d 815 (Mo.App.1980).

With these principles in mind we review the introduction, nature, and sufficiency of the evidence alleged to bear on plaintiff's contributory negligence, keeping also in mind that in reviewing the same that it is to be viewed in a light most favorable to defendant, giving defendant the benefit of any favorable inferences that may reasonably be drawn therefrom, and disregarding plaintiff's evidence unless it tends to support the charge of contributory negligence. Worley v. Tucker Nevils, Inc., 503 S.W.2d 417, 421 (Mo. banc 1973).

Instruction No. 12 tendered by the defendant and refused by the court was a submission under MAI 32.07 and was as follows:

"You must find the plaintiff contributorily negligent if you believe:

First, plaintiff failed to use the oiling equipment provided by the defendant, and

Second, plaintiff's conduct was negligent, and

Third, such negligence of plaintiff directly contributed to cause his injury."

Plaintiff, in testifying as to how he went about oiling the flange, stated: "Well, it takes plenty of oil. You have to have a lot of oil to cut one flange so I had a five gallon can that had a hose running to the can and a little faucet and I cut the faucet on and I set the can up on the running board." He said he set the can on the running board where it wouldn't fall off. He indicated on plaintiff's photographic exhibits how he then reached in and with the hose in hand bent over to oil...