Callicotte v. Chicago, Rock Island & Pacific Ry. Co.
| Decision Date | 13 June 1918 |
| Citation | 204 S.W. 529,274 Mo. 689 |
| Parties | GEORGE A. CALLICOTTE v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.
Affirmed.
Paul E Walker, John E. Dolman and O. E. Shultz for appellant.
(1) The court erred in refusing to give defendant's peremptory instruction. The action is brought under the Federal Employers' Liability Act, which regards negligence as the basis of the duty to make compensation and excludes the existence of such a duty in the absence of negligence. Erie Railroad Co. v. Winfield, 37 S.Ct. 556; N Y. C. Railroad Co. v. Winfield, 244 U.S. 151; Seaboard Air Line v. Horton, 233 U.S. 492; So Ry. Co. v. Gray, 241 U.S. 333; Hogan v. N. Y. C. Ry. Co., 223 F. 890. The defect must be such as could have been discovered by reasonable inspection and negligence predicated thereon, in the absence of which no recovery can be had. Penn. Ry. Co. v. Glas, 239 F. 256-261; Penn. Ry. Co. v. Knop, 218 F. 748. The burden is upon the plaintiff to prove negligence. If the lag screw broke by reason of some defect it devolves upon him to show that by reasonable care this defect might have been discovered. Texas Pac. Ry. Co. v. Barrett, 166 U.S. 617; Westinghouse Elect. Co. v. Heimlich, 127 F. 92. (2) If the defect in the lag screw and the handhold was of such a nature that it could have been discovered by reasonable inspection it was plaintiff's duty under the rules of the company to examine the same before using it, to see that it was in proper condition, and his failure to do so would constitute negligence directly contributing to the accident complained of. Norfolk Ry. Co. v. Ferebee, 238 U.S. 269; Southern Ry. Co. v. Gray, 241 U.S. 333. (3) Instruction 2, requested by plaintiff, is erroneous, because it assumes that plaintiff was injured when this fact was disputed. The court may, in its instruction to the jury, assume the truth of a proposition which is established by the undisputed testimony, but it is manifestly improper to do so, where there is conflict in the evidence. Fullerton v. Fordyce, 121 Mo. 13; Hall v. Railroad, 74 Mo. 302; Barr v. Armstrong, 56 Mo. 589; Caldwell v. Stevens, 57 Mo. 595; Warrington v. Bird, 168 Mo.App. 390; Freeman v. Met. St. Ry. Co., 95 Mo.App. 104; Davidson v. Transit Co., 211 Mo. 357. (4) It will not be denied upon this appeal that within less than sixty days after the rendition of the judgment herein complained of, plaintiff entirely recovered and admitted that he had entirely recovered from his alleged paralysis, and from that time to this has been as well as he ever was. Manifestly, therefore, the judgment is excessive and in the interest of justice, notwithstanding the record, does not disclose these admitted facts, it should be set aside for that reason.
Randolph & Randolph and Strop & Mayer for respondent.
(1) The court did not err in refusing defendant's peremptory instruction. Illinois Central Railroad Co. v. Williams, 242 U.S. 462; Texas & Pacific Railroad Co. v. Rigsby, 241 U.S. 33; Spokane Ry. Co. v. Campbell, 241 U.S. 99; San Antonio Railroad Co. v. Waggoner, 241 U.S. 476; Great Northern Ry. Co. v. Otos, 239 U.S. 349; Burlington Ry. Co. v. United States, 220 U.S. 550; Iron Mountain Ry. Co. v. Taylor, 210 U.S. 281. (2) Contributory negligence was no defense, even for the purpose of diminishing the amount of damages. Spokane Ry. Co. v. Campbell, 241 U.S. 497; Grand Trunk Ry. Co. v. Lindsay, 233 U.S. 44. (3) It is not necessary to submit the question of contributory negligence in any case where the evidence shows there was none. Norfolk, etc. Ry. Co. v. Ferebee, 238 U.S. 269.
BLAIR, J. Woodson, J., not sitting; Bond, J., concurs in the result.
In Banc.
Respondent recovered judgment for $ 18,000 in an action for damages for personal injuries. This appeal followed.
It is undisputed that the appellant was engaged and respondent employed in interstate commerce at the time of the injury. The evidence tends to show respondent, in the course of duty, attempted to descend from one of appellant's cars and fell from its top by reason of the giving way of a handhold on the car at the top of the ladder he was about to use; that the lag screw designed to secure one end of the handhold was partly rusted through or cracked one-half inch below the surface of the roof of the car, and gave way when respondent attempted to use the handhold, and that respondent fell thirteen feet and struck upon his back; that symptoms of paralysis of the lower limbs developed. Physicians who testified had examined respondent and had applied numerous tests for the purpose of determining the fact whether paralysis existed. The "doctors disagreed," but there was evidence that the tests applied developed facts showing that respondent's injuries were permanent.
Appellant assigns for error (1) the refusal of the court to direct a verdict for defendant; (2) the giving of one of respondent's instructions, and (3) excessiveness of the damages allowed.
I. In an action under the Safety Appliance Act "it is of course settled that if the equipment was in fact defective or out of repair, the question whether this was attributable to the company's negligence is immaterial." [Spokane & Inland Railroad v. Campbell, 241 U.S. 497, 60 L.Ed. 1125, 36 S.Ct. 683, and cases cited; St. Joseph & Grand Island Ry. v. Moore, 243 U.S. 311, 61 L.Ed. 741, 37 S.Ct. 278; San Antonio Ry. v. Wagner, 241 U.S. 476, 484, 60 L.Ed. 1110, 36 S.Ct. 626; Illinois Central Railroad v. Williams, 242 U.S. 462, 61 L.Ed. 437, 37 S.Ct. 128; New York Central Railroad v. White, 243 U.S. 188, 61 L.Ed. 667, 37 S.Ct. 247; L. & N. Railroad v. Layton, 243 U.S. 617; Roberts' Injuries to Interstate Employees, sec. 21.] Decisions under the Federal Employees' Liability Act (several are cited) and in cases grounded upon general law are inapplicable.
II. Under the Safety Appliance Act contributory negligence of the injured person constitutes neither defense nor mitigation of damages. [Moore v. St. Joseph & Grand Island Ry., 268 Mo. 31, 36, 186 S.W. 1035, affirmed 243 U.S. 311, 61 L.Ed. 741, 37 S.Ct. 278; Spokane & Inland Railroad v. Campbell, 241 U.S. 497, 510, 60 L.Ed. 1125, 36 S.Ct. 683.]
III. The petition stated facts making a case under the Safety Appliance Act. In addition, it alleged appellant was negligent in failing to discover and repair defects charged to exist. Appellant's principal instruction required the jury, before finding for respondent, to find facts which would authorize a recovery under the Safety Appliance Act, and, also, that appellant was negligent in the manner alleged in the petition. Appellant now contends respondent is bound by this theory; that there was no substantial evidence that the defect could have been discovered by the exercise of appropriate care; and, therefore, that this judgment must be reversed. The facts alleged and proved brought the case within the Safety Appliance Act. This act is, as is the Employers' Liability Act, "paramount and exclusive" in its field. [N. Y. Central Railroad Co. v. Winfield, 244 U.S. 147 et seq.] The allegations of negligence in the petition were the purest surplusage, and in submitting the question in the instruction respondent assumed an unnecessary burden. Whether there was evidence of negligence of the sort mentioned is a purely academic question. The absence of such evidence, despite the submission of the question, is immaterial in view of "the positive duty imposed by the statute upon the railroad to furnish safe appliances" in the way of handholds. [Minn. & St. Louis R. R. Co. v. Gotschall, 244 U.S. 66, 61 L.Ed. 995, 37 S.Ct. 598.] The cases cited by appellant might be applicable had respondent failed to recover and had he attempted to secure a reversal on the ground that he was not required to prove negligence.
IV. It is contended the instruction on the measure of damages is erroneous. The only...
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