Carpenter v. Wabash Ry. Co.

• Decision Date: 17 May 1934
• Docket Number: 31867
• Citation: 71 S.W.2d 1071,335 Mo. 130
• Parties: Peter J. Carpenter v. Wabash Railway Company, Appellant
• Court: Missouri Supreme Court

71 S.W.2d 1071

335 Mo. 130

Peter J. Carpenter v. Wabash Railway Company, Appellant

No. 31867

Supreme Court of Missouri

May 17, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Affirmed (upon condition).

Homer Hall and Woodward & Evans for appellant.

(1) The demurrer to the evidence should have been sustained for the reason that there is no substantial proof that plaintiff's fellow employee was guilty of the negligence charged, or that such alleged negligence was the direct cause of plaintiff's injury. Ry. Co. v. Coogan, 271 U.S. 478, 70 L.Ed. 1041, 46 S.Ct. 564; Railroad Co. v Wells, 275 U.S. 455, 72 L.Ed. 370, 48 S.Ct. 151; Hamilton v. Ry. Co., 318 Mo. 123, 300 S.W. 787. Verdicts must be based upon substantial evidence (totally lacking in this case), and cannot be sustained by a mere scintilla of proof. Speculation and conjecture cannot form the basis of recovery. State ex rel. Mo. Pub. Util. Co v. Cox, 298 Mo. 427, 250 S.W. 551; Ry. Co. v. Jones, 276 U.S. 303, 72 L.Ed. 583, 48 S.Ct. 308; State ex rel. Gosselin v. Trimble, 41 S.W.2d 805; Watkins v. Bird-Sykes-Bunker Co., 16 S.W.2d 43; State ex rel. Wabash Ry. Co. v. Bland, 313 Mo. 246, 281 S.W. 690. Inasmuch as this case is controlled by the Federal Employers' Liability Act, the sufficiency of the evidence to support a recovery must be tested by the principles found in the decisions of the Federal courts. Ry Co. v. Coogan, supra; Railroad Co. v. Wells, supra. (2) The trial court erred in giving plaintiff's Instruction I for the reason that there was not sufficient evidence to support the hypothesis of facts contained therein, and particularly was there no substantial evidence to show that plaintiff was in a position of imminent peril and that the fellow employee had knowledge thereof in time to warn him. (3) The verdict of $ 15,000, based almost entirely upon the alleged aggravation of a preexisting arthritis, is grossly excessive. Zichler v. St. Louis Pub. Ser. Co., 59 S.W.2d 654; Nelson v. Heine Boiler Co., 20 S.W.2d 906.

Eagleton, Henwood & Waechter for respondent.

(1) There is positive, substantial evidence that plaintiff was injured as the direct and proximate result of actionable negligence on the part of a fellow servant. Therefore, the demurrer to the evidence was properly overruled. Gunning v. Cooley, 281 U.S. 90; I. C. R. Co. v. Morris, 245 U.S. 926; Ry. Co. v. Wagner, 241 U.S. 476; Ry. Co. v. Struthers, 52 F.2d 88; Railroad Co. v. Duke, 192 F. 306; Young v. Wheelock, 64 S.W.2d 950; Wheeler v. Railroad Co., 322 Mo. 271; Potterfield v. Terminal Railroad Assn., 319 Mo. 619. (2) Plaintiff's Instruction 1 was a correct declaration of law, based on positive, substantial evidence. Therefore, said instruction was properly given. See authorities cited under Point 1. (3) Under a fair consideration of the evidence relating to plaintiff's injuries, the verdict of $ 15,000 cannot be said to be excessive. Ruggeri v. Mfg. Co., 322 Mo. 737; Keehn v. Realty & Inv. Co., 328 Mo. 1031; Fowkles v. Fleming, 322 Mo. 718; Clayton v. Brick Co., 324 Mo. 1176.

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

OPINION

WESTHUES

This is an appeal from a judgment in respondent's favor and against appellant in the sum of $ 15,000. Respondent's suit was based on the Federal Employers' Liability Act, for damages due to personal injuries.

Appellant introduced no evidence. Respondent's evidence reveals the following: Respondent was a member of a working crew engaged in unloading steel rails from a railroad car along the main line track of appellant west of St. Charles, Missouri. Respondent and a man named Zalueke were stationed on the car. Respondent on the east and Zalueke on the west end, each equipped with a lining bar. It was their duty to place the rails in proper position to be lifted from the car by means of an air-hoist. The ball of the rail was required to be up so that the tongs of the air-hoist could be attached thereto. The rails also had to be free from the balance of the rails on the car. While respondent and Zalueke were engaged in placing a rail in its proper position for the air-hoist, respondent lost his balance and fell off the car, a distance of eight feet to the ground. Respondent continued his work that day and the next, but was unable to work thereafter because he developed a severe pain in his back. Details of the injuries will be stated under the point disposing of the question of the excessiveness of the verdict.

Appellant's sole contention for reversal of the judgment is that respondent failed to adduce sufficient evidence to sustain a verdict in his favor, particularly, that the evidence failed to show any negligence on the part of appellant. Appellant contends that liability in a case of this nature must be predicated on negligence. This requires no citation of authority. Appellant also points out in its brief that:

"Verdicts must be based upon substantial evidence, and cannot be sustained by a mere scintilla of proof. Speculation and conjecture cannot form the basis of recovery." (Citing cases.)

"Inasmuch as this case is controlled by the Federal Employers' Liability Act, the sufficiency of the evidence to support a recovery must be tested by the principles found in the decisions of the Federal courts." (Citing cases.)

There is no need for stressing the fact that the Federal decisions control upon this point since it is well-settled law in Missouri that a verdict of a jury cannot stand unless based on substantial evidence. The Missouri rule is in harmony with the Federal rule. Note what this court said in Warner v. St. Louis & M. Railroad Co., 178 Mo. 125, 77 S.W. 67, l. c. 69.

"The burden of proof is primarily upon a plaintiff to prove the negligence charged. It is not enough to show an accident and an injury. A causal connection must be established between the accident and the negligence charged in order to make out a case for the jury. Failing in this, as this plaintiff did, the court should take the case from the jury, because, if it was submitted to the jury, and if a verdict was returned for the plaintiff, it could not stand, for the reason that it would have no foundation in law or in fact to rest upon. [Holman v. Railroad, 62 Mo. 562; Sorenson v. Paper Co., 56 Wis. 338, 14 N.W. 446.] In other words, the mere concurrence of negligence and injury does not make the defendant liable. There must be a direct connection between the negligent act and the injury, and the negligence must be the proximate cause of the injury."

In a recent case, Watkins v. Bird-Sykes Bunker Co., 322 Mo. 830, 16 S.W.2d 38, l. c. 43 (2, 3) this court ruled: "Verdicts must be based upon substantial evidence, and not upon speculation and conjecture." The respondent to sustain a verdict was, therefore, required to prove negligence and that the negligence was the proximate cause of his injuries.

Respondent testified in part as follows:

"Q. Tell what happened on that occasion? A. I had my end of the rail broke open and I hollered to him to hold. We were holding -- I was holding the end up and so was he, just a little while, but he yanked the rail and threw me -- over-balanced me, and I went over on the north side of the car.

"Q. In what position were you standing, with reference to directions there -- which way were you facing? A. I was facing west. I had just turned my head west.

"Q. But the front part of your body -- A. I was at kind of an angle.

"Q. You were looking at Zalueke? A. Yes, sir; at the west end of the car.

"Q. What you have just told, you saw him doing that? A. Yes, sir.

"Q. You were prying the rail to the south? A. Yes, sir.

"Q. How were you pulling the bar? A. Back toward me to the north.

"Q. Back toward you to the north? A. Yes, sir.

"Q. Were your two feet together, or did you have one foot in front of the other? A. No, sir; I had my left foot on top of the heel rail. Both rails were in front of me, one north and one south. I had my foot over the rail. . . .

"Q. After you hollered to Zalueke to hold it, did he say anything to you then before he yanked the rail? A. No, sir.

"Q. What happened to the rail when it was yanked? A. It went south.

"Q. What became of the rail when Zalueke yanked it, did it move any? A. Yes, sir; it went south.

"Q. It went south? A. Yes, sir.

"Q. What effect did that have on you? A. It threw me loose from the bar, and I went over.

"Q. Were you thrown down underneath? A. Yes, sir; where the rail was laying; they were all piled in.

"Q. Were there other rails underneath this rail, pried out? A. Yes, sir.

"Q. There were other rails beneath this? A. Yes, sir.

"Q. This rail wasn't on the bottom of the car? A. No, sir."

On cross-examination he testified:

"Q. Neither you nor George Zalueke had any control over each other? A. No, sir.

"Q. You were both laborers, removing those rails? A. Yes, sir.

"Q. Now, to move this rail out, you put your bar in between that rail and another rail; is that right? A. Yes, sir.

"Q. And that other rail that you lift up is what you refer to as a 'heel?' A. Yes, sir.

"Q. You insert your bar down between these rails? A. Yes, sir.

"Q. Had you moved your rail out any? A. Yes, sir.

"Q. How far? A. I had my end of the rail out.

"Q. Your end was out? A. Yes, sir.

"Q. The other end was not out? A. Yes, sir; he had his end out just a little while out after, when I called him.

"Q. But you got your end out first? A. I had my bar in between the rails; I was pulling against the bar, and we had it out far enough.

"Q. Your end was out, but the other end was not out? A. Yes, sir; both ends were out.

"Q. Both ends were out? A. Yes, sir."

Arthur Welch, a member of the working crew, testified that he was standing on the ground at the west end of the...