Carver v. Missouri-Kansas-Texas R. Co.

• Citation: 245 S.W.2d 96,362 Mo. 897
• Decision Date: 14 January 1952
• Docket Number: No. 2,MISSOURI-KANSAS-TEXAS,No. 42432,42432,2
• Parties: CARVER v.R. CO
• Court: United States State Supreme Court of Missouri

Page 96

245 S.W.2d 96

362 Mo. 897

CARVER v. MISSOURI-KANSAS-TEXAS R. CO.

No. 42432.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1952.

John H. Haley, Jr., and Thomas R. McGinnis, St. Louis, for carver.

Carl S. Hoffman and Everett Paul Griffin, both of St. Louis, for Missouri-Kansas-Texas R. Co.

BOHLING, Commissioner.

The Missouri-Kansas-Texas Railroad Company, a corporation, appeals from a judgment for $52,500 recovered by Mary V. Carver, Administratrix of the estate of Jake Carver, deceased, in an action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for the wrongful death of Jake Carver, her husband. Defendant questions the submissibility of plaintiff's case, the admissibility of certain evidence, the giving and refusing of instructions, and contends the damages are excessive. Plaintiff also appeals and asserts error in the court's order of a remittitur of $15,000 from the $67,500 verdict as a condition to overruling defendant's motion for new trial, plaintiff having remitted said $15,000 but objected and excepted thereto.

Jake Carver was injured fatally on November 14, 1949, while employed as a member of one of defendant's Bridge and Building crews on defendant's interstate railroad track. Defendant was constructing new concrete abutments at each end of a bridge near Bluffton, Missouri, to replace the old abutments supporting wooden bents or braces, which in turn supported the stringers, supporting the ties to which the rails were spiked. Defendant's track runs east and west at the bridge and defendant's crew was working under the east end of the bridge. To replace the old abutment it was necessary to provide a temporary substitute to support the track. Some of the earth under the east approach was removed and leveled off east of the old abutment, and some of the old concrete had been dynamited. A temporary or false bent was framed out of 12 inch square dry Oregon fir. Its sill was 16 feet 2 inches long. Its cap was 16 feet 5 1/2 inches long. It had five upright posts 48 inches long, and had sway braces on either side of 4 by 8 inches by 16 feet 4 1/2 inches long.

On Friday, November 11, 1949, the temporary or false bent rested on wooden blocks on the ground underneath and perpendicular to the bridge and extended upward to within about 4 inches of the stringers. The space between the stringers and the cap of the bent had been shimmed in. The false bent was about 5 feet east of the old wooden bent on the concrete abutment, being about 4 feet east of the concrete, with a space of 20 to 24 inches between the wooden blocks and the concrete. To better support the bridge during the construction work, it was to be moved about 18 inches west, nearer the old abutment, but not so close as to interfere with the new construction work.

Clarence E. Brown, 21 years old, was foreman of the crew, and Claude Weber, also 21, was lead mechanic and acting foreman in Brown's absence. Brown testified that on November 11, just before quitting time, he discussed moving the false bent with Weber and some of the crew, telling them in moving the bent a chain should be used and fastened around the ties and the cap of the bent. One of the crew got a chain and placed it on the sill of the false bent.

On Monday morning, the 14th, the crew had assembled at the bridge when Brown received word he was to attend a Safety Rules meeting at Mokane. Brown testified he told Weber, who was to be in charge, to go ahead and move the bent and be sure and use a chain on it and jack it from the top, and also to work on the concrete. Brown then went to Mokane.

Weber, who had never moved bents similar to this one as an employee of defendant but had helped move a bent at St. Paul, Kansas, as a member of the crew, proceeded with moving the false bent 18 inches west. His plan was to jack the bent up tight against the stringers, drop a chain though the ties and around the cap of the bent to hold it while the men reset the blocks underneath the bent for its new position, then let the bent down on the blocks, release the chain, and move the bent west into position with manpower, using their hands or bars. Furlong, a crew member, asked Weber if he were going to put on the chain and Weber answered he was going to.

Under Weber's directions, several of the men took positions to steady the bent with their hands while it was being lifted. Mr. Carver and crewman Furlong were between the false bent and the old abutment, facing east, and other crew members were on the other side of the bent to steady it. A track jack, resting on level hard-packed clay, with some small rocks, was placed with its tongue under the bottom sill of the bent at its south end and another track jack was placed in a corresponding position at the north end of said sill. The tongue of each jack extended out 3 inches from the jack and was 1 1/2 inches wide at the jack and 1 1/4 inches wide at the end of the tongue. The shims between the cap of the bent and stringers of the bridge were removed. No chain was put on the bent. With the crew members steadying the bent, Weber at the north jack and a crew member at the south jack worked the jacks simultaneously and raised the bent 4 to 5 inches, placing its cap tight against the stringers of the bridge. Weber told the men it was tight and to come out.

Weber, defendant's witness, testified he did not want to walk underneath the bridge and started to go over the bridge to get the chain on the south side to fasten the bent but noticed the handle was still in his jack; and as he started to take it out, he noticed the bent was falling. He hollowed 'look out,' and tried to hold the bent but could not. The bent fell toward the west, toward the old bent. It fell to an angle of 45 degrees, caught Mr. Carver's head and held him in a hanging or standing position between the false and old bents, and knocked Furlong down, pinning him under the bent. Crew members released the two men. Carver died on the way to a hospital.

An inspection of the bent disclosed that the tongue of the north jack had splinters on it and had scoured out the center of the bottom of the sill.

Joseph J. Fuechter, a professional engineer, testified that the method used for moving the bent was not a safe and practical one; that the bent weighed approximately 1500 pounds and had a high center of gravity, making it fairly easy to tip; that it should have been lashed from the top to prevent its tipping and falling; and that with the tongue of the jacks parallel with the grain of the wood, the tongue was likely to cut into the wood and press the fibers unevenly and, under certain conditions, might cut all the way through.

Plaintiff has filed a motion to dismiss the appeal on the ground defendant's statement of the facts omits essential facts on which plaintiff relied and on the ground some of defendant's points and authorities do not comply with our rules. Rules 1.08 and 1.15, 352 Mo. appendix iii. We have examined defendant's 'Statement' and 'Points and Authorities,' and find them subject to criticism and attack. A statement which omits the essential facts on which an appellant's adversary relies does not comply with our rules. Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282, 283. Defendant states it endeavored to make a 'concise' statement. Rule 1.08(a)(2) requires 'a fair and concise statement of the facts without argument;' and fairness of statement is not to be sacrificed for conciseness. Some of the points in defendant's brief are stated sufficiently. Plaintiff, proceeding under Rule 1.08(c), has supplied a statement giving us plaintiff's view of the case and we are not required to search out for ourselves what is to be determined. In these circumstances, following precedent, plaintiff's motion to dismiss should be and is overruled. See v. Wabash R. Co., Mo.Sup., 242 S.W.2d 15, 16[1, 2]; Brown v. Citizens' State Bank, 345 Mo. 480, 134 S.W.2d 116, 118[1-3]; Holmes v. McNeil, 356 Mo. 846, 204 S.W.2d 303, 304[1, 2]; Nowlin v. Kansas City Pub. Serv. Co., Mo.App., 58 S.W.2d 324, 326.

Defendant's contention that plaintiff did not make a submissible case is not well taken. The gist of plaintiff's submitted theory was that defendant failed to have the top of the bent secure; that the failure to secure it was negligence, and that such negligence directly contributed to Mr. Carver's death, findings being required, among others, to that effect. The evidence favorable to plaintiff warranted findings that defendant's crew was engaged in work that was not safe, but hazardous, under the method being used, unless the top of the bent was lashed or made secure to prevent the bent from tipping and falling; that the bent fell after it pressed against the stringers and the men who had been steadying it released their holds when told by their foreman: 'It is tight. Come on out'; and that it fell before the men between the two bents and in the direction of the fall had time to 'come out.' Weber, the assistant foreman, did not want to walk underneath the bridge, where the men had been steadying the bent. The men were not engaged in simple manual work with simple tools, as were the situations in Williams v. Terminal R. Ass'n, 339 Mo. 594, 98 S.W.2d 651; Schaum v. Southwestern Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439, cases cited by defendant. The determinative factor is not that the result could be accomplished by several different methods but that the method actually undertaken was carelessly and negligently executed. If any negligence of Mr. Carver contributed to his injury it would not defeat a recovery if defendant were also negligent. 45 U.S.C.A. Sec. 53.

Plaintiff's petition charged, so far as material, that the bent fell against Jake Carver; that the bent was, at the time it fell, under the exclusive control of employees of the defendant other that Jake Carver, and that it was caused to fall by the negligence of such other employees. Defendant filed a...