Chance v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 12 April 1965
• Docket Number: No. 50416,No. 2,50416,2
• Parties: James E. CHANCE, Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Respondent
• Court: Missouri Supreme Court

Page 774

389 S.W.2d 774

James E. CHANCE, Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Respondent.

No. 50416.

Supreme Court of Missouri, Division No. 2.

April 12, 1965.

Motion for Rehearing or for Transfer to Court En Banc Denied

May 10, 1965.

Anthony P. Nugent, Sr., Anthony P. Nugent, Jr., Richard F. Adams, Winger, Nugent, Rayburn & Adams Kansas City, for appellant.

George L. Gordon, Sam D. Parker, Jack W. R. Headley, Joseph E. Stevens, Jr., Kansas City, for respondent.

STOCKARD, Commissioner.

In this suit for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., plaintiff sought damages in the amount of $150,000. The jury returned a verdict for defendant and plaintiff has appealed. The issues on this appeal do not require a detailed statement of the evidence.

On June 19, 1960, plaintiff was employed by defendant as a switchman in the Argentine Switchyards in Kansas City, Kansas, at a place called the 'bowl yard' where railroad cars from connecting lines were brought to be distributed to various tracks in the yard depending upon their destination. The procedure followed was for freight cars to be taken to the top or crest of a 'hump' and cut loose and permitted to roll into the bowl yard. The speed of the freight cars was controlled by 'retarders' regulated by defendant's employees in control towers, who also guided the cars onto the proper track by operating mechanically the switching process. Plaintiff had performed work at track 45, and then walked northward to track 56, where a line of cars was to be pulled out of the yard. On track 55 there were two gondola or hopper cars located at a place where there was a curve. Plaintiff was asked by some member of the crew on track 56 to locate and replace the 'skate,' a device to stop or prevent the movement of railroad cars. According to plaintiff, he then walked westward between tracks 55 and 56 to a point just past the first gondola car on track 55. He then saw the skate on the other side of track 56, and he stopped and turned around. He was facing southwest and 'practically looking at the car' when he was struck by the first gondola car. He testified that at the time he was not touching or leaning against any car, and he was not in the coupling area between the cars, but was 'approximately eight inches or so' distant from the side of the car. Although he was looking at the gondola car he did not see it swing outward or sideways. Plaintiff's theory is that the first gondola car was struck by a freight car which had been routed onto track 55, and because of the excessive speed of the freight car at the time it struck the east end of the gondola car, the west end of the car was caused to swing outward or sideways and strike him. Defendant's evidence established that the two gondola cars were loaded with sand weighing about 75 tons each. The freight car was loaded with flour weighing about 55 to 60 tons. When coming down off the hump and coupling into the standing gondola cars at a speed of four miles an hour, with a skate on the far end of the gondola cars, the freight car would cause the gondola cars to move about 20 to 25 feet. Defendant also introduced evidence that the maximum lateral movement of gondola cars is about two inches, and if they moved sideways or swung out as much as eight inches they would derail. Photographs of a gondola car show that at each end it is narrower in width by about four or five inches, with this narrowing extending back from each end about five feet.

Instruction No. 1, plaintiff's verdict directing instruction, was as follows:

'The court instructs the jury that if you find and believe from the evidence that the plaintiff, Jim Chance, was in the employ of the defendant on June 19, 1960, and that on that day he was working as a switchman handling freight cars in the Bowl Yard of the defendant at the Argentine Yards in Kansas City, Kansas, and was working below and West of the so-called hump, and that as a part of his regular duties he was in a position on the curve between track 55 and track 56 and West of the 42nd Street Viaduct and that he was then and there violently struck by a hopper car standing on track 55 when it was struck by a car or cars which defendant had caused and permitted to roll off the hump Westward on track 55 at a speed in excess of that allowed by the defendant's rules to-wit four (4) miles per hour, and at an excessive and dangerous rate of speed, and if you further find that, in so causing and permitting said car or cars to roll at such speed off the hump on track 55 and to strike the hopper car standing on track 55, the defendant failed to exercise ordinary care and was negligent and that plaintiff was injured as a direct and proximate result of said negligence, then your verdict must be in favor of the plaintiff and against the defendant.'

Defendant offered and the trial court gave, Instruction No. 7 which was as follows:

'The court instructs the jury that if you find and believe from the evidence that plaintiff was struck and injured by the movement of a car standing on Track 55 when cars standing on said Track 55 were moved by reason of another car coming off the hump and coupling into them, and if you further find that a speed of four miles per hour was a reasonable and proper speed for a car to so come off said hump and couple into said cars, and that a car so coming off said hump at a speed of four miles per hour and coupling onto said cars standing on said Track 55, would have caused said cars on Track 55 to move, and if you further find and believe that plaintiff was required to know the operating rules of defendant and that one of said rules required plaintiff to expect a movement of engines or cars on any track at any time in either direction, and if you further find that plaintiff placed himself in a position where he would have been so struck and injured by the movement of said cars on Track 55 caused by the coupling of a car coming off the hump at a speed of four miles per hour, then your verdict will be for the defendant, and this is true even though you may find and believe that said car coming off said hump was moving at a speed greater than four miles per hour.'

Plaintiff challenges this instruction by his Point II in his brief which, with the numbers in brackets added, was in its entirety as follows: 'The court erred in giving instruction No. 7 at defendant's request and over plaintiff's objections in that said instruction required no finding that plaintiff's acts were negligent, failed to exclude defendant's negligence, was contrary to the law, did not require the jury to find it was the duty of defendant to exercise ordinary care, required no finding of proximate cause and was contradictory and confusing.'

Plaintiff's Instruction No. 1 does not hypothesize where he contends he was in relation to the gondola car which struck him except that 'he was in a position on the curve between track 55 and track 56.' Under this submission he could have been sufficiently in the coupling opening between the two gondola cars so that he would have been struck by the forward movement, or he could have been standing next to one of them. Therefore, this instruction is consistent with the factual contention of plaintiff that he was standing next to a car, and also with the factual contention of defendant that the gondola car could not have hit him unless he was standing in line with the forward movement of the car. Plaintiff's submission of negligence on the part of defendant is limited by the instruction to a contention that defendant negligently permitted or caused the freight car to roll off the hump 'at a speed in excess of that allowed by the defendant's rules to-wit four (4) miles an hour, * * *.' In other words, by this instruction plaintiff admits that a speed of four miles an hour, or less, of the freight car would not constitute negligence on the part of defendant. Whether or not defendant may or may not have been negligent in some other respect, plaintiff voluntarily limited his submission of negligence on the part of defendant to permitting the freight car to travel on track 55 at a speed in excess of four miles an hour, and that this negligence was a proximate cause of his injuries.

Defendant was entitled to meet the issues as formulated and submitted by plaintiff. Its position on this appeal is that it attempted to do this by Instruction No. 7, which it contends is a converse instruction of causation. In a converse instruction the defendant may submit either the exact converse of plaintiff's verdict directing instruction, Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, or the exact converse of any essential element of such instruction. Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, 662. Such a converse instruction does not require affirmative testimony in support of it. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464. The defendant 'may also submit facts in an instruction, the existence of which would disprove, that is controvert, one or more of the essential factual elements of plaintiff's case.' Liebow v. Jones Store Co., supra. Converse instructions are not limited to an attempt to converse the submission of negligence, but may, as above stated, converse any...