Ciardullo v. Terminal R. Ass'n of St. Louis
| Decision Date | 09 April 1956 |
| Docket Number | No. 2,No. 44820,44820,2 |
| Parties | Andrew CLARDULLO, Respondent-Appellant, v. The TERMINAL RAILROAD ASS'N OF ST. LOUIS, a Corporation, Respondent, and The Graham Paper Company, Appellant |
| Court | Missouri Supreme Court |
E. C. Hartman, St. Louis, for (defendant) appellant, The Graham Paper co.
Jack H. Ross, St. Louis, for (plaintiff) appellant-respondent.
Warner Fuller, Arnot L. Sheppard, John P. Montrey, St. Louis, for respondent, Terminal Railroad Assn.
Mark D. Eagleton, Thomas F. Eagleton, Leland Jones, and Jack H. Ross, St. Louis, for (plaintiff) respondent Andrew Ciardullo.
This is an action for damages for personal injuries sustained by plaintiff, a railroad switchman, in a fall from an elevated platform for the loading and unloading of railroad freight. Plaintiff sued his employer, The Terminal Railroad Association of St. Louis, and The Graham Paper Company, the owner of the freight dock from which plaintiff fell. The verdict and judgment was in favor of plaintiff against The Graham Paper Company in the sum of $15,000, but in favor of The Terminal Railroad Association of St. Louis. The Graham Paper Company and plaintiff both appealed. For convenient reference The Terminal Railroad Association of St. Louis will sometimes be referred to as Terminal and The Graham Paper Company as Graham or the paper company.
The plaintiff had been employed by defendant Terminal as a switchman since April 12, 1952, and on August 19, 1953, when the accident occurred, was working a shift starting at midnight and ending at 8:00 o'clock in the morning. At about 4:00 o'clock in the morning of the night in question the plaintiff, from a position on the dock, assisted in spotting a freight car and, that being done, the plaintiff started to walk eastwardly on the dock in order to get to the ground and return to the switch engine. The night was dark and there was no artificial lighting on the dock except an electric lantern carried by plaintiff which was designed chiefly for signaling other members of the switching crew and the engine crew. The plaintiff fell from the dock to a concrete walk below and sustained a fracture in the elbow joint of his left arm. The dock was about the height of the floor of a railroad freight car. Although in pain, plaintiff remained on the job until the end of the shift at 8:00 a. m. He then went to the Missouri Pacific Hospital where his arm was X-rayed and put in a cast. It was almost four months before he was able to return to his job as a switchman for the Terminal.
The plaintiff contends that he stumbled and was caused to fall by reason of loose boards or lumber left and permitted to remain upon the dock and which he did not see because of the darkness. The dock was equipped with electric lights, but the switch for turning them on was located inside Graham's building and the building was closed and the doors locked at the time of the accident.
The case was submitted to the jury upon the alleged violation of defendant Terminal's statutory duty to furnish plaintiff with a reasonably safe place in which to work and upon Graham's alleged common-law negligence. The acts of negligence claimed in each instance were causing and permitting loose boards to remain upon the dock and a failure to provide adequate artificial lighting.
In addition to claiming that the verdict is excessive, Graham assigns error in the giving of two instructions requested by its co-defendant Terminal. We will first consider the assignments of error alleged in the giving of Instructions Nos. 3 and 7.
Instruction No. 3 is a burden of proof instruction given at the request of Terminal. It instructs the jury that before they can return a verdict in favor of the plaintiff and against defendant Terminal the 'plaintiff must establish, 1 by the greater weight of the credible evidence every fact, which under Instruction No. 2 must be established in order to warrant such a verdict.' There is no charge that Instruction No. 2, which was plaintiff's verdict-directing instruction against defendant Terminal, was erroneous. Another burden of proof instruction, given at the request of defendant Graham, dealt solely with the relations between the plaintiff and Graham. This Instruction No. 5 stated that 'the burden of proof is upon the plaintiff to prove by the preponderance, that is, the greater weight of the credible evidence,' that defendant Graham was guilty of negligence and unless the jury so found their verdict would be in favor of defendant Graham.
Graham contends that the use of the word 'establish' in Terminal's burden of proof Instruction No. 3 required a higher degree of proof than the word 'prove' used by Graham in its burden of proof Instruction No. 5. In its argument Graham states 'There could be no quarrel with our conclusion that the jury in this case was definitely led to believe that the plaintiff in the case was required to bring forward far more proof of the [negligence of the] defendant Terminal Railroad Association.'
A defendant is not entitled to a reversal because of every error in a co-defendant's instructions. In the case of Clark v. St. Louis & S. R. Co., en banc, 234 Mo. 396, 137 S.W. 583, it was broadly stated, loc. cit. 591, that 'The law in this state is well settled that the respondent [plaintiff] cannot be affected by instructions asked or given between defendants.' It was held in the Clark case, however, that the instruction complained of was not erroneous as between the defendants. In later cases it has been held that the statement of this rule was broader than necessary for the decision of the case and therefore not controlling. See State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836, 840[3, 4]. The established rule seems to be that an appealing defendant can avail itself of an error in a co-defendant's instruction which affects the question of the appealing defendant's liability to the plaintiff and prejudices such defendant's interests. Phegley v. Graham, Mo., 215 S.W.2d 499, 503, 6 A.L.R.2d 382; State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836, 839; O'Donnell v. St. Louis Public Service Co., Mo.App., 246 S.W.2d 539, 545.
Fundamentally, Graham's complaint is that the word 'establish' is not synonymous with 'prove' and denotes a more strict or higher degree of proof whereby Terminal got the benefit of a more favorable submission.
The statement of the point and Graham's argument proceed wholly upon this theory. The appealing defendant has not pointed out any specific manner in which the question of its liability or defenses were affected, nor have we been able to discover any. Graham's burden of defense was not increased nor was plaintiff's burden with respect to proving its case against Graham relieved or lightened. Under these circumstances we need not determine if the instruction is erroneous. The appellant cannot complain simply because a co-defendant's erroneous instruction was more favorable than proper to such defendant and thereby prevented a joint verdict and judgment against defendants. Phegley v. Graham, Mo., 215 S.W.2d 499, 503; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543, 553.
Graham cites and relies upon the case of Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W.2d 767, in which an erroneous burden of proof instruction given at the request of a co-defendant cut across and increased defendant Red Line Service Company's burden of proof in a sole cause instruction given at the request of defendant Red Line and designed to relieve such defendant of liability to the plaintiff. There is no instruction in this case based on the sole negligence of Terminal and Graham has not shown how its burden of proof has been increased or the question of its liability affected.
For the same reason appellant Graham's complaint as to Instruction 7 cannot be sustained; it does not alter or prejudice the theory of Graham's liability to the plaintiff as submitted in instructions given at the request of Graham and the plaintiff and of which no complaint is made on this appeal. Instruction 7 directed a verdict for Terminal if the jury found that the defendant Graham was negligent in permitting loose boards to lay upon the darkened dock and that such fact was known to Graham in time to have removed the boards and 'that such failure, if any, was negligence, and if you further find that such negligence, if any, was the sole, direct and proximate cause of the injury, if any, to plaintiff, and if you further find that defendant Terminal Railroad Association of St. Louis was not negligent in the manner submitted to you in Instruction No. 2, * * *.'
Appellant Graham's complaints against Instruction No. 7, as stated in Points II and III of its brief, are that the instruction is a sole cause instruction and was not justified under the evidence and further that the instruction does not hypothesize the nondelegable duty of the defendant Terminal to furnish plaintiff a reasonably safe place to work. Appellant Graham makes no complaint of Instruction 4 given at the request of the plaintiff and directing a verdict against Graham on substantially the same grounds hypothesized in the first part or 'sole cause' portion of Instruction 7. Instruction No. 7 then refers to and incorporates the requirements of Instruction No. 2 which is plaintiff's verdict-directing instruction against Terminal and which includes a charge on Terminal's duty to furnish a safe place to work. The appellant Graham has not pointed out any way in which the...
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