Ciardullo v. Terminal R. Ass'n of St. Louis, No. 44820

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSTORCKMAN
Citation289 S.W.2d 96
PartiesAndrew CLARDULLO, Respondent-Appellant, v. The TERMINAL RAILROAD ASS'N OF ST. LOUIS, a Corporation, Respondent, and The Graham Paper Company, Appellant
Docket NumberNo. 2,No. 44820
Decision Date09 April 1956

Page 96

289 S.W.2d 96
60 A.L.R.2d 516
Andrew CLARDULLO, Respondent-Appellant,
v.
The TERMINAL RAILROAD ASS'N OF ST. LOUIS, a Corporation, Respondent,
and
The Graham Paper Company, Appellant.
No. 44820.
Supreme Court of Missouri, Division No. 2.
April 9, 1956.

Page 97

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.

STORCKMAN, Judge.

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

Page 98

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...

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11 practice notes
  • Downing v. Dixon, No. 7668
    • United States
    • Missouri Court of Appeals
    • 16 Junio 1958
    ...S.W.2d 548, 552(3); State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798. 3 Ciardullo v. Terminal Railroad Ass'n of St. Louis, Mo., 289 S.W.2d 96, 98(3); Nix v. Gulf, Mobile & Ohio R. Co., 362 Mo. 187, 240 S.W.2d 709, 716(10); Eller v. Crowell, Mo., 238 S.W.2d 310; 315(9); Phegley......
  • Nuckols v. Andrews Inv. Co., Nos. 23615
    • United States
    • Missouri Court of Appeals
    • 3 Diciembre 1962
    ...inconsistent that the jury exonerated one and found against the other. See, Ciardullo v. Terminal Railroad Ass'n. of St. Louis, Mo.Sup., 289 S.W.2d 96, 61 A.L.R.2d 516; Page v. Hamilton, Mo.Sup., 329 S.W.2d 758. Each defendant was sought to be held for his own negligence, and not for the ne......
  • North Shore Hospital v. Martin, No. 77--171
    • United States
    • Florida District Court of Appeals
    • 18 Marzo 1977
    ...Mo.); Nix v. Gulf, Mobile & Ohio Railway Co., 362 Mo. 187, 240 S.W.2d 709 (1951); Ciardullo v. Terminal Railway Ass'n of St. Louis, 289 S.W.2d 96 (Mo.1956). The Missouri high court has also held that a defendant in a tort action cannot complain of the direction of a verdict in favor of ......
  • Dunn v. Terminal R. Ass'n of St. Louis, No. 45721
    • United States
    • United States State Supreme Court of Missouri
    • 10 Marzo 1958
    ...two cases, Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603, 610, 158 A.L.R. 1402, and Ciardullo v. Terminal R. Ass'n, Mo., 289 S.W.2d 96, both of which, defendant asserts, are comparable as regards the injury considered. We may say the Turner case seems to be somewhat more clos......
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11 cases
  • Downing v. Dixon, No. 7668
    • United States
    • Missouri Court of Appeals
    • 16 Junio 1958
    ...S.W.2d 548, 552(3); State ex rel. Fleming v. Bland, 322 Mo. 565, 15 S.W.2d 798. 3 Ciardullo v. Terminal Railroad Ass'n of St. Louis, Mo., 289 S.W.2d 96, 98(3); Nix v. Gulf, Mobile & Ohio R. Co., 362 Mo. 187, 240 S.W.2d 709, 716(10); Eller v. Crowell, Mo., 238 S.W.2d 310; 315(9); Phegley......
  • Nuckols v. Andrews Inv. Co., Nos. 23615
    • United States
    • Missouri Court of Appeals
    • 3 Diciembre 1962
    ...inconsistent that the jury exonerated one and found against the other. See, Ciardullo v. Terminal Railroad Ass'n. of St. Louis, Mo.Sup., 289 S.W.2d 96, 61 A.L.R.2d 516; Page v. Hamilton, Mo.Sup., 329 S.W.2d 758. Each defendant was sought to be held for his own negligence, and not for the ne......
  • North Shore Hospital v. Martin, No. 77--171
    • United States
    • Florida District Court of Appeals
    • 18 Marzo 1977
    ...Mo.); Nix v. Gulf, Mobile & Ohio Railway Co., 362 Mo. 187, 240 S.W.2d 709 (1951); Ciardullo v. Terminal Railway Ass'n of St. Louis, 289 S.W.2d 96 (Mo.1956). The Missouri high court has also held that a defendant in a tort action cannot complain of the direction of a verdict in favor of ......
  • Dunn v. Terminal R. Ass'n of St. Louis, No. 45721
    • United States
    • United States State Supreme Court of Missouri
    • 10 Marzo 1958
    ...two cases, Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603, 610, 158 A.L.R. 1402, and Ciardullo v. Terminal R. Ass'n, Mo., 289 S.W.2d 96, both of which, defendant asserts, are comparable as regards the injury considered. We may say the Turner case seems to be somewhat more clos......
  • Request a trial to view additional results

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