Clark v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 07 December 1927
• Docket Number: 26361
• Citation: 300 S.W. 758,318 Mo. 453
• Parties: Joseph I. Clark v. Chicago, Rock Island & Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

300 S.W. 758

318 Mo. 453

Joseph I. Clark v. Chicago, Rock Island & Pacific Railway Company, Appellant

No. 26361

Supreme Court of Missouri

December 7, 1927

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

Luther Burns, Henry S. Conrad, L. E. Durham and Hale Houts for appellant.

(1) Instruction 1 was erroneous in that it failed to require the jury to find that the defective handhold and its maintenance in a defective condition was the proximate cause of plaintiff's injury. Instructions 2 and 3 were erroneous in that they excluded from the consideration of the jury knowledge of plaintiff of the defective condition and negligence and recklessness on his part in using the handhold with such knowledge. The evidence was sufficient to warrant the jury in finding negligence and recklessness of plaintiff in using the handhold in question was the sole proximate cause of his injury. Rittenhouse v. Railway, 299 Mo 211; Lang v. Railway, 255 U.S. 455; Railroad v McWhirter, 229 U.S. 265; Flack v. Railway, 285 Mo. 49; Railroad v. Conarty, 238 U.S. 243; Phillips v. Railroad, 283 F. 382; Great Northern Railway v. Wiles, 240 U.S. 444; Davis v. Kennedy, 266 U.S. 147; Freese v. Railroad, 290 Mo. 501, affirmed 263 U.S. 1; McCalmont v. Railroad, 283 F. 741; Poliakoff v. Express Co., 105 S. E. (S. C.) 749; Caldine v. Railway, 117 N.Y.S. 705; Rowe v. Railway, 286 S.W. 784; Railway v. Smithers, 259 S.W. 286. (2) Instruction 5 was erroneous in authorizing the jury to award plaintiff damages for loss of future earnings without limiting such award to the then "present cash value" thereof. Rigley v. Pryor, 290 Mo. 26; Burtch v. Railway, 236 S.W. 346; Snyder v. Railway, 130 A. 400; Railroad v. Newson, 106 S.E. 731; Blunt v. Railroad, 9 F.2d 395. (3) The verdict was excessive, and so excessive as to show passion and prejudice on the part of the jury. The damages after the remittitur are excessive. The damages are so excessive as to require reversal of the judgment. Riggs v. Railroad, 212 S.W. 879; Hulse v. Railroad, 214 S.W. 155; Corn v. Railway, 228 S.W. 79; Roggles v. Railway, 232 S.W. 95; Page v. Paine, 240 S.W. 163; Rigley v. Pryor, 290 S.W. 27; Kiefer v. St. Joseph, 243 S.W. 104; Myers v. Wells, 273 S.W. 118; Gibney v. Transit Co., 203 Mo. 723; Davidson v. Transfer, 211 Mo. 320; Chlanda v. Transit Co., 213 Mo. 263.

J. E. Addington and Hogsett & Boyle for respondent.

(1) There was no error in the giving of instructions. (a) Instruction 1 required the jury to find that the defective handhold was the proximate cause of plaintiff's fall and injury. Wolfe v. Payne 241 S.W. 915; Davis v. Wolfe, 263 U.S. 244; Callicotte v. Rock Island Ry. Co., 274 Mo. 689; Tyon v. Wabash Ry. Co., 232 S.W. 786. Even if it be said that this instruction does not submit to the jury the question of proximate cause, nevertheless the facts which the instruction requires the jury to find, as a matter of law, make the defective handhold the proximate, or at least a contributing, cause of plaintiff's injuries, and verdicts have been directed for the plaintiff by the court as a matter of law in exactly parallel cases. Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33; Director General v. Ronald, 265 F. 138; Philadelphia & R. Railroad Co. v. Auchenbach, 16 F.2d 550; Grand Trunk Western Ry. Co. v. Lindsay, 201 F. 836. (b) Instructions 2 and 3 are not erroneous. The use by plaintiff of a defective handhold, even with knowledge of its defects (and in this case there is no evidence whatever that plaintiff had any knowledge of the defects), is not a bar to plaintiff's action. Neither contributory negligence nor assumption of risk constitutes any defense, and they cannot be made a defense in contravention of the statute by adroitly endeavoring to have the jury consider them on the question of proximate cause. Grand Trunk Western Ry. Co. v. Lindsay, 201 F. 836; Director General v. Ronald, 265 F. 138; Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33; Philadelphia & R. Railroad Co. v. Auchenbach, 16 F.2d 550. (c) Instruction 5 on the measure of damages is not erroneous. L. & N. Railroad Co. v. Holloway, 246 U.S. 525; Pope v. Term. Railroad Assn., 254 S.W. 43; Holman v. Ry. Co., 278 S.W. 1000. If the defendant did not deem this instruction sufficiently specific it was its duty to ask one specifically telling the jury they were limited to the actual cash value of any future loss of earnings, and not having done so defendant may not now complain. Authorities, supra; Denkman v. Prudential Co., 289 S.W. 596; Stephens v. Saunders, 239 S.W. 600; Powell v. Railroad Co., 255 Mo. 456; Hurlburt v. Bush, 224 S.W. 327; Breen v. Railways Co., 204 S.W. 523; Rigley v. Pryor, 233 S.W. 828; Page v. Payne, 240 S.W. 162. (2) The original verdict was not excessive, and in the light of the remittitur required by the trial court the present judgment is less than fair and reasonable compensation for plaintiff's loss of earnings, impairment of earning capacity, pain, suffering, inconvenience, etc. Unterlachner v. Wells, 296 S.W. 755; Smith v. Ry. Co., 279 Mo. 173; Gould v. Ry. Co., 290 S.W. 140; Callicotte v. Rock Island Ry. Co., 174 Mo. 696; Ternetz v. Lime Co., 252 S.W. 65; Mount v. Coal Co., 294 Mo. 604; Evans v. Gen. Explosive Co., 239 S.W. 487; Ernst v. Union Depot B. & T. Co., 256 S.W. 222; Hoff v. Wabash Ry. Co., 254 S.W. 874; Varley v. Taxicab Co., 240 S.W. 218; Hulse v. Railway Co., 214 S.W. 156. This court will no longer reverse a judgment for mere excessiveness. Cook v. Globe Printing Co., 227 Mo. 471; Meeker v. Light & Power Co., 279 Mo. 574; Varley v. Taxicab Co., 240 S.W. 218; Taylor v. Mo. Pac. Ry. Co., 311 Mo. 604. The affidavits attached to the defendant's motion to set aside the order overruling the motion for new trial, which motion to set aside was filed on September 4, 1924, and nearly four months after the rendition of the verdict, are not a part of the record and cannot be made so by filing them and copying them into the bill of exceptions, as was done in this case, and they are not before this court for its consideration. Feary v. St. Ry. Co., 162 Mo. 106; Norris v. White, 158 Mo. 33; Whitlow v. Short Ridge, 237 S.W. 834.

OPINION

Graves, P. J.

Action for personal injuries bottomed upon the alleged violation of the Federal Safety Appliance Act. The issues, however, for our determination have been much simplified by admission made by learned counsel for appellant. Plaintiff was the head brakeman on his train, and his position (when the train was moving) was upon the engine. He was required to inspect, at each stop, the running gear (under the cars), for hot boxes, trouble in the brake rigging and such things about the under-equipment of the car. The rear brakeman had a like duty, and it appears that they would leave their respective places (when the train stopped) and inspect one side, and when they met in or about the middle of the train, they crossed over, and the head brakeman returned toward the engine (inspecting as he went along) and the rear brakeman returned to the other end of the train doing the same. Counsel for appellant, in their statement, say:

"The plaintiff was injured on the evening of September 11, 1922, at the town of Colby, Kansas. He was in the employ of defendant and was working as head brakeman on defendant's extra freight train westbound. Plaintiff's run was from Phillipsburg, Kansas, to Goodland, Kansas. The train, however, was carrying interstate shipments. It had stopped at the station of Colby for water, and plaintiff, according to the regular custom, had been back along the train making a run inspection and had gotten back to a point at or near the water tank when the engine finished taking water and the train was ready to go.

"Pursuant to a signal initiated by the conductor and passed on to the engine men by plaintiff, the engine started up. Plaintiff, whose position on the train was on the engine, swung on the ladder on his side of the first car back of the tender, intending, as he said, to climb to the top of the car and then make his way over the top to the tender and thence to the engine. When he had climbed to the top of the ladder he reached above the ladder to a handhold on top of the car at the edge immediately above the ladder, and when he put his weight upon the handhold the running board of the car to which it was attached swung out, and he fell to the ground.

"The petition charged that the handhold was insecure and defective in violation of the Safety Appliance Act, that plaintiff was caused to fall and was injured thereby, and that plaintiff and defendant at the time were employed and engaged in interstate commerce. Defendant's answer was a general denial, coupled with a plea of assumption of risk, and also the allegation that plaintiff's injuries were caused by his own negligence. Plaintiff replied, denying the allegations of the answer.

"It stands admitted that the car in question was moving in interstate commerce. It was established without dispute that the handhold was insecure."

Later in the printed argument counsel say:

"We, of course, concede that it is negligence per se for a railroad to operate a car that has a defective handhold. We also concede that it was established that the handhold was defective. We further concede that the evidence was sufficient to take to the jury the question whether the defective condition was the proximate cause of the injury. We insist, however, that it was necessary in an instruction authorizing a verdict to require the jury to find that the maintenance of the defective handhold was the proximate cause."

These concessions cut out the things that are usually hotly contested in cases of this character. Upon trial before a jury plaintiff had a verdict (signed by nine jurors) for $...