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

Decision Date08 March 1954
Docket NumberNo. 43454,No. 1,43454,1
Citation266 S.W.2d 587
CourtMissouri Supreme Court
PartiesCONSER v. ATCHISON, T. & S. F. RY. CO

Francis H. Monek, Chicago, Ill., Claude W. McElwee, St. Louis, Henslee, Monek & Murray, Melvin L. Griffith, Henry W. Lehmann, John J. Naughton, James E. Harrington, Chicago, Ill., of counsel, for appellant.

John H. Lathrop, Sam D. Parker, Kansas City, Richmond C. Coburn, Edward E. Murphy, Jr., St. Louis, for respondent.

HYDE, Presiding Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. Secs. 51-60, for $100,000 damages for personal injuries. The verdict and judgment were for defendant and plaintiff has appealed. Plaintiff claims error in denying his motion for new trial in rulings on evidence and in giving certain instructions.

Plaintiff's brief does not comply with Rule 1.08(a)(3), 42 V.A.M.S., but we will rule this case on the merits since we are able to determine from the whole brief the allegations of error and the points made under them, which present important questions, and because we have decided other recent cases on the merits where the situation was similar. See Ezell v. Kansas City, Mo.Sup., 260 S.W.2d 248; Fosmire v. Kansas City, Mo.Sup., 260 S.W.2d 252. To properly comply with Rule 1.08(a)(3) the allegations of error and the points relied on should constitute a short concise outline of the part of the brief called 'an argument' in 1.08(a)(4). The purpose of this is to give the appellate court a short concise summary of what appellant claims the trial court did wrong and why he claims it was wrong.

Plaintiff alleged general negligence relying on the res ipsa loquitur doctrine. Plaintiff was the conductor of a 59 car freight train from Arkansas City, Kansas, to its destination in the South Shawnee yards in Oklahoma; and was riding in the caboose when injured, by having his head strike an iron post or stanchion at the side of the desk where he had been working. The pleading and submission of negligence was that defendant so carelessly and negligently operated the train that the caboose 'was caused to be suddenly, unexpectedly and violently jerked with such force and violence that the plaintiff was thereby directly caused to be thrown against an iron post' and that the jerk was 'unusual and extraordinary.' According to plaintiff's own testimony, when the train stopped at the entrance of the South Shawnee yards, he was working on his reports at his desk, which was against the right side (engineer's side) of the car. Forward from the desk on the same side of the car was a bunk upon which a brakeman, W. P. Meek, was lying with his head toward the desk. Meek had become sick during the trip and had to lie down in the caboose. It was necessary for the train to stop so that a brakeman could throw a switch to let the train enter the yard and the brakeman also had to phone the yard office to find out which track the train was to use. Plaintiff, thinking the train had been stopped too long, 'started to rise, to go out and see what was the matter.' Plaintiff said: 'I laid my pencil down on the desk, put my hands on the desk and just started to raise when it was jerked out from under me, chair and all, throwing me against this iron post.' This post was about 20 inches from his head as he stood at the desk. As to the violence of the jerk, plaintiff said: 'Well, I never got one like it before. * * * It was the worst one I ever got.' He said it overturned his desk chair and also a coal bucket near the caboose stove. He said he was knocked unconscious and the medical testimony showed he had a lacerated right ear and a linear fracture of the skull about three inches long.

Defendant's evidence, by the engineer, fireman and brakeman, was that in approaching the yard it was downgrade for about a mile and a half through the City of Shawnee; that the train brakes were applied so the train went through the city at less than 15 miles per hour; and that this application of the train brakes kept the slack stretched between the cars, so that the train stopped at the yard entrance with the slack stretched. Their testimony was that because of this condition it was necessary to back the engine about three feet to take up the slack in the first 3 or 4 cars before the train could be started, after the switch was thrown. The engineer said that he moved forward gradually and carefully, and attained a speed of about two miles per hour going into the yard, the brakeman getting on the engine as they passed the switch. The fireman said that the engine started forward slowly and that he did not notice any jerk or jolt of an unusual character in the engine cab. The fireman also estimated the speed at two miles per hour when the brakeman got on at the switch. The brakeman estimated it at only a mile or a mile and a half per hour when he got on. He also said the engine started slowly and that he heard no noise in starting beyond the first three or four cars. All of defendant's witnesses said that in a movement of this kind the heaviest jolt would be at the fourth of fifth car, that is the next car back of where the slack was taken up. It was further shown that the trainmen found nothing wrong with the caboose when they looked at it after plaintiff was injured.

Defendant also had testimony by its Road Foreman of Engines that there is about one inch of free slack between all couplings, and that it is necessary to have this much play so that the couplers will operate in coupling and on curves. There is also about 2 1/2 inches of what is called 'controlled slack' in each coupler, which is due to having springs in the couplers for the purpose of absorbing or cushioning the shock of moving or coupling cars. Thus there is a total of about six inches slack between cars. Slack is helpful in starting a train because many times it would be impossible to start a train if it were so rigid that the whole train would have to be started as a unit. The best practice is to stop a train with the slack stretched out, and this is done by use of the train brakes operating on the entire train. If stopped by the independent engine brakes alone, the slack would run in and be bunched, especially on a downgrade, so that in starting the train it would be necessary to pull the slack out on each car. This would make the start rougher than it would on a stretched train. Therefore, it is more conducive to good train handling, and easier to control the slack, to keep it stretched; and the only way to do this is by use of the train brakes. There is necessarily more jolting in starting a freight train than a passenger train because there are more cars and a different type of coupler springs. There is usually some slack action in the caboose; trainmen expect it and learn how to brace themselves against it at all times.

Plaintiff's contention, 'that there is not a reasonable basis in the evidence for the verdict and the Court erred in denying plaintiff's motion for a new trial', really amounts to a claim that the verdict is against the weight of the evidence. Since the plaintiff has the burden of proof, it is not necessary to have substantial affirmative evidence, or any evidence at all, to support a defendant's verdict. Steckdaub v. Sparks, Mo.Sup., 231 S.W.2d 160; Woehler v. City of St. Louis, 342 Mo. 237, 114 S.W.2d 985; Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. This is just as true in a res ipsa case as in a specific negligence case. Res ipsa loquitur is a part of the law of evidence. Cudney v. Midcontinent Airlines, Mo.Sup., 254 S.W.2d 662. We follow the res ipsa rule stated by the Supreme Court of the United States in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, as follows: 'Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.' See McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Cruce v. Gulf, Mobile & O. R. Co., 358 Mo. 589, 216 S.W.2d 78; Jesionowski v. Boston & M. R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416. Certainly plaintiff's evidence was sufficient to make a jury case, under res ipsa, as substantial circumstantial evidence of negligence. Nevertheless, although the jury would have been warranted in inferring negligence from it, such an inference was not compelled and they could also infer from all the evidence that defendant was not negligent. As also said in Sweeney v. Erving, supra: 'When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.' The jury was not required to believe plaintiff's uncorroborated testimony about overturning of the chair and the coal bucket and could have found that plaintiff was off balance when the train started. (It may have been significant to the jury that after subpoenaing Meek, and having him present at the trial, plaintiff did not call him as a witness.) In short, the jury is no more compelled to believe the plaintiff's statement as to what happened than it is a defendant's explanation. See Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S.W. 968, 47 S.W. 907, 43 L.R.A. 505. Of course, it must be and is conceded that plaintiff was injured but the question of whether or not there was negligence on the part of defendant, causing his injury, was an issue to be determined by the jury.

As to the weight of the evidence, our rule is that where the trial court has denied a new trial on...

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