Cruce v. Gulf, M. & O. R. Co., No. 41882

• Court: United States State Supreme Court of Missouri
• Writing for the Court: TIPTON
• Citation: 238 S.W.2d 674,361 Mo. 1138
• Parties: CRUCE v. GULF, MOBILE & OHIO R. CO
• Decision Date: 09 April 1951
• Docket Number: No. 41882,No. 2

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238 S.W.2d 674 361 Mo. 1138 CRUCE
v.
GULF, MOBILE & OHIO R. CO. No. 41882. Supreme Court of Missouri, Division No. 2. April 9, 1951.

[361 Mo. 1139]

Page 676

Wayne Ely, Robert C. Ely, St. Louis, Attorneys for Defendant-appellant.

D. S. Wright, Mobile, Ala., of counsel.

[361 Mo. 1141] John H. Haley, Jr., St. Louis, Attorney for respondent.

[361 Mo. 1143] TIPTON, Judge.

One of our Commissioners prepared an opinion in this case which received a unanimous vote of the Judges of this Division except as to one assignment of error. We will adopt without quotation marks that part of that opinion that met with the approval of the Court

Hugh Cruce was the Gulf, Mobile and Ohio Railroad Company's coal chute foreman at Union City, Tennessee. The five hundred fifty pound coal chute pan was fastened to a steel cable and the pan was lowered and raised over a pulley attached to counterweights. On the 30th day of May, 1946, as Mr. Cruce was in the process of 'coaling an engine,' the steel cable broke and the chute pan fell upon him and he was seriously injured. Upon this the second trial of his action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., a jury awarded him $52,500.00 for his injuries. The trial court required a remittitur of $12,500.00 and the railroad appeals from the $40,000.00 judgment. Upon the first trial a jury returned a verdict for $45,000.00 and the trial court required a remittitur of $10,000.00. The railroad appealed from that judgment and it was held, under the evidence, that the cause was properly submitted as a res ipsa loquitur case, but the judgment was reversed and the cause was remanded because of an erroneous instruction. Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78.

It is insisted upon this appeal that the court is not bound by the previous opinion and decision, as the law of the case, that the plaintiff was entitled to a res ipsa loquitur submission of his cause for the reason that the evidence upon this trial as to the exclusive control of the cable was different from the evidence adduced upon the first trial. In addition, it is urged that the court erred in the first ruling and that the error should now be corrected. The railroad made virtually the same argument upon the former appeal but for somewhat different reasons. It was there argued that the cable broke because of a latent defect, one that could not have been discovered by a reasonable inspection, that the railroad did not have exclusive charge or control of the cable and did not and could not possess superior knowledge or means of knowledge as to the cause of the occurrence. It was argued then, as it is now, that it was Mr. Cruce's duty to inspect the cable and report any defect. In answer to the argument the court pointed to the following salient parts of the evidence: 'Plaintiff testified that he knew nothing about cables and was not instructed with reference thereto or that it was his duty to make such inspections. Defendant offered in evidence a deposition, taken on behalf of plaintiff, of a man named Stokes who had preceded plaintiff as foreman at the chute. This

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witness testified that he did not inspect [361 Mo. 1144] the cables and had no instructions to do so. He further testified that while he was foreman the cables were changed, the work having been done by the carpenter gang known as the bridge and building department. From this evidence it can be inferred that someone other than the men working at the chute determined when the cables needed replacing. The evidence also justifies the finding that it was not the duty of plaintiff to inspect the cables.' The fundamental test of the applicability of res ipsa loquitur, 'that the instrumentality be under the management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time', McCloskey v. Koplar, 329 Mo. 527, 535, 46 S.W.2d 557, 560, 92 A.L.R. 641; Taylor v. Reading Co., D.C. 83 F.Supp. 804, was applied and it was held, in the circumstances, that Mr. Cruce was entitled to a submission of his cause upon the basis of the relationship and the occurrence.

The railroad's argument that the evidence upon the second trial differs from the evidence upon the first trial and that therefore the former decision is not the law of this case involves two further contentions, one concerning the admissibility of certain evidence and the other concerning the legal effect of certain testimony, and it is a necessary prerequisite to the railroad's basic argument that it be sustained as to these assignments of error.

The first contention involves a part of Mr. Cruce's evidence. He testified upon this trial, as he did upon the first trial, that it was not his duty to inspect the cable. It is urged that the trial court erred in permitting him to so testify to the conclusion, Annotation 90 A.L.R. 749 and that when the conclusion is ignored there is no contradictory evidence as to the fact of his duty to inspect and eventually of his control of the instrumentality. Mr. Cruce detailed his experience and work with the railroad beginning in 1906 as a section man, later as a section foreman and after December 1945 as a coal chute foreman. As pointed out in the former opinion, he detailed his qualifications, knowledge and experience and testified that it was not his duty to inspect, or repair or even to supervise the repair of the cables. But upon the basic question of the admissibility of his evidence, it is plain from the conflicting evidence and inferences on the subject that the duties of the coal chute foreman, and of others, with respect to the cable is not the subject of general knowledge but is dependent upon a knowledge of facts peculiar to railroading, and railroad rules and practices and is properly the subject of expert evidence. Davis v. Sorrell, 213 Ala. 191, 104 So. 397; Temple v. Gilbert, 86 Conn. 335, 85 A. 380. In addition to his evidence, however, as was pointed out in the former opinion, there was other evidence from which it was a fair inference that Mr. Cruce did not have the duty of inspecting the cables and of determining that they needed replacing. So irrespective of his testimony, which in any event was not such prejudicial[361 Mo. 1145] error as to require a new trial, there was evidence from which the jury could draw the inference that he did not have the duty to inspect and repair and, therefore, did not have concurrent control of the offending instrumentality.

The other phase of the railroad's twofold argument that the former opinion is no longer the law of the case is the fact that upon this trial the plaintiff introduced in evidence, as a part of his case, the deposition of Mr. W. W. Greiner, the railroad's chief engineer. Mr. Greiner described the organization, function and duties of the entire department--chief engineer, roadmaster, supervisor, section gangs, each under a foreman, bridge gangs, each under a foreman, and here three coal chute employees including the foreman. He testified that it was the duty of Mr. Cruce as coal chute foreman, who worked the day shift from eight to four o'clock, to see to it that the equipment at the coal chute was in proper working order and if there was anything wrong with the cable or it needed repairing or replacing that it was his duty to report the fact, order the necessary repairs and see to it that the repairs were made. It is argued that this evidence proves, as a

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matter of law, that Mr. Cruce had 'concurrent control of the cable with other employees of defendant' and consequently the cable was not under the railroad's exclusive control. Undoubtedly Mr. Cruce, as coal chute foreman in charge of the chute, as well as other employees, would have reported a broken cable had one been observed, but it is not necessary to a decision of this case to determine whether that fact alone would establish such lack of control in the railroad or such concurrent control in the plaintiff and the railroad as to prevent the applicability of res ipsa loquitur. Compare: Taylor v. Reading Co., D.C., 83 F.Supp. 804; Pitcairn v. Perry, 8 Cir., 122 F.2d 881. As has been indicated, in order to establish its argument of concurrent control and therefore of the inapplicability of res ipsa loquitur, the railroad insists, since Mr. Cruce introduced Mr. Greiner's deposition, that he is conclusively...