Cruce v. Gulf, Mobile & Ohio Railroad Co., No. 40936.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Westhues
• Citation: 216 S.W.2d 78
• Docket Number: No. 40936.
• Decision Date: 13 December 1949
• Parties: HUGH CRUCE, Respondent, v. GULF, MOBILE AND OHIO RAILROAD COMPANY, a Corporation, Appellant.

216 S.W.2d 78 HUGH CRUCE, Respondent,
v.
GULF, MOBILE AND OHIO RAILROAD COMPANY, a Corporation, Appellant. No. 40936. Supreme Court of Missouri. Division Two, December 13, 1949. Motion for Rehearing or to Transfer to Banc and to Amend Opinion Overruled, January 7, 1949.

[216 S.W.2d 79]

Appeal from Circuit Court of City of St. Louis. — Hon. James E. McLaughlin, Judge.

REVERSED AND REMANDED.

Wayne Ely, Robert C. Ely and Ernest D. Grinnell, Jr., for defendant-appellant; D.S. Wright of counsel.

(1) The doctrine of res ipsa loquitur cannot be applied in this case because the defendant did not have exclusive charge or control of the cable which broke, and did not possess superior knowledge or means of knowledge as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 524, 46 S.W. (2d) 557; Klebe v. Parker Distilling Co., 207 Mo. 480, 105 S.W. 1057, 13 L.R.A. (N.S.) 140; 45 C.J., sec. 781, p. 1215. (2) The evidence discloses that if there was a defect in the cable which broke, it was a latent defect, and one that could not have been discovered by a reasonable inspection. Therefore, the breaking of the cable does not give rise to any reasonable inference that it broke because of negligence on the part of defendant. Grindstaff v. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W. (2d) 702; Removich v. Bambrick Bros. Construction Co., 264 Mo. 43, 173 S.W. 686. (3) The facts shown by the evidence neither speak of negligence of the defendant, or reasonably exclude any other hypothesis than that of the negligence claimed. Charlton v. Lovelace, 351 Mo. 364, 173 S.W. (2d) 13; Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S.W. (2d) 123; Karr v. Chicago, R.I. & P. Ry. Co., 108 S.W. (2d) 44; Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 70 L. Ed. 1041; Southern Ry. Co. v. Stewart, 115 Fed. (2d) 317; Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 45 L. Ed. 361; Northwestern Pac. Ry. Co. v. Bobo, 290 U.S. 499, 78 L. Ed. 462. (4) The court erred in giving Instruction 1. Said instruction does not require the jury to find that defendant was negligent in any respect, and does not require a finding that the cable involved in this case broke as result of negligence. No other instruction containing either such requirement was given. Therefore, Instruction 1 was fatally defective and the giving of it constituted reversible error. Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 70 L. Ed. 1041; Patton v. Texas & Pac. Ry. Co., 179 U.S. 658, 45 L. Ed. 361; Northwestern Pac. R. Co. v. Bobo, 290 U.S. 499, 78 L. Ed. 482; McCloskey v. Koplar, 329 Mo. 527, 46 S.W. (2d) 557; Ducoulombier v. Baldwin, 101 S.W. (2d) 96; Fenton v. Hart, 73 S.W. (2d) 1034.

Charles P. Noell and John H. Haley, Jr., for plaintiff-respondent.

(1) The decisions of the Federal Courts and not those of State Courts relied on by appellee determine the applicability of the doctrine of res ipsa loquitur in cases such as this. Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S.W. (2d) 123. (2) That the injury complained of may have been caused by the negligence of a fellow servant will not preclude application of the doctrine of res ipsa loquitur in this case as it did in the State Court cases relied on by appellant because appellant is liable for the negligence of plaintiff's fellow servants. 45 U.S.C.A. 51 et seq. (3) There is no evidence in the record that there was any "latent defect" in the cable which broke or "one which could not have been discovered by a reasonable inspection," but such could only be a matter of defense which could not preclude application of the res ipsa loquitur doctrine. Sibert v. Litchfield & Madison R. Co., 159 S.W. (2d) 612; 59 A.L.R. 468. (4) The res ipsa loquitur doctrine applies in a case under the Federal Employers' Liability Act such as this when the thing causing the injury was at the time under the exclusive control of the defendant and when the occurrence was such as in the ordinary course of things does not happen if the one having such exclusive control uses due care. Terminal R. Assn. v. Staengel, 122 F. (2d) 271; Carpenter v. B. & O.R. Co., 109 F. (2d) 375. (5) The facts admitted by the pleadings constitute negligence under the rule of res ipsa loquitur if the cable which broke was exclusively within defendant's control and there is sufficient evidence to sustain the verdict that defendant and not plaintiff had such control of the cable. Cantley v. M.-K.-T.R. Co., supra; Pitcairn v. Perry, 122 F. (2d) 881; Maxie v. G., M. & O.R. Co., 356 Mo. 633, 202 S.W. (2d) 904; Eker v. Pettibone, 110 F. (2d) 451. (6) If the court should consider appellant's claims of error in Instruction 1 there is in fact no error in it, because it did not require the jury to find negligence since the facts constituting negligence under the res ipsa loquitur doctrine were admitted and neither at the trial nor now has defendant undertaken to show there was no negligence and the issue was for the Court. Maxie v. G., M. & O.R. Co., supra; Coleman v. Jackson County, 349 Mo. 255, 160 S.W. (2d) 691; Page v. Wabash R. Co., 206 S.W. (2d) 691.

WESTHUES, C.

Plaintiff, Cruce, obtained a verdict in the sum of $45,000 against appellant, Gulf, Mobile and Ohio Railroad Company, for personal injuries sustained when a cable on a coal chute broke permitting the pan of the chute to fall on him. Appellant's motion for new trial was denied, conditioned on plaintiff filing a remittitur for $10,000. Plaintiff complied and judgment was entered for $35,000. The railroad company appealed.

The evidence reveals the following: Plaintiff began working for the railroad in June, 1906, in the State of Tennessee, as a section laborer. Later he became foreman and continued in that capacity for thirty years. In December, 1945, he was given a job as foreman at a coal chute in the yards in Union City, Tennessee. Three men, including plaintiff, tended the coal chute, each working eight hours per day. The chute was located between two tracks, one a main line track and the other a passing track. When engines drawing trains required coaling at this point they were stopped at the chute and the man operating it would get on the tender of the engine and pull the pan down over the tender by means of a rope. The coal was then permitted to roll over the pan and into the bin of the tender. The pan was held by a wire cable with counterweights attached to the other end thereof, the cable passing over a pulley. On May 30, 1946, an engine was stopped at the chute and plaintiff prepared to put coal therein. When he pulled on the rope to lower the pan the cable broke and the pan fell, striking plaintiff and resulting in serious injuries. He was taken to a hospital where he remained for months.

Plaintiff relied on the res ipsa loquitur doctrine and defendant contended the doctrine was not applicable because the coal chute was under plaintiff's control and not under the control of defendant. Defendant also claimed that if there was a defect in the cable it was a latent defect that could not have been discovered by inspection and therefore the breaking of the cable did not give rise to an inference of negligence. We will dispose of these points and then consider alleged errors as to procedure.

[1] Defendant says the res ipsa loquitur doctrine does not apply because the evidence reveals it, defendant, did not have exclusive control or charge of the chute and did not possess superior knowledge or means of knowledge as to the cause of the occurrence. Defendant further says that it was plaintiff's duty to inspect the cables and report any defects therein. 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 witness testified that he did not inspect the cables and had 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...