Davis v. St. Louis Southwestern R. Co., 53389

Decision Date14 July 1969
Docket NumberNo. 53389,No. 2,53389,2
Citation444 S.W.2d 485
PartiesJesse A. DAVIS, Respondent, v. ST. LOUIS SOUTHWESTERN RAILROAD CO., a Corporation, Appellant
CourtMissouri Supreme Court

Don B. Sommers, St. Louis, for plaintiff-respondent.

Coburn, Croft, Kohn & Herzog, Alan C. Kohn, John R. Musgrave, St. Louis, for defendant-appellant.

LAURANCE M. HYDE, Special Commissioner.

Action under Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. for $115,000.00 damages for personal injuries. Verdict for defendant but trial court sustained plaintiff's motion for new trial. Defendant has appealed from this order and we affirm. There is no issue as to applicability of the act.

The transcript filed did not specify any ground for sustaining the motion for new trial but by stipulation of the parties the transcript was corrected to show 'plaintiff's motion for new trial sustained on the grounds stated in paragraph 5 of plaintiff's motion.' This was error in giving Instruction No. 4 at defendant's request. An opinion affirming the order for new trial, written by Stockard, C., was adopted but a rehearing was ordered on the Court's own motion. We adopt part of the former opinion, without quotation marks, with some additions, for statement of facts and for ruling defendant's claim that plaintiff failed to make a submissible case.

On March 29, 1966, plaintiff and Mr. Henry Hall, employees of defendant, were engaged in putting together a railroad 'truck' which consists of four wheels, two axles, side frames, and what is called a bolster which goes between the wheels. Plaintiff picked up one side or end of a 'brake beam,' which weighed 150 to 200 pounds, and Mr. Hall picked up the other side or end. In the process of placing the brake beam into a slot on each side of the frame something (as hereafter noted, presumably a hammer) hit plaintiff under his eye, and his injuries necessitated the removal by surgery of the lens of his eye. Although a chain hoist had previously been used by these employees to place a 'brake beam' into position, none was available for use on the occasion when plaintiff was injured.

Plaintiff's verdict directing instruction was as follows:

'Your verdict must be for the plaintiff if you believe:

'First, defendant failed to provide reasonably safe methods of work, or

'Second, defendant's employee other than plaintiff dropped the brake beam on the hammer handle, and

'Third, defendant in the respect submitted in paragraph First was negligent, or defendant's employee other than plaintiff in the respect submitted in paragraph Second was negligent, and

'Fourth, such negligence directly resulted in whole or part in injury to plaintiff.'

Defendant's converse instruction was as follows:

'Your verdict must be for defendant if you do not believe that defendant was negligent.'

In his motion for new trial plaintiff asserted Instruction 4 was erroneous because (a) while Instruction 3 submitted disjunctively the negligence of defendant in failing to provide safe methods of work or the negligence of defendant's employee, Hendry Hall, in dropping the brake beam on the hammer handle, Instruction 4 conversed only the negligence of the defendant; (b) Instruction 4 violated the instructions on page 249 of MAI where it is stated that a converse instruction using the form 'if you do not believe' is not suitable for conversing multiple negligent acts submitted in the disjunctive; and (c) Instruction 4 failed to converse all theories of recovery submitted in Instruction 3.

Defendant first contends on this appeal that plaintiff failed to make a submissible case that Henry Hall 'dropped the brake beam on the hammer handle,' and for that reason Instruction 4 cannot be prejudicially erroneous.

A photograph admitted into evidence shows a railroad 'truck' in the construction stage. On the bolster, which is a large metal framework extending perpendicular to the tracks and between the front and rear wheels, there is a hammer with the handle extending over the edge. Anything striking downward on the end of the handle would cause the hammer to be projected upward. This photograph was not taken at the time of the accident, but was a posed situation subsequently taken. In the photograph the brake beam is shown with Mr. Hall standing astride the axle, but plaintiff or some one substituting for him is not shown in the place plaintiff was standing at the time of the accident. The brake beam at the end where Mr. Hall is standing is shown to be even with the top of the bolster, but the other end where plaintiff was working is shown to be much lower. It is below the hammer handle, and it appears to be on or near to the ground. Plaintiff testified that at the time of the accident he picked up his end of the brake beam and Mr. Hall picked up the other, that he then stepped over the axle and he first set his end of the brake beam down in the slot which is below the bolster and which would be below the hammer handle. He then started to step back. Mr. Hall was still holding his end of the brake beam when something hit plaintiff below the eye. He did not see the hammer and did not know if that was what hit him. Mr. Hall testified that before they carried the brake beam to its position the hammer was on the bolster as shown in the photograph. He further stated that plaintiff first stepped across the axle with his end of the brake beam and 'put it down,' and Mr. Hall then turned his back to plaintiff, threw his leg over the axle, and 'dropped my end in.' He then turned around and plaintiff was lying on the ground nearby with a cut beneath his eye, and the hammer was lying on the ground between plaintiff and the 'truck.' He and others 'looked' but did not find anything 'that could have hit him but that hammer.' Mr. Hall identified the photograph in which the hammer and the brake beam were shown, and stated that it was an accurate representation of his position when he was placing the brake beam into position. He also stated that the photograph showed the position the brake beam was in 'right before you put your end in.'

Defendant argues that Mr. Hall was the only one who saw the hammer and was the only one who could testify concerning the relative position of the hammer and the brake beam immediately before the accident; that his testimony places the brake beam well below the hammer; and for that reason it could not have been dropped on the hammer handle by Mr. Hall.

Defendant relies on such cases as Draper v. Louisville & Nashville Railroad Company, 348 Mo. 886, 156 S.W.2d 626; Reece v. Reed, Mo., 326 S.W.2d 67; Brophy v. Clisaris, Mo.App., 368 S.W.2d 553, and others, which in effect hold that when a plaintiff presents positive testimony of a fact he cannot successfully contend another contrary fact exists on the basis of inferences from circumstances testified to by the same witness.

The evidence is very convincing, although circumstantial, that during the process of plaintiff and Mr. Hall placing the brake beam into position in the 'truck,' plaintiff was struck by a hammer which immediately prior thereto was lying on the bolster with its handle extending over the side. Also, we do not consider the testimony of Mr. Hall, which defendant contends to constitute positive testimony, to meet that test. When he testified that the photograph showed the position of the brake beam (with plaintiff's end being below the hammer handle) it appears that he was actually referring to his end of the brake beam, and its position, as shown, was 'right before' he placed it in the slot. However, the evidence is that after plaintiff placed his end of the beam into position, Mr. Hall had to 'get straddle' of the axle, with his back to plaintiff, 'raise over and throw that beam in,' and that when 'you start those things (brake beams) in' the brake beam is higher than the top of the bolster where the hammer was lying. In addition, from the photograph, it appears that the top of the bolster is only slightly...

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