Ducoulombier v. Thompson

• Decision Date: 08 February 1939
• Docket Number: 36114
• Citation: 124 S.W.2d 1105,343 Mo. 991
• Parties: Gustaff Ducoulombier v. Guy A. Thompson, Trustee Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

124 S.W.2d 1105

343 Mo. 991

Gustaff Ducoulombier v. Guy A. Thompson, Trustee Missouri Pacific Railroad Company, Appellant

No. 36114

Supreme Court of Missouri

February 8, 1939

Appeal from Dade Circuit Court; Hon. Thomas W. Martin Judge.

Reversed.

T J. Cole, F. M. McDavid, F. W. Barrett and Neale & Newman for appellant.

(1) It is fundamental that appellate courts are reluctant to disturb verdicts for insufficient evidence, yet, when the judgment is palpably and unquestionably wrong a clear case of injustice and not only against the weight of the evidence but unsupported by any believable evidence, the appellate court has the power and will set aside a judgment in spite of a verdict. Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1081; Spohn v. Mo. Pac. Ry. Co., 87 Mo. 84; Whitsett v. Ranson, 79 Mo. 260; Spiro v. St. Louis Transit Co., 102 Mo.App. 250. (2) In order that the humanitarian doctrine may be available, in this case to the plaintiff, he must have been discovered in a position of imminent peril by someone in authority to move the cars. (a) Imminent peril, as used in this case, means a position such that if the cars were moved that injury to the plaintiff is certain, immediate and impending and not a mere possibility. Banks v. Morris, 302 Mo. 254; Wallace v. St. Joseph Ry., L. H. & P. Co., 77 S.W.2d 1013; Stewart v. Mo. Pac. Ry. Co., 272 S.W. 696; Kirkham v. Jenkins Music Co., 104 S.W.2d 236; Hall v. Railroad, Co., 219 Mo. 586; Siegel v. Wells, 287 S.W. 777; Royalty v. Lusk, 198 S.W. 475; Butler v. United Ry. Co., 238 S.W. 1077; Bates v. Brown Shoe Co., 116 S.W.2d 31. (b) Under the facts in this case the employee had the right to assume that the plaintiff had removed from any position of peril, and that he was out of danger when the cars were moved. Siegel v. Wells, 287 S.W. 776; Trigg v. Water Light & Transit Co., 215 Mo. 521; Tuck v. St. L.-S. F. Ry. Co., 268 S.W. 682, 92 A. L. R. 62, notes 20, 52, 65. (3) To justify submitting this case under the humanitarian doctrine it must be shown that the person injured was actually discovered by an employee of the defendant in a position of imminent peril. Royalty v. Lusk, 198 S.W. 475; Wilson v. Wells, 13 S.W.2d 546, 321 Mo. 929; Woods v. Moore, 48 S.W.2d 207; Hunter v. Flemming, 7 S.W.2d 751; Mattocks v. Emerson Drug Co., 33 S.W.2d 145; Alexander v. St. L.-S. F. Ry. Co., 4 S.W.2d 893. (a) It is reversible error to submit matters to a jury concerning which there is no dispute and which could only be decided one way. Suess v. Life Ins. Co., 64 Mo.App. 11; Windsor v. Hannibal & St. Joe Ry. Co., 45 Mo.App. 128. (b) It is error to submit an issue to the jury without evidence to support it. Birdsong v. Jones, 30 S.W.2d 1094, 225 Mo.App. 242; Clark v. Wells, 44 S.W.2d 863; Best v. Liverpool & London Ins. Co., 49 S.W.2d 230; Myers v. Hanser, 61 S.W.2d 214. (c) It is error to assume in an instruction a controverted issue. Barr v. Nafziger Baking Co., 41 S.W.2d 559, 328 Mo. 423; State ex rel. Highway Comm. v. Williams, 51 S.W.2d 538, 227 Mo.App. 196; Counts v. Thomas, 63 S.W.2d 416. (d) Under the humanitarian doctrine, the defendant was not liable for any movement of the cars in question until after the perilous position was discovered. Blunk v. Snider, 111 S.W.2d 164; Phillips v. Henson, 30 S.W.2d 1067; Banks v. Morris Co., 257 S.W. 484, 352 Mo. 267; Baker v. Hannibal & St. Joe Ry. Co., 98 Mo. 50.

Franklin E. Reagan, Harry G. Waltner, Jr., Wm. J. B. Myres and F. P. Sizer for respondent.

(1) Appellant's demurrer was properly overruled. (a) Whether respondent was in a position of "imminent peril" was a jury question. Ducoulombier v. Baldwin, 101 S.W.2d 101. (b) Appellant, after discovering respondent's peril negligently injured him. Hall v. Railroad Co., 219 Mo. 589; Ducoulombier v. Baldwin, 101 S.W.2d 96; Dalton v. M., K. & T. Ry. Co., 208 S.W. 828; Restatement, Torts, sec. 336; Dutcher v. Railroad Co., 241 Mo. 137, 145 S.W. 63; Fearons v. Kansas City El. Ry. Co., 180 Mo. 208, 79 S.W. 394; Quenther v. St. Louis M. & S. Ry. Co., 108 Mo. 18, 18 S.W. 846; Chamberlain v. Mo. Pac. Ry. Co., 133 Mo. 587, 33 S.W. 437. (c) This identical issue, based upon substantially the same or identical evidence, has heretofore been decided in the former appeal (101 S.W.2d 96) adversely to appellant and such decision now becomes the law of this case. Lober v. Kansas City, 100 S.W.2d 268; Clark v. Atchison Bridge Co., 62 S.W.2d 1079, 333 Mo. 721; Bradley v. Becker, 11 S.W.2d 8, 321 Mo. 405; State ex rel. v. U.S. Fid. & Guar. Co., 40 S.W.2d 1050, 328 Mo. 295; Baker v. Scott County Milling Co., 43 S.W.2d 441. (d) Where there is a conflict in the testimony as to the cause of respondent's injuries, it becomes a jury question. In passing upon the demurrer respondent's evidence must be taken as true. Mech v. Term. Railroad Assn., 18 S.W.2d 510; Young v. Wheelock, 64 S.W.2d 950, 333 Mo. 992; Bird v. St. L.-S. F. Ry. Co., 78 S.W.2d 389. Positive testimony of the train crew does not destroy respondent's positive testimony. Rosecrans v. Wabash, St. Louis & P. Ry. Co., 83 Mo. 678. Truthfulness of the witnesses is for the jury. Steele v. Kansas City So. Ry. Co., 257 S.W. 756, 302 Mo. 207. Jury's finding is conclusive against contention that respondent's testimony in a deposition was contrary to his oral testimony at the trial. Stewart v. Amer. Ry. Express Co., 18 S.W.2d 520.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries caused by a switching movement of defendant's cars. Plaintiff was injured while between two cars, sweeping up loose wheat for his own use near the ends of the ties of defendant's switch track. He had a verdict for $ 10,000. Defendant has appealed from the judgment.

This case was previously tried and plaintiff obtained judgment for $ 7500, which was reversed and remanded by the Springfield Court of Appeals. [Ducoulombier v. Baldwin, 101 S.W.2d 96.] Reference is made to that opinion for the pleadings and for the evidence in the case before the Court of Appeals. Defendant now, after retrial, contends again that its demurr to the evidence should have been sustained. The Court of Appeals correctly decided that, unless his presence was actually discovered, there was no duty to look out for and warn him or others, who might be gathering for their own use wheat spilled around the tracks, before moving cars in defendant's yards. [Angelo v. Baldwin, 343 Mo. 310, 121 S.W.2d 731, and cases cited.]

The Court of Appeals in remanding this case said:

"There was some question as to whether or not the plaintiff was in a position of imminent peril, but under the combined testimony of plaintiff and witness Weed, giving the testimony of these two the most favorable inference on behalf of the plaintiff, as we are required by law to do, we must hold there was a jury question as to whether or not defendant's brakeman discovered plaintiff in a position of imminent peril, and thereafter failed to warn him of his intention to move the cars under which he was gathering up wheat, and whether the act of the brakeman in failing to notify plaintiff of the impending movement of the cars was negligent."

Plaintiff's theory in the last trial was that one of defendant's switchmen actually saw him between the cars just before he signaled for the movement which it is claimed caused plaintiff's injuries. Both parties tried the case as though the humanitarian negligence doctrine was applicable and all instructions of both were confined to that theory. Plaintiff's evidence again consisted only of his own testimony and that of Dennie Weed, his nearest neighbor. Both lived close to defendant's yards. Plaintiff had been an employee in these yards, and had worked in them over a period of many years. He had not been working for some time prior to his injury. Defendant's yards had switch tracks which ran east and west, and were numbered from north to south. (No. 5 was farthest north, and No. 37 farthest south.) These tracks were about one mile in length but curved slightly near the center. They were 13 1/2 feet apart from center to center. The east and west sides of the yards were both higher than the center, so that a car switched in at either end would run by gravity to the center. There was a large grain elevator at the east end of the yards, and large quantities of wheat were being moved into these yards.

Plaintiff testified about the occurrence, as follows:

"I was there in the morning, I went up there and looked for a little wheat, early, about around six o'clock maybe a little after, and I swept me a little wheat, and I went back home. . . . After I went home and ate breakfast I went back . . . I was about three tracks away from No. 12, south from No. 12 track, and I look along the cars and I see a little wheat laying there, small pile, leaked out of the car, and I went up there and swept it up. . . . I was setting down on one knee. . . . I was setting between the two cars in the opening between the two. . . . Q. Who did you see? A. See Dennie Weed come by there. . . . He was going east. . . .

"Q. Now, did you see Dennie any more that day, Dennie Weed? A. Yes, sir. Q. Where did you see him the next time? A. Well, I see him when he go back. Q. Which way was he when he went back, which side of the car was he on when he went back? A. North. Q. North, and which side was he on when he went east? A. On the south side. Q. Did you see anybody else there besides Dennie on the north of the car? A. Yes, sir. Q. Who did you see there? A. There was a switchman there on the north side. . . . Q. How often have you seen him switching there before? A. Oh, quite a little while; I have seen him there lots of times. Q. Now, did he stop when he went -- A Yes, sir, stopped and talked to...