Dunn v. Terminal R. Ass'n of St. Louis

• Decision Date: 09 January 1956
• Docket Number: No. 44470,No. 2,44470,2
• Parties: Harry DUNN, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

Page 701

285 S.W.2d 701

Harry DUNN, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.

No. 44470.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1956.

Warner Fuller, Arnot L. Sheppard, St. Louis, for appellant.

Mortimer A. Rosecan, Max C. Nelson, Charles E. Gray, St. Louis, for plaintiff-respondent.

STOCKARD, Commissioner.

Plaintiff brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. to recover for personal injuries sustained on September 5, 1952 while employed by defendant. The jury returned a verdict for $20,000 and judgment was entered for that amount. Defendant has appealed and, among other things, contends that plaintiff failed to make a submissible case. The parties will be referred to as in the trial court.

Plaintiff was foreman of a crew of men known as mail and baggage handlers. The duties of the crew consisted of loading and unloading mail and baggage from both inbound and outbound trains at the Union Station, St. Louis, Missouri. At the time of the injury plaintiff's crew was working on a platform between tracks 30 and 31 and was unloading mail from a train on track 31. Several 'bull wagons' on which the mail was to be loaded had been 'spotted' along the side of the platform next to track 31. These wagons are constructed of steel except for a wood floor. At the front of each wagon is a counterbalanced steel tongue, and at the free end of the tongue is a ring. At the back of each wagon is a hitch. A number of wagons may be coupled together by connecting the ring on the tongue of one wagon to the hitch of another wagon and then the wagons may be pulled by a single tractor. Each wagon, when empty, weighs approximately eleven hundred pounds.

In order to complete the unloading of mail, plaintiff needed two additional wagons. According to the testimony of plaintiff, he saw a tractor approaching pulling four empty wagons, and he stepped in front of the tractor and told the operator that he wanted two of the wagons. The operator came to a complete stop, and while the tractor remained stopped plaintiff walked along the side of and past the tractor and the first two wagons to a point opposite the opening between the second and third wagons. Plaintiff then stepped between the two wagons to unhitch them and at that moment the operator started the tractor forward. Plaintiff thought the wagons were moving because the floor was sloping. He walked sideways six or eight steps as the wagons moved forward slowly and he grabbed the pin in the coupling, wiggled it, and pulled it out. Because of the counterbalance the free end of the tongue on the third bull wagon raised up, the operator suddenly stopped the tractor, and the two rear wagons continued to roll forward by reason of their momentum. Plaintiff was injured when caught between the second and third wagons.

Defendant does not agree that the accident happened in the manner contended by plaintiff. According to its evidence plaintiff shouted to the tractor operator that he wanted 'some of them wagons.' The operator did not then stop because he expected the arrival of a train on track 30 and he was on the wrong side of a 'safety line.' He therefore continued to move the tractor with the four wagons hitched behind it in order to get across the 'safety line.' However, without the knowledge of the operator, plaintiff stepped in between the second and third wagons while they were moving and pulled the pin and thereby released the last two wagons. When the operator looked back to see if the train was arriving on track 30 he saw plaintiff between the second and third wagons, and believing plaintiff to be in a position of danger and not knowing that plaintiff had released the last two wagons, he immediately stopped. The injury to plaintiff then occurred as above set out.

This cause is governed by the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., and, 'in interpreting the act and determining this appeal, it is the duty of this court to apply the test of liability as it has been laid down and determined by the Supreme Court of the United States. Boston & M. R. R. v. Coppellotti, 1 Cir., 167 F.2d 201, 204. And the test of liability under the act is negligence which that court has defined 'as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done.' Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610, 617.' Winters v. Terminal R. Ass'n of St. Louis, 363 Mo. 606, 252 S.W.2d 380, 383.

Defendant contends that plaintiff did not make a submissible case because he did not show that the tractor operator had knowledge, express or implied, of plaintiff's presence between the wagons, and he did not show that the tractor operator saw plaintiff in a position of danger until the moment before he stopped the movement of the trucks. The substance of this contention is that there was no evidence that the tractor operator was negligent.

In determining whether plaintiff presented a submissible case, the evidence together with all reasonable inferences, must be considered in its light most favorable to plaintiff, and defendant's evidence disregarded unless it aids plaintiff's case. Plaintiff's verdict-directing instruction hypothesized the factual situation shown by his evidence and submitted the question of defendant's liability upon the single specification of negligence that when plaintiff stepped in between the second and third wagons for the purpose of unhitching them, the tractor operator 'did then start up said string of trucks (wagons) in motion while plaintiff was in between said trucks, and * * * did then suddenly and without warning stop said string of trucks.'

The employees of defendant were under a duty not to endanger heedlessly one another, and the circumstances of the occurrence as shown by the evidence favorable to plaintiff support the inference of negligent injury. The jury could find that the operator knew or should have known that the plaintiff intended to unhitch the last two wagons. Under these circumstances the jury could also find that the operator was negligent in starting and stopping the tractor without first determining if plaintiff was between the two wagons. Whether the accident occurred in the manner contended by plaintiff, and whether the starting and the stopping of the tractor under the circumstances shown by plaintiff's evidence constituted negligence were issues properly submitted to the jury. Where there is a reasonable basis in the record, as there is in this case, to support an inference by the jury that injury resulted from defendant's negligence, in an action under the Federal Employers' Liability Act, an appellate court may not weigh conflicting evidence and arrive at a different conclusion. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Schonlau v. Terminal R. Ass'n of St. Louis, 357 Mo. 1108, 212 S.W.2d 420.

Defendant contends that prejudicial error resulted from certain comments by and during oral argument of plaintiff's counsel. We shall not attempt to set out in detail all the matters of which complaint is made. To do so would extend this opinion unnecessarily.

Plaintiff testified on direct examination that 'A man named Hardaway, who is claim agent for the Terminal Railroad, * * * took them (the pictures) with us.' On cross-examination the following occurred:

'By Mr. Sheppard: Q. And he (Hardaway) did not pick out the place to pull the trucks, did he? A. No, sir.

'Q. And he did not pick out the place to put you (plaintiff) in between the trucks? A. No, sir.

'Q. What you mean is he was courteous enough to help you when you showed him where to place the trucks?

'By Mr. Rosecan: I object to that, if your Honor please, as calling for a conclusion, as to whether or not Mr. Hardaway was courteous.

'By the Court: The objection will be sustained.

'By Mr. Rosecan: And ask that it be stricken.

'By the Court: That may be stricken. Strike the word courteous.

'By Mr. Sheppard: Well, good or kind.

'Q. Was he kind enough to help you?

'By Mr. Rosecan: I object to his kindness. I never knew a railroad claim agent who was kind or courteous, and I object to the use of the word.'

Defendant objected to the comment of plaintiff's counsel and asked for a mistrial. The court did not specifically rule on the objection or the request, but said 'proceed' after asking some questions of the witness.

It is highly improper for counsel, acting in bad faith, to make statements before the jury merely to prejudice his opponent's case, 88 C.J.S., Trial, Sec. 162b, and it is difficult to conceive for what other purpose the statement was made. Plaintiff contends that the 'matter was opened up' by the defendant, and that defendant is not entitled to complain of 'any rebuttal' made by plaintiff's counsel. But defendant is not estopped to complain of improper comment which revives the original subject forbidden the jury's consideration.

On cross-examination John McNally, a witness for defendant, was asked if plaintiff told him to tell the truth concerning the occurrence of the accident, and he replied that he did. He was also asked if he had given a statement to Hardaway, a claim agent for defendant, before he talked to plaintiff, and he replied that he had. Counsel for defendant then asked: 'Did Mr. Hardaway ask you to tell anything but the truth?' The following then occurred:

'By Mr. Rosecan: I object to that as self-serving, your Honor.

'By Mr. Sheppard: In view of counsel's examination, your Honor, I think I have a right to ask that question.

'By the Court: He may answer. A. He told me to tell the truth and nothing else but the truth.

'By Mr. Sheppard: That is all.

'By Mr. Rosecan: He told you that. You are sure about that?

'By...