Dunn v. Terminal R. Ass'n of St. Louis, 45721

• Citation: 310 S.W.2d 825
• Decision Date: 10 March 1958
• Docket Number: No. 45721,No. 2,45721,2
• Parties: Harry DUNN, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, Appellant
• Court: United States State Supreme Court of Missouri

Page 825

310 S.W.2d 825

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

No. 45721.

Supreme Court of Missouri, Division No. 2.

March 10, 1958.

Warner Fuller, John P. Montrey, St. Louis, for appellant.

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

LEEDY, Judge.

Action by Harry Dunn as plaintiff against Terminal Railroad Association of St. Louis, defendant, under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., to recover damages for personal injuries. This is the second appeal. See Mo., 285 S.W.2d 701. There a judgment for $20,000 was reversed and the cause remanded for new trial because of improper argument of plaintiff's counsel. Upon retrial there was a unanimous verdict for plaintiff for $15,000, upon which judgment was entered, and defendant appealed.

There is no question as to the fact that plaintiff was injured while in the performance of his duties for defendant as foreman of a crew of mail and baggage handlers. The casualty occurred at defendant's Union Station in St. Louis on September 5, 1952. It is not claimed that plaintiff failed to make a case for the jury, and the nature of the errors that are assigned make it unnecessary to make an extended statement of the facts. For a more complete statement reference is made to the decision on the former appeal, supra. Plaintiff's evidence showed that he was directing his crew in the unloading of baggage from a train located on track 31. The baggage was unloaded onto baggage trucks or wagons known as bull trucks. Bull trucks are 4-wheel wagons, 3'7"" wide and 10'3"" long. They are equipped with standard automobile tires. They have a tongue on the front and a 'U' hitch on the back, so that two trucks may be coupled together. The tongue is counterbalanced so that when not coupled to another truck it swings into an upright position. To uncouple a metal pin is removed from the 'U' hitch and the tongue loop.

Plaintiff needed more bull trucks to complete the unloading of the train. Defendant's employe, Clubb, who was driving a tractor to which four empty bull trucks were coupled, passed along the platform between tracks 30 and 31 whereon plaintiff was working, and plaintiff signalled for him to stop, indicating that he desired two of the empty bull trucks. According to plaintiff's evidence, Clubb stopped, and he, plaintiff, went between the second and third of the standing trucks to unhook the coupling, and the moment he got his hand on the pin the trucks started moving forward. He took six or eight 'cross steps,' moving along with the trucks, trying to get the pin out of the hitch. The trucks gained speed and he continued to try to pull the pin. As he got the pin out, Clubb suddenly stopped, the tongue of the truck raised up, the two trucks came together, and plaintiff's leg was smashed between the two trucks. Defendant's version was that when plaintiff 'hollered' and said he wanted some wagons, Clubb did not stop because his wagons were over the safety line (a 'scribe line' or score mark in the concrete one foot inside the edge of the platform) and he was expecting a train to come in (G. M. & O. No. 5) on track 30; that he just kept going to get in the clear of track 30, and when he looked back to see if he had cleared the safety line he saw Dunn between the wagons. He thereupon stopped, but Dunn had apparently disconnected the coupling by that time, for the injury followed.

The first point urged is that plaintiff's instruction No. 1 was reversibly erroneous because it emasculated the essential requirement of proximate causation and allowed a recovery even though defendant's negligence was not a proximate cause of the injury. This contention is based upon that part of the instruction which submitted liability if defendant's negligence (in the particulars thereinabove specified) 'directly and proximately, in whole or in part, contributed to cause' plaintiff's injury.

Defendant cites Moon v. St. Louis Transit Co., 247 Mo. 227, 152 S.W. 303, 305, and the two authorities on which that case is based, as directly governing this point. The Moon case held that instructions which used a formula substantially like that here challenged ('contributed to cause' or the like) violated the rule announced in Hof v. St. Louis Transit Co., 213 Mo. 445, 111 S.W. 1166, and Krehmeyer v. St. Louis Transit Co., 220 Mo. 639, 120 S.W. 78, and were reversibly erroneous. Each of these cases involved contributory negligence as a defense, and the effect upon that issue of the verbiage here challenged was one of the prime elements in the court's consideration of the question. But obviously in the case at bar we are not concerned with any such problem because, generally, under the Federal Act, 45 U.S.C.A. Sec. 53, the contributory negligence of an employe is not a bar to recovery, but operates only to diminish the damages he may recover. Another view adopted in the cases cited was that many things may have contributed to the injury which were not stated in the petition or evidence, and there being nothing to prevent the jury from considering such 'outside' causes, the phraseology was condemned. The history and effect of the Hof and Krehmeyer cases, supra, was reviewed by the St. Louis Court of Appeals in Bopp v. Standard Sanitary Mfg. Co., 221 Mo.App. 188, 299 S.W. 137, 140, and it was there pointed out that the Hof and Moon cases were divisional opinions, whereas the Krehmeyer case, which was bottomed on the Hof case, was decided in banc, and that the condemnation in the Krehmeyer case of the [220 Mo. 639, 120 S.W. 88] 'contributed to cause' instruction did not receive a majority vote, but only the concurrences of three judges, with one concurring in result but on other grounds; the other three judges thought the Hof case had been improperly decided. Later, Division #2, which had decided the Hof case, in Evans v. Klusmeyer, 301 Mo. 352, 360, 256 S.W. 1036, 1038, without mentioning either of the foregoing cases, held an instruction which used the same formula ('contributed to cause') correctly declared the law, saying: 'The phrase 'directly contributed to,' as used in the instruction cannot be reasonably construed as other than synonymous with proximate cause, by which we mean such a cause as operated to produce a particular consequence without the intervention of an independent cause, in the absence of which the injuries would not have been inflicted. * * * Thus construed, the phraseology of the instruction is not vague or misleading, and, having correctly declared the law under the evidence, it should have been given.'

The Klusmeyer case was followed in the Bopp case, supra, Primmer v. American Car & Foundry Co., Mo.App., 20 S.W.2d 587, and Inland Valley Coal Co. v. Wells, Mo.App., 24 S.W.2d 208, and has been cited approvingly by this court as lately as Liles v. Associated Transports, 359 Mo. 87, 220 S.W.2d 36, 41, and Domitz v. Springfield Bottlers, 359 Mo. 412, 221 S.W.2d 831, 832. Inland Valley Coal Co. v. Wells, supra, 24 S.W.2d loc. cit. 210, correctly epitomizes the present concept of the law on this subject in these words: '[T]he rule is clearly recognized that a defendant may be held liable, even though the accident was not caused by his sole negligence, provided his negligence concurred with that of another, or with an act of God, or with an inanimate cause, so long as his own negligence became a part of the direct and proximate cause, though not the sole cause. The exception is that the concurrent cause must not be the negligent conduct of the plaintiff himself, or of some one for whose acts he is responsible, for in such an instance it is elementary that the issue of contributory negligence steps in and serves to preclude a recovery for any primary negligence of which the defendant may have been guilty. Hence it has come to be understood that, where the evidence shows no contributing cause for the injury save the fact of the plaintiff's own negligence, it is error to direct a finding for the plaintiff upon the theory that the defendant's negligence contributed to cause, rather than that it caused, the injury, unless the instruction is expressly limited and safeguarded so as to exclude the idea that the concurring negligence of both plaintiff and defendant would nevertheless warrant a recovery by the former from the latter. So we have recently held in Bopp v. Standard Sanitary Mfg. Co., 221 Mo.App. 188, 299 S.W. 137, and in Primmer v. American Car & Foundry Co., Mo.App., 20 S.W.2d 587, both of which were written upon the authority of Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036, and in both of which petitions for certiorari were denied by the Supreme Court.' See, also, Warner v. Terminal R. Ass'n, 363 Mo. 1082, 257 S.W.2d 75, 82. The recent case of Marsh v. Heerlein, Mo., 299 S.W.2d 441, 445, is not out of harmony with this view. Under these authorities, defendant's challenge of plaintiff's instruction No. 1 is disallowed.

Numerous errors are assigned upon the opening and closing arguments of plaintiff's counsel. The first of these complains of an instance of misstating evidence. Counsel for plaintiff was ridiculing the reason assigned by Clubb for not stopping when signalled by Dunn, i. e., that his trucks were at that moment over the safety line, and he 'was afraid of a G. M. & O. train coming in [on track 30] when the G. M. & O. train was already here on track 32.' The language we have italicized was objected to on the ground there was no such evidence in the case. The court stated it did not recall, whereupon plaintiff's counsel said, 'Harry Dunn testified that the G. M. & O. was on track 32 at twelve-ten.' Defendant's objection was renewed, and the court's ruling was: 'I will have to overrule it. I don't recall the testimony, but Mr. Rosecan says there was such testimony. Have to leave it to the jury.' Plaintiff's counsel then asked...