Elliott v. St. Louis Southwestern Ry. Co.

• Decision Date: 13 November 1972
• Docket Number: No. 55772,No. 2,55772,2
• Citation: 487 S.W.2d 7
• Parties: Glenn ELLIOTT, Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 7

487 S.W.2d 7

Glenn ELLIOTT, Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a Corporation, Appellant.

No. 55772.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1972.

Daniel D. Sawyer, Raymond, West, Mason & Shy, Kansas City for respondent.

Coburn, Croft, Shepherd & Herzog, John C. Shepherd, John R. Musgrave, St. Louis, for appellant.

MORGAN, Presiding Judge.

Under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A., § 51 et seq., plaintiff initiated this action for damages resulting from personal injuries suffered by him on April 12, 1959. Such injuries, among others, included the loss of his left leg. The verdict and judgment were for plaintiff in the amount of $100,000, and defendant has appealed. We affirm.

Plaintiff had been employed by defendant for approximately sixteen years as a locomotive fireman. His regular run, on interstate trains, was from Illmo, Missouri, to the Valley Junction railroad yard near East St. Louis, Illinois, and return to his home station in Illmo. On the day in question, the train to which he was assigned left Illmo at 7:30 A.M. and arrived in Valley Junction between 12:00 and 12:15 P.M. The crew was subject to call for the return trip later that day, and, in fact, the members thereof were delivered a formal message on arrival that they probably would be called to leave at 2:30 P.M. After stopping at the yard office, the crew got on the engine and road to the roundhouse and registered in at about 12:45 P.M. Each member of the crew designated where he would be to receive the call for the return trip. Plaintiff specified his regular stopping place at the Cotton Belt Hotel which was referred to as the 'Beanery.' It was located within the yard adjacent to the terminal tracks and was owned by the defendant but leased for management. On the other side of the tracks was Holder's Place, generally referred to as the 'Knuckle' and which served as a rooming house where railroad employees generally prepared their own meals. By road it was about two and one-half bloks from the Beanery and approximately half that distance across the tracks. There was a well defined path across the tracks between the two locations. On this day, the engineer for the crew invited plaintiff to come to the Knuckle and have lunch with him; and plaintiff, after registering at the Beanery and leaving his bags, walked along the path to the Knuckle. Upon arrival he was offered and accepted one drink of whisky from a half-pint bottle. For some thirty minutes he visited with other employees and assisted one in replacing spark plugs in his automobile. The crew ahead of plaintiff's was called at 1:30 P.M., and when it appeared that lunch was not being prepared he decided he had better get back to the Beanery to receive his call, pick up his bag and try to get some lunch. After he observed that the route he had used going to the Knuckle was blocked by a train of the Alton & Southern Railroad, the owner of the automobile he had helped and the engineer offered to take him back to the Beanery. They traveled south parallel to the yard limits and turned east and crossed over tracks belonging to the Terminal Railroad. As they then approached the track that ran immediately in front of the Beanery, they found it to be blocked by a train of the Alton & Southern. It was approximately three-fourths of a mile in length. Plaintiff got out of the car and the driver and the engineer for the crew returned to the Knuckle. The engineer stated the train was moving when they left, but plaintiff testified that it was stopped during all times of interest here. The crossing itself was on property of defendant. After waiting four or five minutes, plaintiff walked to the right or south looking for the end of the train but could not see it (the parties agree and the exhibits show that the track in question extended in circular manner practically around the Beanery); he then turned around and walked back past the crossing where he had first waited and continued walking to the north to see if he could see the other end of the train--which he could not. Approximately ten minutes elapsed while he was walking. After arriving at a point on property and tracks owned by the Alton & Southern (near the path to the Knuckle) plaintiff decided to cross over the track between two of the cars of the train. He stepped up on the stirrup between the cars and had both feet on the drawbar when the train suddenly moved and he lost his footing. He fell and was dragged under the train for a couple of car lengths and his left leg was run over. This occurred at about 2:15 P.M. Plaintiff's evidence, more specifically, included the following: that trains sometime blocked the crossing for as long as an hour; that the train had not moved and he did not know when it would; that he expected a call any minute and if he was not at the Beanery to accept his call, he would be subject to severe discipline; that it would only take three or four seconds to get through the train; that it was the usual custom for trainmen (including officials) to cut or climb through trains blocking the crossing in that area; that he did not see anyone in the area; that he listened and heard no bell, whistel, sound of air brakes or slack-run; and, that he was aware of the custom of train crews to give a warning signal by bell or whistle before starting up.

Further testimony, offered on behalf of plaintiff, revealed that tracks in the area were used, generally, by several different railroad companies under inter-change agreements; that the track near the Beanery was that customarily used by the Alton & Southern to deliver railroad cars to defendant; and that no effort was ever made to avoid blocking the crossing in question by cutting the train. Additionally, evidence was offered as to the existence of three foot bridges (overpasses) and one underpass belonging to different railroads for the use of traffic and pedestrians in other areas of the yard. Such other facts as appear relevant will be noted while considering the points now submitted on appeal.

Plaintiff's verdict-directing instruction (No. 3), in part, authorized the jury to return a verdict for him if it found that '. . . (a) defendant failed to provide reasonably safe conditions for work, or (b) defendant, acting by and through its agent, Alton & Southern Railroad, caused the train to be moved without warning . . .'

Defendant not only argues that plaintiff failed to make a submissible case under either theory, but also, that his case must fail for the specific reason plaintiff was not acting in the course and scope of his employment at the time of the occurrence. In this connection, we will consider the latter argument first, and while so doing we necessarily consider the evidence from the standpoint most favorable to the plaintiff. Wiser v. Missouri Pacific Railroad Company, Mo., 301 S.W.2d 37, 38. Consideration of the same must be in light of the law which was summarized clearly in Louisville & N.R. Co. v. Botts, 173 F.2d 164 (8th Cir.) at l.c. 167: '(2, 3) The opinions of the Supreme Court have declared that it is 'the clear Congressional intent that, to the maximum extent proper, questions in actions arising under the Act should be left to the jury,' Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 451, footnote 30, 87 L.Ed. 610, 143 A.L.R. 967; that such cases may not be taken from the jury merely because the question of liability is 'close or doubtful,' Bailey v. Central Vermont Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 144; That the jury has the right to make 'all reasonably possible inferences' from such probative facts in the evidence as it chooses to accept, and 'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences,' Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 32--35, 64 S.Ct. 409, 411, 412, 88 L.Ed. 520; that in any choice between possible inference 'a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference,' but 'Only when there is a complete absence of probative facts to support the conclusion reached does reversible error appear,' Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916; and that the assumption that, on an issue of liability, 'juries will invariably decide * * * against railroads' is 'contrary to fact,' and courts may not act on the theory that 'juries will fall short of a fair performance of their constitutional function,' but they must assume that a jury 'finds facts only because they are proved,' Wilkerson v. McCarthy, (336 U.S. 53,) 69 S.Ct. 413, 417, 418 (, 93 L.Ed. 497).'

The law as thus noted has been recognized and quoted by this court in Tatum v. Gulf, M. & O.R. Co., 359 Mo. 709, 223 S.W.2d 418, 422; Malone v. Gardner, 362 Mo. 569, 242 S.W.2d 516, 520; and, Wiser v. Missouri Pacific Railroad Company, supra, 301 S.W.2d at page 41. Such governing standard was concisely stated more recently by the Supreme Court of the United States in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, at 352 U.S. 506, at 77 S.Ct. 448--449, to wit: '. . . the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may...