Fitzpatrick v. St. Louis-San Francisco Ry. Co.

• Decision Date: 14 September 1959
• Docket Number: No. 2,LOUIS-SAN,No. 46761,46761,2
• Citation: 327 S.W.2d 801,80 A.L.R.2d 825
• Parties: William J. FITZPATRICK, Respondent, v. ST.FRANCISCO RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 801

327 S.W.2d 801

80 A.L.R.2d 825

William J. FITZPATRICK, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.

No. 46761.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1959.

Motion for Rehearing or for Transfer to Court en Banc Denied

Oct. 12, 1959.

James L. Homire, W. W. Dalton, Laurance M. Hyde, Jr., St. Louis, for (defendant) appellant.

Hullverson, Richardson, Hullverson & Jeans, St. Louis, for (plaintiff) respondent.

STORCKMAN, Presiding Judge.

In this action, brought under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., the jury awarded plaintiff $60,000 damages for the loss of an eye. By remittitur the recovery was reduced to $45,000 from which judgment the defendant has appealed. This is the second appeal in the case. The previous opinion is reported in Mo., 300 S.W.2d 490.

The defendant's first contention is that the trial court erred in refusing to enter judgment for the defendant in accordance with its motion at the close of all the evidence. The defendant urges that the record fails to show that the plaintiff was required to work under dangerous conditions and that plaintiff's own evidence unequivocally shows that the defendant exercised ordinary care for his protection. The theory on which the plaintiff submitted his case was that the defendant negligently failed to furnish him with goggles without cost to protect his eyes when, in the course of his duties, he put his head outside the car in order to look alongside the moving train, as a result of which particles of dirt and dust got into his right eye causing an ulcer and consequent herniation of the eyeball and loss of its fluid thereby necessitating removal of the eye. The issues of the present appeal do not require a statement of many facts involved in the first appeal.

The plaintiff, sixty-two years of age at the time of trial, was employed as a brakeman and baggageman by the defendant with which company he had thirty-eight years seniority. The evidence most favorable to the verdict tended to show that, among his many duties, the plaintiff assisted the conductor, the person in charge of the train, and was required to watch for train order signals and messages pertaining to the movement of the train. He also had to look out of the moving railroad cars while on curves for the purpose of detecting hot boxes, dragging brakes, or anything that might wreck the train. When necessary he would put his head out of a door of a coach or baggage car and look alongside the train.

On August 17, 1954, the plaintiff was on a run from Springfield, Missouri, to St Louis. The summer was hot and dry and dust conditions were severe. Around Milepost 69 there were a good many piles of fine chat used for ballast scattered between and alongside the tracks. They had been there about four months and the velocity of the passing train caused the dust to swirl up alongside and over the train. At the time in question it was necessary for him to look out at Milepost 69 for a train order signal at Milepost 68, one mile east. The train was running at sixty miles per hour and when he looked out to observe the position of the signal he 'got a bad swirl of this dust' in his face and eyes; in his right eye he 'got the heaviest charge.' He was wearing glasses at the time. He went back in the coach, held his eye open and let the tears drain it out. It was 'hurting pretty bad because something sharp had come in' his eye.

At Pacific, thirty-four miles from St. Louis, it was necessary for him to observe another train order signal. The dust conditions had also been very bad there for four months. When he looked out at the third crossing west of the passenger station he 'got another charge of swirl' and again more in the right eye than in the left. Again he drained his eye, this time with the assistance of another trainman. The plaintiff was in St. Louis off duty from 8:10 a. m. until about 3:30 p. m.; he slept but did not go to the hospital maintained by the Frisco Employees Association in St. Louis. On the return trip plaintiff's eye became sensitive to light. When he arrived in Springfield that night he got a 'hospital slip.' The next day he went to Dr. W. J. Marshall in Springfield by whom he was treated. It was discovered that plaintiff had a corneal ulcer which developed rapidly causing a perforation and loss of the fluid. The eye was eviscerated on September 11, 1957. There was medical evidence from which the jury could find that the loss of the eye was caused by getting foreign particles in it at the times mentioned above.

The plaintiff testified that he complained to the train conductor, who was his superior officer, about the dust conditions on three occasions, the last time being about the middle of July. He asked the conductor for goggles about August 10. The conductor told the plaintiff he would take it up with the company and see if he could get them, but goggles were not furnished to him.

The defendant asserts in particular that the present record lacks evidence introduced at the previous trial with respect to the nature and extent of the alleged hazardous conditions under which the plaintiff was required to work. We find the evidence of the hazard to the eyes due to flying particles of dirt and dust was sufficient for submission of the more limited issue submitted at the second trial.

Further, the defendant asserts the record clearly demonstrates that the plaintiff had no duty to perform either on the straight track at Milepost 69, which was over a mile from the nearest signal, or at the third crossing west of Pacific from which no signal could be seen. The plaintiff testified that by reason of the speed of the train and other factors it was necessary for him to look out when he did. Whether it was necessary for him to look out as soon as he did was a jury question under the evidence and the instructions.

Finally the defendant contends that the plaintiff by his admissions 'stated himself out of court insofar as contending that the failure to furnish goggles free constituted lack of ordinary care under the circumstances.' The plaintiff testified that he had never worn goggles while he was in train service and that he had never seen any brakemen or conductors wear goggles. On the other hand, there was evidence that the defendant for twenty-two years had had goggles suitable for trainmen to wear which were for sale to their employees at factory cost; also, there was plaintiff's further testimony that he had made a request for goggles about a week prior to the date of his injury. The testimony of plaintiff on which defendant relies was not conclusive that the exercise of ordinary care did not require the furnishing of goggles under the hazardous conditions which the evidence tended to prove existed at the time in question.

In view of the recent decisions of the Supreme Court of the United States which are binding on us, we cannot say as a matter of law that there was not a sufficient showing of negligence which contributed to the plaintiff's injury; hence, the trial court did not err in refusing to enter judgment for the defendant in accordance with its motion. Fitzpatrick v. St. Louis-San Francisco Ry. Co., Mo., 300 S.W.2d 490, 496[7-9]; Wehrli v. Wabash R. Co., Mo., 315 S.W.2d 765, 769-772, certiorari denied 358 U.S. 932, 79 S.Ct. 321, 3 L.Ed.2d 304.

As one of its grounds for a new trial, the defendant urges that the trial court committed prejudicial error in refusing to declare a mistrial because a blind man, after 'liaison' with plaintiff's counsel, was led into the courtroom during the trial.

The record shows that near the close of the evidence in defendant's case Frederick W. Minstermann, a blind man, carrying a white cane and a cigar box, entered the courtroom escorted by a guide furnished by the Blind Service. The blind man and his guide eventually took seats in a bench immediately behind the one in which plaintiff and plaintiff's wife and daughter were seated. With the court's permission, a picture of the group was taken by the defendant during a recess, a print of which was attached as an exhibit to defendant's motion for new trial. It is not clear from the record how long the blind man was in the courtroom. It appears that he remained for plaintiff's rebuttal evidence, but did not return for the jury argument later in the day.

After the close of all the evidence, the defendant, out of the hearing of the jury, moved for a mistrial which was denied. The motion was presented and disposed of as follows:

'Mr. Dalton: * * * Now at this time, Your Honor, defendant moves for a mistrial of this cause and for reason therefor states the following:

'While the defendant was closing his case in this, a suit for $60,000.00 for alleged loss of an eye, there came into the courtroom, a blind man carrying a cane and being led by an elderly friend, that the blind man was led down immediately back of the family group referred to and called to the Court's attention yesterday, and there was seated. The defendant closed his case and came in the chambers. The defendant further shows to the Court that in the chambers this was mentioned to the judge and to Mr. Hullverson, and at that time Mr. Hullverson siad that he had talked to the blind man that morning and that his appearance was pre-arranged, that he wanted to hear Mr. Hullverson argue his case, that the blind man was an old pal of his. Defendant respectfully shows to the Court this is highly prejudicial. It's a matter which Mr. Hullverson has pre-arranged as he said by telephone. I want to further move for an additional reason, immediately after this, the Court recessed to take this and after we had discussed the instructions, Mr. Hullverson went out into the hall and talked to the blind man who addressed him friendly as 'Everett,' and he was instructed at that time to report back here in the courtroom when the case is argued. This is highly...