Fowler v. Park Corp.

• Decision Date: 19 June 1984
• Docket Number: No. 65313,65313
• Citation: 673 S.W.2d 749
• Parties: Herbert J. FOWLER, Jr., Plaintiff-Respondent, v. PARK CORPORATION, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 749

673 S.W.2d 749

Herbert J. FOWLER, Jr., Plaintiff-Respondent, v. PARK CORPORATION, Defendant-Appellant.

No. 65313.

Supreme Court of Missouri En Banc.

June 19, 1984.

As Modified on Denial of Rehearing

July 17, 1984.

Richard J. Mehan, Jr., Richard O. Funsch, St. Louis, for defendant-appellant.

Morris B. Chapman, Granite City, Ill., Edward L. Dowd, Douglas P. Dowd, St. Louis, for plaintiff-respondent.

BLACKMAR, Judge.

The plaintiff, Herbert J. Fowler, Jr., 19 years old at the time of his injury on October 10, 1978, suffered the loss of both legs above the knee when he was pitched through the bottom of a moving hopper car that was accidentally coupled to a string of rail cars being pulled by a switch engine in an industrial park. He recovered a judgment of $6,000,000 against defendant Park Corporation. The Missouri Court of Appeals, Eastern District, reversed and remanded for a new trial, finding error in the instruction defining "negligent." The case was then certified to us by a dissenting judge who perceived conflict with Welch v. Hyatt, 578 S.W.2d 905 (Mo. banc 1979). We take the case as on original appeal, and affirm the judgment entered on the verdict by the circuit court.

Fowler was employed as a sandblaster by St. Louis Railcar Repair Company (Railcar), which conducted a business of repairing and reconditioning railroad cars at a location in an industrial park leased from the defendant. Railcar is a wholly owned subsidiary of defendant. ¹ There were two other tenants in the industrial park who also required rail switching services. Prior to October 2, 1978, Railcar had performed switching operations for itself and the other tenants, without a formal agreement and, so far as the record shows, without consideration moving to it from the others. It used an engine leased from defendant which eventually became unrepairable. Defendant then acquired a new engine and, after October 2, 1978, undertook itself to furnish switching services to all three tenants. There was testimony that the other two tenants had been dissatisfied with Railcar's performance of the services because they thought it gave priority to its own needs. After October 2 defendant's employees did all of the switching during the day shift, which ended at 4 P.M. After that hour the switch engine was available for use, but defendant did not furnish its own employees for a second shift switch crew. There was disagreement about how the switching after 4 P.M. should be characterized--as a continuation of defendant's services to the tenants, or as an operation by the tenant furnishing the crew. We conclude that the jury was entitled to make the appropriate characterization.

On October 10, 1978, defendant's employees operated the switch engine until 4 P.M. Switching work remained undone, and two employees of Railcar, DeHart and Mitan, took possession of the engine. DeHart was a supervisor on the day shift who had stayed over, while Mitan was an employee on the shift beginning at 4 P.M. The evidence as to the switching they did is conflicting but the jury could have found that they performed switching services for all three tenants during the evening of October 10 and that, in doing so, they were performing services which Park had undertaken to provide for the tenants.

The plaintiff alleges that DeHart and Mitan were not competent to operate the switch engine and that defendant is chargeable with knowledge of their incompetence. DeHart had been employed for a time by Illinois Central Gulf Railroad and fellow employees had allowed him to operate switch engines at times, but he did not operate engines in the course of his duties and he was not supposed to operate them. He had worked for Railcar for approximately eight months and regularly engaged in switching operations. Mitan had participated in switching operations for a former employer on three occasions prior to his employment by Railcar in June of 1977, in which switching was a regular part of his duties. Neither employee had formal instruction or training in switching, in the operation of engines, or in safety precautions. The plaintiff adduced the testimony of an experienced railroad switchman as an expert on the training and experience that an operator of a switch engine should have before being allowed to operate engines alone and on safety precautions which could have been taken. The jury could have concluded from this testimony that DeHart and Mitan lacked the training and experience necessary for the safe operation of an engine of the nature and size here involved and that they were insufficiently instructed in safety precautions. The jury could also decide whether switching operations in an industrial park are fairly comparable to those of established rail carriers, so as to afford credence to the expert testimony.

The accident took place shortly after 7:30 P.M. on October 10. Plaintiff completed a break and returned to his work in the sandblasting "shop," which was at the end of Track One. A hopper car was in the shop for service. Other cars were on that track, outside the shop area. Plaintiff and two other employees were working inside the hopper car. Plaintiff was standing in one of the funnels, with his feet on the ground and his body inside the car. At this time the switching crew was trying to couple the other cars. DeHart was operating the engine and Mitan was acting as switchman, on the ground. They accidentally coupled the car in which plaintiff was working and it started to move with the rest of the train. Plaintiff fell through the funnel onto the track and his legs were severed as he tried to climb out from underneath. The jury could have found that DeHart and Mitan were negligent in coupling a car in which people were working, but they were employees of Railcar and more must be shown in order to support a claim of negligence against the defendant.

The plaintiff submitted two verdict directing instructions, Number 5, on a theory that DeHart and Mitan were agents of defendant, and Number 7, alleging that DeHart and Mitan were not competent to operate the switch engine and that Park was negligent in entrusting the engine to them. The jury gave no indication as to which theory of recovery it accepted, and so there is legal error unless both instructions are legally correct and supported by evidence.

I.

Instruction No. 5 reads as follows:

Your verdict must be for Herbert J. Fowler, Jr., against Defendant Park Corporation if you believe:

First, Michael DeHart and Joseph Mitan permitted the car in which Plaintiff was working to be coupled onto the line of railcars being moved by the 1968 switch engine, and

Second, that Michael DeHart and Joseph Mitan were acting within the scope and course of their agency for Park Corporation at the time they permitted the car in which Plaintiff was working to be coupled onto the line of railcars being moved by the 1968 switch engine, and

Third, Michael DeHart and Joseph Mitan were thereby negligent, and

Fourth, as a direct result of such negligence, Herbert J. Fowler, Jr., sustained damage.

Acts were within the scope and course of agency as that term is used in this Instruction if:

1) They were performed by Michael DeHart and Joseph Mitan to serve the interests of Park Corporation according to an express or implied agreement with Park Corporation, and

2) Park Corporation either controlled or had the right to control the physical conduct of Michael DeHart and Joseph Mitan.

Defendant complains that there is no evidence that DeHart and Mitan were acting for its benefit at the time of the accident, and no showing that it had any right of control over them.

The evidence shows that, after October 2, 1978, defendant undertook to provide switching services for all tenants at the industrial complex because of dissatisfaction with Railcar's switching. It may be assumed that defendant wanted to please its tenants and to attract others. There was evidence that DeHart and Mitan, on the evening of October 10, were switching for other tenants besides Railcar. Any conflict in evidence, of course, was for the jury to resolve. From the evidence just described the jury could conclude that DeHart and Mitan were doing the defendant's work on the evening of October 10, so as to support the agency element submitted in the instruction.

Defendant argues that there is no evidence that it had the "right to control" DeHart and Mitan in their operation of the engine. Defendant owned the engine. It had the right to lend it on any terms it thought necessary, to prescribe operating rules, to specify the employees of the borrower who would be permitted to use it and to withdraw it at any time. Right to control may exist even though the controller is not in the presence of the persons and instrumentalities which are subject to control. Johnson v. Pacific Intermountain Exp. Co., 662 S.W.2d 237 (Mo. banc 1983). The evidence sufficiently establishes defendant's right to control.

II.

Instruction No. 7 reads as follows:

Your verdict must be for Herbert J. Fowler, Jr., against Defendant Park Corporation if you believe:

First, Defendant Park Corporation loaned the 1968 switch engine to Michael DeHart and Joseph Mitan, and

Second, that at the time Defendant Park Corporation loaned said switch engine to Michael Dehart and Joseph Mitan, Michael DeHart and Joseph Mitan were incompetent to operate said switch engine, and

Third, at the time Defendant Park Corporation loaned the 1968 switch engine to Michael DeHart and Joseph Mitan, it knew or should have known that they were incompetent to operate the switch engine, and

Fourth, that in loaning the 1968 switch engine to Michael DeHart and Joseph Mitan, Defendant Park Corporation was thereby negligent, and

Fifth, that Michael DeHart and Joseph Mitan thereafter permitted the railcar in which Herbert J. Fowler, Jr., was working to be coupled onto the line of railcars being moved by the 1968 switch engine,...