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

• Decision Date: 30 June 1937
• Citation: 107 S.W.2d 36,341 Mo. 288
• Parties: Burns W. Freeman v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

107 S.W.2d 36

341 Mo. 288

Burns W. Freeman v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

Supreme Court of Missouri

June 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge;

Affirmed.

T M. Pierce, J. L. Howell and Walter N. Davis for appellant.

(1) Plaintiff failed to make a submissible case for the reasons following: (a) One cannot be said to be negligent, merely because of a failure to make provision against accident which one could not reasonably be expected to foresee or anticipate, and which was not the proximate cause of plaintiff's injuries. Davies v. Railroad Co., 236 F. 728, 159 C. C. A. 60; McCain v. Railroad Co., 76 F. 125; Newhouse v. St. Louis B. & E. Co., 326 Mo. 1047, 33 S.W.2d 932; Riger v. Lumber Co., 210 Mo.App. 322, 236 S.W. 689; Ward v. Dry Goods Co., 248 Mo. 348, 154 S.W. 478; Evans v. Railroad Co., 222 Mo. 435, 121 S.W. 36; Lowe v. Railroad Co., 165 Mo.App. 523, 148 S.W. 946. (b) The moving of the car toward plaintiff without a come ahead signal from plaintiff was not the cause of plaintiff's injuries. B. & O. Railroad Co. v. Berry, 286 U.S. 272, 52 S.Ct. 510, 74 L.Ed. 1098. (c) Inasmuch as the car moved into track 16, pressing the switch point against the east rail, it was impossible for the accident to have happened as stated by plaintiff. (d) Under the pleadings, this case is governed by the Federal Employers' Liability Act as interpreted by the United States Supreme Court. C. & O. Railroad Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 422, 73 L.Ed. 861; Chicago, etc., Railroad Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041. (2) Plaintiff's Instruction 1, is erroneous. It fails to provide that the moving of the car against the switch point caused the switch lever to fly up and strike plaintiff and cause him to fall. It further fails to provide a finding that the moving car came in contact with the switch point. (3) The verdict was and is still excessive. Grange v. Railroad Co., 334 Mo. 1040, 69 S.W.2d 955.

Wm. H. Allen for respondent.

(1) Defendant's servants controlling the movements of the switch engine and cars attached thereto were plainly guilty of negligence in sending the car down upon plaintiff without having received a "come ahead" signal from him and without warning, when they knew that plaintiff had gone down to operate this switch, knew that thereafter the engine and cars had been stopped in response to his signal, knew that he was at work about the switch, where he might be injured by an unexpected movement of a car over the same, and knew it was their duty not to move forward without a signal from him. And such negligence on the part of defendant's servants was obviously the direct, proximate cause of the plaintiff's injury. 45 U.S.C. A., sec. 51; Norton v. Wheelock, 323 Mo. 913; Kamer v. Railroad Co., 326 Mo. 792; Mitchell v. Railroad Co., 69 S.W.2d 286; Goodwin v. Mo. Pac. Ry. Co., 335 Mo. 398; Woodward v. Mo. Pac. Ry. Co., 316 Mo. 1196; Laughlin v. Mo. Pac. Ry. Co., 297 Mo. 345; Koonse v. Mo. Pac. Ry. Co., 322 Mo. 813; Ill. Cent. Railroad Co. v. Norris, 245 F. 926; McGovern v. P. & R. Ry. Co., 235 U.S. 389; Case v. Ry. Co., 30 S.W.2d 1069; St. Louis S.W. Ry. Co. v. Rogers, 266 S.W. 284. (a) The act of defendant's servants in charge of its switch engine in sending down the car upon plaintiff under the circumstances, without awaiting a "come ahead" signal from him, after the engine and cars had stopped in response to his signal, would render the defendant liable to plaintiff under the Federal Employers' Liability Act for the injuries received by him had there been no proof of any established custom or practice. But the evidence both for plaintiff and defendant showed, without contradiction or dispute, that the moving of the cars forward without a "come ahead" signal from plaintiff was in direct violation of an established custom and practice in the yard designed for the orderly conduct of the business and the protection of employees engaged therein. The violation of such custom or practice, upon which plaintiff had the right to rely, was obviously negligence of the most pronounced character. Case v. Ry. Co., 30 S.W.2d 1069; St. Louis S.W. Ry. Co. v. Rogers, 266 S.W. 281; Norton v. Wheelock, 323 Mo. 913; Pachecho v. Railroad Co., 15 F.2d 467; Lehigh Valley Railroad Co. v. Diktor, 290 F. 760; Baltimore & O. Railroad Co. v. Robertson, 300 F. 314; St. Louis & S. F. Ry. Co. v. Jeffries, 276 F. 73; Montgomery v. Railroad Co., 22 F.2d 359; Lehigh Valley Railroad Co. v. Mangan, 278 F. 85. (b) Defendant may not escape liability for the negligence of its servants in moving the car forward upon plaintiff without waiting for a signal from him, upon the theory that such servants could not reasonably have foreseen and anticipated that the switch lever would fly up and cause plaintiff to fall. For liability to attach it is not necessary that one guilty of negligence could have anticipated that the very injury complained of would result therefrom, or that it would occur in the exact manner in which it did occur. McLeod v. Linde Air Products Co., 318 Mo. 407; Buckner v. Horse and Mule Co., 221 Mo. 710; Harrison v. Light Co., 195 Mo. 629; Dean v. Railroad Co., 199 Mo. 411. (c) It requires an extraordinary case to authorize a court to regard sworn testimony as manifestly impossible and untrue, and this is obviously not such a case. So frequently do unlooked-for results attend the meeting of interacting forces that courts will not indulge in arbitrary deductions from physical laws or facts except when such deductions are so clear and irrefutable as to leave no room for the entertainment, by reasonable minds, of any other. Hardin v. Ill. Cent. Railroad Co., 334 Mo. 1180; Gately v. St. L.-S. F. Ry. Co., 332 Mo. 15; Shupback v. Meshevsky, 300 S.W. 467. (d) In passing upon a request of a defendant for a peremptory instruction, it is the duty of the trial court, under the Federal rule, to accord the plaintiff the benefit of all inferences in his favor that may be fairly and reasonably deduced from the evidence; and if uncertainty as to the existence of liability arises from a conflict in the evidence, or if reasonable and fairminded men may honestly draw different conclusions from the facts in evidence, the case is one for the determination of the jury. Hardin v. Railroad Co., 334 Mo. 1169; Gunning v. Cooley, 281 U.S. 94, 74 L.Ed. 724; Western, etc., Railroad Co. v. Hughes, 278 U.S. 496, 73 L.Ed. 473; Baltimore & O. Railroad Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 419; Koonse v. Mo. Pac. Ry. Co., 322 Mo. 813; Line v. Erie Railroad Co., 62 F.2d 659; Henry v. Ry. Co., 332 Mo. 1072; Grange v. Ry. Co., 334 Mo. 1040. (2) The verdict is not excessive, but is no more than a fair and reasonable award for the injuries suffered by plaintiff, the loss of earnings and diminution of earning capacity thereby entailing, and the pain and suffering that plaintiff has endured and will endure by reason of the wrongful act of defendant's servants. Radler v. Ry. Co., 330 Mo. 968; Martin v. Ry. Co., 329 Mo. 729; Margulis v. Natl. Enameling & Stamping Co., 324 Mo. 420; Woods v. Ry. Co., 8 S.W.2d 922; Gately v. Ry. Co., 332 Mo. 1.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action for personal injury under the Federal Employers' Liability Act. 45 U.S.C. A., Section 51 et seq. The jury returned a verdict in favor of plaintiff for $ 17,500. Pending motion for new trial, a remittitur of $ 5000 was filed, and the motion was overruled. This appeal followed.

Plaintiff was a member of a switching crew and on January 11, 1934, about one-fifty-five a. m., was injured in defendant's CD yards in East St. Louis, Illinois. Plaintiff went to the jury on the charge of negligence that the engineer kicked a car over a switch where plaintiff was working without a come ahead signal from plaintiff. The answer was a general denial and assumption of risk. That the cause is one properly under the Federal Employers' Liability Act is not disputed.

Error is assigned (1) on the refusal of a demurrer to the evidence; (2) on plaintiff's Instruction No. 1; and (3) that the verdict is still excessive.

Plaintiff had been working in these yards since December, 1922, and on the night of his injury he was switch tender. Other members of the crew working with plaintiff were Conklin, foreman Rule, pin puller; Schatz, engineer; and Jones, fireman. The lead track involved extended north and south. From north to south along the lead track, switches went off on the west side, and these switches were numbered from north to south. Plaintiff was injured at switch No. 16, the stand for which, was about 3 feet east of the east rail of the lead track, and rested on extending switch ties. The stand was low and was called a "ground switch stand." The switch was operated by a lever which was pushed over, north or south, according to the lineup desired. This lever had an iron ball on its end, which ball weighed thirty-five or forty pounds, and if the switch was to function properly this ball should go down to the ground, or to a wood block upon which the ball came to rest when all was well. If the lever was thrown or turned over from the north to the south, then a car coming on the lead track from the north would take switch No. 16. If the lever was thrown from the south to the north, then such car would continue south on the lead track. The engine, on the lead track, was headed south and was some distance north of switch No. 16. In front of the engine were three cars. The two cars next to the engine were high and obstructed the reflection of the headlight down the track. The south car of the 3 was a 3-board coal car, and this car was to be placed on switch track No. 16. Switch No. 16 was then so...