Giambelluca v. Missouri Pac. R. Co.
| Decision Date | 12 January 1959 |
| Docket Number | No. 1,No. 46503,46503,1 |
| Citation | 320 S.W.2d 457 |
| Parties | Charles GIAMBELLUCA, Plaintiff-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Defendant-Appellant |
| Court | Missouri Supreme Court |
Thompson, Mitchell, Thompson & Douglas, J. Richard Skouby, Charles M. Spence, Richard P. Conerly, St. Louis, for appellant.
Everett Hullverson, Hullverson, Richardson, Hullverson & Jeans, D. L. McClure, St. Louis, for respondent.
VAN OSDOL, Commissioner.
Plaintiff Charles Giambelluca instituted this action against defendants Missouri Pacific, Union Pacific, and Texas & Pacific railroad companies, for personal injuries sustained when the rack of an 'auto loader' with automobile thereon fell upon plaintiff while he was assisting in unloading automobiles from T. & P. Car No. 62007 at Sugarland, Texas.
Plaintiff originally had declared on the theory of res ipsa loquitur, but during trial the petition was amended to allege specific negligence in failing to properly inspect the boxcar and auto loader so as to discover worn gears and loose bolts. Prior to trial, a motion to quash the return of service of summons on defendant Texas & Pacific Railroad Company had been sustained, and plaintiff's case was submitted to a jury as against the remaining defendants. The jury returned a verdict for plaintiff and against Missouri Pacific Railroad Company awarding $75,000 damages, but returned a verdict against plaintiff and in favor of Union Pacific Railroad Company. Defendant Missouri Pacific Railroad Company has appealed.
Plaintiff was the employee of E. A. De Late, an automobile dealer of Stafford, Texas. The automobiles, Pontiacs, in boxcar 62007 had been consigned to De Late by General Motors Corporation, Kansas City. The boxcar, although belonging to Texas & Pacific Railroad Company, had been supplied by defendant Missouri Pacific. According to defendants' evidence the boxcar and auto loader had been inspected and tagged 'O.K. for auto loading' by employees of Missouri Pacific. The boxcar was then delivered to defendant Union Pacific for the switching movement to the tracks at the General Motors plant. Four Pontiacs were loaded in the boxcar by General Motors--two on the floor, one at each end of the boxcar, and two resting above them on the auto loaders, one loader and elevated automobile thereon at each end of the boxcar. The boxcar then was moved by several carriers to a side track of the Texas & New Orleans Railroad Company at Sugarland, Texas, where the automobiles were to be received by consignee De Late.
An auto loader, such as involved herein, is operated by a hoisting device, integral part of the loader, mounted on a steel shaft running across the end of the boxcar near the ceiling. Metal drums accommodating steel cables are on and pinned to each end of the shaft. The shaft passes through the hoisting device proper which is near the right-hand corner as one faces the end of the boxcar. The gear mechanism of the hoisting device is enclosed in a metal housing. Passing through the housing, the steel shaft is keyed to a bronze hob gear a little less than seven inches in diameter. The cogs of the hob gear are designed to mesh with the worm threading of a steel worm gear below which is in an horizontal position and is borne by bearings in each (front and rear) side of the gear housing.
At the rear side of the housing the shaft of the worm gear 'slip fits' through a gear plate and, extending farther, is pinned or fixed in the hub of a sprocket wheel. An endless chain fifteen or twenty feet long passes over the sprocket wheel and meshes in accommodating corrugations in the outer periphery of the wheel. The gear plate at the rear side of the housing is fixed to the housing by four hexagonal-headed 3/4"'' stud bolts or 'cap screws.' Attached to and a part of the gear-plate casting and extending downwardly at an inverted V-angle are cast-iron arms terminating in guides just outside the lower right and left of the sprocket wheel at the points where the links of the chain engage with the corrugations on the periphery of the wheel.
Steel cables pass from the drums at either end of the shaft and are so routed through pulleys as to pass over and attach to the sides and evenly hoist or lower the weight of the rack and load, which rack consists of four metal plates framed together on which the wheels of the automobile rest. Four arms or bars, two on either side, attached to the sides of the rack extend up and are attached to or near the ceiling at the sides of the boxcar. These arms guide the rack in pendulum fashion as the rack is raised or lowered by the cables and hoist. In loading, the rack with automobile is raised and swung somewhat more to the rear of the car, the front of the rack being finally brought to an elevated fixed position with rear end near the end of the boxcar and the front end tilted up so that another automobile may be stowed beneath. When the rack and automobile are in such position, two legs of adjustable length, pivoted on each side of the rack, are folded down and fixed to the floor of the boxcar by flanged clevis devices. Normally, during transit, these legs support, or at least in large part support, the rack and the automobile thereon.
In unloading the boxcar, the automobile on the floor is taken out first and the rack and automobile above are lowered by means of the hoist. In order to lower the rack, the legs beneath it must be removed. And as the rack is lowered it glides forward toward the center of the boxcar. In raising the rack, the operator of the hoist grasps and pulls the right-hand chain, that is, the chain as it hangs on the right hand as the operator stands facing the end of the boxcar; and, in lowering, the chain as it hangs on the left is used. Ordinarily, it takes five or six minutes to lower the rack and load.
There was evidence that the principle of mechanics on which the hoisting device works is that of friction, or braking action between the larger hob gear of comparatively soft bronze and the harder steel of the smaller worm gear. When the device is in normal condition, the worm gear operated by the chain and spocket can turn the hob gear and lift or lower the rack and load, but the weight (alone) of the loaded rack on the cables, drums and hob gear cannot turn the worm.
It is to be particularly noted that the castiron arms of the chain guides are cast as one casting with the gear plate. And if the four cap screws fixing the gear plate to the gear housing were sheared, while the hoisting device was being operated with loaded rack, the shaft of the worm gear could slip from its seats in the two bearings at the lower part of the housing; the threading of the worm gear could become disengaged from the cogs of the hob gear; the weight of the automobile and rack could unwind the cables from the cable drums; and the rack and its load could fall to the floor of the boxcar.
Plaintiff's theory was that when boxcar 62007 was inspected by defendant Missouri Pacific the cap screws holding the gear plate to the gear housing were loose and the bronze hob gear was worn so that when the loaded rack started downward by one pull of the chain the sprocket wheel would suddenly revolve at such a rapid rate that the chain was likely to jam in its guides causing a sudden shearing of the cap screws and the load then to fall rapidly. Defendants' theory was that the hoist, not having a worn hob gear and having cap screws which were tight, could still be caused to shear if the operator pulled the lowering chain very hard, by which the chain could be caused to whip and jam with resulting severe impact on the cap screws themselves.
Defendant-appellant, Missouri Pacific Railroad Company (hereinafter referred to as 'defendant,' although the word 'defendants' is often used when we are including defendant Union Pacific), assigns error of the trial court in refusing to grant defendant's motion for a directed verdict. It is contended (1) there was no substantial evidence from which the jury could find that the hob gear was worn and that the cap screws were loose; (2) plaintiff was bound by his own testimony that the hoist, and not the legs, was holding the weight of the loaded rack, which testimony shows that the hob gear was not worn and the cap screws were not loose when and the cap screws were not loose when defendant as a matter of law, contributorily negligent in being beneath the loaded rack when it fell. Other errors of the trial court are assigned (4) in giving plaintiff's verdict-directing Instruction No. 7; (5) in permitting plaintiff's counsel to ask hypothetical questions based on assumption of fact contrary to plaintiff's own testimony; and (6) in refusing to grant defendant's motion for a mistrial because statements regarding defendant's failure to produce the hoisting device were prejudicial. It is also assigned (7) that the award, $75,000, was grossly excessive; and (8) that the trial court erred in refusing to rule that a prior action by De Late's workmen's compensation insurer against defendant Missouri Pacific and others barred plaintiff from recovering such amounts to which such insurer may have been entitled by subrogation.
The contentions challenging the submissibility of plaintiff's case require a further and extensive examination of the evidence. In ruling such contentions an appellate court considers the evidence in the light most favorable to plaintiff. The evidence favorable to plaintiff is considered as true, and plaintiff is given the benefit of every reasonable inference therefrom; and defendant's evidence unfavorable to plaintiff is disregarded.
In the instant case, no witness testified directly that the hob gear of the hoisting device was worn and that the cap screws of the gear plate were loose. Plaintiff in endeavoring to make out his...
To continue reading
Request your trial
-
Marquardt v. Kansas City Southern Ry. Co., 48472
...the plaintiff was much younger, and a verdict reduced to $50,000 by the trial court was allowed to stand; Giambelluca v. Missouri Pacific R. Co., Mo.Sup., 320 S.W.2d 457, where a $75,000 award was reduced to $50,000; the initial injuries were more obvious and apparently more severe but the ......
-
McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., HARTMAN-HANKS-WALSH
...out of his recovery from McDonnell, the full amount Hartman had paid him for workmen's compensation. See Giambelluca v. Missouri Pacific R. Co., Mo.Sup., 320 S.W.2d 457, and cases cited; State ex rel. and to use of Missouri Pacific R. Co. v. Haid, 332 Mo. 616, 59 S.W.2d 690; Superior Minera......
-
Grimes v. Standard Oil Co.
...held erroneous because it does not require the jury to draw the inference which the law itself draws therefrom. Giambelluca v. Missouri Pacific Railroad Co., Mo., 320 S.W.2d 457; Losh v. Ozark Boarder Electric Co-op., Mo., 330 S.W.2d 847; Stumpf v. Panhandle Eastern Pipe Line Co., supra; Kn......
-
Brooks v. Mock
...by the omission under consideration and we accordingly rule that no prejudicial error occurred in that respect. Giambelluca v. Missouri Pacific R. Co., Mo.Sup., 320 S.W.2d 457. Defendant next contends that the court erred in giving Instruction No. 4 which reads as follows: 'The court instru......