Gill v. Baltimore & O.R. Co.

• Decision Date: 11 February 1924
• Docket Number: No. 23480.,23480.
• Citation: 259 S.W. 93,302 Mo. 317
• Court: Missouri Supreme Court
• Parties: GILL v. BALTIMORE & O. R. CO.

259 S.W. 93

302 Mo. 317

GILL v. BALTIMORE & O. R. CO.

No. 23480.

Supreme Court of Missouri, in Banc.

February 11, 1924.

Appeal from St. Louis Circuit Franklin Miller, Judge.

Action by Anna W. Gill, administratrix of the estate of Glenn C. Gill, deceased, against the Baltimore & Ohio Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

On the issue of excessiveness of damages appellant cited Burton v. Wabash Ry. Co., 236 S.W. 338, loc. cit. 347. Respondent states in his brief:

Decisions of federal and state courts every-where have been upholding verdicts under this act which by comparing age, earning capacity, etc., show plainly that the facts in the case at bar would have supported a larger verdict than was rendered. L. & N. R. Co. v. Holloway, 168 Ky. 262, 181 S.W. 1126; s. c., 163 Ky. 125, 173 S.W. 343, affirmed 246 U.S. 525, 38 Sup. Ct. 379 ($25,000 held not excessive, under federal Employers' Liability Act, for death of engineer, 34, earning $150 to $200 a month); Hadley v. Union Pac. R. Co., 99 Neb. 349, 156 N. W. 765 ($18,000 allowed under federal Employers' Liability Act for death of brakeman 31 years old, who earned from $85 to $100 a month, who deducted $18 a month for personal use and the balance was devoted to household expenses); L. & N. R. Co. v. Allen, 174 Ky. 756, 192 S. W. 863 ($16,000 held not excessive in action under federal Employers' Liability Act for death of employee 32 years old, who had, under life insurance standards, an expectancy of 32 years, and who earned $70 a month); G. C. & S. F. R. Co. v. Carpenter (Tex. Civ. App.) 201 S. W. 270 ($35,000 for death of engineer 37 years old, earning $200 to $225 a month, held not excessive in action under federal Employers' Liability Act); Northern Trust Co. v. G. T. W. R. Co., 207 Ill. App. 11 ($18,000 in action under federal Employers' Liability Act for death of a switchman 28 years of age, who earned $125 a month, held not excessive. Y. & M. V. R. Co. v. Mullins (Miss.) 76 South. 147 ($12,000 allowed in action under federal Employers' Liability Act for the benefit of a mother 60 years of age for the death of a son, who contributed $50 a month for her support); Phillips v. U. P. R. Co. (Neb.) 158 N. W. 966, certiorari denied 244 U. S. 656, 37 Sup. Ct. 742 ($16,000 under federal Employers' Liability Act held not excessive for death of employee who was earning $113 a month and had an expectancy of 34 years according to life insurance tables); C. & A. R. Co. v. Kelly, 160 Ky. 292, 160 S. W. 736; on other grounds in 211 U. S. 494, 36 Sup. Ct. 633 (a judgment for $19,011 for the death of an engineer earning $192 per month with an expectancy according to life insurance standards of 22 years was not excessive under federal Employers' Liability Act); Jones v. Kansas City S. R. Co., 137 La. 178, 68 South. 401; (La.) 78 South. 568, loc. cit. 570; on other grounds, 241 U. S. 181, 36 Sup. Ct. 513 ($17,000 held not excessive under federal Employers' Liability Act for death of employeé, 53 years old, who earned $175 per month); Southern Pacific R. Co. v. Vaughan (Tex. Civ. App.) 65 S. W. 885 ($20,000 for death of employeé under Federal Act, who was 31 years old and earning $175 per month, held not excessive); Gulf, etc., R. Co. v. Beezley (Tex. Civ. App.) 153 S. W. 651 ($20,000 held not excessive under the federal act for death of brakeman, age 29, who earned $100 per month); Ciecelius v. Ry., 284 Mo. 26, 223 S. W. 413, l. c. 418 ($15,000 allowed under federal Employers' Liability Act for death of employee 34 years old, who was only earning $52 a month).

A verdict in a federal Employers' Liability Act case for $15,000, where the deceased was 38, and earned $120 a month, and turned over to wife for householkd expenses $80 a month, was not excessive; then certainly a verdict for $22,333.33 was not excessive where the deceased was 24 years old and the widow 32 years old, and deceased earned $200 a month and turned over to his wife for household expenses $160 a month. McIntyre v. Frisco Ry., 286 Mo. 234.

Fordyce, Holliday & White, of St. Louis. and Kramer, Kramer & Campbell, of East St. Louis, Ill. (Morison R. Waite and William

A. Eggers, both of Cincinnati, Ohio, of counsel), for appellant.

Sidney Thorne Able and Charles P. Noell, both of St. Louis, for respondent.

JAMES T. BLAIR, J.

This is an appeal from a judgment upon a verdict for $22,333.33 in an action respondent, as administratrix, brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), for damages for the death of Glenn C. Gill, a switch foreman, who was killed while at work for appellant in its yards in or near East St. Louis, Ill.

On the night of December 28, 1920, the switching crew of which Gill was in charge was at work in the yards, placing loaded cars on track 14 and empty cars on track 15, doors opposite each other, in order that carload lots might be placed in the empty cars by transfer from the loaded cars, each of which contained freight for different destinations in other states. There is ample evidence that the movements were in interstate commerce. The switch engine was handling a cut of 14 cars, some empty and some loaded. During the work an empty car was kicked in upon track 15, and the engine drew the remaining cars eastward out upon the lead. The rear car stopped at a point about 10 feet east of the switch which opened into track 15. The next movement intended to be made was to place the loaded rear car of the cut on track 14. Gill stepped to the switch opening from the lead into track 15 for the purpose of closing it. In the meantime Dorst, the long field man, or rear brakeman, discovered that the car kicked into track 15 had stopped before clearing, i. e. before it moved far enough so that a car moving along track 14 would pass it. Dorst gave a track signal the purpose and effect of which was simply to inform Gill, the foreman, that the car mentioned had not cleared. The fact that it had not done so made it necessary to push this car farther in upon track 15 so that the next car could be set in upon 14. Gill then left the switch into 15 aligned for that track and stepped over to the rear of the end car of the cut still attached to the engine in order, as was the custom and practice, to close the knuckle of the coupler. This had to be done by hand. The purpose of doing it was to prevent the rear car of the cut from coupling into the car on track 15 by impact— which would have required that some one should follow this car down the track, when it had been pushed far enough, and uncouple so that the other cars could be drawn out upon the lead, and the car upon 15 left upon that track. While Gill was closing the knuckle, the engineer started the engine, and Gill was run over and so injured that he died a few days later.

There is evidence that it was Gill's business, as foreman, to give all signals for the movement of cars and engine, and that the engineer was not authorized to move without a signal originated by him. Sometimes a brakeman relayed a signal from Gill to the engineer when the foreman was so placed that he could not be seen by the engineer. There is ample evidence, both direct and circumstantial, that Gill neither gave nor originated a signal for the movement made. There is direct testimony that no signal for the engineer to come forward (his engine was coupled into the east end of the cut so that it faced the cars) was given by any one. Carter and Fisher, the head brakeman and the engineer, attempted to testify that some one signaled, but each was confronted by his written statement so contradicting him that it is not surprising the jury found as it did. Gill was dragged 10 or 15 feet before a stop was made, after the emergency signal was given by Dorst who heard Gill cry out. A more detailed statement of the evidence is not essential. The instructions will be set out so far as necessary in connection with a consideration of the objections made to them. The facts supposed to bear upon the question concerning the amount of the judgment appear in conjunction with what is said with reference to the point made respecting that matter.

I. It is argued, it seems, that there is a federal rule to the effect that a trial court may, in that jurisdiction, direct a verdict in accordance with the weight of the evidence and that a verdict will be set aside in an appellate federal court on a record it may think shows such verdict to be against the weight of the evidence; that this rule applies in this court in this case under the Employers' Liability Act; and that this court should reverse the judgment on its inspection of the record because of the failure of the trial court to direct a verdict for appellant on the weight of the evidence. There is more than one answer. (1) On the record presented here it is apparent that the weight of the evidence was with respondent. (2) If doubt on this head could be said to exist, the trial court's action in overruling the motion for new trial necessarily implied that it found the weight of the evidence was with respondent; otherwise it was his duty to sustain the motion. That ruling of the court on that question would solve the question in a doubtful case, even if there were such a rule in the federal appellate courts, as is contended, and, if further it could be held to apply to this case. (3) The Conformity Act (Act Cong. June 1, 1872, c. 255, § 5, 17 Stat. 197; Rev. St. U. S. § 914 [U. S. Comp. St. § 1537]; Barrett v. Virginian Ry. Co., 250 U. S. loc. cit. 475 et seq. 39 Sup. Ct. 540, 63 L. Ed. 1092) would exclude the application of such a rule in this case, even if it existed in the other jurisdiction. (4) No such rule exists. Crumpton v. U. S., 138 U. S. 361, 11 Sup. Ct. 355, 34 L. Ed. 958; Zeller v. Eckert, 4 How. 289 loc. cit. 298, 11 L. Ed. 979; York, etc., R. Co. v. Myers, 18 How. 246, 15 L. Ed. 380; City of Providence v. Babcock, 3 Wall. 240, 18 L. Ed. 31; ...