Goodwin v. Missouri Pac. R. Co.

• Decision Date: 12 June 1934
• Docket Number: No. 31509.,31509.
• Citation: 72 S.W.2d 988
• Parties: GOODWIN v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

72 S.W.2d 988

GOODWIN v. MISSOURI PAC. R. CO.

No. 31509.

Supreme Court of Missouri, Division No. 1.

June 12, 1934.

Appeal from St. Louis Circuit Court; Charles W. Rutledge and Frank C. O'Malley, Judges.

Action by Walter Goodwin against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thomas J. Cole and David E. Blair, both of St. Louis, for appellant.

Clay C. Rogers, of Kansas City, Pross T. Cross, of Lathrop, and Mosman, Rogers & Buzard, of Kansas City (A. B. Lovan, of Kansas City, of counsel), for respondent.

HYDE, Commissioner.

This is an action for damages for personal injuries. Plaintiff had a verdict for $30,780. A remittitur of $15,000 was ordered and made, and a new judgment entered for $15,780. Defendant has appealed from that judgment.

Plaintiff claimed to have been injured by getting coal in his eyes, resulting in the loss of his left eye and the impairment of his right eye, while working for defendant as a section hand at Marshall in the fall (October or November) of 1924. The only evidence in the record as to how his injury occurred was plaintiff's own testimony. He said that frequently when freight trains came into Marshall there would be no coal in the front part of the tender so that the fireman could conveniently reach it when firing on the road. On such occasions, a section man would be ordered to shovel coal from the back part of the tender. They called this "coaling the engine." The engine men "generally went to supper" while the section men "coaled the engine." Sometimes several section men would work on the same tender, and when only one man worked it would often take him more than an hour to coal the engine. Plaintiff said that on the day he was injured he had quit his regular work at 4 p. m. and was waiting at the depot to see the afternoon passenger train arrive. The freight agent came to him and told him that the fireman on an engine needed some coal. Plaintiff told him that he could not go on the engine without orders from his boss. (The section men got overtime pay for this work after regular hours.) The freight agent got the section boss to come down between 5 and 6 o'clock, and he told plaintiff to go up and shove down some coal for the fireman of the freight train "so they could go to Boonville." The engine was switching at that time, and plaintiff said: "I told him the trains were moving, I didn't want to get up there and shovel coal because it was dangerous, he said they would stop for me, to go to supper, as they generally did." The foreman then went home.

Plaintiff testified as to what happened thereafter, as follows: "I caught the tender, they stopped for me to get on at the crossing and I got up on the tender, then they pulled up on the track, oh, quite a ways above and did some switching where they could cut off those cars and switch them onto each track they wanted to get and when they stopped over there I believed they would stand there a while and they did not, * * * started to throwing this coal down. * * * I was standing up on the coal behind next to the back of the tender. * * * It was sloping, a high point and sloped this way down towards that hole, I was standing about on top of this coal shoveling it this way towards that hole. * * * I had been working there not over five or six minutes until all at once suddenly they let loose there on that hillside and gave it a jerk, jarred back and throwed me forward, down with a shovelful of coal in my hand, somehow or another; when I went down with that in my hand, the middle of the shovel hit some kind of a lump or something in there and throwed this here coal on the side of my face. * * * I heard no warning at all, heard no whistle or no bell. * * * They generally hollered at me, or told you to brace yourself or whistle, or rang the bell long before they moved. * * * It got into both eyes, got into the left eye worse than the right one. * * * Well, I told the fireman that I would have to get off, stop the train, I got my eye full of coal, I couldn't do any more."

On cross-examination plaintiff testified further, as follows:

"Q. When you climbed into the tender and started shoving the coal down, was the fireman and engineer on there? A. Yes, sir. * * *

"Q. They were just standing there? A. Standing or sitting.

"Q. How far from them were you? A. He was standing there where he fires. * * *

"Q. He knew you were up there? A. He seen me get up there. * * *

"Q. Did they tell you to get up there themselves? A. Yes, sir; he said he would have to have some coal. * * *

"Q. Have you ever been on an engine coaling it when it was moving? A. No. I would not do that; no, sir.

"Q. Never have? A. No, sir; they do not coal them when they are moving, unless they were moving awful slow.

"Q. Didn't coal them when they were moving unless they were moving awful slow? A. Couldn't stand up.

"Q. Now, Moad (the foreman) told you not to coal that engine, didn't he, until the fireman and engineer went to supper? A. Didn't tell me not to, he said coal it while they went to supper, he told me to coal it while they were going to supper.

"Q. You did not wait? A. They was not going.

"Q. You didn't wait until they went to supper, you got up and started to coal? A. They told me they was not going to supper, they had been, or something.

"Q. Moad's directions were to you to coal it while they went to supper? A. Yes, sir. * * *

"Q. He told you to only do it while they did go to supper, didn't he? A. Yes, sir.

"Q. And despite that, you got on and coaled it, anyhow? A. They told me they was not going to supper, I had to coal it some time.

"Q. Were they making steam there? A. Sure, they was making steam.

"Q. The engineer and fireman were there making steam all the time? A. Yes, sir.

"Q. Getting ready to start? A. Yes, sir.

"Q. You knew that? A. They was switching back and forth, they pulled up there where I told you they stopped.

"Q. You knew they were going ahead to continue to switch? A. I didn't know it. * * *

"Q. In other words, every time they moved they would give you some kind of warning? A. I had coaled before and every time they moved they would give me a warning.

"Q. You have coaled before when the engines would move around? A. Yes, sir; but they would stop.

"Q. What did you do then, you would coal? A. Brace myself until they stopped.

"Q. Brace yourself? A. Brace myself until they stopped.

"Q. Would you brace yourself and go ahead and coal? A. No, sir.

"Q. Brace yourself and rest? A. Yes, until they stopped."

Plaintiff said that the coal was mostly fine slack coal; that the pile was four or five feet high; and that the way the shovel struck, when he fell, caused a lot of it to go in his left eye and a smaller amount in his right eye. Plaintiff said that he went to the place where he boarded and that the lady there undertook to get the coal out with a handkerchief and also bathed his eyes. (She corroborated this part of his testimony.) He said that his eyes hurt the next day; that he told his foreman about getting coal in them; that his eyes bothered him continuously; that the pain "would come and go, get worse at times and get better and then get worse again"; but that he kept on working thinking they would get better until finally, in April, 1925, he was taken to defendant's hospital in St. Louis for treatment, where an operation was finally performed. Plaintiff testified and had evidence of other witnesses to show that, prior to the time he claimed to have been thrown down in the tender, his eyes were in good condition; that he read without glasses; and that he did work on the track such as lining up rails which took exceptionally good eyes. Plaintiff admitted that in 1918 a piece of ice flew up and went into his left eye while he was cleaning ice from the track with a pick. He said, however, that this injury cleared up in a few days and never caused any further trouble. Plaintiff also had medical testimony as to the connection between the subsequent condition of his eyes, requiring the operation, and infection which might result from getting coal in them, in the manner he described.

Defendant denied that the incident, which plaintiff related, ever happened and produced a number of engineers and firemen of freight trains coming into Marshall at the time who testified that they never heard of it. Plaintiff's foreman, and other men who worked with plaintiff, said that plaintiff never told them about it or said that he got coal in his eyes. Defendant also had several witnesses who told of other injuries to plaintiff's eyes; said that he wore glasses before the fall of 1924; that he had a speck or spot in his left eye; and that both of his eyes looked weak, red, and watery. Defendant also had statements signed by plaintiff in 1925 while in defendant's hospital in St. Louis which told of the incident in 1918 when a piece of ice went into his eye; stated that he never had any other accident to his eyes; and said there was no negligence on the part of defendant that caused his eye trouble. Defendant also had medical testimony tending to show that plaintiff had a cataract in his left eye, of such long standing that it was partly absorbed, due to some old injury which had been severe enough to puncture the eyeball; that he had a senile cataract forming in his right eye due to age and deterioration or disease; and that the condition of the right eye was not due to any injury to the left eye. Plaintiff denied that he ever injured his eyes except the two times while working for defendant, in 1918 and 1924. He said that two statements were taken each time at defendant's hospital, one covering the 1918 injury and one covering the 1924 injury; also said that he was unable to read at the time he signed them; and that he did not make some of the statements they contained. Defendant's witnesses in turn denied that two statements were taken or that plaintiff ever claimed that any...