Grosvener v. New York Cent. R. Co.

• Decision Date: 20 December 1938
• Docket Number: 35489
• Parties: Larry F. Grosvener, Appellant, v. New York Central Railroad Company, a Corporation
• Court: Missouri Supreme Court

123 S.W.2d 173

343 Mo. 611

Larry F. Grosvener, Appellant, v. New York Central Railroad Company, a Corporation

No. 35489

Supreme Court of Missouri

December 20, 1938

Rehearing Granted, Reported at 343 Mo. 611 at 625.

Appeal from Circuit Court of City of St. Louis; Hon. Arthur H Bader, Judge; Opinion filed at May Term, 1938, August 17, 1938; motion for rehearing filed; motion overruled at September Term, December 20, 1938.

Reversed and remanded.

C O. Inman for appellant.

(1) Under the Federal Employers' Liability Act the jury are required to diminish damages of the plaintiff in proportion to the amount of negligence attributable to the plaintiff -- that is, in the proportion which such negligence of the employee bears to the combined causal negligence of both plaintiff and defendant. The jury were so instructed in this case, and, hence, if the instructions given by the court at defendant's request submitted matters of contributory negligence not supported by the pleadings or proof, or if, on the whole, the instructions unjustifiably tended to magnify the alleged misconduct of the plaintiff or to minimize the character of the negligence charged against the defendant, then plaintiff did not have a fair trial and the judgment will be reversed, in spite of the fact the judgment was nominally in plaintiff's favor. Rice v. Jeff. City B. & T. Co., 216 S.W. 746; Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143, 324 Mo. 544; Monroe v. C. & A. Railroad Co., 219 S.W. 68. (2) Where instructions are erroneous they are presumed to be prejudicial. Moloney v. Boatmen's Bank, 288 Mo. 458, 232 S.W. 133; Arnovitz v. Arky, 219 S.W. 624; Brown v. St. L.-S. F. Ry. Co., 281 S.W. 452. (3) Instruction 4 given at the request of the defendant was erroneous and prejudicial to the plaintiff for the following reasons: (a) The instruction assumes that the cars were being moved in the usual and customary manner, and ignores the proposition that they were moved without sounding the bell of the locomotive as required by rule and custom. Barr v. Nafziger Bakery Co., 328 Mo. 423, 41 S.W.2d 559. Evidence that work was being done in the usual and ordinary way was not evidence that the negligent conduct of the defendant's employees was the usual and ordinary method of doing the business. Illinois Cent. Railroad Co. v. Porter, 207 F. 311. (b) The instruction was argumentative. Finn. v. United Rys. Co., 267 S.W. 416; Goodwin v. Engas, 236 S.W. 50. (c) It impliedly advised the jury that plaintiff could not rely upon the ringing of the bell and, therefore, had the effect of minimizing defendant's negligence and of unjustifiably magnifying the alleged misconduct of plaintiff in the minds of the jurors. Barr v. Nafziger Bakery Co., 328 Mo. 423, 41 S.W.2d 559. (4) Instruction 5 was erroneous in telling the jury that negligence is a positive wrong. The effect of this declaration was to cause the jury to believe that the misconduct charged against the plaintiff was either intentional or of such a character as to practically amount to a crime. Thus the jury were permitted to consider plaintiff's conduct to be of such a character and to diminish his verdict accordingly. Nelson v. Evans, 93 S.W.2d 691. (5) Instruction 6 given at the request of the defendant is erroneous: (a) Although purporting to submit the defense of assumption of risk, it conveyed to the jury the idea that plaintiff was working under a written contract with the defendant whereby he was under the absolute duty to protect himself; it assumed that the dangers were obvious and appreciated by the plaintiff, and conveyed the impression that plaintiff could not rely upon the observance of care by his fellow employees -- thus improperly minimizing defendant's negligence and magnifying that charged against the plaintiff. (b) An employee does not assume the risk of the unusual and unexpected negligence of a fellow servant, and hence in this case no instruction upon assumption of risk should have been given. C., R. I. & P. Ry. Co. v. Ward, 252 U.S. 18, 40 S.Ct. 275; C. & O. Ry. Co. v. DeAtley, 241 U.S. 310; Smith v. Payne, 269 F. 1; O'Donnell v. B. & O. Ry. Co., 26 S.W.2d 929; Koonse v. Mo. Pac. Ry. Co., 18 S.W.2d 467; Brock v. M. & O. Ry. Co., 51 S.W.2d 100; Erie Railroad Co. v. Irons, 48 F.2d 60; Pacheco v. Railroad Co., 15 F.2d 467; Wyatt v. Railroad Co., 45 F.2d 705; Lehigh Valley Railroad Co. v. Mangan, 278 F. 85. (c) The defendant's answer does not plead extraordinary risks but characterizes the risks as incidental to the employment; hence the instruction was broader than the pleadings. (6) Instruction 7 given at the request of defendant is erroneous and prejudicial to plaintiff for the following reasons: (a) The instruction is broader than the amended answer, in that it allowed the jury to diminish plaintiff's damages upon the negligence hypothesized therein, whereas the amended answer charged that said negligence directly occasioned plaintiff's injury without any negligence on the part of the defendant. This is a plea in bar and not in mitigation of damages. O'Donnell v. B. & O. Ry. Co., 26 S.W.2d 929; Pyle v. McNealy, 62 S.W.2d 921. (b) It permitted the jury to consider plaintiff's failure to watch for engines and cars without requiring the jury to find that plaintiff's failure was negligence. It is error to assume plaintiff's negligence. Mahaney v. K. C., etc., Co., 46 S.W.2d 817; Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143, 324 Mo. 544. (c) The instruction allowed the jury to diminish plaintiff's damages if plaintiff's conduct hypothesized therein contributed remotely or in any degree, and failed to require the jury to find that his conduct directly or proximately contributed to cause his injuries. Under the Federal Act damages may not be diminished on account of any negligence of the plaintiff unless it directly and proximately contributes to his injury. Ill. Cent. Railroad Co. v. Porter, 207 F. 316; Norfolk & W. Ry. Co. v. Earnest, 229 U.S. 120; Grand Trunk Ry. Co. v. Lindsay, 233 U.S. 46; Ill. Cent. Railroad Co. v. Skaggs, 240 U.S. 66, 36 S.Ct. 249; Connole v. Ry. Co., 102 S.W.2d 581; Toppmeyer v. Rycoff, 45 S.W.2d 890; Barrett v. Town of Canton, 93 S.W.2d 927; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; Roberson v. Loose-Wiles Biscuit Co., 285 S.W. 127; Howard v. Scarritt Estate Co., 267 Mo. 398; Moore v. Rapid Transit Co., 126 Mo. 265; Oates v. Met. St. Ry. Co., 168 Mo. 535; Monroe v. C. & A. Ry. Co., 280 Mo. 483; Nordman v. Hohn Bakery Co., 298 S.W. 1037; Hires v. Letts Melick Gro. Co., 296 S.W. 408. (7) There was no evidence upon which to submit plaintiff's supposed violation of the rule. Plaintiff testified that he looked in each direction before stepping between the tracks and there was no evidence to the contrary. Nordman v. Hohn Bakery Co., 298 S.W. 1039. (a) The instruction fails to hypothesize the facts which would constitute failure on the part of the plaintiff to obey the rule. Shide v. Gottschick, 43 S.W.2d 779; Brashear v. Mo. P. & L. Co., 49 S.W.2d 639; Clason v. Lentz, 61 S.W.2d 730; Harrington v. Dunham, 202 S.W. 1066; Oates v. Met. St. Ry. Co., 168 Mo. 535; Head v. Leming Lbr. Co., 281 S.W. 441.

Wilton D. Chapman for respondent.

(1) We respectfully submit that the instructions given and read to the jury by the court correctly set forth the law in such cases. The plaintiff having predicated his case upon the alleged violation of the Federal Employers' Liability Act, the laws and rules of decision of the State are superseded by Federal acts and decisions which must control. Employers' Liability Cases, 223 U.S. 1, 56 L.Ed. 327; Seaboard Air Line v. Horton, 223 U.S. 492; C., M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; Western & A. Railroad Co. v. Hughes, 278 U.S. 496, 49 S.Ct. 231; Hoch v. Railroad Co., 315 Mo. 1199, 287 S.W. 1047; Williams v. St. L.-S. F. Ry. Co., 85 S.W.2d 624; Huff v. Illinois Central, 199 N.E. 116; C. N. O. & T. Ry. Co. v. Heinz, 14 S.W.2d 138; Pritchard v. So. Pacific, 51 P.2d 426; T. & P. Ry. Co. v. Perkins, 48 S.W.2d 249. (2) It was the thought of defendant, and still is, that even though the defendant's servants were negligent in failing to warn the plaintiff (which defendant denies), he assumed the risk and was not entitled to recover on that ground. Hoch v. Railroad Co., 315 Mo. 1199, 287 S.W. 1047; Bruce v. Railroad Co., 271 S.W. 762; Gabal v. Railroad Co., 251 Mo. 257. (3) "And so it is in the case of all employees belonging to the class to which this plaintiff belonged. Upon such is imposed the duty to look out for themselves, and this imposed duty licenses the belief upon the part of the operator of the engine that such an employee, although in a place of danger, will, upon the approach of the cars, step to one side and avert the danger. In such cases the humanitarian doctrine cannot be invoked upon the mere seeing of the man in a dangerous position, but can only be invoked from the time that the operator of the engine sees that the man is not going to protect himself, as is usually done in such cases, by taking a step or two to one side. If a different rule prevailed, the work in switch yards would be unnecessarily retarded." The law, as stated above, has been repeatedly approved by the Supreme Court of Missouri. Cahill v. Railroad Co., 205 Mo. 408; Degonia v. Railroad Co., 224 Mo. 599; Burge v. Railroad Co., 244 Mo. 76; Macon v. Holcomb, 205 Ill. 643, 69 N.E. 79; Feitl v. Chicago City Ry. Co., 211 Ill. 279, 71 N.E. 991; Munsen v. Ill. Northern Utilities Co., 258 Ill.App. 438; Carson Pirie Scott Co. v. Chicago Rys. Co., 309 Ill. 352; Foreman Bank v. Chicago Rapid Transit Co., 252 Ill.App. 435.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Larry F. Grosvener instituted this action against the New York Central Railroad...