Hancock v. Kansas City Terminal Ry. Co.

• Decision Date: 12 November 1936
• Docket Number: No. 33908.,33908.
• Citation: 100 S.W.2d 570
• Parties: HANCOCK v. KANSAS CITY TERMINAL RY. CO.
• Court: Missouri Supreme Court

100 S.W.2d 570

HANCOCK v. KANSAS CITY TERMINAL RY. CO.

No. 33908.

Supreme Court of Missouri, Division No. 1.

November 12, 1936.

Rehearing Denied December 14, 1936.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by Lola E. Hancock, administratrix of the estate of Eugene P. Hancock, deceased, against the Kansas City Terminal Railway Company. From a judgment in favor of the plaintiff, the defendant appeals.

Reversed, and cause remanded.

S. W. Sawyer, John H. Lathrop, and James F. Walsh, all of Kansas City, for appellant.

Madden, Freeman & Madden, of Kansas City, for respondent.

FERGUSON, Commissioner.

This is an action for damages under the Federal Employers' Liability Act (45 U.S. C.A. § 51 et seq.) brought by Mrs. Lola E. Hancock, as administratrix, for the death of her husband, an employee of the defendant railway company, who was killed on March 23, 1932, while engaged in a switching operation in defendant's yards at Kansas City, Mo. The action was filed and tried in the circuit court of Jackson county, at Kansas City; the jury returned a verdict for plaintiff in the sum of $50,000. As a condition to the overruling of defendant's motion for a new trial, the trial court required a remittitur in the amount of $20,000. The remittitur was made, defendant's motion for a new trial overruled, and judgment for plaintiff in the amount of $30,000 entered; from which judgment defendant has appealed. No question is made as to the applicability of the Federal Employers' Act.

Hancock had been in the employ of defendant company since 1920, and was 38 years of age at the time of his death. He left surviving him his widow, Lola E. Hancock, who brings this action as administratrix, and one child, a son, of the age of 11 years. Hancock was a switch foreman, and on the morning of March 23, 1932, his crew was engaged in distributing the cars from a train of thirteen to fifteen cars which had been brought from defendant's yards in Kansas to its yards in Kansas City, Mo. One of these cars had been cut off and left on the main lead track near the west end of the yard. After various cars had been delivered to their respective destinations, the crew with their switch engine proceeded west on this lead track to couple onto the car which had been left on that track and move it to its point of assignment. The crew was composed of Hancock, the foreman; Barnes, the engineer; Ferguson, fireman; and Bryning and McCormack, switchmen. The engine was backing west. Hancock and the two switchmen, Bryning and McCormack, were standing upon the footboard at the rear of the tender as the engine, backing, moved west. The footboard is not continuous across the rear of the tender, but "is divided in the center by the drawbar * * * so that there is a footboard on each side of the drawbar"; and "there is a grabiron clear across the back of the tank to hold on to when riding the footboard." Each half, or section, of the footboard is "39 inches in length on the outer edge," "11 inches in width" and extends "19½ inches outside of the rail." Switchman Bryning was standing alone on the north section of the footboard, and McCormack and Hancock were on the south section with McCormack standing next to the drawbar and Hancock at the south end; they were facing west, the direction in which the engine was backing. As the engine approached switch No. 715, it was observed that the switch was so lined that the engine would be diverted to track 715. Hancock, who was on the south end of the south footboard, and in position to do so, gave a stop signal. The engine stopped 3 to 5 feet east of the switch stand. Bryning and McCormack remained on the footboard. Hancock stepped off, walked to the switch stand, lined the switch so the engine could proceed on west down the lead track, walked to the west side of the switch, gave the signal for the engine to resume its westward movement, and took a position at the south side of the track indicating his intention to get on the footboard of the tender. In response to the signal the engine was started and moved west at a speed of "3 or 4 miles an hour." In attempting to get on the south end of the south section of the footboard, his former position, Hancock fell across the south rail and in front of the moving tank. McCormack "screamed." The enginemen hearing the "screams" brought the engine to a quick stop. However, both wheels of the west truck on the south side of the tender passed over Hancock's body. The body was found lying across the south rail and between the east and west trucks (on the south side) of the tank. Hancock was instantly killed. The casualty occurred about 9:30 a. m.

To this point the facts may be said to be undisputed. But two eyewitnesses were produced who testified to having seen Hancock fall. Plaintiff's sole eyewitness was one Reinhardt, an employee of a transfer company, who testified that at the time he was in defendant's yards in connection with business of his employer; that he was walking east on the south side of the track toward this switch stand; that when he was yet "250 to 300 feet" from the switch stand he "first noticed the engine" backing west; that he continued walking east toward the engine; that he plainly observed the positions of the men on the footboard of the tank; that he observed the subsequent events and Hancock's movements; that while Hancock was throwing the switch, Bryning (on the north section of the footboard) and McCormack (standing by the drawbar on the north end of the south section of the footboard) turned facing each other across the drawbar; that as Hancock started to "step on the footboard," McCormack "turned and stepped completely over in Hancock's path * * * their bodies came in contact" and "it knocked Hancock down." It was clearly McCormack's duty, under the circumstances and under plaintiff's evidence as to the custom and practice prevailing in the yards, to remain next to the drawbar and not move to the south end of the footboard. McCormack testified that when Hancock fell he (McCormack) "yelled as loud as I could yell," jumped from the footboard, and went west down the side of the track a distance of about 300 feet, where he remained with another switchman until after Hancock's body had been taken away. Bryning denied that he was facing McCormack across the drawbar but says that while Hancock was throwing the switch and at the time he fell, while trying to get on the footboard, he was facing to the north, and that he did not see Hancock try to get on the tender or see him fall. Defendant had some very positive and substantial evidence tending to show that plaintiff's witness Reinhardt, upon whose testimony plaintiff's case must stand or fall, was not in its yards at the time he states he witnessed Hancock's death, but that at that time he was in Kansas City, Kan., delivering a refrigerator in the course of his employment with the transfer company. The only other eyewitness was McCormack, who testified, as a witness for defendant, that he did not move from the position next to the drawbar; that he did not turn facing Bryning but continued facing west, "looking at Hancock"; that when Hancock "attempted to get on the footboard he (Hancock) reached for the grabiron and apparently missed the grabiron and fell"; that "I grabbed for him with my left hand" but "I didn't get hold of him"; that "I yelled as loud as I could yell"; and that "I did not change my position when he was trying to get on."

Appellant does not here contend, and there is no ground for such contention, that respondent, plaintiff, did not make a case for the jury. The assignments of error made are: (1) That instruction numbered 4, relating to damages, given at plaintiff's request, is erroneous; (2) that the trial court erred in refusing an offer of proof made by defendant; (3) argument of plaintiff's counsel; and (4) that the verdict for $50,000 was so grossly excessive as to evidence passion and prejudice on the part of the jury, and that the judgment for $30,000 entered by the trial court, after remittitur, is still clearly excessive. Of these in order.

Plaintiff's instruction relating to damages is in part as follows: "If you find a verdict in favor of the plaintiff and against the defendant and further find that the deceased was not guilty of negligence contributing to his death, then you are instructed that you should assess the damages (if any) in this case at such sum (if any) as will fairly and reasonably compensate the wife and child of deceased for the pecuniary loss (if any) which you find from the evidence they sustained as a direct result of his death." The instruction then lays down the applicable rule under the provisions of the Employers' Liability Act that if the jury find that negligence on the part of plaintiff contributed to but did not "solely" cause his death, such negligence on plaintiff's part "would merely diminish the damages," and continues: "If, therefore, you find that deceased's death directly (if so) resulted from the negligence (if any) of defendant, as defined in other instructions, but that deceased was himself guilty of negligence contributing to his death, as defined in other instructions, then the plaintiff cannot recover full damages (if any), but only a proportional amount thereof bearing the same relation or ratio to the full amount of damages (if any) by plaintiff sustained as the negligence (if any) attributable to the defendant bears to the entire negligence (if any) attributable to both deceased and defendant. In this connection, however, the Court instructs you that unless you believe and find from the greater weight of the credible evidence in the cause that deceased was guilty of negligence contributing to his death, as defined in these instructions, your finding on that issue should be in favor of the plaintiff and no amount should on that account be deducted from the actual damages (if any) you find plaintiff...