Hardin v. Ill. Central Railroad Co.

• Decision Date: 19 April 1934
• Docket Number: No. 32084.,32084.
• Citation: 70 S.W.2d 1075
• Parties: AARON L. HARDIN v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

70 S.W.2d 1075

AARON L. HARDIN v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant.

No. 32084.

Supreme Court of Missouri.

Division One, April 19, 1934.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

JUDGMENT AFFIRMED.

Watts & Gentry for appellant; E.C. Craig and Vernon W. Foster of counsel.

(1) The court erred in overruling defendant's demurrer to the evidence at the close of the case, because, tested by the Federal rule, there is no substantial evidence in the case to establish liability. (a) This suit being brought under the Federal Employers' Liability Act, and violation of the Federal Boiler Act being alleged as the ground of recovery, the rule applied by the United States Supreme Court as to the quantum and quality of evidence necessary to justify submission of the case to the jury, rather than the rule usually applied by Missouri courts in cases involving common-law negligence or violation of state statutes, must be applied by this court. Illinois State Trust Co. v. Railroad Co., 5 S.W. (2d) 368; C.M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; Railroad Co. v. Wells, 275 U.S. 455; Railroad Co. v. Hughes, 278 U.S. 496; Chesapeake & Ohio Ry. Co. v. Stapleton, 279 U.S. 587; Peters v. Wabash Ry. Co., 42 S.W. (2d) 588; Norton v. Wheelock, 23 S.W. (2d) 146; Railroad Co. v. Davis, 279 U.S. 34. (b) Wholly unsubstantial evidence cannot support a verdict. The rule established by the Supreme Court of the United States is that, where the evidence on any issue is all on one side, or so overwhelmingly on one side as to leave no room to doubt what the fact is, and the evidence is such that if the court should allow the case to go to the jury and a verdict should be returned in favor of the plaintiff, the court could not, or should not, allow such a verdict to stand, then it is the duty of the trial court, by peremptory instruction, to take the case from the jury. Evidence which is unsubstantial should be disregarded in passing on a demurrer to the evidence or a request for a peremptory instruction. So. Ry. v. Walters, 284 U.S. 190, 52 Sup. Ct. 58; A.D. Small v. Lamborn & Co., 267 U.S. 254, 45 Sup. Ct. 303; Herbert v. Butler, 97 U.S. 320; Anderson County Commrs. v. Beal, 113 U.S. 241; Randall v. Ry. Co., 19 U.S. 482; Railroad Co. v. Commercial Bank, 123 U.S. 733; Railroad Co. v. Converse, 139 U.S. 472; Hardy-Burlingham Mining Co. v. Baker, 10 Fed. (2d) 279; Gunning v. Cooley, 50 Sup. Ct. 231; Railroad Co. v. Wells, 275 U.S. 455, 48 Sup. Ct. 151; Railroad Co. v. Martin, 51 Sup. Ct. 453; Railroad Co. v. Chamberlain, 53 Sup. Ct. 391; Herron v. So. Ry. Co., 283 U.S. 91; So. Pac. Co. v. Pool, 160 U.S. 438; Pleasant v. Fant, 89 U.S. 116. (c) Plaintiff's evidence as to how the cinder came from the smokestack and broke and a piece of it flew into his eye, and the manner in which he saw the size of the cinder is contrary to physical facts, and, therefore, presents no question for the jury to determine. "When the testimony of a witness is positively contradicted by physical facts, neither the court nor the jury can be permitted to credit it... . Judgments cannot and should not stand if they are entered upon testimony that cannot be true." Penn. Railroad Co. v. Chamberlain, 53 Sup. Ct. Rep. 392; Hickey v. Mo. Pac. Railroad Corp., 8 Fed. (2d) 131; A.T. & S.F. Railway Co. v. McNulty, 285 Fed. 101; Railroad Co. v. Hurlburt, 221 Fed. 910; Railroad Co. v. Cundieff, 171 Fed. 325; C. & N.W. Railway v. Andres, 130 Fed. 71; Ry. Co. v. Pounds, 82 Fed. 217; M.K. & T. Ry. Co. v. Collier, 157 Fed. 353, certiorari denied 1908, Collier v. Ry. Co., 28 Sup. Ct. 571, 209 U.S. 545, 52 L. Ed. 920; United States v. McGill, 56 Fed. (2d) 524; Nicolay v. United States, 51 Fed. (2d) 173; Woolworth Co. v. Davis, 41 Fed. (2d) 347, certiorari denied, 51 Sup. Ct. 33; Larabee Flour Mills Co. v. Carignano, 49 Fed. (2d) 153; A.C. & F. Co. v. Kinderman, 216 Fed. 499; Waters-Pierce Oil Co. v. Van Eldern, 137 Fed. 557. (d) According to plaintiff's evidence (leaving out what is contrary to physical facts) the best that can be said in his favor is that the spark which injured his eye came through the spark arrester; that it may have come through a defective spark arrester, or it may have come through one that was not defective, for the piece that entered his eye (according to his story) was only about the size of an ordinary pin head, and that could have come through any spark arrester, whether defective or perfect. This leaves it to the jury to guess or surmise whether the spark escaped by reason of the defendant's negligence or without its negligence. It is not enough to show that injury may have been due to a cause for which defendant would be liable, or to some cause for which it would not be liable, on such a showing, a peremptory instruction to find for defendant should be given, for a jury cannot be permitted to resort to mere speculation. Patton v. Ry. Co., 179 U.S. 683; Railway Co. v. Wells, 275 U.S. 459; Hardy Burlingham Mining Co. v. Baker, 10 Fed. (2d) 281; Goransson v. Ritter Conley Mfg. Co., 186 Mo. 300; Burnett v. Railroad Co., 33 Fed. (2d) 579; Railroad Co. v. Coogan, 271 U.S. 474; Railroad v. Jones, 275 U.S. 514; Railroad v. Harris, 247 U.S. 367; Railroad v. Temple, 76 L. Ed. 468, 52 Sup. Ct. 334; Railroad Co. v. Saxon, 52 Sup. Ct. 229; Railroad Co. v. Chamberlain, 53 Sup. Ct. 391; Railroad Co. v. Koske, 279 U.S. 7, 49 Sup. Ct. 202. (2) The Supreme Court of the United States has very positively established the rule that where the evidence on any issue is all in favor of one side, or so overwhelmingly on one side as to leave no room to doubt what the fact is, and where the state of the evidence, when a demurrer thereto is presented, is such that if the court should allow the case to go to the jury and the jury should return a verdict in favor of the plaintiff, such a verdict could not or should not be allowed to stand, then it is the duty of the trial court to take the case away from the jury by a peremptory instruction. Evidence which is unsubstantial should not be considered in passing on the demurrer to the evidence. A.D. Small v. Lamborn & Co., 267 U.S. 254, 45 Sup. Ct. 303; So. Ry. Co. v. Walters, 284 U.S. 190; Herbert v. Butler, 97 U.S. 320; Anderson County Commrs. v. Beal, 113 U.S. 241; Randall v. Ry. Co., 19 U.S. 482; Railroad Co. v. Commercial Bank, 123 U.S. 733; Railroad Co. v. Converse, 139 U.S. 472; Hardy-Burlingham Mining Co. v. Baker, 10 Fed. (2d) 279; Gunning v. Cooley, 50 Sup. Ct. 231; Railroad Co. v. Wells, 275 U.S. 455; Railroad v. Martin, 51 Sup. Ct. 453; Railroad Co. v. Chamberlain, 53 Sup. Ct. 391; A.B. Small Co. v. Lamborn, 45 Sup. Ct. 300.

Eagleton, Henwood & Waechter and Allen, Moser & Marsalek for respondent.

(1) In passing upon a request of a defendant for a peremptory instruction, it is the duty of the trial court, under the Federal rule, to accord the plaintiff the benefit of all inferences in his favor that may be fairly and reasonably deduced from the evidence; and if uncertainty as to the existence of liability arises from a conflict in the evidence, or if reasonable and fair-minded men may honestly draw different conclusions from the facts in evidence, the case is one for the determination of the jury. Railroad Co. v. Hughes, 278 U.S. 496, 73 L. Ed. 473; Gunning v. Cooley, 281 U.S. 94, 74 L. Ed. 724; Railroad Co. v. Groeger, 266 U.S. 527, 69 L. Ed. 423; Gardner v. Railroad Co., 150 U.S. 360, 37 L. Ed. 1110; Texas & P. Railroad Co. v. Cox, 145 U.S. 606, 36 L. Ed. 833; Railroad Co. v. Powers, 149 U.S. 45, 37 L. Ed. 643; Line v. Erie Railroad Co., 62 Fed. (2d) 659, certiorari denied 77 L. Ed. 675; Carolina, etc., Ry. Co. v. Stroop, 239 Fed. 75, writ of error dismissed 244 U.S. 649, 61 L. Ed. 1371; Railroad Co. v. Hahn, 47 Fed. (2d) 60, cert. den. 283 U.S. 842; Koonse v. Railroad Co., 18 S.W. (2d) 470, cert. den. 50 Sup. Ct. 34; Henry v. Ry. Co., 61 S.W. (2d) 342. (2) The record contains evidence of a substantial character supporting plaintiff's right to recover. The evidence of plaintiff as to the manner in which his injury occurred is corroborated in important features by the testimony of Pearl E. Rhue and Lawrence G. Rhue, who testified for plaintiff, and by the evidence of other members of the switching crew, who testified for defendant. That the injury was due to defendant's failure to maintain the spark arrester in a safe and proper operating condition is supported by the evidence of both Henry L. Martin, who was called by plaintiff, and E. Von Bergen, defendant's witness. The credibility and weight of plaintiff's evidence was for the jury, and not for the trial court. Railroad Co. v. Groeger, supra; Gunning v. Cooley, supra; Railroad Co. v. James, 163 U.S. 485, 41 L. Ed. 236; Railroad Co. v. Hughes, supra; Railroad Co. v. Hahn, supra; Didinger v. Railroad Co., 39 Fed. (2d) 798; Railroad Co. v. Howell, 6 Fed. (2d) 784; Railroad Co. v. Eisenhart, 280 Fed. 271; New York L.O. Co. v. Pussey, 211 Fed. 627; Koonse v. Railroad Co., supra; Henry v. Railway Co., supra. (a) The testimony of a single witness in support of a fact constitutes substantial evidence. Railroad Co. v. Condos, 30 Fed. (2d) 669; Mayer v. Mutschler, 248 Fed. 914; In re Strauch, 208 Fed. 846; Ry. Co. v. Jeffries, 276 Fed. 75; Hardy-Burlingham Co. v. Baker, 10 Fed. (2d) 277; The Reno, 61 Fed. (2d) 969; Franke v. St. Louis, 110 Mo. 516. (3) Since the record contains evidence tending directly to show that the spark arrester was defective and that plaintiff's injury was caused thereby, the testimony of defendant's employee Graham, that his inspection record showed that he discovered no such defect, at the most raised an issue for the jury. Citations under point 2. (4) The evidence of prior contradictory statements alleged to have been made by plaintiff as to the manner in which the accident occurred raised an issue for the jury and not for the court. Steele v. Railroad Co., 302 Mo. 207; Gibbons v. Wells, 293 S.W. 91...