Harlan v. Wabash Ry. Co., 32085.

• Citation: 73 S.W.2d 749
• Decision Date: 12 June 1934
• Docket Number: No. 32085.,32085.
• Court: United States State Supreme Court of Missouri
• Parties: RAYMOND D. HARLAN v. WABASH RAILWAY COMPANY, Appellant.

73 S.W.2d 749 RAYMOND D. HARLAN
v.
WABASH RAILWAY COMPANY, Appellant. No. 32085. Supreme Court of Missouri. Division One, June 12, 1934.

[73 S.W.2d 750]

Appeal from Circuit Court of City of St. Louis. — Hon. Fred J. Hoffmeister, Judge.

AFFIRMED (upon condition).

W.H. Woodward and Homer Hall for appellant.

(1) This suit is under the Federal Boiler Inspection Act, and the rights and obligations of the parties are to be determined by the provisions of that act, and by the applicable principles of law as interpreted and applied in the Federal courts. Fryer v. Ry. Co., 63 S.W. (2d) 47; Williams v. Pryor, 46 S.W. (2d) 341, affirmed in Pryor v. Williams, 254 U.S. 43; Martin v. Ry. Co., 325 Mo. 1107, 30 S.W. (2d) 735; Second Employers' Liability Cases, 223 U.S. 1, 55, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L.R.A. (N.S.) 44; Seaboard Air Line Ry. v. Horton, 233 U.S. 501, 34 Sup. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C, 1 Ann. Cas. 1915B, 475; So. Ry. Co. v. Gray, 241 U.S. 339, 36 Sup. Ct. 558, 60 L. Ed. 1030; B. & O. Ry. Co. v. Groeger, 266 U.S. 521; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 474, 46 Sup. Ct. 564, 70 L. Ed. 1041; Railroad Co. v. Allen, 276 U.S. 168, 48 Sup. Ct. 215, 72 L. Ed. 513; Quigley v. Hines, 291 Mo. 33, 235 S.W. 1050; Hoch v. Ry. Co., 315 Mo. 1209, 287 S.W. 1047. (2) The locomotive on which plaintiff was working when injured was not being used on defendant's line, but had been withdrawn from use for the purpose of being put in proper condition and made safe to operate so that it could be employed in the active service of defendant without unnecessary peril to life and limb. The defendant was therefore not liable under the Boiler Inspection Act, upon which this suit is based, and defendant's demurrer to the evidence should have been given. Title 45, U.S. Code, sec. 23; Brady v. Wabash Ry. Co., 329 Mo. 1123, 49 S.W. (2d) 24, certiorari denied 287 U.S. 619, 53 Sup. Ct. 20; Riley v. Wabash Ry. Co., 328 Mo. 910, 44 S.W. (2d) 136; Flack v. Railroad, 285 Mo. 28, 224 S.W. 423; B. & O. Ry. Co. v. Hooven, 297 Fed. 921; Sherry v. Ry. Co., 30 Fed. (2d) 487; Noftz v. Ry. Co., 13 Fed. (2d) 389; 11 Roberts, Federal Liability of Carriers (2 Ed.), sec. 666, p. 1266; Reeves v. Ry. Co., 179 N.W. 689. (3) The court committed error in giving plaintiff's Instruction numbered 1 for the reason that it submitted plaintiff's case on the issue of common-law negligence when the petition was based on the Boiler Inspection Act. The instructions must not be broader than the pleadings. Riley v. Wabash Ry. Co., 328 Mo. 910, 44 S.W. (2d) 136; Edmonston v. Kansas City, 57 S.W. (2d) 692; Nowlin v. K.C. Pub. Serv. Co., 58 S.W. (2d) 331; Degonia v. Railroad, 224 Mo. 589; Hall v. Coal & Coke Co., 260 Mo. 369; State ex rel. v. Ellison, 270 Mo. 653. (4) The plaintiff failed to prove that at the time of the injury he was engaged in interstate transportation or in work so closely related to it as to be practically a part of it, and he is not entitled to recover on that ground and the court erred in submitting that issue to the jury. Cox v. Railroad Co., 61 S.W. (2d) 965; Jarvis v. Railroad Co., 327 Mo. 428, 37 S.W. (2d) 602; Martin v. Ry. Co., 302 Mo. 506, 258 S.W. 1023; Ill. Cent. Railroad Co. v. Perry, 242 U.S. 292, 37 Sup. Ct. 122, 61 L. Ed. 309; Railroad Co. v. Winters, 242 U.S. 353, 37 S. Ct. 170, 61 L. Ed. 358; Chicago & N.W. Railway Co. v. Bolle, 284 U.S. 74; Chicago & E. Ill. Railroad Co. v. Industrial Comm. of Illinois, 284 U.S. 298, 52 Sup. Ct. 151, 76 L. Ed. 304. (5) The plaintiff's injury was the direct and proximate result of his own carelessness and neglect, and he is not entitled to recover, even though defendant might have been negligent. Fryer v. Ry. Co., 63 S.W. (2d) 47; Peters v. Ry. Co., 328 Mo. 924; Harris v. Railroad Co., 250 Mo. 567; York v. Ry. Co., 62 S.W. (2d) 475; O'Donnell v. Railroad Co., 324 Mo. 1097; Atl. Coast Line Railroad Co. v. Davis, 279 U.S. 34; Davis v. Kennedy, 266 U.S. 147; Unadilla Ry. Co. v. Caldine, 278 U.S. 139; So. Ry. Co. v. Edwards, 44 Fed. (2d) 526; Pere Marquette Ry. Co. v. Haskins, 62 Fed. (2d) 806; Bohich v. Railroad Co., 26 Fed. (2d) 361. (6) The court erred in failing to require plaintiff to submit an instruction on the measure of damages, and in submitting the case to the jury without such an instruction. Eversole v. Railroad, 249 Mo. 529; Powell v. Railroad, 255 Mo. 457; Nelson v. Heinz Stove Co., 320 Mo. 662; Sullivan v. Railroad, 321 Mo. 709; Barr v. Nafziger Baking Co., 328 Mo. 432. (7) The verdict is grossly excessive and the judgment should be reversed for this reason. Davis v. St. L. Merc. Bridge Term. Ry. Co., 49 S.W. (2d) 53; Cole v. Ry. Co., 61 S.W. (2d) 344; Sullivan v. Railroad, 321 Mo. 713; Lackey v. Ry. Co., 305 Mo. 260, 264 S.W. 807; Jones v. Ry. Co., 287 Mo. 64, 228 S.W. 780; Johnson v. Waverly Brick & Coal Co., 276 Mo. 42, 205 S.W. 615.

Eagleton, Henwood & Waechter and Frank P. Aschemeyer for respondent.

(1) Defendants' instructions in the nature of demurrers to the evidence were properly refused, because: (a) Plaintiff must be given the benefit of all favorable evidence, together with all of the favorable inferences that may reasonably be drawn therefrom. Gunning v. Cooley, 281 U.S. 90; Gettys v. Am. C. & F. Co., 16 S.W. (2d) 85; Thomasson v. West St. L.W. & L. Co., 278 S.W. 979; Railroad Co. v. Hughes, 278 U.S. 496; Great Northern Ry. Co. v. Donaldson, 246 U.S. 121. (b) The defendants' alleged violation of the Federal Boiler Inspection Act was not submitted to the jury by plaintiff's instruction. It was, therefore, abandoned and is no longer an issue in the case. Hughes v. Miss. River & B.T. Ry., 309 Mo. 560, 274 S.W. 703; Yuronis v. Wells, 17 S.W. (2d) 518; Silliman v. Munger Laundry Co., 44 S.W. (2d) 159; Timmerman v. St. Louis Architectural Iron Co., 1 S.W. (2d) 791. (c) There was substantial evidence that, at the time plaintiff was injured, the locomotive in question was assigned to an interstate run, and plaintiff was assisting in preparing the locomotive for such run. There is, therefore, substantial evidence that at the time of injury plaintiff was engaged in interstate transportation or in work so closely related to it as to be practically a part of it. Shanks v. Railroad Co., 239 U.S. 556; Kepner v. Railroad Co., 322 Mo. 299, 15 S.W. (2d) 825; 2 Roberts, Fed. Liability of Carriers (2 Ed.) 1465, sec. 764; McKay v. Monongahela Ry. Co., 44 Fed. (2d) 150; Brimer v. Davis, 211 Mo. App. 47, 245 S.W. 404; Glidewell v. Railroad Co., 208 Mo. App. 372, 236 S.W. 677; Louisville & N. Railroad Co. v. Parker, 242 U.S. 13; B. & O. Railroad Co. v. Kast, 299 Fed. 419; Atl. Coast Line Railroad Co. v. Woods, 252 Fed. 428; Railroad Co. v. Zachary, 232 U.S. 248; Chicago & N.W. Ry. Co. v. Bower, 241 U.S. 470; Hines v. Logan, 269 Fed. 105; N.Y. Cent. Railroad Co. v. Marcone, Admx., 281 U.S. 345; Central Railroad Co. of N.J. v. Sharkey, 259 Fed. 144; Oglesby v. Ry. Co., 1 S.W. (2d) 172. (d) There is substantial evidence that defendants' negligence was the proximate cause of plaintiff's injury. Negligence on plaintiff's part (assuming there was such, which we deny) would constitute no ground for the sustention of a demurrer to the evidence unless his act was the sole cause of his injury. That no such situation exists in this case is clear. 45 U.S.C.A., secs. 51, 53; Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W. (2d) 982; McCloskey v. Salveter & Steward Inv. Co., 317 Mo. 1156, 298 S.W. 226; Diehl v. A.P. Green Fire Brick Co., 299 Mo. 641, 253 S.W. 984; Walter v. Cement Co., 250 S.W. 587; K.C. So. Ry. Co. v. Jones, 241 U.S. 181; Ill. Cent. Railroad Co. v. Skaggs, 240 U.S. 66; Frese v. Railroad Co., 263 U.S. 1; McIntyre v. Ry. Co., 227 S.W. 1047; Smith v. So. Ill. & Mo. Bridge Co., 326 Mo. 109, 30 S.W. (2d) 1077; Compton v. Const. Co., 315 Mo. 1068, 287 S.W. 474. (2) The judgment is reasonable in amount and should not be disturbed. (a) The evidence on this subject should be taken in its light most favorable to respondent. Manley v. Wells, 292 S.W. 67; Busby v. Tel. Co., 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 335. (b) It was the peculiar province of the jury to determine the extent of respondent's injuries and the compensation he was entitled to recover therefor. Hoover v. Ry. Co., 227 S.W. 79; Maloney v. United Rys. Co., 237 S.W. 516; Sacre v. Ry. Co., 260 S.W. 88. (c) The trial court, in supervising the amount of the verdict, exercises a discretionary power which should not be reviewed on appeal except in case of obvious abuse. 4 C.J., p. 830, id. 871-873; Goetz v. Ambs, 27 Mo. 34; Gurley v. Railroad, 104 Mo. 233; Laughlin v. Rys., 275 Mo. 472. (d) An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Manley v. Wells, supra; Laughlin v. Rys., supra; Grott v. Shoe Co., 2 S.W. (2d) 785. (e) The award is reasonable as compared with judgments upheld in similar cases. Spencer v. Railroad Co., 317 Mo. 492, 297 S.W. 353; Manley v. Wells, 292 S.W. 67; Snyder v. Am. C. & F. Co., 14 S.W. (2d) 603; Jordon v. Ry. Co., 308 Mo. 31, 271 S.W. 997; Ernst v. Union Depot Bridge & Term. Co., 256 S.W. 222; Davis v. Buck Stove & Range Co., 49 S.W. (2d) 47; Beebe v. Kansas City, 327 Mo. 67, 34 S.W. (2d) 57; Baker v. Railroad Co., 327 Mo. 986, 39 S.W. (2d) 535; Christopher v. Railroad Co., 55 S.W. (2d) 449; Hiatt v. Ry. Co., 334 Mo. 895.

STURGIS, C.

In this suit for personal injuries the evidence is that plaintiff, a railroad employee, was injured by reason of his foot being caught in and crushed by the screw propeller of the coal conveyor, a mechanical device or stoker to bring the coal from the tender or tank attached to the locomotive engine to the fire-box of such engine. It will suffice, we think, to say that this conveyor extended underneath the floor from the coal bin of the...