Hayes v. Wabash R. Co.

• Decision Date: 11 September 1950
• Docket Number: No. 2,No. 41517,41517,2
• Citation: 233 S.W.2d 12,360 Mo. 1223
• Parties: HAYES v. WABASH R. CO
• Court: Missouri Supreme Court

Page 12

233 S.W.2d 12

360 Mo. 1223

HAYES v. WABASH R. CO.

No. 41517.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1950.

Rehearing Denied Oct. 9, 1950.

Raymond L. Falzone, Moberly, Everett Hulliverson, St. Louis, for plaintiff-respondent, Forrest Boecker, St. Louis, of counsel.

Joseph A. McClain, Jr., Lashly, Lashly, Miller & Clifford, and Oliver J. Miller, all of St. Louis, for defendant-appellant.

LEEDY, Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for personal injuries growing out of two separate and distinct casualties which were alleged (in one count) to have occurred on different days in September, 1947. The date of the first is certain, September 5. There is much uncertainty and confusion in the record as to the precise date of the second (whether the 26th or 27th), but as no point is made in this connection, we will, for convenience and brevity, refer to it as having occurred September 27. The jury found for plaintiff, and awarded $10,000 damages with reference to the September 5 occurrence, and $45,000 with reference to the September 27 occurrence. The trial court ordered a remittitur of $5,000 as to each award, with which plaintiff complied, and judgment was accordingly rendered for $5,000 and $40,000, aggregating $45,000, from which defendant railroad appeals.

Viewing the evidence in the light most favorable to plaintiff, and according him the benefit of all reasonable inferences to be drawn therefrom, as is our duty in determining defendant's challenge of the sufficiency of the evidence on the issue of negligence, the facts may be thus stated: Plaintiff worked for the railroad in employment protected by the Federal Act. The first accident (September 5) involved a through freight train from Stanberry to Moberly, on which he was acting as rear brakeman. He was riding in the caboose. As the train approached Bedford, it was traveling at approximately 40 miles per hour. At that time plaintiff had started toward the rear platform, when, according to his testimony, he was suddenly and violently thrown to the floor and against the corner of the caboose, with his head down. He remembers his feet were in the air, it picked him up so heavily. The assistant trainmaster and conductor, who had been riding in the cupola, helped him up from the floor and asked him if there was anything wrong, but he couldn't talk because the breath had been knocked out of him. He said he knew he was bruised and hurt but assumed it wouldn't amount to a whole lot, and so proceeded with his work. That night he went to the hotel and noticed a discoloration in the lower part of his back. He sat in a tub of hot water trying to get a little heat on it, and rubbed Minit-Rub on it. While he testified it bothered him constantly, he did not go to a doctor, although he continued to work every day until the occurrence of September 27. Certain cars just ahead of the caboose had become derailed. Defendant's evidence tended to show such derailment was caused from the track having 'kicked out from underneath the train' on account of a sun-kink. Plaintiff's submission as to this occurrence was under the res ipsa loquitur doctrine, and on the appeal from the portion of the judgment rendered thereunder defendant raises only the question as to whether, as a predicate of a portion of plaintiff's instruction on the measure of damages, there was any substantial evidence of permanent injuries resulting from the occurrence, and complains that the verdict was 'obviously so large as to show the jury was prejudiced.' These questions will be noticed in connection with our discussion of closely allied question raised by defendant concerning the amount of the other and larger award.

The casualty of September 27 occurred in the afternoon, and involved a switching movement in defendant's yard at Moberly. Plaintiff had reported there in response to a call for him to go on his run to Stanberry. His duties as a brakeman included that of looking up the caboose in the yard, and making preparations for the trip, such as sweeping it out, putting ice in the ice box, supplying drinking water, and filling the signal lanterns carried on the rear of the train. All of the cabooses are kept on a single track, which is referred to as the caboose track, and it may contain as many as 20 or 30 cabooses in line. On this occasion, according to plaintiff's testimony, there were two or three cabooses behind his, and several ahead of it, and cars on the adjoining tracks. He further testified that while he was in the middle of the aisle of the caboose, and 'in a bent over position' filling a small coal oil can out of a two-gallon coal oil can, 'there was just a violent, unusual movement of the cars; in fact, the engine coupled into them so strong that it threw me backwards over to the extent of 5 or 6 feet, and I hit the lower part of my back in almost the identical spot I had been injured before [September 5];' that he hit against the corner of the metal coal box; that it made him 'deathly sick' at the time, and he fell on the floor and finally crawled up on the caboose pad, and laid there 20 or 30 minutes, and got up and 'cleaned up the mess [he had vomited] the best I could.' He also tesified he stayed in the caboose until it was put into the train, and by that time he had gotten to feeling better, and went to the yard office and told his immediate superior, the conductor, that he had gotten knocked down in the caboose and that it had made him a little sick. He knew, of course, that the caboose was to be made up into his train, but he did not know at what time that would be done. He stated that he was accustomed to the ordinary and usual jerks incident to coupling movements--'they have coupled into cabooses a thousand times that I have been in just as smoothly as it could be; it would hardly move your feet * * * I never had any trouble before.' He referred to the jerk as 'very unusual--just extremely hard * * * no person could have possibly stood up in this caboose and been on his feet after this coupling was made.' The switchman had to go by the caboose, but neither he nor any one else gave any warning as the fact that there was going to be a coupling. Plaintiff did not know whether this violent movement was incidental to switching his own caboose or some other caboose on that track. Because of its location--'the caboose being three or four deep back in the track, and cars on either track, on either side'--he had no way of knowing the coupling was to be made.

Notwithstanding the mishap, plaintiff continued his work, and made the run to Stanberry, as scheduled. He testified he could not go to bed that night (at Stanberry where he had an eight-hour layover) because of his pain, and that he didn't 'get a bit of rest all.' He made his run back to Moberly the next day feeling 'terrible--awfully sore;' he could hardly get around; and, in fact, informed the head brakeman they would have to stop the train to let him climb on after he closed the switch. He arrived in Moberly late in the afternoon, and went to his hotel, where he required assistance to get upstairs and to bed. He was too sore to take a bath, did not sleep, and 'suffered it out' that night, and the next morning entered Wabash Employees' Hospital at Moberly. Other facts in reference to the nature and extent of his injuries will be stated in connection with our discussion of the assignments questioning the amount of the awards.

The members of the switch crew were called by defendant, and none of them recalled any rough handling of a caboose at the time plaintiff claimed to have been injured. The effect of their testimony was that in such operations cabooses are handled as though someone were in them, and that all equipment is switched as easily as possible. None of the conductor's wheel reports (for the freight on which plaintiff was a member of the crew) for any of the days that might have been involved showed any complaint by plaintiff of being injured, or of rough handling. The conductor testified that he had no personal recollection of plaintiff complaining, and that if anybody had been injured or had complained, it would have been noted on his wheel report; that plaintiff said nothing about any injury and he (witness) therefore made no note. However, this witness did state that one evening in the yard office, when they were going out on a run, plaintiff said 'that he wasn't going in the caboose any more until we got ready to leave town because they rough-handled him up there * * * says he was slammed around in the caboose.'

Defendant's assignments raise these questions as to the submission concerning the September 27th occurrence: (1) The propriety of plaintiff's instruction No. 2; (2) the sufficiency of the evidence to justify the submission of the issue of defendant's negligence; and (3) the excessiveness of the verdict. Part of the attack upon plaintiff's instruction No. 2 presents the same question raised under defendant's further point that judgment should have been entered for it 'because there was insufficient substantial evidence of negligence produced by plaintiff,' and so both will be treated together. Plaintiff's instruction No. 2 told the jury that if the caboose was suddenly bumped and jarred with unusual and unnecessary force and violence, and that defendant, by the exercise of ordinary care, could have known of plaintiff's presence in the caboose, but failed to look for and discover his presence therein, and failed to devise and put into effect rules regulating the warning of its employees in cabooses during coupling movements, and if the jury further found that under the aforesaid circumstances, the defendant failed to exercise ordinary care in making the coupling movement, and failed to exercise ordinary care to furnish and maintain a reasonably safe place for plaintiff to do the work in which he was then engaged on behalf of the...