Heppner v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 10 December 1956
• Docket Number: No. 45138,No. 1,45138,1
• Citation: 297 S.W.2d 497
• Parties: Emma K. HEPPNER, Administratrix of the Estate of John O. Heppner, Deceased, Respondent, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 497

297 S.W.2d 497

Emma K. HEPPNER, Administratrix of the Estate of John O Heppner, Deceased, Respondent, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Corporation, Appellant.

No. 45138.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1956.

Opinion Modified on Court's Own Motion and Motion for

Rehearing or to Transfer to Court en Banc Denied

Jan. 16, 1957.

Robert L. Robertson, Frederick J. Freel, Kansas City, for plaintiff-respondent.

John H. Lathrop, Sam D. Parker, James F. Walsh, Jack W. R. Headley, Kansas City, for defendant-appellant, The Atchison, T. & S. F. Ry. Co.

HOLMAN, Commissioner.

Action for wrongful death instituted by plaintiff, as administratrix of the estate of her deceased husband, John O. Heppner, under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. A jury trial resulted in a verdict for plaintiff in the sum of $27,500. Defendant has duly appealed from the ensuing judgment.

The amended petition alleges that on September 5, 1952, Heppner, while riding as a rear brakeman in the caboose of one of defendant's freight trains, was injured when the caboose was 'caused to be suddenly, unexpectedly, violently, and unusually jerked.' It was further alleged that as a result of said jerk decedent received an injury to his head and to the small of his back, which injuries either caused him to develop a cancer from which he died on January 20, 1953, or that said injury activated and aggravated a pre-existing inactive cancerous condition, thus causing his death.

At the outset, defendant contends that the trial court erred in overruling its motions for a directed verdict for the reason that plaintiff failed to make a submissible res ipsa loquitur case in that there was no substantial evidence of a violent and unexpected jerk or lurch of the caboose. In view of this contention we will state the evidence upon this issue in some detail.

The incident in question occurred on September 5, 1952, upon one of defendant's eastbound freight trains which left Newton, Kansas, at about 6:40 p. m. with Emporia, Kansas, as its destination. The only men riding in the caboose were Heppner and the conductor, Arthur Waldrop. After leaving Florence, Kansas, the train contained about 75 or 80 cars and was proceeding on a level stretch of track. About three miles east of Florence, while proceeding from 30 to 40 miles per hour, the train entered a moderate curve to the left. At this time Conductor Waldrop was sitting at his desk near the west end of the caboose and Heppner was in the cupola which is at the east end thereof. The cupola is described as a small structure extending above the roof of the caboose, with windows therein, which is used by the crew in observing the train, tracks, etc. Just before the caboose reached the aforementioned curve it gave a lurch forward with sufficient force to raise the front legs of the conductor's chair from four to six inches from the floor, and at that same time the conductor heard falling glass in the cupola. Conductor Waldrop testified that three or four minutes later Heppner got down out of the cupola and was rubbing the back or top of his head. The conductor observed a little cut place on his head which was bleeding slightly, and also noticed a little blood on decedent's cap and a small hole therein. He asked decedent if he wanted to make out an accident report, but Heppner replied in the negative stating that it didn't amount to anything. A little later the conductor climbed up into the cupola and saw that the rear (west) glass therein was broken.

Conductor Waldrop testified that the lurch of the train was apparently caused by 'slack' running out. He was examined at various times in regard to the violent and unusual nature of the lurch in question. As heretofore stated, he said the caboose 'gave a lurch forward' which tipped his chair off the floor; that it was 'an unusual jerk.' In another instance the witness stated that if a train is being operated properly there should be no reason to expect a lurch while the train is traveling along level track; when asked to describe the severity of this particular lurch he stated that he could only approximate it; that it was a moderate jerk; that he had had jerks that were worse and had experienced some that were of less severity. He stated on cross-examination that there was nothing unusual about slack action in a long freight train and that occasionally it is experienced when the train goes around a curve; that he had experienced it there before.

Ralph S. Frush, a consulting engineer, made a survey of the 5-mile section of the track east of Florence and prepared a plat thereof which was admitted in evidence. He testified that this section of track was level and that the curve heretofore mentioned was a mild, gradual curve 4,491 feet in length. He estimated that the freight train in question was 3,525 feet long.

Plaintiff also presented T. J. Coulter who had had 18 years' experience as a brakeman and extra conductor for the Milwaukee Railroad, who testified as an expert. According to this witness, there is a certain amount of 'slack' or 'play' in the drawbars and couplers between each of the cars. Slack action is a sort of accordion action which occurs when this slack between the cars is either extended or reduced. This action often causes the various cars of the train to jerk or lurch. The extent of the severity or violence of these jerks will vary greatly. Mr. Coulter stated that some of the causes of slack action are starting or stopping the train, hogbacks (humps) in the track, sags in the track, severe curves, and failure of equipment. He stated that a curve must be severe in order to cause slack action. He examined the plat of the track in question and considered certain facts stated in a hypothetical question and testified that he could see no reason for a jerk because of the curve in this section of track; that he wouldn't have expected a jerk there.

Plaintiff, Emma Heppner, testified that she was the widow of decedent; that when he came home on the night of September 5, 1952, he appeared to be in pain and had a knot and cut place on his head which she bathed with campho-phenique and applied a dressing. She stated that he also had a welt across his back about one inch wide, and on the left side of his back was a 'puffed up place.' She related that he continued to work until September 15, at which time he was feeling so badly that at her request he laid off for a week and they visited in Norton, Kansas, and in Kansas City. By this time decedent was having violent headaches at intervals. He went back to work on the 22nd and worked until the 29th. Plaintiff stated that she had noticed that decedent seemed to drag his right leg and that he appeared to be suffering, had lost interest in things, and had become irritable, whereas, prior to September 5 he had been a jolly, happy, healthy person. On October 1, they went to Mammoth Springs, Arkansas, to visit. Plaintiff stated that her husband drove the car but had difficulty keeping it on the road. After arriving in Arkansas his condition became worse and he went to a doctor. At the direction of the doctor plaintiff took her husband to the Santa Fe Hospital in Topeka, on October 7, where he remained until his death. Details concerning the examination and treatment of Mr. Heppner, as well as evidence concerning the cause of his death, will be hereinafter stated and discussed.

In considering F.E.L.A. cases, we are governed by the decisions of the Supreme Court of the United States. The opinions of that court have declared that, to the maximum extent proper, questions arising under that Act shall be left to the jury. 'It is only when there is a complete absence of probative facts to support a conclusion of negligence and proximate cause that a case under the Act may be taken from the jury. If there is an evidentiary basis for a jury's verdict for plaintiff, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion and it is immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.' Adams v. Atchison, Topeka and Santa Fe Railway Co., Mo.Sup., 280 S.W.2d 84, 91. See also, Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tatum v. Gulf, M. & O. R. Co., 359 Mo. 709, 223 S.W.2d 418; Raze v. St. Louis-Southwestern Ry. Co., 360 Mo. 222, 227 S.W.2d 687.

The evidence in the instant case supports the contention of defendant that a certain amount of lurching and jerking is a part of the regular and usual operation of freight trains. Therefore, in order for the res ipsa loquitur doctrine to be applicable to a jerk of the caboose, the jerk must be so unusual and violent that it indicates negligence or a failure to use ordinary care. Wampler v. Atchison, T. & S. F. Ry. Co., 269 Mo. 464, 190 S.W. 908; Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587. In this connection a circumstance to be considered is whether the employee should have had reason to expect the jerk at the time and place it occurred.

Considering all of the evidence upon this issue, in the light most favorable to plaintiff, we have decided that there was sufficient substantial evidence from which the jury could reasonably have found that the jerk or lurch in question was unexpected, violent, and unusual. While it is true that the conductor in one instance described the jerk as moderate, it must not be overlooked that he also testified that it was 'unusual' and was of sufficient force to tip the front legs of his chair from four to six inches off the floor. He stated further that there was no reason to expect a lurch while the train was traveling along levei track. Coulter, the expert witness, also expressed an opinion that the curve upon which the train was proceeding was not severe enough to cause a jerk and that he would not have expected a jerk there. Moreover, in...