Hiatt v. Wabash Ry. Co.
| Citation | 69 S.W.2d 627 |
| Decision Date | 23 February 1934 |
| Docket Number | No. 31139.,31139. |
| Parties | JUANITA HIATT, Administratrix of Estate of JAMES HIATT, v. WABASH RAILWAY COMPANY, Appellant. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court of City of St. Louis. — Hon. John T. Fitzsimmons, Judge.
AFFIRMED, (on condition).
Homer Hall and Woodward & Evans for appellant.
(1) Plaintiff was not entitled to recover for violation of the air-brake provisions of the Federal Safety Appliance Act for the reason that the operation which is alleged to have caused the injury was not a train movement within the meaning of the statute. 45 U.S. Code, secs. 1, 9; United States v. Railroad Co., 237 U.S. 402, 35 Sup. Ct. 621, 59 L. Ed. 1019; Louisville & Bridge Co. v. United States, 249 U.S. 538, 39 Sup. Ct. 355, 63 L. Ed. 757; United States v. Ry. Co., 13 Fed. (2d) 429; Rose v. Railroad Co., 237 S.W. 854; St. Louis S.W. Ry. Co. v. Bounds, 244 S.W. 1099. (2) The evidence fails to show a violation of the statute, which requires fifty per cent of the cars to be operated by power or train brakes. The train unit on which plaintiff was working consisted of an engine, tender and six cars, and the proof only goes to show that three cars were not operated with air brakes, leaving, at least, fifty per cent in operation. Absent any evidence thereof, the court cannot consider any change in the percentage requirements as may have been ordered by the Interstate Commerce Commission, for judicial notice is not taken of such orders. 1 Jones' Commentaries on Evidence (2 Ed.), sec. 388, p. 677; St. Louis v. Kruempeler, 235 Mo. 710, 139 S.W. 446; Robinson v. Railroad Co., 222 S.W. 506, 56 L. Ed. 288, 32 Sup. Ct. 114; Thompson v. Ry. Co., 15 Fed. (2d) 28; Banaka v. Ry. Co., 193 Mo. App. 345, 186 S.W. 7; Moss v. Wells, 249 S.W. 411. (3) The court erred in giving to the jury plaintiff's Instruction A-2, authorizing the jury to allow plaintiff for loss of past and future earnings without limiting the recovery for such loss of earnings either to the amount alleged in the petition or to the amount shown by the evidence, and the instruction was, therefore, a roving commission to the jury authorizing them to allow the plaintiff any amount for loss of earnings regardless of the amount and failure thereof alleged in the petition or proved by the evidence. (4) The testimony of the witness Fowler as to the effect of operating a train with or without air brakes was erroneous and prejudicial and invaded the province of the jury, particularly because of the fact that the witness was not shown to be qualified to testify as an expert upon such subject. Turner v. Haar, 114 Mo. 344; Boring v. Street Ry. Co., 194 Mo. 552; McAnany v. Henrici, 238 Mo. 113; Gourley v. Ry. Co., 35 Mo. App. 87; Railroad Co. v. Swartzel, 38 Fed. (2d) 751. (5) The verdict of $12,500 is grossly excessive in view of the character of injury sustained. Cole v. Ry. Co., 61 S.W. (2d) 344; 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 Buck Co., 276 Mo. 42, 205 S.W. 615.
Eagleton, Henwood & Waechter and Frank P. Aschemeyer for respondent.
(1) The evidence is amply sufficient to show a violation of the Federal Safety Appliance Acts and the regulations of the Interstate Commerce Commission made pursuant thereto: (a) The acts of Congress and the order of the commission made pursuant thereto should be liberally construed so as to promote the safety of trains and of persons and property thereon. Railroad Co. v. United States, 265 U.S. 41; Johnson v. So. Pac. Co., 196 U.S. 1; C.M. & St. P. Ry. Co. v. Voelker, 129 Fed. 522. (b) This was a train movement and the evidence shows that less than eighty-five per cent of the cars therein were operated by power or train brakes. U.S.C.A., Title 45, secs. 1, 9; Rule of the Interstate Commerce Commission, June 6, 1910; Railroad Co. v. United States, 265 U.S. 41; Railroad Co. v. United States, 14 Fed. (2d) 747; United States v. N. Pac. Ry. Co., 254 U.S. 251; United States v. Railroad Co., 237 U.S. 410; United States v. Railroad Co., 237 U.S. 402; Louisville v. Jeffersonville Bridge Co. v. United States, 249 U.S. 534. (2) It was not necessary to introduce the rule of the Interstate Commerce Commission in evidence. Such rule is specifically authorized by the Safety Appliance Act, so that, when promulgated, it became, in effect, a part of that act. Courts, therefore, take judicial notice of the rule as a part of the act. Violations of the rule of the commission are prosecuted as violations of the act itself, and are subject to the penalties provided in the act. Jones, Commentaries on Evidence (2 Ed.), sec. 388, p. 677; Caha v. United States, 152 U.S. 211; Colyer v. Skeffington, 265 Fed. 17; Cassarello v. United States, 271 Fed. 486; Jenkins v. Collard, 145 U.S. 546; Huckleberry v. Ry. Co., 26 S.W. (2d) 980; Goulette's Admr. v. Grand Trunk Ry. Co., 93 Vt. 266, 107 Atl. 118; United States v. N. Pac. Ry. Co., 254 U.S. 251; Railroad Co. v. United States, 265 U.S. 41; Bridge Co. v. United States, 249 U.S. 534; United States v. Grimand, 220 U.S. 506; St. Louis & I.M. Ry. v. Taylor, 210 U.S. 281. (3) The court properly permitted witness Fowler to testify with respect to the effect of air brakes, or the absence thereof, on the jerking and jolting of the train. The witness was amply qualified by his experience to answer these questions. Wolff v. Seullin Steel Co., 217 S.W. 571; Farmer v. Ry. Co., 161 S.W. 327; Daniels v. Ry. Co., 181 S.W. 599; Tinkle v. Railroad Co., 212 Mo. 445, 110 S.W. 1086; Ellis v. Met. St. Ry. Co., 234 Mo. 657, 138 S.W. 23; Lyons v. Met. St. Ry. Co., 253 Mo. 143, 161 S.W. 726. (a) In any event, the error, if any, in the admission of this testimony was harmless because witness Martin testified to the same facts, and the testimony of Fowler was merely cumulative. Shouse v. Dubinsky, 38 S.W. (2d) 530; Adamack v. Herman, 33 S.W. (2d) 135; Irwin v. McDougal, 217 Mo. App. 645, 274 S.W. 924; Trembley v. Fidelity & Casualty Co., 243 S.W. 201; Parker v. Aetna Life Ins. Co., 232 S.W. 708; East St. L. Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, 142 S.W. 253. (4) Instruction A-2 was correct and properly given. Since the evidence as to lost earnings did not exceed the amount alleged in the petition, it was not necessary that the instruction limit the recovery, as to this element, to the amount alleged. Leighton v. Davis, 260 S.W. 986; Laycock v. United Rys. Co., 290 Mo. 344, 235 S.W. 91; Reagan v. People's Motorbus Co., 35 S.W. (2d) 945. (5) The verdict is not excessive. Spencer v. Railroad Co., 317 Mo. 492, 297 S.W. 353; Manley v. Wells, 292 S.W. 67; Snyder v. Am. Car & Foundry Co., 14 S.W. (2d) 603; Jordan v. Ry. Co., 308 Mo. 31, 271 S.W. 997; Ernst v. Union Depot Bridge & Terminal 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.
Suit brought by James Hiatt to recover for personal injuries sustained while in the employ of defendant unloading steel rails from a car near St. Charles, Missouri, on February 23, 1929. Hiatt obtained verdict and judgment for $12,500, from which judgment defendant appealed. Later Hiatt died and the cause was revived here in the name of Juanita Hiatt, administratrix of his estate. We shall refer to James Hiatt as plaintiff.
The suit is founded upon alleged violation of the provisions of the Federal Safety Appliance Act relating to the use of air brakes. Plaintiff was a member of a crew operating a train consisting of engine, tender and six cars. The work being done at the time of his injury consisted of dropping steel rails along defendant's railroad track which were to be installed in said track by a follow-up crew to replace the lighter rails then in use. The track upon which the train was operating and which was being rebuilt was defendant's main line track, used in interstate commerce, and it is not disputed that at the time of the accident plaintiff and defendant were engaged in interstate commerce.
The train in question had left St. Louis that morning, run westward to St. Charles where plaintiff boarded it and thence west about four miles, all over defendant's main line track, to the place where the unloading was to be done. Counting engine and tender as a car the train consisted of seven cars designated by the witnesses in the following order, beginning at the west end of the train: No. 1, the caboose; No. 2, engine and tender; No. 3, car loaded with "green" steel; No. 4, flat car loaded with "regular" steel rails, which we shall call the steel car; No. 5, "loader" car on which was the derrick or hoist used to unload the rails; No. 6, a car of tie plates, and No. 7, one of angle bars. The rails and other materials were being distributed along the track. A rail would be unloaded, the train would then move westward one rail length, thirty-nine feet, stop and unload another rail, and so on. Some of the rails on the steel car projected over on to the west end of the loader car. Plaintiff was on the west end of the loader car, his work being to turn the rails with the ball of the rail up so that the tongs of the hoist or unloader could be fastened over it to lift and swing the rail from the car and lower it to the ground. He was standing bent over with one foot on a block or beam forming part of the foundation of the hoisting machinery and the other on the floor of the car, engaged in turning a rail, when an unusually hard jerking and jarring of the car caused his foot to slip from the block and to be caught and injured between the block and the rail. Plaintiff's evidence tended to prove that the jerking and jarring of the car and his consequent injury were proximately due to defendant's failure to have at least eighty-five per cent of the cars in the train equipped with air brakes connected so that they could be operated and the movements of the cars...
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