High v. Quincy, Omaha & Kansas City Railroad Company

• Citation: 300 S.W. 1102,318 Mo. 444
• Decision Date: 07 December 1927
• Docket Number: 25998
• Parties: William High v. Quincy, Omaha & Kansas City Railroad Company, Appellant
• Court: Missouri Supreme Court

300 S.W. 1102

318 Mo. 444

William High v. Quincy, Omaha & Kansas City Railroad Company, Appellant

No. 25998

Supreme Court of Missouri

December 7, 1927

Motion for Rehearing Denied December 30, 1927.

Appeal from Livingston Circuit Court; Hon. Arch B. Davis Judge.

Reversed and remanded.

J G. Trimble, S. L. Sheetz and H. J. Nelson for appellant.

(1) The court erred in refusing to sustain a demurrer to the evidence at the close of plaintiff's case and at the close of all the evidence, for two reasons, to-wit: (a) because there was an entire failure of proof to support the allegations of negligence on the part of defendant and its employees, and (b) because the evidence showed conclusively plaintiff himself was guilty of such contributory negligence as a matter of law as to bar a recovery, regardless of any proof of negligence of defendant or its employees. Plaintiff wholly failed to make a case for submission to the jury on question of producing cause or of negligence producing a cause. (2) The court erred in overruling defendant's objection to the testimony of plaintiff that if he had known engine 475 had uncoupled and moved away from engine 469, "I would have got out of the way -- got out from between the engine and car." It was wholly incompetent for plaintiff to testify what he would have done if he had known what someone else was doing. His testimony was a mere argument, and self-serving conclusion. (3) Plaintiff's given instruction relating to testimony of expert witnesses is erroneous for the reason that in the middle of said instruction appears the clause "expert testimony is the opinion of such witnesses, based upon the facts in the case as shown by the evidence, but it does not even tend to prove any fact upon which it is based, and before you can give any weight whatever to the opinion of expert witnesses, you must first find from the evidence that the facts upon which it is based are true." Regardless of whether said instruction might be correct if there was no expert testimony other than an opinion given in answer to a hypothetical question based on a specified state of facts, the instruction is misleading and prejudicial because there was much testimony of doctors as to facts they found by reading X-ray photographs of plaintiff. The testimony of said expert witnesses was not based on any facts other than the fact (admitted by plaintiff) that the photographs were those taken of plaintiff, and yet under this instruction the facts found by the experts from examination of the X-ray photographs did not "even tend to prove" anything whatever, and were not entitled to be "given any weight whatever." This instruction discredited practically all of the evidence in the case as to the nature of the injury plaintiff sustained to the bony structure, and could not have been otherwise than exceedingly harmful to the defendant. Kansas City v. Morris, 276 Mo. 167. (4) There was no evidence that the coupler on the tender of engine 469 was defective at the time of plaintiff's injury. No one testified to finding any defect therein, and plaintiff testified he did not examine it, or know whether any defect existed, but merely testified that the coupling did not always make by first impact.

Davis & Ashby, Platt Hubbell and Geo. H. Hubbell for respondent.

(1) The violation of the Automatic Coupler Statute in this cause contributed to the injury of the plaintiff and was a proximate cause. Minneapolis Ry. Co. v. Goneau, 70 L.Ed. 339; Leighton v. Davis, 260 S.W. 988. It was defendant's duty to warn High by bell or whistle, that engine 475 was to be detached and moved away from engine 469. Wells v. Davis, 261 S.W. 66. (2) The defendant likewise submitted contributory negligence, signifying its knowledge that plaintiff relied upon the Federal Automatic Coupler Statute. Railroads, 8 Fed. Stat. Ann. (2d) 1171; Dittmeir Real Est. Co. v. So. Surety Co., 289 S.W 885; Phil. & P. Ry. Co. v. Bartsch, 9 F.2d 859; Hiltz v. Mo. Pac. Ry. Co., 101 Mo. 36. The common law allegation of negligence concerning the steam leak in engine 469, was proper because the Locomotive Boiler Act was not amended to include a locomotive engine used in moving intrastate commerce, only, until the year 1924, while this injury occurred in November, 1923. Prior to the Act of Congress dated June 7, 1924, the Locomotive Boiler Act did not apply to a locomotive engine, unless it was in use in moving interstate or foreign traffic. Railroads, 1924 Supp. Fed. Stat. Ann., sec. 2 (as amended), p. 249; Railroads, 8 Fed. Stat. Ann. (2d), sec. 2, pp. 1201-1205. The jury found against the defendant on its theory that plaintiff gave a go-ahead signal to hostler helper Kelsall, under its own instruction and plaintiff had a right to assume that engine 469 would not be uncoupled from engine 475 until the plaintiff gave a go-ahead signal to Kelsall. So. Pac. Co. v. Allen, 48 Tex. Civ. App. 66. The jury also found under plaintiff's instruction numbered 2 that the hostler and hostler helper uncoupled engine 475 from engine 469, and moved and ran engine 475 forward, without receiving a go-ahead signal or proceed signal from plaintiff, and the jury further found that said acts of said hostler and hostler helper were negligent acts. Wimber v. Iowa Cent. Ry. Co., 114 Iowa 551; Shohoney v. Railroad, 223 Mo. 684; Haines v. Ry. Co., 193 Mo.App. 454.

OPINION

Gantt, J.

Plaintiff was the night car-inspector of defendant at Milan, Missouri, and this is a suit for personal injuries alleged to have been received by him while in the performance of his duty to couple an engine to a baggage car of a train due to leave Milan for Kansas City. Every morning (except Sunday) passenger trains left Milan for Kansas City and Quincy. At 3:30 A. M. on the 27th of November, 1923, engines 475 and 469 were coupled together near the roundhouse in Milan by the hostler and hostler helper. They were "steamed up," ready to pull these trains out of Milan. The hostler, acting as engineer on 475, moved the engines north on track 5 by pulling engine 469, unmanned, with the power of engine 475, to the water crane, where the hostler helper filled the tanks with water. Thereafter the engines, with the power of 475, were backed on track 2, to couple engine 469 to the baggage car, then standing with a passenger coach on said track. Plaintiff gave an easy back-up signal with his lantern. The hostler responded by moving the engines slowly backward until engine 469 engaged the baggage car, for the purpose of coupling the engine to the car. They did not couple. Thereupon, plaintiff gave a stop signal, and the hostler responded by stopping the engines, leaving a space of about twelve inches between the drawbar of the engine and the drawbar of the car. Plaintiff went between the engine and the car to adjust the coupler of the engine. In doing so he removed the knuckle pin with his left hand, removed the knuckle and held it against the coupler head with his right side, and with his right hand was interlocking the knuckle with the interlocking pin when either engine 469 moved backward or the car moved forward and he was caught between the drawbars and injured. While plaintiff was standing between the drawbars working with the coupler, the hostler helper, Kelsey, uncoupled the engines and gave a signal to the hostler to go ahead, which was done, leaving engine 469 with no one in control of it. It was the purpose of the hostler and hostler helper to back engine 475 onto track 1 and couple it to the passenger train bound for Quincy. Judgment was for $ 30,000, and defendant appealed. Other facts will be noted.

The first count of the petition is under the Federal Employers' Liability Act. Respondent dismissed as to this count at the close of the evidence. The case was submitted on the second count, and the negligence therein charged is as follows:

(a) That the defendant negligently furnished for the use of plaintiff engine 469 which was defective in its coupling apparatus, would not couple automatically and could not be coupled without adjustments by an employee going between the engine and the car.

(b) That the hostler helper negligently failed to be at the rear of the rear engine at the time the coupling was to be made, but stationed himself at the head of the rear engine at said time, and the hostler in charge of the head engine, with knowledge that the hostler helper had failed to perform said duty, negligently received and acted upon signals from said hostler helper to move the head engine from the rear engine without ringing the bell and sounding the whistle of said engine, and that said hostler and hostler helper negligently uncoupled and moved the head engine without a signal from plaintiff so to do, and that the rear engine was thereby negligently left under a full head of steam on said track unblocked, without brakes and with no one in charge of it.

(c) That the steam apparatus and machinery of the rear engine was defective, thereby permitting the escape of steam into the cylinders, which fact was known to the defendant or by the exercise of ordinary care on its part could have been known, and that an open leaky throttle valve negligently permitted steam to escape into the cylinders, which fact was known to the defendant or by the exercise of ordinary care on its part could have been known -- all of said defects and acts of negligence caused the rear engine to move and thereby crush the plaintiff between the drawbars of said engine and car.

The answer was a general denial.

I. Appellant contends the court should have given its instruction in the nature of a demurrer at the close of all the evidence "because there was an entire failure of proof to support the allegations of negligence on the part of defendant."

It is...