Hill v. Terminal R. Ass'n of St. Louis

• Citation: 216 S.W.2d 487,358 Mo. 597
• Decision Date: 13 December 1948
• Docket Number: 40558
• Parties: John W. Hill, Respondent, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

216 S.W.2d 487

358 Mo. 597

John W. Hill, Respondent, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 40558

Supreme Court of Missouri

December 13, 1948

Rehearing Denied January 7, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed (subject to remittitur).

Warner Fuller and Arnot L. Sheppard for appellant.

(1) The ditch was not dug for the purpose of furnishing switchmen a place to alight from or to board moving cars. Therefore, no duty rested upon defendant to exercise ordinary care to make the bottom of this ditch reasonably safe for use for those purposes. Wellinger v. Terminal Railroad Assn. of St Louis, 183 S.W.2d 908; Manche v. St. Louis Basket & Box Co., 262 S.W. 1021; B. & O.R. Co. v. Newell, 196 F. 866; York v. K.C., C. & S. Ry. Co., 117 Mo. 405; Kelley v. Lawrence, 195 Mo. 75; Graham v. C. St. P.M. & O.R. Co., 62 F. 896; Freeman v. Garrets, 196 S.W. 506; McClain v. Seaboard Air Line R. Co., 129 S.E. 876; Campbell v. So. Pac. R. Co., 250 P. 622; 39 C.J., sec. 558, p. 441. (2) The exercise of reasonable care for his own safety demanded that plaintiff should have stood on the flat ground between the Tenth Street lead and the Hill track where he could and would have boarded the moving car with perfect safety; or that he should have stopped the movement of the cars and boarded this car after it was stopped. Therefore, plaintiff's negligence was the sole proximate cause of his injury, in that he chose a dangerous instead of a safe way of boarding the moving car. Atlantic Coast Line v. Davis, 279 U.S. 34, 73 L.Ed. 601, 603; Hogan v. New York Central & H.R. Co., 223 F. 890; Atchison, T. & S.F.R. Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896; Deere v. So. P.R. Co., 123 F.2d 438, certiorari denied 315 U.S. 819, 86 L.Ed. 1217. (3) The court erred in permitting plaintiff's counsel to argue to the jury that plaintiff was entitled to recover for all of his future earnings rather than their present value. Thompson v. Camp, 163 F.2d 396; Chicago, B. & Q.R. Co. v. Kelley, 74 F.2d 80. (4) The verdict of the jury is grossly excessive. Turner v. Central Hardware Co., 186 S.W.2d 603. (5) Plaintiff's testimony is so self-contradictory that it does not support the conclusion reached in the divisional opinion and, in fact, cannot support any conclusion. Muesenfechter v. St. Louis Car Co., 139 S.W.2d 1102; Draper v. L. & N.R. Co., 348 Mo. 886, 156 S.W.2d 626; Hayes v. S.S. Kresge Co., 100 S.W.2d 325; Steele v. Kansas City So. R. Co., 265 Mo. 97. (6) A failure to stop a man from doing what he knows he ought not to do hardly can be called a cause of his act. Unadilla Valley R. Co. v. Caldiner, 287 U.S. 139, 73 L.Ed. 224.

Charles P. Noell for respondent; R. L. Sutton and John H. Haley, Jr., of counsel.

(1) It is manifest that plaintiff made a submissible case for the jury. The evidence shows that defendant was guilty of gross negligence in failing to furnish plaintiff a reasonably safe place to work and that such negligence directly caused his injuries. Bailey v. Central Vermont Ry. Co., 319 U.S. 350; Ellis v. Union Pacific R. Co., 329 U.S. 649; Lavender v. Kurn, 327 U.S. 645; Rueter v. Terminal R. Assn., 261 S.W. 713; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654; Brown v. Terminal R. Assn., 85 S.W.2d 226; Atlantic Coast Line v. Davis, 279 U.S. 34. (2) Negligence is an ultimate, or issuable, fact, and not a conclusion. Welch v. Thompson, Mo. Bar Journal, Vol. 4, p. 77; Rueter v. Terminal R. Assn., 261 S.W. 713; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654. (3) Ordinarily, even though the evidentiary facts to show negligence are undisputed or conceded, negligence is a question of fact for the jury and not a question of law for the court, and if the evidentiary facts to show negligence are such as to warrant an inference of negligence the finding of the jury is conclusive as against interference by an appellate court. Lavender v. Kurn, 327 U.S. 645; Brown v. Terminal R. Assn., 85 S.W.2d 226. (4) It is not essential to liability that the defendant could reasonably have anticipated that the very injury in question would occur, or that it would happen in the precise manner in which it occurred, but it is sufficient if the circumstances are such that defendant ought to have anticipated that some injury would be likely to result from its negligence. Hudson v. Union Electric L. & P. Co., 234 S.W. 869; Rueter v. Terminal R. Assn., 261 S.W. 713. (5) It is manifest that, under the Missouri rule, the award of damages is not so large as to authorize the interference by this court. Before interference by the appellate courts is permitted, and a remittitur is required, it must appear that the award of damages is shockingly excessive, or is so large as to offend against all sense of right, or is unmistakably beyond the bounds of reason, or is shocking to the judicial conscience. Marshall v. St. Louis Union Trust Co., 196 S.W.2d 435; Joice v. M.-K.-T.R. Co., 354 Mo. 439, 189 S.W.2d 568; Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157. (6) It is fundamental that the amount of damages to be awarded, where the amount is not a mere matter of computation, is within the special province of the jury to determine and is not to be interfered with by an appellate court unless the verdict is so large as to offend against all sense of right. Marshall v. St. Louis Union Trust Co., 196 S.W.2d 435; Joice v. M.-K.-T.R. Co., 354 Mo. 439, 189 S.W.2d 568; Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157. (7) In determining the excessiveness or not of the award in this case the court must consider the reduced purchasing power of the current dollar and the changing economic conditions of which the court takes judicial notice. Marshall v. St. Louis Union Trust Co., 196 S.W.2d 435. (8) Under the federal rule the question of whether the verdict of the jury is excessive is not for the courts on appeal and this rule appears to be controlling in the state courts. Lavender v. Kurn, 327 U.S. 645; Scott v. Thompson, 294 Ill.App. 450, 14 N.E.2d 246; Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485; New York L.E. & W.R. Co. v. Winter, 143 U.S. 60; Aetna Life Ins. Co. v. Ward, 140 U.S. 76; Central Vermont Ry. Co. v. White, 238 U.S. 507; Sweet v. Terminal R. Assn., 111 S.W.2d 1000. (9) There was evidence that the defendant knew switchmen at times boarded moving cars from the ditch so that the defendant's purpose for installing the ditch and the grain door is immaterial. Bailey v. Central Vt. Ry. Co., 319 U.S. 350. (10) The testimony that it was respondent's duty to board the car, which was admitted without objection, has probative value. Doyle v. St. Louis Merchants Bridge Term. R. Co., 326 Mo. 425, 31 S.W.2d 1010; J.W. Tipton Cotton Co. v. Clayton, 99 S.W.2d 549; Ridenour v. Oklahoma Contracting Co., 45 S.W.2d 108; Montague v. Washington Fidelity Natl. Ins. Co., 72 S.W.2d 804; Schanbacher v. Laudo Gr. Co., 93 S.W.2d 1076. (11) Evidence that two other men whose toes had been injured were able to work is of no value as evidence in this case because the injuries and the effects of the injuries sustained by those two men were not shown to be the same as the injury and the effects of the injury sustained by respondent. Green v. Terminal R. Assn., 135 S.W.2d 652. (12) There is evidence from which the jury could have inferred that plaintiff's damages were as much and more than the amount of the verdict and judgment and the amount of the verdict and judgment may not be relitigated in this court in an action such as this under the Federal Employers' Liability Act, and a re-determination of the amount of damages by this court on the ground that it is a procedural matter is precluded since the decision of the Supreme Court of the United States in Lavender v. Kurn. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Brady v. Southern Rwy. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 1016; C. & O. Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1016.

OPINION

Dalton, C.

Action for damages for personal injuries under the Federal Employers' Liability Act. The jury returned a verdict for plaintiff for $ 37,721, a remittitur was required in the sum of $ 12,721 and judgment was entered for plaintiff for $ 25,000. Defendant has appealed.

Respondent, a switchman employed by appellant, received an injury to his right foot while attempting to board a cut of moving cars in appellant's Tenth Street yard in St. Louis, Missouri. The cause was submitted to the jury on appellant's alleged negligence in failing to furnish respondent a reasonably safe place in which to work.

Appellant's theory is that no duty required respondent to go to the point at which he attempted to board the cars or to board the cars from the bottom of the ditch adjacent to the track upon which the cars were moving; that the ditch was not intended for such use, nor furnished as a place from which to board moving cars; that a safe place was furnished, where grain goors covered the ditch further north, or where the ground was level further south; and that respondent was injured as the direct result of his sole gross negligence in choosing a dangerous place to board the cars, when a safe place was provided.

Error is assigned on the court's action in refusing to direct a verdict for appellant, on the giving of respondent's instruction I, on the permitting of certain arguments by counsel for respondent and on an alleged excessive verdict. We will consider the first two assignments together, since it is contended (1) that, under the evidence, no duty rested upon appellant to exercise ordinary care to make the bottom of the ditch reasonably safe for use as a place from which to attempt to board moving cars; (2) that r...