Hilton v. Thompson
| Decision Date | 13 March 1950 |
| Docket Number | No. 1,No. 41350,41350,1 |
| Parties | HILTON v. THOMPSON |
| Court | Missouri Supreme Court |
Thomas J. Cole, Oliver L. Salter, St. Louis, Lyman J. Bishop, Belton, for appellant.
Everett Hullverson, St. Louis, Edward V. Sweeney, Monett, for respondent.
ASCHEMEYER, Commissioner.
This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., to recover damages for personal injuries. Plaintiff recovered a judgment for $37,000.00 and defendant has taken this appeal.
Since it is conceded that the evidence was sufficient to make a submissible case on appellant's liability, there is no reason to state the evidence in detail. Respondent was employed by appellant as a member of a bridge and building crew. He was injured at 10 A.M. on April 24, 1946, while assisting in the repair of a bridge on appellant's Springfield branch about six miles south of Springfield, Missouri. The crew was engaged in replacing wooden stringers on the bridge. In order to remove the old ones, the east rail of the track, with ties attached, had been jacked up several inches. While the bridge was in this condition, trains could not operate over it.
A foreman was in charge of and directed the repair crew. The equipment used included a motor car and a derrick or crane car. The derrick car was equipped with a boom and a hand operated winch or windlass. The motor car was attached to the derrick car. A stringer, 8"' X 16"' X 24', weighing between 1200 and 1300 pounds, had been obtained at a pile several hundred feet south of the bridge. It was secured by a hook on the end of a cable from the windlass and was suspended in mid-air about sixteen to twenty inches from the east side of the derrick car. Nothing was used to counterbalance the weight of the suspended stringer. The derrick car was then pulled back to the bridge by the motor car. Respondent and two other men rode on the derrick car, respondent being on the northeast corner.
The foreman was operating the motor car. They came on to the bridge at a speed estimated to be from three to six miles per hour. When they were a short distance out on the bridge, the derrick car became derailed, toppled to the east, and all three men were thrown off and fell to a public road which ran underneath the bridge. Respondent fell about fifteen feet, landing on his haunches and partly on his back. According to the evidence favorable to respondent, the foreman directed him to ride on the derrick car. In stopping the motor car, the foreman caused the derrick car to jerk and jolt, become overbalanced, and to be derailed. This was the first time the motor car had been used to move the derrick car which was usually pushed by the men. They were hurrying to replace the stringers so they would not delay a train which was due about 10:30 A.M.
Appellant assigns error in connection with Instruction No. 2 given in behalf of respondent, which reads as follows: 'The Court further instructs you that if you find from the evidence that, in the performance of his duties, plaintiff was directed and required by defendant's foreman to assist in the moving of certain boards by means of a motor car and derrick car and that, in compliance with such directions, plaintiff was on said derrick car; that suspended from the crane of said car was the board mentioned in evidence; that the same was unsecured and suspended over the side of said derrick car; that the defendant failed to counterbalance or weigh down the derrick car so as to prevent its tipping or unbalancing and that the defendant, through the foreman, thereafter caused the said derrick car to be moved by motor car, and in coming to a stop at and on the bridge mentioned in evidence, said car was caused to jerk and jolt and to become unbalanced and to be derailed, and that by reason of all of the aforesaid, the defendant did thereby fail to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work and was negligent, and that the said derrick car tipped over and became derailed and plaintiff was thrown therefrom and injured as a direct result of such negligence of the defendant, in whole or in part, then the Court instructs you that the plaintiff is entitled to recover and your verdict should be in favor of the plaintiff, Turner Hilton, and against the defendant.'
Appellant's first complaint is that the instruction should have required the jury to find a specific cause, such as the sudden application of the brakes by the foreman, for the jerking and jolting of the car which caused it to become derailed. The cases cited by appellant do not sustain this contention. For example, Brainard v. Missouri Pac. R. Co., 319 Mo. 890, 5 S.W.2d 15, holds only that where a petition charges as negligence the conjunction of a hump in the track and excessive speed of a car, and the evidence was presented upon this theory, it was error to instruct the jury that defendant might be held liable upon a finding of excessive speed alone. In the case at bar, the petition alleged various acts of negligence, one of which was, in substance, that the appellant moved the derrick car by means of the motor car 'and did jerk, jar and jolt the said car so that the same would be likely to become unbalanced and to become derailed.' The instruction required the jury to find, among other things, that appellant, through his foreman, caused the derrick car to jerk and jolt and to become unbalanced and derailed. Concededly, the foreman was operating the motor car and controlled the movement of the derrick car. The instruction required the jury to find the substantive and essential facts which combined and concurred to cause the derrick car to become unbalanced and derailed. If the jury believed from the evidence that the derrick car became derailed from some cause not hypothesized in the instruction, it could not have found for respondent. It is not necessary that an instruction require the jury to find evidentiary facts. It is only necessary for an instruction to require the jury to find the substantive facts which are essential to recovery. Henderson v. Dolas, Mo.Sup., 217 S.W.2d 554, 557; Vrooman v. Hill, 347 Mo. 341, 147 S.W.2d 602; Acme Harvesting Machinery Company v. Gasperson, 168 Mo.App. 558, 153 S.W. 1069.
Appellant's next complaint is that the instruction improperly imposed upon him the duty of furnishing respondent a reasonably safe place in which to work; that such a duty does not exist in connection with construction work; and that a recovery could not be based upon a failure to discharge this duty if the accident was caused by the rail which was necessarily raised in the course of repairing the bridge. Pritchard v. Thompson, 348 Mo. 832, 156 S.W.2d 652 and Stone v. Missouri Pac. R. Co., Mo.Sup., 293 S.W. 367, undoubtedly hold that, under the facts presented, the employer was under no duty to exercise ordinary care to furnish an employee a reasonably safe place in which to work, but they have no application here. In Kelso v. W. A. Ross Construction Company, 337 Mo. 202, 85 S.W.2d 527, 535, cited by appellant, where an employee on a construction project, who was directing the unloading of trucks, was injured by the backing of a truck, this Court stated: 'In construction work where conditions are constantly changing, the duty of providing a safe place of work cannot be imposed to the same extent as in the case of work done in a more permanent location because, under these conditions, it is impossible to keep the place of work, the actual physical location in which the work is done, as safe as a place in a completed structure.' But the Court also held that under such circumstances, the duty of providing a safe method of carrying on the work increases and '* * * the employer's duty is not merely safety of the place of work of his employee, but also his safety in his place of work; in short, a safe environment as well as a safe place.' The instruction is so phrased that the jury could not have found that appellant failed to furnish respondent a reasonably safe place in which to work without finding that such failure resulted from the method of work employed by the foreman and the manner in which he used and operated the cars involved.
The instruction here did not permit the jury to find for respondent because the east rail across the bridge had been raised. It is phrased in the conjunctive and required the jury to find the concurrence of all of the facts stated. The jury could not find that appellant had failed to exercise ordinary care to furnish respondent with a reasonably safe place in which to work without finding the existence of all the other facts set out in the instruction. Under the facts presented in the instruction, a finding that appellant failed to exercise ordinary care to furnish a reasonably safe place in which to work was not essential to a recovery by respondent. Respondent assumed an unnecessary burden of which appellant may not complain. Henderson v. Dolas, supra; Lindquist v. Kansas City Public Service Company, 350 Mo. 905, 169 S.W.2d 366, 368 and cases there cited.
Finally, in his reply brief, appellant suggests that the instruction does not require a finding that the negligence of appellant caused the derailment and that such negligence was the proximate cause of the accident. The instruction sets out clearly the facts which the jury was required to find, including the substantive facts relating to the derailment, and requires a finding of negligence and 'that the said derrick car tipped over and became derailed and plaintiff was thrown therefrom and injured as a direct result of such negligence of the defendant.' There is no merit in this contention. We hold that the giving of this instruction did not constitute reversible error.
Appellant assigns error in the giving of Instruction No. 13 on damages because (1) it does not direct the jury to diminish the damages if respondent...
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