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

• Citation: 201 S.W.2d 958,356 Mo. 412
• Decision Date: 21 April 1947
• Docket Number: 40072
• Parties: Maude C. Hold, Administratrix of the Estate of Walter W. Hold, Deceased, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

201 S.W.2d 958

356 Mo. 412

Maude C. Hold, Administratrix of the Estate of Walter W. Hold, Deceased, v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 40072

Supreme Court of Missouri

April 21, 1947

Motion for Rehearing or to Transfer to Banc Overruled May 12, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

Warner Fuller and Arnot L. Sheppard for appellant.

(1) Appellant's motion for a directed verdict should have been sustained; because respondent's evidence (and there is no other) fails to prove any negligence of appellant, and proves decedent's negligence was the sole proximate cause of his death. (2) The evidence of Powers is insufficient because if his testimony in the deposition is held to be substantive proof of the facts therein stated, yet his evidence at the trial is directly contradictory to the deposition. Therefore, the jury cannot determine which testimony is correct and there is failure of proof of the fact. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Draper v. L. & N.R. Co., 156 S.W.2d 626; State v. McCrackin, 162 S.W.2d 853; Siegel v M.-K.-T.R. Co., 119 S.W.2d 376. (3) In addition, the other facts and circumstances in the case, especially the testimony of Lewis and Grimmer, not only tend to, but conclusively do, show that Powers' testimony at the trial was correct and that the jury could not reasonably determine that the statements contained in the deposition were correct. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 646. (4) Hold's death resulted solely and proximately from his own negligence. He knew exactly what switching movements were to be made. The near end of the cut of cars was only ten feet from him while he was lining the switch. There was no need and it was not customary for the kicking movement into No. 1 track to be held up until decedent had crossed track 14 and gone to No. 2 switch. Knowing these facts, decedent's getting in front of the train was negligence which (1) solely and (2) proximately caused his death. Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787, 73 L.Ed. 957; Brady v. Southern R. Co., 320 U.S. 476, 88 L.Ed. 239. (5) Instruction 1 is erroneous for the following reasons: The hypothesis that "while the said Walter W. Hold was" proceeding "toward the north and west . . . toward switchstand #2 . . . defendant acting through its switch foreman did thereafter cause said train to be put in motion and to move westwardly into and against" decedent, etc. This hypothesis is not supported by any evidence, and is broader than the evidence. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (6) It wrongly assumes that decedent was moving towards switch No. 2 at the time the cars commenced to move. Boland v. St. L.-S.F.R. Co., 284 S.W. 141. (7) The phrase "before and at the time" of giving the signal, is so indefinite and uncertain that it furnishes no standard for the jury to determine the alleged duty; is susceptible of various interpretations, and therefore is confusing and misleading. Lee v. Shryack-Wright Gro. Co., 53 S.W.2d 407; Landon v. U. Rys. Co., 237 S.W. 496. (8) Instruction 5 is erroneous because it predicates a recovery of the present value of decedent's future earnings, whereas there is no evidence establishing such value. Southern Pacific R. Co. v. Klinge, 65 F.2d 85; Klinge v. Southern Pac. R. Co., 57 P.2d 367, 105 A.L.R. 204. (9) The trial court erred in refusing to give to the jury Instruction D which correctly declares the law. (10) The trial court erred in permitting respondent's counsel to argue to the jury that Powers' testimony was false but that nevertheless the jury should find in respondent's favor on the theory that the facts were exactly contrary to Powers' evidence; especially in view of the testimony of her witnesses Grimmer and Lewis whose testimony corroborated Powers' testimony at the trial.

Mark D. Eagleton and Wm. H. Allen for respondent.

(1) It is familiar law that on the question of whether a submissible case has been made, the evidence is to be viewed in its entirety and in the light most favorable to the plaintiff giving the latter the benefit of every inference favorable to plaintiff's case that may reasonably be drawn from the evidence; that the credibility of the witnesses and the weight to be given to their testimony are matters for the jury; and that whenever the evidence touching the issue of negligenc is such that fairminded men may reasonably draw different inferences or conclusions therefrom, such issue is one for the jury. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Lavender v. Kurn, 66 S.Ct. 740; Ford v. L. & N.R. Co., 196 S.W.2d 163; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Blair v. Baltimore & Ohio R. Co., 65 S.Ct. 545; New York Central R. Co. v. Marcone, 281 U.S. 345, 74 L.Ed. 894; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Bootee v. K.C. Public Service Co., 183 S.W.2d 892; Dodd v. M., K. & T.R. Co., 184 S.W.2d 454. (2) There is an abundance of substantial evidence in the record to warrant a finding by the jury that the act of defendant's foreman in signalling the engineer to make the fatal movement without waiting until Hold had reached switch No. 2 and had there inspected the switch points and latches and had given the foreman a signal for the movement, was in violation of a long established custom and practice in these yards not to make any movement under such circumstances without a signal from the switch tender showing that everything is in readiness therefor, and consequently constituted negligence on the foreman's part directly resulting in Hold's death. (3) The testimony of the witness Powers in his deposition constituted alone ample evidence of negligence on the part of the foreman in signalling the engineer to begin the movement without awaiting such signal. Such sworn testimony of Powers in his deposition constituted substantive proof of the facts therein stated, and the jury was at liberty to accept the same at its full face value. Pulitzer v. Chapman, 337 Mo. 298 85 S.W.2d 400; Snowwhite v. Metropolitan Life Ins. Co., 127 S.W.2d 718; Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7; Woelfle v. Connecticut Mut. Life Ins. Co., 234 Mo.App. 135, 112 S.W.2d 865; Woods v. Washington Fidelity Natl. Ins. Co., 113 S.W.2d 121. (4) An employee is entitled to rely upon the observance, not only of the employer's rules, but of the customs and practices established and prevailing in respect to the performance of the work in which the servant is engaged. New York Central R. Co. v. Marcone, 281 U.S. 345, 74 L.Ed. 894; Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409; Montgomery v. Baltimore & Ohio R. Co., 22 F. 359; Grosvenor v. New York Central R. Co., 343 Mo. 611, 123 S.W.2d 173; Koonse v. Missouri Pacific R. Co., 322 Mo. 813, 18 S.W.2d 467. (5) And Hold being dead, it will be presumed that he relied upon the custom and practice of the foreman to await a signal from him after he had reached switch No. 2 and had there examined the switch points and latches. New York Central R. Co. v. Marcone, 281 U.S. 345; Director General v. Templin, 268 F. 483; Koonse v. Missouri Pacific R. Co., 322 Mo. 813, 18 S.W.2d 467. (6) And there was likewise abundant evidence to take to the jury the issue of the foreman's negligence in failing to ascertain that Hold was in a place of safety before signalling the engineer to begin the westward movement. (7) Where there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve any evidence inconsistent with its conclusion. Dodd v. M., K. & T.R. Co., 184 S.W.2d 454; McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Lavender v. Kurn, 66 S.Ct. 740. (8) Appellant's contenton that Hold's death resulted solely from his own negligence is without merit. Plaintiff was entitled to recover if her husband's injury and death were caused "in whole or in part" by the negligence of defendant's servants; contributory negligence, if any, on Hold's part constituted no defense. Title 45 U.S.C.A., Sec. 51, Act of April 22, 1908, c. 149, as amended August 11, 1939, c. 685; Title 45 U.S.C.A., Sec. 53; Rocco v. Lehigh Valley R. Co., 288 U.S. 275; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44. (9) There was no error in giving Instruction 1. For the reasons shown above, the facts hypothesized in that instruction were fully supported by the evidence. (10) The instruction is not subject to criticism because it authorized the jury to find that it was the foreman's duty to observe Hold's whereabouts "before and at the time" of the giving of the signal for the movement in question. The use of of such language in the instruction could not conceivably have misled or confused a jury of ordinarily intelligent laymen. Smith v. Stanolind Pipe Line Co., 189 S.W.2d 244. (11) Appellant's contention that it was error to give Instruction 5 on the measure of damages in the absence of evidence as to the earning power of money is without merit. Interest rates and other forms of returns on safely invested are matters of such common knowledge that jurors may be presumed to be able to make proper allowance therefor in estimating the present value of a sum of money payable in the future, though no evidence on that subject is introduced. Western & A.R.R. v. Lockridge, 39 Ga.App. 246, 146 S.E. 776, s.c. 170 Ga. 208, 152 S.E. 474; Chesapeake & Ohio N.R. Co. v. Adams, 207 Ky. 668, 269 S.W. 1009; Louisville & N.R. Co., v. Grizzard, 189 So. 203; Gill v. B. & O.R. Co., 302 Mo. 317, 259 S.W. 93; Head v. Hargreave, 105 U.S. 45. (12) And the giving...