Howard v. Mobile & O. R. Co.

• Decision Date: 12 June 1934
• Docket Number: 32092
• Parties: Ernest R. Howard v. Mobile & Ohio Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 272

335 Mo. 295

Ernest R. Howard v. Mobile & Ohio Railroad Company, a Corporation, Appellant

No. 32092

Supreme Court of Missouri

June 12, 1934

Rehearing Overruled June 12, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Albert D Nortoni, Judge; Opinion filed at September Term, 1933 April 19, 1934; motion for rehearing filed; motion overruled at May Term, June 12, 1934.

Affirmed.

Rufus Creekmore and Roberts P. Elam for appellant; Carl Fox of counsel.

(1) The trial court should have given defendant's instructions in the nature of demurrers to the evidence because the evidence conclusively established that the plaintiff was not engaged in interstate transportation at the time he sustained his injury. 45 U.S.C. A., secs. 51-59; Luchetti v. Railroad Co., 233 F. 137; Jarvis v. Railroad Co., 325 Mo. 428, 37 S.W.2d 602; Shanks v. Railroad Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436; C. & N.W. Railroad Co. v. Bolle, 284 U.S. 77, 52 S.Ct. 59, 76 L.Ed. 172; Railroad Co. v. Bezue, 284 U.S. 415, 52 S.Ct. 205, 76 L.Ed. 370; C. & E. I. Railroad Co. v. Industrial Commission, 284 U.S. 296, 52 S.Ct. 151; Ill. Cent. Railroad Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051; Erie Railroad Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319; Middleton v. Railroad Co., 61 F.2d 929; Allen v. Railroad Co., 53 S.W.2d 884; Milburn v. Railroad Co., 56 S.W.2d 80; Pope v. Railroad Co., 54 F.2d 575; Wise v. Railroad Co., 43 F.2d 692; Phillips v. Railroad Co., 40 S.W.2d 1046; Martin v. Railroad Co., 302 Mo. 506, 258 S.W. 1023; Myers v. Railroad Co., 246 S.W. 257; Kepner v. Railroad Co., 332 Mo. 299, 15 S.W.2d 825; Sailor v. Railroad Co., 18 S.W.2d 82. (2) The defendant's instructions in the nature of demurrers to the evidence should have been given to the jury because there was no substantial evidence that the engineer came in contact with the shaker bar, or that the cause of plaintiff's injury was the alleged act of the engineer in coming in contact with the shaker bar, to warrant the submission of the case to the jury. C. M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041; Gulf, M. & N. Railroad Co. v. Wells, 275 U.S. 455, 48 S.Ct. 151, 72 L.Ed. 370; Delaware & L. Railroad Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202; A. T. & S. F. Railroad Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281; Small Co. v. Lamborn & Co., 267 U.S. 250, 45 S.Ct. 300, 69 L.Ed. 597; Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391; Patton v. Railroad Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Martin v. Railroad Co., 30 S.W.2d 735; So. Railroad Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Shidloski v. Ry. Co., 64 S.W.2d 259; Adelsberger v. Sheehy, 59 S.W.2d 647; Steele v. Railroad Co., 265 Mo. 97, 117, 175 S.W. 177; Chesapeake & O. Railroad Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453; Champagne v. Hamey, 189 Mo. 709; Sexton v. Met-St. Ry. Co., 245 Mo. 254; McCarthy v. Ry. Co., 90 A. 490; Coin v. Lounge Co., 222 Mo. 488, 121 S.W. 6; New York C. Railroad Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198, 74 L.Ed. 562; Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. (3) The verdict for $ 14,500 for the loss of sight of an eye, the vision of which was already greatly impaired, was, and is, grossly excessive. Adams v. Railroad Co., 287 Mo. 535, 229 S.W. 790; Parrish v. United Rys. Co., 260 S.W. 748; Loduca v. Railroad Co., 289 S.W. 908; Knott v. Mo. Boiler Works, 253 S.W. 749; Russell v. Railroad Co., 295 S.W. 102; Downing v. Loose-Wiles Biscuit Co., 8 S.W.2d 884; Cole v. Railroad Co., 61 S.W.2d 344; Reed v. Term. Railroad Assn., 62 S.W.2d 747; Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1079.

Eagleton, Henwood & Waechter and Frank P. Aschemeyer for respondent.

(1) Defendant's instruction in the nature of demurrers to the evidence were properly refused, because: (a) Plaintiff must be given the benefit of all favorable evidence, together with all of the favorable inferences that may reasonably be drawn therefrom. Gunning v. Cooley, 281 U.S. 90; Gettys v. Am. Car & Foundry Co., 16 S.W.2d 85; Thomassen v. West St. Louis W. & L. Co., 278 S.W. 979. (b) The plaintiff's evidence is that the movement of the four empty cars had been completed, and that the engine was going to track No. 6 to break up and switch the interstate cars there, when the accident occurred. There was, thus, substantial evidence that plaintiff was engaged in interstate transportation at the time of injury, and this question was properly submitted to the jury. Midwest Natl. Bank & Trust Co. v. Davis, 288 Mo. 563, 233 S.W. 406; Davis v. Dowling, 284 F. 670; Stottle v. Ry. Co., 18 S.W.2d 436; 2 Roberts' Fed. Liability of Carriers (2 Ed.), sec. 727, p. 1373; Hines v. Logan, 269 F. 105; Railroad Co. v. Carr, 238 U.S. 260; Railroad Co. v. Dunlap, 58 F.2d 951; O'Donnell v. Director General of Railroads, 273 Pa. 375, 117 A. 82; L. & N. Railroad Co. v. Parker, 242 U.S. 13; Railroad Co. v. Welsh, 242 U.S. 303; McKay v. Ry. Co., 44 F.2d 150; B. & O. Railroad Co. v. Darling, 3 F.2d 987; Grigsby v. Ry. Co., 3 F.2d 988. (c) There was substantial evidence that the engineer struck the shaker bar and caused it to fall, strike and injure the plaintiff. In determining the sufficiency of this evidence, the court has no right to pass upon the credibility of the witnesses or the weight of the evidence. Western & A. Railroad v. Hughes, 278 U.S. 496; Great Northern Ry. Co. v. Donaldson, 246 U.S. 121; Kinghorn v. Railroad Co., 47 F.2d 593; O'Boyle v. Northwestern Fire & Marine Ins. Co., 49 F.2d 713; Wabash Ry. Co. v. Lewis, 48 F.2d 519; Sprencel v. United States, 47 F.2d 501; New Amsterdam Cas. Co. v. Iowa State Bank, 1 F.2d 198; B. & O. Railroad Co. v. Groeger, 266 U.S. 521. (2) The judgment is reasonable in amount and should not be disturbed. (a) The evidence on this subject should be taken in its light most favorable to respondent. Manley v. Wells, 292 S.W. 67; Busby v. Tel. Co., 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 335. (b) It was the peculiar province of the jury to determine the extent of respondent's injuries and the compensation he was entitled to recover therefor. Hoover v. Ry. Co., 227 S.W. 79; Maloney v. U. Rys. Co., 237 S.W. 516; Sacre v. Ry. Co., 260 S.W. 88. (c) The trial court, in supervising the amount of the verdict, exercised a discretionary power which should not be reviewed on appeal except in case of obvious abuse. 4 C. J., p. 830, id. 871-873; Goetz v. Ambs, 27 Mo. 34; Gurley v. Railroad Co., 104 Mo. 233; Laughlin v. Rys. Co., 275 Mo. 472. (d) An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Hanley v. Wells, supra; Laughlin v. Rys. Co., supra; Grott v. Shoe Co., 2 S.W.2d 785. (e) The award is reasonable as compared with judgments upheld in similar cases. Adams v. Railroad Co., 229 S.W. 790; Downing v. Loose-Wiles Biscuit Co., 8 S.W.2d 884; Russell v. Railroad Co., 316 Mo. 1303, 295 S.W. 102.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries under the Federal Employers' Liability Act, U.S.C.A Title 45, Sections 51-59. Plaintiff had a verdict for $ 14,500. Defendant has appealed from the judgment entered on that verdict.

Plaintiff was a fireman on defendant's switch engine at Cairo, Illinois. He commenced work just after midnight, March 27, 1930, and after switching several industries at Cairo, went with the switch engine to Davis Junction, about four or five miles north of Cairo. It was the duty of the switching crew to meet a freight train there about three A. M. Because of the location of defendant's Cairo bridge, its through freight trains do not come into its Cairo yards but set out cars, destined there, at Davis Junction where they are picked up by a switch engine and taken into the Cairo yards. The switching list for that morning showed that ten cars were brought from Davis Junction to the Cairo yards, three of which were moving in interstate transportation. Two of them carried oats from Iowa to a Cairo elevator. The third was loaded with flour for a town in Alabama. Defendant's evidence showed that these ten cars, coupled together, were placed upon track 6 in the Cairo yards "for mechanical inspection and for marking and carding which showed the contents and the designated point of delivery, whether to local industries or connecting lines," which was the usual way of handling cars brought from Davis Junction. "The first thing that is done is to put the cars in the west yards on a track and then detach the engine, which goes about other work, and then the work of inspection and marking of the cars begin. It would usually take from 25 to 30 minutes to inspect and mark cars." After these cars were inspected, it was the duty of the crew of the switch engine to return and remove them. "The purpose of bringing the ten cars over there to the yards was to break it up . . . disintegrate the train and put each car where it belonged."

On this particular occasion the foreman in charge of the switch engine had a verbal order to move four empty cars, which were nearby. As soon as the ten-car string was placed on track 6 for inspection and marking, the switch engine, under the foreman's direction, uncoupled from them and went to move these empty cars, located on what was known as the short house track which was a spur off of the house track. To get from track 6 to the house track it was necessary to go from 300 to 400 yards down the main line track through the yards. The switch engine made this trip, coupled onto...