Howser v. Railroad Co.

• Decision Date: 11 April 1928
• Docket Number: No. 26666.,26666.
• Citation: 5 S.W.2d 59
• Parties: CLYDE HOWSER, Appellant, v. CHICAGO GREAT WESTERN RAILROAD COMPANY.
• Court: Missouri Supreme Court

5 S.W.2d 59

CLYDE HOWSER, Appellant, v. CHICAGO GREAT WESTERN RAILROAD COMPANY.

No. 26666.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Andrew Circuit Court. — Hon. Guy P. Park, Judge.

REVERSED AND REMANDED.

K.D. Cross, W.T. Meikle, Duvall & Boyd and Miles Elliott for appellant.

(1) Defendant's Instruction 3 was erroneous, because it was not applicable to any issue in the case, and was misleading in that it was calculated to make the jury believe it referred to the stockyard gates and to cause the jury to understand that plaintiff could not recover if injured by the stockyard gates, as he was. Gingery v. Stone Co., 206 S.W. 400; Esstman v. United Rys., 216 S.W. 526; Winkler v. United Rys., 229 S.W. 229; McDermott v. United Rys., 236 S.W. 1080; Foster v. Davis, 252 S.W. 433; Felver v. Ry. Co., 216 Mo. 195; Hoff v. Wabash, 254 S.W. 874; Chaar v. McLoon, 263 S.W. 174; Turnbow v. Dunham, 197 S.W. 103. (2) Defendant's Instruction 4 was erroneous because: (a) It ignores the fact that the engineer had directed plaintiff to work on the right-hand side of the train and that plaintiff was following the customary method of switching. Lovett v. Terminal Ry., 295 S.W. 93. (b) It, in effect, told the jury they must find for defendant if plaintiff was guilty of negligence and must consider the question of plaintiff's negligence in arriving at their verdict whether for plaintiff or defendant, while, under the Federal Employers' Liability Act (under which the action was brought and tried), negligence on the part of plaintiff would have gone only to diminish his damages and would not having authorized a verdict for defendant. See 8659, U.S. Comp. Stats. (Sec. 3, Chap. 149, 35 U.S. Stat. 66); Fish v. Rock Island, 172 S.W. 345. (3) Defendant's Instruction 7 on the credibility of witnesses was erroneous under the facts of this case, in that it told the jury if they believed any witness had wilfully sworn falsely to any material fact in issue, they might disregard the whole or any part of such witness's testimony. This could have been taken by the jury to refer only to the statement of plaintiff in his deposition taken by defendant that he had not worked for the Santa Fe railroad, when, in fact, he had, and stated on the trial that he had, and was a prejudicial comment on plaintiff's testimony. Keeline v. Sealy, 257 Mo. 498; Wyatt v. Coal Co., 209 S.W. 585; Montgomery v. Railroad, 181 Mo. 494.

Brown, Douglas & Brown for respondent.

(1) It is to be noted that it is definitely conceded that the stock pen gates were so constructed and maintained as to continuously stand open, so they would not clear a brakeman on the side of a car. That was plaintiff's contention in his petition, wherein he said "that defendant then and there negligently maintained the hinges and fastenings and latches on said gates, and negligently permitted said gates to be and remain in such condition that said gates would not stay closed, but continuously stood and remained open." It was admitted by the defendant that this contention of the plaintiff was correct, and defendant's evidence showed that there was no provision made for fastening the gates shut. There was no suggestion of evidence from any source that the gates had ever been closed, or that they could be closed and fastened. It was therefore, and yet is, defendant's contention that the stockyards gates constituted a part and parcel of the stock pens and platform, and that they were permanent structures to the same extent that they would have been had they been built solid to the platform, as the sides of a runway leading from the stock pen up to cars to be loaded with stock. It is not possible that the instruction could have in any way prejudiced plaintiff's case. Certainly the jury would not have been warranted under the pleadings and the evidence in finding that the defendant had been guilty of negligence in having the permanent structures too near to its track, and plaintiff could not have been prejudiced because the jury was so told. Secs. 1850, 2082, R.S. 1909; Aronovitz v. Arky, 219 S.W. 624. Aside from the statute our courts say that cases may not be reversed for harmless error. Degonia v. Railroad, 224 Mo. 589. (2) Plaintiff had never been instructed, directed or requested to perform his work at the place where he was injured, in the manner in which it was being performed by him, nor had he ever been instructed, directed or requested to perform his duties in a similar manner under like or similar circumstances. That plaintiff was attempting to perform his duties in a dangerous and hazardous manner at the time he was injured, stands admitted by plaintiff's own testimony, and is conclusively shown by all the other facts and circumstances in evidence. The instruction is complained of because it told the jury that if it should be found that plaintiff was guilty of negligence, that fact should be considered by the jury in arriving at its verdict. The instruction did not in any way state or convey the impression that the jury should find negligence to be a defense to plaintiff's cause of action. However, as the cause of action was bottomed upon the Federal Employers' Liability Act, it was proper that plaintiff's negligence should be considered by the jury in fixing the amount of plaintiff's compensation. Not only was it proper that this fact should have been considered, but it was the absolute duty of the jury under the other instructions of the court to consider it. The law on this subject was fully declared in instruction numbered four, given at plaintiff's request. The question of plaintiff's responsibility for his own negligence, if any, was fully covered by the court's instructions for both plaintiff and defendant, and that the clause in defendant's instruction four, was not only proper, but that it was necessary under the evidence in the case.

SEDDON, C.

Action under the Federal Employers' Liability Act to recover damages in the sum of $100,000 for personal injuries alleged to have been suffered by plaintiff, who was engaged at the time of his injury, on September 20, 1924, as a brakeman in defendant's service, which injuries are alleged to have been caused by the negligence of defendant railroad company. It is admitted in the record by the parties that both the plaintiff and the defendant were engaged in interstate commerce at the time of plaintiff's injury, and, therefore, that the action is properly triable under the Federal act aforesaid. Plaintiff's alleged injuries were sustained while he was in position on the side, or, more accurately, the corner, of a steel railroad car by coming in contact with the gate, or gates, of a stock pen owned and maintained by defendant at Blockton, Iowa, and located upon its railroad property. The action was tried and submitted to a jury, resulting in a verdict for the defendant. After an unsuccessful motion for a new trial, plaintiff was allowed an appeal to this court from the judgment entered upon said verdict.

The specification, or ground, of negligence upon which the cause was submitted is thus averred in the petition:

"That at the town or station of Blockton, in the State of Iowa, defendant, in the operation of its railroad and business as a common carrier for hire, owns and maintains, and then owned and maintained, stock pens for the purpose of confining live stock about to be loaded into or unloaded from defendant's trains and cars; that at all the times herein mentioned defendant kept and maintained a side track, commonly called a `stock track,' at and along and by the west side of said stock pens, and that on the west side of said stock pens, next to defendant's said stock track, defendant kept and maintained certain large and massive gates so built and constructed that when same were opened they would extend from said stock pens to the side of a car standing on defendant's said stock track, so as to form a chute through which to drive stock to and from defendant's cars and stock pens, and that said gates, when standing open, extended so near to the east side of any freight car which might be then and there passing along and over defendant's said stock track that same would injure any employee of defendant who might be on the east side of any such car as same passed by said gates;

"That defendant then and there negligently suffered and permitted said gates to be and stand open when, by the exercise of ordinary care, it would have closed same before plaintiff was injured and have prevented plaintiff from being injured, as hereinafter alleged;

"That defendant, its agents, servants and employees, whose duty it was so to do, knew or by the exercise of ordinary care would have known that said gates were then and there standing open as hereinafter alleged, and negligently failed to close the same, and then and for a long time prior thereto negligently permitted said gates to continuously remain open; ...

"That defendant negligently failed to keep said gates closed and locked when same were not in use, and negligently failed to provide proper means for keeping said gates closed and locked when same were not in use; ...

"That on said 20th day of September, 1924, while he was in the performance and discharge of his duties as a brakeman for defendant as aforesaid, and in obedience to the order of defendant's engineer, as aforesaid, plaintiff had assumed, or was about to assume, a position on the east side of defendant's train and cars then and there being moved along said stock track past said gates, and was, by reason of the negligence and negligent acts of defendant, and of each of the acts of negligence of defendant as hereinbefore alleged, caused to strike and to be struck by one of the gates of said stock pens, which said gates were then and there standing open by reason and as a direct result of the negligence of defendant, as aforesaid, and was seriously and permanently injured."

The answer admits plainti...