Hunter v. St. Louis Southwestern Ry. Co.

• Decision Date: 14 July 1958
• Docket Number: No. 46394,No. 1,46394,1
• Citation: 315 S.W.2d 689
• Parties: R. C. HUNTER, Plaintiff-Respondent v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 689

315 S.W.2d 689

R. C. HUNTER, Plaintiff-Respondent v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a Corporation Defendant-Appellant.

No. 46394.

Supreme Court of Missouri, Division No. 1.

July 14, 1958.

As Modified on Court's Own Motion Sept. 8, 1958.

Rehearing Denied Sept. 8, 1958.

Finley, Lucas & Arnold, Wilder Lucas, Joesph A. Murphy, St. Louis, for appellant.

Sam R. Gardner, Jo B. Cardner, Monett, for respondent (plaintiff).

HOLMAN, Commissioner.

At about 4 a. m. on January 5, 1953, plaintiff sustained personal injuries while on duty as a machinist for the defendant at Jonesboro, Arkansas. This action to recover damages for his injuries was brought under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. A trial resulted in a verdict for plaintiff in the sum of $15,000. Defendant has appealed from the ensuing judgment and here contends (1) that the evidence is insufficient to support the verdict, (2) that the court erred in giving Instructions Nos. 1 and 3 at the request of plaintiff, and (3) that the judgment is excessive.

In considering the question of the sufficiency of the evidence to make a submissible case we, of course, view the evidence in the light most favorable to plaintiff. Therefore, to a large extent, we will state the evidence which we consider favorable to plaintiff and will disregard defendant's contrary evidence.

The lines of the defendant (generally referred to as the 'Cotton Belt') run in a southwesterly direction from St. Louis, Missouri, into the State of Texas. However, the lines of track we are concerned with in this case run almost due east and west through Jonesboro. The main-line track is the first track on the north side of the area. Immediately south of the main line is located Track No. 1. South of that track is Track No. 2 and other tracks with which we are not here concerned. Plaintiff contends he was injured while working between the main line and Track No. 1 at a point some distance west of the passenger depot.

Plaintiff was 48 years old at trial time. He resided with his wife and children at Pine Bluff, Arkansas, where he had worked for defendant for many years. In the fall of 1952 he was transferred to Jonesboro. He did not move his family to Jonesboro but obtained sleeping quarters and would visit his family in Pine Bluff from time to time. He began work in Jonesboro on the day shift. However, about January 1, 1953, he was assigned to the shift which worked from 11 p. m. to 7 a. m. Plaintiff was working his third night shift at the time he was injured. Generally speaking, his work involved the inspection and repair of diesel locomotives.

Between the main and No. 1 tracks are located watering boxes of two different types. Four of the boxes are for use in adding water to the locomotive generators. There are fifteen boxes of a different type used for supplying drinking water for passenger equipment. These boxes are 18"" long, 8 1/2"" wide, and extend 16"'' above the ground. They run parallel with the tracks. One of these passenger watering boxes is said to have caused plaintiff to be injured.

On the morning in question a westbound passenger train arrived in Jonesboro on the main-line track at about 4 a. m. Plaintiff, his helper and his laborer were waiting at the point where the locomotive was to stop. The laborer and helper were required to add water to the engine generator and perhaps perform other duties. It was plaintiff's duty to make an inspection of the locomotive, both inside and outside. It was also necessary to switch the front baggage car out of the train. When the road locomotive was stopped plaintiff boarded it and began his work. While he was making the inside inspection a switching movement was in progress in order to remove the baggage car from the train. To accomplish that, a switch engine was coupled onto the front end of the road engine and the baggage car was uncoupled from the train. The road engine and baggage car were then pulled some distance west so that the baggage car could be switched onto Track No. 1. It was then uncoupled and the switch engine returned the road engine to the train. Shortly thereafter, plaintiff got back on the ground and began his inspection of the outside of the engine. In making that inspection he used a five-cell flashlight and examined the wheels and all of the under part of the engine looking for any defect that might exist in that part of the locomtive. He began the inspection at the rear of the locomotive on the north side. He then proceeded westwardly along the north side, crossed over the main line, inspecting the front, and proceeded toward the rear on the south side of the engine, walking between the main and No. 1 tracks.

While plaintiff was inspecting the outside of the diesel, the switch engine had apparently backed westwardly to a point where it could cross over to Track No. 1 and couple onto the baggage car. The baggage car was then pushed up Track No. 1 to a point beyond the road engine where it was switched onto Track No. 2 and set out at a steam connection for later unloading. Plaintiff contends that he was struck by the northeast corner of the baggage car as it passed the road engine at a point where one of the passenger watering boxes was located. He testified that in making the inspection in was necessary for him to maintain a certain distance 'out away from the engine' in order to see under it. When he came to the watering box (which he had not encountered before) he was about to stumble over it and, in order to avoid that, stepped to the right of the box toward Track No. 1 and the following occurred:

'Q. What, if anything, happened as you went around it? A. A switch engine was pushing the baggage car from behind me and struck me across the back, and just, I managed to get a glimpse of the end of it just as it struck me. * * *

'Q. Did you hear the movement of the car as it came up, or the switch engine, or the bell or whistle, or see any light of any kind? A. No, sir.

'Q. Did anyone shout a warning of any kind to you? A. I didn't hear it.

'Q. Did you know whether it was coming or not? A. No.'

In connection with the foregoing, it should be stated that the engine of the road locomotive was operating (idling) all of the time plaintiff was making his inspection and it makes 'an awful noise.'

Plaintiff testified that as a result of being hit by the baggage car he was knocked unconscious. He described his actions upon regaining consciousness as follows: 'Well, first thing I remember, I was trying to, I was laying on the ground trying to move my legs. I was paralyzed. I couldn't move them. I lay there for some time. I don't know how long. I managed to get on my hands and knees, and I was in that position for some time. Then I managed to stand up, and when I stood up, the blood was streaming from my head, all down through my face. Then I managed to get across some rails over to where we had a truck parked, and my helper and a laborer was there. I remember saying something to them.' Shortly thereafter, the night foreman ordered that plaintiff be taken to the local hospital where he remained for almost a week. We will hereafter discuss in detail the injuries which plaintiff contends resulted from the foregoing.

The verdict-directing instruction (No. 1), given at the request of plaintiff, conjunctively hypothesized two grounds of negligence as follows: '* * * that there was not sufficient clearance for plaintiff to pass south of said water stand with reasonable safety when a train was moving on the track south of said water stand, and that defendant caused a cut of cars to be shoved easterly along the track next adjacent south of the said road engine without sufficient lights thereon to give reasonable warning of its approach * * *.' The cause would be considered submissible if the evidence supports either of said grounds of negligence. Rinderknecht v. Thompson, 359 Mo. 21, 220 S.W.2d 69. We have concluded that there was sufficient evidence to support the first of said assignments of negligence. In that connection we note that the Supreme Court of the United States has recently said, 'Under this statute [F.E.L.A.] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence.' Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 448, 1 L.Ed.2d 493.

There was evidence that the watering box was located 43 inches from the north rail of Track No. 1, and that the overhang of the baggage car was 28 1/2 inches, which left a clearance of 14 1/2 inches between the box and the car. Plaintiff stated that he measured 20 inches across the shoulders. That evidence would reasonably support a finding that there was insufficient clearance between the box and cars that might be on Track No. 1. There was also evidence that the distance from the water box to the south rail of the main line was 57 inches. It therefore appears that if the water box had been located equidistant betweent the two tracks, the distance from the box to the rail in each instance would have been 50 inches, and the clearance between the box and a baggage car on either track would have been 21 1/2 inches. From that evidence a jury could reasonably find that the location of the box equidistant would have provided clearance on both sides for a man the size of plaintiff, who, the evidence indicates, weighed 196 pounds, and was 5' 8"" tall.

Defendant, however, contends that mere proof that the watering box was located in close proximity to Track No. 1 does not prove negligence. Defendant's position is that plaintiff must go further and prove that it...