Illinois Central Railroad Company v. Staples
| Citation | 272 F.2d 829 |
| Decision Date | 23 December 1959 |
| Docket Number | No. 16296.,16296. |
| Parties | ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. Arlene Delores STAPLES, a Minor, etc., Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Arnot L. Sheppard, St. Louis, Mo., made argument for appellant.
Robert E. Morley, St. Louis, Mo., made argument for appellee.
Before GARDNER, WOODROUGH, and VOGEL, Circuit Judges.
This was an action brought by appellee against appellant to recover damages for personal injuries suffered by her while she was a passenger on one of appellant's trains en route from St. Louis, Missouri to Memphis, Tennessee. We shall refer to the parties as they were designated in the trial court.
Plaintiff alleged no specific act of negligence but submitted her right to recover on a general allegation of negligence, thus invoking the doctrine of res ipsa loquitur. Defendant answered, denying all acts of negligence.
The accident which caused plaintiff's injuries resulted from the derailment and wreck of one of defendant's passenger trains in which she was being transported. The wreck occurred on a portion of track referred to in the evidence as a "run-around track." This "runaround track" was a curved track leading away from defendant's main track and again connecting with the main track at an undisclosed distance, and was installed on a new grade built by the State of Illinois in order to facilitate the building of a new public highway under the track of defendant. The construction of this highway necessitated cutting through the established railroad grade of defendant and the building of a railroad bridge over the opening thus made through the railroad grade. During the construction of the highway under the defendant's track, defendant's trains were routed over this so-called "run-around track," thus diverting the traffic from its regular line and enabling it to continue running its trains while the public highway was under construction under its main track and a railroad bridge was being built to permit the traffic to pass over defendant's own regular line. The grade for this "run-around track" was built by the State of Illinois but the ballast, ties, and rails connecting with and leading from defendant's main track and again connecting therewith were built and installed by the defendant. The length of the "run-around track" is not shown by the testimony; neither does it appear how long it had been in use at the time of the accident in question.
This accident happened sometime after midnight while plaintiff was seated with a companion on the left side of the coach. She had been reading and had dozed off to sleep when the wreck occurred and the car turned over on its side. There is nothing in the record to show the number of cars in the train, the rate of speed at which it was moving, nor the condition of the equipment following the derailment. There was testimony of defendant's Division Engineer as to the physical facts as he observed them following the wreck, but the testimony was confined to the condition of the track and roadbed, with no testimony as to the condition of the wrecked train. On cross-examination he was interrogated and answered, with reference to the speed of the train, as follows:
"
In addition to plaintiff's testimony as to her injuries and condition of health, there was medical testimony both on behalf of plaintiff and on behalf of defendant. We shall have occasion to further develop the testimony.
At the close of all of the testimony defendant moved for a directed verdict in its favor, which motion was denied and the case was submitted to the jury on instructions to which defendant saved certain exceptions hereinafter to be considered. The jury returned a verdict in favor of the plaintiff for $5,000.00, pursuant to which the court entered judgment. Defendant did not move for judgment notwithstanding the verdict but instead moved for a new trial, which the court denied, and this appeal followed.
Defendant seeks reversal on two grounds, (1) that the court erred in giving to the jury the following instruction:
"In determining the amount of damages you will award the plaintiff, you may take into consideration * * * (4) such impairment, if any, of plaintiff\'s ability to work and to labor after reaching the age of twenty-one years as you find from the evidence plaintiff is reasonably certain to suffer."
and, (2) that the court erred in permitting plaintiff's counsel, in his opening argument to the jury, to tell them that defendant's failure to proffer as witnesses the members of the train crew warranted the inference that had they testified their evidence would have been hurtful to defendant.
Counsel for defendant, in its brief, concedes that plaintiff made out a prima facie case entitling her to go to the jury, but contends that the evidence was insufficient to warrant the giving of the instruction as to her right to recover for the diminution of her ability to work and labor after reaching the age of twenty-one years. As we construe defendant's contention, it concedes plaintiff's right to recover for all damages she may have suffered by reason of her injuries, except damages for diminution of her ability to work and labor after reaching the age of twenty-one years. The contention that she was not entitled to recover for diminution of her earning capacity after reaching the age of twenty-one years is based upon the claim that her injuries were not permanent and that she had not shown that she had earning capacity. At the time of the accident plaintiff was a minor of the age of sixteen years.
As the jury found the issues in favor of the plaintiff, we must view the evidence in a light most favorable to her as the prevailing party, and we must assume that all conflicts in the evidence were resolved in her favor. She is also entitled to the benefit of all such favorable inferences as may reasonably be drawn from the evidence.
Plaintiff testified with reference to her injuries and condition following the accident to the effect that prior to this occurrence she had had headaches once in a while but that now she has them frequently. The headaches which she had prior to the occurrence were always only mild headaches but now they are worse and when they occur she has to sit down or lie down because they are very bad and usually last all day. The headaches occur about three times per week. Taking aspirins for these headaches does not help them. She testified further that she now has trouble with her back when she lifts something or bends over too far. She suffers from dizziness sometimes when she bends over or jerks her head around. Dr. C. M. Turner testified as to the character and extent of her injuries, among other things, that:
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