Johnson v. Chicago & Eastern Ill. Ry. Co.

• Decision Date: 28 October 1933
• Docket Number: No. 31142.,31142.
• Citation: 64 S.W.2d 674
• Court: Missouri Supreme Court
• Parties: ADOLPH JOHNSON v. CHICAGO & EASTERN ILLINOIS RAILWAY COMPANY, a Corporation, Appellant.

64 S.W.2d 674

ADOLPH JOHNSON v. CHICAGO & EASTERN ILLINOIS RAILWAY COMPANY, a Corporation, Appellant.

No. 31142.

Supreme Court of Missouri, Division 2.

October 28, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.

AFFIRMED (upon condition).

Jones, Hocker, Sullivan & Gladney and Vincent L. Boisaubin for appellant.

(1) The undisputed evidence showed that there was no negligence on the part of the defendant or its employee which was the proximate cause of the injury. Horton, the coemployee, had a right to assume that plaintiff would not undertake to board his (Horton's) side of the footboard. Parker v. St. L.-San Francisco Ry. Co., 297 S.W. 146; Neidlein v. So. Pac. Co., 179 Pac. 191; Kemp v. Railroad Co., 122 Atl. 731; Shaw v. Railroad Co., 314 Mo. 123. (2) Where a choice lay between a safe and an unsafe method of doing his work, an employee who chooses the unsafe method and is hurt cannot recover. To do so is negligence, and the employee assumes the risk of injury. Wise Terminal Co. v. McCormick, 51 S.E. 731; Suttle v. Railroad Co., 144 Fed. 668; Morris v. Ry. Co., 108 Fed. 747; Boldt, Adm., v. Railroad Co., 245 U.S. 441. (3) Under the Federal Employers' Liability Act, contributory negligence, if found, must be considered by the jury to diminish the damages. Plaintiff's Instruction 1, being the only instruction offered, failed to contain this requirement. This was error. U.S.C.A., Title 45, par. 53; Raftery v. Pittsburg & W.V. Ry. Co., 131 Atl. 471, 284 Pa. 555. (4) Plaintiff's Instruction 1 predicated negligence and the right to recover upon the act of the conductor in merely "moving into the path of plaintiff" without requiring the jury to also find that the conductor knew, or could have known, that plaintiff was in a position of peril and about to step upon the conductor's side of the running board before he moved into plaintiff's path. This was error. Chapman v. K.C. Ry. Co., 217 S.W. 290; Hanks v. St. L.-S.F. Ry. Co., 217 Mo. App. 528. (5) Plaintiff's instruction purported to cover the case. It ignored material parts of the defense. It was therefore erroneous. Enloe v. Am. Car & Foundry Co., 240 Mo. 443; Tinkle v. Railroad Co., 212 Mo. 445; McMahon v. Pac. Express Co., 132 Mo. 641; Culver v. Munden Coal Co., 286 S.W. 745; Carroll v. The Peoples Ry. Co., 60 Mo. App. 465; Norfolk So. Railroad v. Ferebee, 238 U.S. 273; C. & O. Ry. Co. v. Cooper, 181 S.W. 933; Wilson v. C.B. & Q. Ry. Co., 317 Mo. 647. (6) The verdict was excessive. This court has uniformly limited the damages for loss of a leg to $10,000 under economic conditions similar to those now obtaining. In passing upon the size of verdicts this court will take notice of the rise and fall of the cost of living and the consequent change in the purchasing value of the dollar. Kibble v. Quincy, O. & K.C. Ry. Co., 285 Mo. 603; Foster v. Davis, Dir. Gen., 252 S.W. 433; Miller v. Schaff, 228 S.W. 488; Greenwell v. Chicago, M. & St. P. Ry. Co., 224 S.W. 404; Hurst v. Railroad Co., 280 Mo. 566; Duffy v. K.C. Ry. Co., 217 S.W. 883; Smith v. K.C. So. Ry. Co., 279 Mo. 173; Roach v. K.C. Ry. Co., 288 S.W. 520.

Eagleton, Henwood & Waechter and Allen, Moser & Marsalek for respondent.

(1) The trial court did not err in refusing the peremptory instructions requested by the appellant. (a) There was ample proof of negligence on Hoctor's part. The evidence shows that Hoctor saw Johnson standing between the rails, for the purpose of boarding the approaching engine; that Johnson was closer to the east rail; that Hoctor was then riding upon the extreme east or left end of the footboard; that Johnson, in attempting to get on the footboard to the left of the coupler, was resuming the place he had alighted from just as Hoctor and Mayfield had done; that Mayfield, the other switchman, was on the right-hand side, and it was usual for respondent to ride on one side of the coupler and Mayfield on the other; that it was usual for one of the switchmen to ride close to Hoctor, so Hoctor could give him orders as to the coupling of cars, etc. With knowledge of all these facts, Hoctor, reading the switching lists, moved over into and blocked the space where respondent was attempting to get on the footboard just as respondent was in the act of stepping on. Under the authorities, the question of Hoctor's negligence was clearly one for the jury. Shaw v. C. & A. Ry. Co., 314 Mo. 123; Francis v. Ry. Co., 127 Mo. 658; Railroad Co. v. Lovick, 210 S.W. 283. (b) Upon demurrer at the close of the case, the trial court is required to accept as true all evidence in the entire record tending to support the plaintiff's right to recover, and to grant plaintiff the benefit of all favorable inferences which such evidence tends to support. Gunning v. Cooley, 281 U.S. 90; Buesching v. St. Louis Gaslight Co., 73 Mo. 219; Gettys v. Am. Car & Foundry Co., 16 S.W. (2d) 85. (c) The evidence shows that respondent was boarding the engine at the usual and customary place for him to board it, under the circumstances. It was Hoctor's duty to see him, and in moving to the left, into respondent's place, without taking such precautions as the situation demanded, Hoctor was clearly negligent. What Hoctor saw and what he ought to have seen are equivalent. Norton v. Wheelock, 23 S.W. (2d) 147; Dutcher v. Railroad, 241 Mo. 165; Rine v. Railroad, 100 Mo. 228; Lynch v. Railroad, 208 Mo. 21. (d) Negligence on respondent's part (assuming there was such, which we deny) would constitute no ground for sustaining a demurrer to the evidence unless his act was the sole cause of his injury. That no such situation exists in this case is clear. 45 U.S. Code, secs. 51, 53; Kamer v. Railroad Co., 32 S.W. (2d) 1075; Brock v. Railroad Co., 51 S.W. (2d) 106; Railroad Co. v. Skaggs, 240 U.S. 66. (e) Respondent was guilty of no negligence in boarding the footboard on the left side, because he was not required to anticipate that Hoctor would negligently step in front of him. Crawford v. K.C. Stockyards Co., 215 Mo. 394. (f) Respondent did not assume the risk arising from the unknown and not to be anticipated act of Hoctor in suddenly stepping in front of him. Shaw v. Railroad Co., supra; Lovick v. Railroad Co., supra; Reed v. Director General, 258 U.S. 92; C. & O. Ry. Co. v. De Atley, 241 U.S. 310; Erie Railroad Co. v. Purucker, 244 U.S. 320; C. & O. Railroad v. Proffit, 241 U.S. 462; Railroad Co. v. Ward, 252 U.S. 18; Director-General v. Templin, 268 Fed. 485; Montgomery v. Railroad, 22 Fed. (2d) 359; C. & O. Ry. Co. v. Winder, 23 Fed. (2d) 794. (2) The trial court did not err in giving respondent's Instruction 1. (a) It was not necessary that the instruction, as a prerequisite to respondent's recovery, require a finding that respondent was not guilty of negligence, because: Contributory negligence on respondent's part was not a defense. Authorities under Point 1 (d), supra; Moran v. A.T. & S.F. Ry. Co., 48 S.W. (2d) 881; Lefever v. Pryor, 218 S.W. 970; Shannon v. L. & P. Co., 315 Mo. 1136. Appellant, by its Instruction No. 4, made negligence on respondent's part a complete defense. The appellant is not in position to complain that respondent failed to submit said issue as a partial defense. Chicago, R.I. & P. Ry. Co. v. Ward, 252 U.S. 18, 64 L. Ed. 430; Miller v. Schaaf, 228 S.W. 490; Carpenter v. Kansas City So. Ry. Co., 189 Mo. App. 164; Hinton v. Railroad Co., 206 S.W. 396; Galveston, H. & S.A. Ry. Co. v. Averill, 136 S.W. 98; Southern Ry. Co. v. Ray, 28 Ga. 792, 113 S.E. 590; Grand Trunk W. Ry. Co. v. Trust Co., 68 Ind. App. 198, 115 N.E. 685. The answer pleaded contributory negligence in bar and not in diminution of damages, and the latter issue was not in the case. O'Donnell v. Railroad Co., 324 Mo. 1111; Sells v. A.T. & S.F. Ry. Co., 266 Mo. 155. If appellant desired the jury to consider awarding damages to respondent according to the proportionate negligence rule, defendant should have framed its pleadings accordingly, and should have requested an instruction to that effect. Harris v. Railroad Co., 200 S.W. 111; Delano v. Roberts, 182 S.W. 771. (b) Neither was it essential that the instruction hypothesize, in so many words, that Hoctor saw, or by the exercise of ordinary care could have seen, that respondent intended to get on the footboard on the left side, because: Such a fact was necessarily incorporated in the required finding that Hoctor, "in moving into the path of the plaintiff, ... and interfering with plaintiff boarding said engine, did fail to exercise ordinary care and was then and there guilty of negligence." Kamer v. Railroad Co., 326 Mo. 805; Messing v. Judge & Dolph Drug Co., 18 S.W. (2d) 408; Morton v. Hiram Lloyd B. & C. Co., 280 Mo. 360. The circumstances required Hoctor to follow respondent's movements, and it is undisputed that had he done so he could have discovered that respondent was in the act of boarding the engine to the left of the coupler. In moving in front of respondent he is chargeable with negligence as if he had actual knowledge of respondent's position and movements. Authorities, Point 1 (c). The instruction, in requiring the jury to find that Hoctor negligently moved into the respondent's path while respondent was in the act of boarding the engine, excluded the defense of assumption of risk, for it is established, as a matter of law, that the servant does not assume a risk arising in such manner. Authorities, Point 1 (f), supra; Boyet v. Davis, 217 Mo. App. 513; Myers v. Payne, 227 S.W. 633; Cross v. Railroad Co., 186 S.W. 1130; O'Donnell v. Railroad Co., 324 Mo. 1106. It was not necessary that respondent's instruction require any direct finding on this subject, since it was not a necessary element of respondent's case. Railroad Co. v. Kerse, 239 U.S. 576; State ex rel. Ambrose v. Trimble, 304 Mo. 533; Shaw v. Railroad Co., 314 Mo. 123; Busch v. Railroad Co., 322 Mo. 480; Gulf, C. & S. Ry. Co. v. Hall, 196 S.W. 613. (3) The award is reasonable as...