Johnson v. Missouri-Kansas-Texas R. Co.

• Decision Date: 12 March 1962
• Docket Number: No. 48697,No. 1,MISSOURI-KANSAS-TEXAS,48697,1
• Citation: 355 S.W.2d 32
• Parties: Raymond H. JOHNSON, Respondent, v.RAILROAD COMPANY, A Corporation, Appellant
• Court: Missouri Supreme Court

Page 32

355 S.W.2d 32

Raymond H. JOHNSON, Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, A Corporation, Appellant.

No. 48697.

Supreme Court of Missouri, Division No. 1.

March 12, 1962.

Frank J. Rogers, Kansas City, Lynn M. Ewing, Jr., Nevada, Mo., for appellant.

Everett Teel, Nevada, Mo., Sylvan Bruner, Pittsburg, Kan., A. C. Popham, Kansas City, for respondent. Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

WESTHUES, Judge.

Plaintiff, a railroad section laborer for the defendant Railroad Company, was given a jury verdict in the sum of $30,000 against his employer for an injury alleged to have been sustained when he was carrying a railroad tie. From the judgment entered, the Railroad Company appealed. The case was brought under the Federal Employers' Liability Act. The injury was claimed to have been sustained on October 17, 1957. A previous trial resulted in a verdict and judgment for plaintiff in the sum of $45,000. On appeal, the judgment was reversed and the cause remanded for retrial. See Johnson v. Missouri-Kansas-Texas Railroad Co., Mo., 334 S.W.2d 41. That opinion contains a complete statement of the evidence and it was decided, contrary to defendant's contention, that the evidence was sufficient to make a case for a jury. Except for a few minor details, the evidence at the second trial was substantially the same as that presented at the first trial. On this appeal, we do not have before us the question of the sufficiency of the evidence to sustain a verdict for plaintiff.

In the brief on this appeal, defendant contends that the trial court erred in giving, at plaintiff's request, instructions 1 and 2 further, that the trial court erred in overruling defendant's objection to inflammatory arguments and statements made by plaintiff's attorney.

For the disposition of the case on this appeal, the following statement of plaintiff's evidence will be sufficient. Plaintiff had been in the employ of the defendant since June, 1950. He was injured on October 17, 1957. On that day, the crew of which plaintiff was a member consisted of three men, Hamilton, the foreman, Smeithers, and the plaintiff. A fourth member, being on vacation, was absent. At the time plaintiff claims he was injured, he and Smeithers were loading two ties on a motorcar at the direction of the foreman Hamilton. The two ties to be loaded were lying on the ground along with about eight other ties. After one tie was loaded, plaintiff and Smeithers went back for the second. Plaintiff testified that this second tie was unusually large and weighed about 300 lbs. Plaintiff stated that he had hold of one end of the tie and walked backward toward the motorcar while Smeithers had hold of the other end and walked forward. The distance from the place where the ties were lying to the motorcar where they were to be loaded was about 30 feet. The railroad roadbed was slightly higher than the ground where the ties had been lying Plaintiff testified that when he reached the track upon which the motorcar was standing and while he was in the act of stepping over the rail, Smeithers shifted his hold on the tie, throwing it up then letting it down, which caused plaintiff's body to be thrown into a twist. Plaintiff stated that he felt as though his back was broken, that he lost his balance and went down with his hands on the tie; that this all happened suddenly and without any warning from Smeithers that he was about to shift his hold on the tie; that the foreman helped him up and the foreman and Smeithers loaded the tie on the motorcar. The ties were taken to a point down the track where the foreman and Smeithers placed them under the tracks. Plaintiff stated that he did no more work that day.

Plaintiff testified that he consulted and was treated by a doctor beginning on October 22, 1957, and continuing to the day of the trial and that he has been unable to perform any manual labor since the time of the alleged injury.

Plaintiff testified that it was the usual practice when loading ties to use three men, two in the front and one trailing in the rear; further, that when one crewman was absent, the foreman would help; that on the occasion when he was injured, the foreman did not offer to help carry the ties. Plaintiff further testified that on such occasions, when two men would carry a tie and one would want to change his hold, it was a custom that first he would warn his helper that he would change his hold.

The defendant introduced evidence to sustain its contention that it was not the usual practice and custom to have three men carry a tie but that only two were used to perform that task. Further, defendant introduced evidence, contradicting that of plaintiff, denying that anything unusual occurred when plaintiff and Smeithers were loading the two ties in question; that plaintiff was not injured in the manner he claimed; and that plaintiff had complained of backache for a long time prior to October 17, 1957. Defendant introduced evidence that the ties loaded by plaintiff and Smeithers on October 17 were ties of the usual size and weight of mainline ties; that such ties weighed on an average less than 200 lbs.

The trial court gave, at plaintiff's request, instructions 1 and 2. By instruction 1, the case was submitted to the jury on the question of whether defendant negligently failed to 'furnish reasonably sufficient help for' the task of carrying the ties in question. The instruction further submitted the question of whether the defendant in requiring only two men to carry ties had violated an alleged custom of having three men carry such ties. The instruction then submitted the question of whether Smeithers, while the tie was being carried 'undertook to change his hold on the tie and shifted it and violently pushed it against plaintiff' thereby causing plaintiff to be injured. Upon those issues, if found in plaintiff's favor, a verdict for plaintiff was authorized.

By instruction 2 the case was submitted to the jury on the question of whether the failure on the part of Smeithers to warn plaintiff that he intended to change his hold on the tie constituted negligence.

Defendant has briefed five points concerning alleged errors in instruction No. 1. The first is that 'Instruction 1 is prejudicially erroneous in that it is unnecessarily long, complicated, argumentative and confusing.' We are of the opinion that this contention must be sustained. The instruction contained over 800 words, all in a single sentence. The disputed issues as to defendant's liability were few. Many facts referred to in the instruction were not in dispute and were admitted by the defendant. The instruction submitted many evidentiary matters not material in reaching a verdict. It may be noted in reading the instruction, hereinafter quoted in full, that it referred at least five different times to the question of whether the foreman directed plaintiff and Smeithers to load the ties. That fact was admitted. The instruction in question reads:

'The Court...