Jones v. Illinois Terminal R. Co., No. 43344

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM
• Citation: 260 S.W.2d 487
• Parties: JONES v. ILLINOIS TERMINAL R. CO
• Decision Date: 13 July 1953
• Docket Number: No. 43344,No. 2

Page 487

260 S.W.2d 487 JONES
v.
ILLINOIS TERMINAL R. CO. No. 43344. Supreme Court of Missouri, Division No. 2. July 13, 1953.
Motion for Rehearing or to Transfer to Court en Banc Denied
Sept. 14, 1953.

Page 488

Wayne Ely, Robert C. Ely, St. Louis, for appellant Ely & Ely, St. Louis, of counsel.

William C. Barnett, St. Louis, for respondent.

BARRETT, Commissioner.

This is an action by an engineer to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for injuries sustained in a switching movement. Upon the trial of the cause there was a jury verdict for the defendant. The trial court sustained the plaintiff's motion for a new trial upon the specification that the court had erred in instructing the jury, and the railroad appeals from that order.

The circumstances of the injuries were that the engineer, Mr. Jones, went to work in the McKinley Junction yards about midnight on May 21, 1950, and operated the Diesel locomotive in 'the cleaning up work' until 1:30 when the fireman, Helton, 'took it over.' The next switching movement was that two cabooses from the north end of the yards were to be attached to a ninety-car freight train. As the engine, with the cabooses, approached the train at a speed of two to three miles an hour, to make the coupling, Mr. Jones was standing up near the water cooler, about to take a drink of water. He turned to say something to the fireman, and as the coupling was completed, he said, '* * * I lost my balance and fell on that seat, on my hip.' While the engine was traveling two to three miles an hour Helton received an 'easy' signal and immediately a 'stop' signal for the coupling. He had reduced the speed of the locomotive to one mile per hour upon the impact of the coupling. Mr. Jones described the impact as 'pretty rough. I have seen them rougher' and, he said, 'it wasn't very proper, I don't believe. I think he (the brakeman) should have stopped him sooner.' The fireman, in describing the coupling, said, 'Well, it was a little rough, a little rougher than the regular, ordinary coupling.' The engineer's right to recover and the defendant's liability were submitted upon the hypothesis 'that the engine was pushing a cut of cars preparatory to making a coupling of the caboose at the leading end of the cut with the rear end of a freight train standing in the yards; that defendant's switchman, Charles Gott, was riding the leading end of the caboose and it was his duty to give a proper easy signal to said fireman as an indication to reduce speed at a distance of 30 to 40 feet from the end of said train; that he failed to give a proper easy signal at such distance and that as a result of such failure to give a proper easy signal, a rough impact occurred, then you may find defendant guilty of negligence, and if you further find and believe from the evidence that as a result of such negligence, if any, plaintiff was injured, then your verdict should be for plaintiff and against defendant.'

The order granting the new trial did not specify a discretionary ground. Supreme Court Rule 1.10. It was sustained upon the sole ground that 'Instruction No. 5 is erroneous,' and that is a finding that the instruction was erroneous as a matter of law. Warren v. Kansas City, 258 S.W.2d 681. And, the sole question briefed and argued by the parties is whether or not instructions three and five are erroneous as a matter of law, and, we might add, prejudicial to the substantial rights of the parties. Atlantic Coast Line R. Co. v. Burkett, 5 Cir., 192 F.2d 941, 944. It is not claimed by the appellant that Mr. Jones does not have a submissible case, Byler v. Wabash R. Co., 8 Cir., 196 F.2d 9, and it is not claimed by

Page 489

the respondent that there is no evidentiary basis for instruction five or that it fails to hypothesize facts. Hough v. Chicago, R. I. & P. Ry. Co., 339 Mo. 1169, 1180, 100 S.W.2d 499, 504. The respondent's sole contention is that these two instructions injected into the case and submitted as defenses to the action assumption of risk and contributory negligence and were therefore erroneous and prejudicial. If the instructions in fact submit either assumption of risk or contributory negligence as a defense to the action it now follows, as of course, that they are erroneous. 45 U.S.C.A. Secs. 53, 54; Young v. Terminal R. R. Ass'n, Mo.Sup., 192 S.W.2d 402, 405; Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 447, 189 S.W.2d 568, 574, 161 A.L.R. 383.

The respondent does not point out or seek to demonstrate wherein the instructions in fact submit either of these matters as a defense, he simply asserts that they do. Instruction three is as follows:

'The Court instructs the jury that the law recognizes that the switching and coupling of...