Laughlin v. Kansas City Southern Ry. Co.

• Decision Date: 16 July 1918
• Docket Number: No. 18904.,18904.
• Citation: 275 Mo. 459,205 S.W. 3
• Parties: LAUGHLIN v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

205 S.W. 3

275 Mo. 459

LAUGHLIN v. KANSAS CITY SOUTHERN RY. CO.

No. 18904.

Supreme Court of Missouri, Division No. 2.

July 16, 1918.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by Harry Laughlin against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cyrus Crane, of Kansas City, and Harvey C. Clark, of Jefferson City, for appellant. W. O. Jackson, of Butler, and C. S. Denison, of Pittsburg, Kan., for respondent.

WALKER, P. J.

This is an action for personal injuries. Upon a trial, a judgment was rendered for the plaintiff, from which this appeal has been perfected.

The action was brought under the federal statute (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) in the circuit court of Bates county in February, 1914. The plaintiff was, at the time of the alleged injury, a head brakeman on one of defendant's interstate trains. At about 3 o'clock a. m., October 6, 1013, the train upon which be was employed stopped to take water at a tank north of Stotesbury, a station on the defendant's line in this state. Plaintiff, in the discharge of his duties, got off of the train when it stopped and went back along the side of it towards the rear end to adjust a hot box. After he had performed this duty, he proceeded a short distance further towards the rear end of the train, in the further discharge of his duties, when the engineer whistled off brakes. Plaintiff received a signal from the rear that the train would proceed, which he communicated to the engineer. The train moved forward. He did not, until a number of cars had passed him, attempt to get on the train. When he did, it was moving at the rate of about 5 or 7 miles per hour. He carried a lantern, the light of which extended at least 5 feet in front of him. While running along the side of the train, he caught hold of an iron stirrup on the side of the car, preparatory to swinging onto same, when his foot struck an obstacle which broke his hold on the stirrup of the car, and he fell to the ground, receiving the injuries of which he complains. The train proceeded on its way for about 3 miles to a station called Amos, when he was missed. The crew detached the engine, and, returning upon it, found him lying by the side of the track near where the stop had been made to take water. His respiration was almost imperceptible and h s pulsation faint. He regained consciousness when his herd was bathed with water. His injuries resulting from this fall we will discuss at length in the opinion. A keg about one-third full of railroad spikes was found some 3 or 4 feet south of where he fell, and from 3 to 4½ feet from the rail. The keg appeared to have been moved about 6 inches, from where it had originally stood, in the direction the train was going. The car upon which plaintiff was attempting to climb was about 8 feet in width, and the distance between the rails over which it was moving at the time of the accident was 4 feet and 8 inches. The body of the car therefore projected over and beyond the rails on each side of the track from 20 to 26 inches. In the attempt to swing upon the moving car by catching hold of the stirrup, plaintiff was lifted off of the ground and his feet were in mid-air, at the time they struck the keg, at a distance of from 10 to 18 inches from a vertical line drawn from the outside of the car to the ground. A fact, indicative of the reason for the location of the keg of spikes near the track, was the presence the day before the injury of a pile of new ties which, on the day of the accident, had been replaced by a pile of old ties; the new ties Laving been placed in the track at points near where the keg was standing. The spikes in the keg were inferably those not needed in replacing the ties, or those that had been withdrawn from the old ties. Immediately after plaintiff's injury, the fireman of the train on which the plaintiff was employed, under the orders of the conductor, mowed the keg further away from the track. There is a conflict in the testimony of the witnesses of the respective parties in this regard. As a result of the trial, a verdict was returned in favor of plaintiff for $10,772.

Defendant's assignments of error are: (1) The trial court's failure to direct a verdict for defendant at the close of plaintiff's testimony or at the close of the entire testimony; (2) the giving, at plaintiff's request, of instruction numbered 4; (3) refusing to set aside a grossly excessive verdict; and (4) the admission of improper evidence.

I. The Direction of a Verdict.—It has become axiomatic in our procedure that we will not interfere with the action of a trial court in refusing to direct a verdict, where there is any substantial evidence to sustain the same. Twentieth Cent. Mach. Co. v. Excelsior, etc., Co., 200 S. W. 1079; Dunn v. Railroad, 192 Mo. App. 260, 182 S. W. 109. The probative force of such evidence is not to be tested by that adduced by plaintiff alone, although every reasonable inference arising therefrom is to be taken as true; but it may also be aided by any of defendant's evidence that helps to make out plaintiff's case. Hall v. Mfg. C. & C. Co., 260 Mo. 365, 168 S. W. 927, Ann. Cas. 1016C, 375; Stauffer v. Railroad, 243 Mo. loc. cit. 316, 147 S. W. 1032. Plaintiff's testimony was that, as he attempted to swing himself upon the car by grasping the stirrup, his feet or legs struck an obstacle making a sound as of pieces of iron striking together; that the impact broke his hold on the car and he fell to the ground; that, when he recovered from the condition of unconsciousness caused by the fall, he saw a keg of spikes near his feet. These spikes had been pulled from old ties in the track which had been removed and new ties and spikes substituted therefor. A short time before the accident, the track had been repaired at that point. The proof of this betterment, as explanatory of the reason for the presence of the keg and its contents, is aided by the physical fact that old ties that had been used were lying along the track. The inference made by the jury was that the keg had been left at the point where found, as testified, to by plaintiff, and that it had been so left by defendant's trackmen. Having made this inference, they were not required to indulge in speculation to determine if it might not have been placed there by some one other than the defendant. Myers v. Pittsburg Coal Co., 233 U. S. 103, 34 Sup. Ct. 539, 58 L. Ed. 911. Generally, the determination of the proximate cause at an injury, whether it be the original negligence of one party or the intermediate negligence of another, is ordinarily one for the jury. Direct evidence to establish this negligence is not required, but it may be sufficiently shown by inferences from the surrounding facts and circumstances. Proof of this nature, however, must do more than raise a conjecture as to the cause of the injury; it must show with reasonable certainty that the cause for which the defendant is sought to be held liable produced the injury. It is only when the evidence, with all of the inferences that the jury may reasonably make therefrom, are insufficient to support a finding for the plaintiff, that the court is authorized to direct a verdict for the defendant. A case should therefore be left to the jury under proper instructions, unless the conclusion follows as a matter of law that no recovery can be had on any view that may be taken of the facts which the evidence tends to establish. Hall v. Mfg. C. & C. Co., 260 Mo. loc. cit. 365, 168 S. W. 927, Ann..Cas. 1916C, 375; Wolfgram v. Mod. Wood. Am., 167 Mo. App. 220, 149 S. W. 1167; James v. Mut. Reserve, etc., Ass'n, 148 Mo. 1, 49 S. W. 978; Laclede Nat. Bank v. Richardson, 156 Mo. 270, 56 S. W. 1117, 79 Am. St. Rep. 528; Jno. Deere Plow Co. v. Sullivan, 158 Mo. 440, 59 S. W. 1005.

Under these general rules, the jury was authorized in making the inference under the facts proved and the circumstances shown that the plaintiff's fall was caused by his striking against the keg, and that the trackmen of the defendant left the keg and its contents at the place where it was bound after plaintiff's injury. This accords with reason, and excludes the inference of an impact with another object, or that the keg may have been left, at the point where found, by others than defendant's agents. Numerous reasons support this conclusion: The absence of any other obstruction that could have caused the injury; the evident recent improvement of the track; that the spikes were used only in this character of work; and that the keg and its contents were owned by and in the possession of the defendant. The evidence to sustain the verdict having been found sufficient under the rules stated, the alleged conflict in the testimony, however sharp it may be, cannot be interposed here to affect the verdict. This, for the reason that, in demurring to the testimony, the defendant admitted the truth of plaintiff's proof not only as to the affirmative facts adduced, but of every inference in their favor that the law will warrant. Hauser v. Bieber, 271 Mo. loc. cit. 335, 197 S. W. 68; Meenach v. Crawford, 187 S. W. loc. cit. 882; Williams v. Railroad, 257 Mo. loc. cit. 112, 165 S. W. 788, 52 L. R. A. (N. S.) 443. We decline therefore to interfere with the verdict on the ground that the trial court did not sustain a demurrer to the evidence.

II. Instructions.—The giving of instruction numbered 4, at the request of plaintiff, as modified by the trial court, is complained of. It is as follows:

"You are instructed that, before the plaintiff can be said to have been guilty of contributory negligence, contributing directly to his own injury, if any, it must be shown that he knew, or had reasonable opportunity of knowing, of the dangerous condition, if any, of the roadbed of which he complains and appreciated, or under the exercise of ordinary care and...