Laughlin v. Kansas City Southern Ry. Co.
| Decision Date | 16 July 1918 |
| Citation | 205 S.W. 3,275 Mo. 459 |
| Parties | HARRY LAUGHLIN v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. C. A. Calvird, Judge.
Affirmed.
Cyrus Crane and Harvey C. Clark for appellant.
(1) The court erred in not directing a verdict for defendant. Grant v. Railway Co., 190 S.W. 586; McGrath v Transit Co., 197 Mo. 314; Coin v. Lounge Co., 222 Mo. 448; Coin v. Railway, 251 Mo. 13; Allen v. Railway, 189 Mo.App. 272; Hartman v Railway, 261 Mo. 282; Trigg v. Land Co., 187 Mo. 227. (2) The verdict is excessive and unfair. (3) The court erred in admitting medical testimony offered by plaintiff. Glasgow v. Railway, 191 Mo. 347 (Syl. 6); Taylor v. Railway, 185 Mo. 239 (Syl. 2) and page 256; McAnany v. Henrici, 141 S.W. 633; Halley v Light Co., 115 Mo.App. 652; McCreery v. Railways Co., 221 Mo. 28. (4) Plaintiff's instruction 4 was erroneous. (a) As to burden of proof. Engelking v. Railway Co., 187 Mo. 158; Kappes v. Shoe Co., 116 Mo.App. 154; Sprinkle v. Utility Co., 183 S.W. 1072; Federal Act; Holmberg v. Railway Co., 153 N.W. 504; Culp v. Railway Co., 87 S.E. 187. (b) For other reasons. Williams v. Railway Co., 257 Mo. 87; Hearst v. Railway Co., 163 Mo. 309.
W. O. Jackson and C. S. Denison for respondent.
(1) The plaintiff's evidence was sufficient to prove the negligence charged, and to support the verdict returned. St. L. & S. F. Ry. Co. v. Clampett, 154 P. 43; 29 Cyc. 622; Caudle v. Kirkbride, 117 Mo.App. 412; Jones v. K. C. F. S. & M. R. Co., 178 Mo.App. 528; Gannon v. Gas Co., 105 Mo. 502; Heibert v. Telephone Company, 133 Mo.App. 558; Richey's Fed. Emp. Liab. Act (2 Ed.), pp. 332 and 333; Myers v. Pittsburg Coal Co., 233 U.S. 193, 58 Law. Ed. 911. (2) The verdict of the jury was neither excessive nor unfair. Kane v. Mo. Pac. Ry., 251 Mo. 13; Richey's Fed. Emp. Liab. Act (2 Ed.), sec. 179; Nashville Ry. Co. v. Henry, 164 S.W. 310; Vicksburg Ry. Co. v. Putnam, 118 U.S. 445, 30 Law. Ed. 257; Chicago Ry. Co. v. Devine, 239 U.S. 52, 60 Law. Ed. 140; Newcome v. N. Y. C. R. Co, 182 Mo. 687; Corby v. Mo. & Kans. Tel. Co., 231 Mo. 417; Copeland v. Wabash Railroad Co., 175 Mo. 650; Griffith v. Railroad Co., 98 Mo. 168. (3) The court did not err in admitting medical testimony complained of. Fullerton v. Fordyce, 144 Mo. 519; Halfestein v. Medart, 136 Mo. 595. (4) Plaintiff's instruction 4 was not erroneous. Cent. Vermont Ry. Co. v. White, 238 U.S. 507, 59 Law. Ed. 1433; Ill. Cent. R. Co. v. Skaggs, 240 U.S. 66, 60 Law. Ed. 528; C. & O. Ry. Co. v. Cooper, 181 S.W. 933; Seaboard Air Line v. Renn, 241 U.S. 295, 60 Law. Ed. 1009; Richey's Fed. Emp. Liab. Act (2 Ed.), p. 354; Padgett v. Seaboard Air Line Ry., 236 U.S. 672, 59 Law. Ed. 780; Robert's Inj. Interstate Em., p. 317; Deweese v. Merrimac Mining Co., 54 Mo.App. 476, 128 Mo. 426, R. S. 1909, sec. 1850; Matthew v. Mo. Pac. Ry., 142 Mo. 666; Sherwood v. Railroad Co., 132 Mo. 344; Daudt v. King, 124 Mo. 105; Heahl v. St. L. Ore Co., 109 Mo. 325.
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 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 three o'clock a. m., October 6, 1913, the train upon which he 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 five or seven miles per hour. He carried a lantern, the light of which extended at least five 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 three 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 taken water. His respiration was almost imperceptible and his pulsation faint. He regained consciousness when his head 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 three or four feet south of where he fell, and from three to four and one-half feet from the rail. The keg appeared to have been moved about six 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 eight feet in width, and the distance between the rails over which it was moving at the time of the accident was four feet and eight inches. The body of the car, therefore, projected over and beyond the rails on each side of the track from twenty to twenty-six 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 ten to eighteen 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 having 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, moved the keg further away from the track. There is a conflict in the testimony of the witness 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 IV; (3) refusing to set aside a grossly excessive verdict; and (4) the admission of improper evidence.
I. 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 Co., 273 Mo. 142, 200 S.W. 1079; Dunn v Railroad, 192 Mo.App. 260.] 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. 351; Stauffer v. Railroad, 243 Mo. 305.] 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. Pittsburgh Coal Co., 233 U.S. 184, 58 L.Ed. 906, 34 S.Ct. 559.] Generally, the determination of the proximate cause of 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, is 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...
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