Lovett v. Kansas City Terminal Railway Company

• Decision Date: 11 April 1927
• Docket Number: 25515
• Citation: 295 S.W. 89,316 Mo. 1246
• Parties: Walter H. Lovett v. Kansas City Terminal Railway Company, Appellant
• Court: Missouri Supreme Court

295 S.W. 89

316 Mo. 1246

Walter H. Lovett v. Kansas City Terminal Railway Company, Appellant

No. 25515

Supreme Court of Missouri

April 11, 1927

Motion for Rehearing Overruled May 24, 1927.

Appeal from Jackson Circuit Court; Hon. Edward E Porterfield, Judge.

Affirmed (upon condition).

S W. Sawyer, George J. Mersereau, John H. Lathrop and Eugene E. Montgomery, Jr., for appellant.

(1) The plaintiff was not entitled to recover, for his own acts were the sole cause of his injuries. (a) Great Northern Railway v. Wiles, 240 U.S. 444; Lang v Railroad, 255 U.S. 455; Gleason v. Railroad, 73 F. 647; Davis v. Hand, 290 F. 73; Doerr v. Brewing Association, 176 Mo. 547; Smith v. Box Co., 193 Mo. 715; Yoakum v. Lusk, 223 S.W. 53. (b) Test of proximate cause is whether the act which followed could have been reasonably anticipated. De Moss v. Railways Co., 296 Mo. 526; Borack v. Safe Co., 288 Mo. 83, 231 S.W. 623. (2) The court erred in refusing to give defendant's requested instructions numbered seven and nineteen, for by such refusal the defendant was deprived of the right to have the jury say whether plaintiff's negligence was the sole cause of his injuries. Root v. Railroad, 237 Mo. 653; Jennings v. Cooper, 230 S.W. 328; Moore v. Railroad, 146 Mo. 572; Pankey v. Railroad, 180 Mo.App. 185; Yoakum v. Lusk, 223 S.W. 53. (3) The court erred in giving plaintiff's instructions. Plaintiff's Instruction B in particular was erroneous, as it omitted necessary elements and assumed matters in issue. Foster v. Davis, 252 S.W. 433; Union Pacific v. Brady, 161 F. 719. (4) The verdict was so grossly excessive as to conclusively show passion and prejudice of the jury, and the judgment as reduced by the trial court is still grossly excessive. (a) The case should be reversed and remanded. Partello v. Railroad, 217 Mo. 645; Gibney v. Transit Co., 204 Mo. 704. (b) The judgment should in any event be reduced by more than one-half. Varley v. Taxicab Co., 240 S.W. 218; Meeker v. Light & Power Co., 279 Mo. 574, 216 S.W. 923; Gordon v. Railway, 222 Mo. 516; Finnegan v. Railroad, 261 Mo. 481; Markey v. Railroad, 185 Mo. 348; Turnbow v. K. C. Railways, 277 Mo. 644, 211 S.W. 41; Looff v. K. C. Railways, 246 S.W. 578; Pyle v. Light & Power Co., 246 S.W. 979.

Max M. Muenich and Madden, Freeman & Madden for respondent.

(1) Defendant is liable for plaintiff's injuries. (a) The act of plaintiff in going between the cars was not in law the sole cause of his injury. Federal Safety Appliance Act, sec. 2; Federal Employers Liability Act, secs. 3, 4. Possible negligence of plaintiff does not bar this action. Great Northern Ry. v. Otos, 239 U.S. 349; Central Vermont Ry. Co. v. United States, 205 F. 40; United States v. Railroad, 157 F. 893; United States v. Philadelphia Railroad, 160 F. 698; United States v. Atchison Railroad, 167 F. 696; United States v. Baltimore Ry., 170 F. 456. Breach by plaintiff of rules of defendant cannot foreclose him here. Noel v. Ry. Co., 182 S.W. 787; Jordan v. Ry. Co., 271 S.W. 997; Moore v. Ry. Co., 268 Mo. 31, 186 S.W. 1035. (b) Defendant's breach of the Safety Appliance Act contributed to plaintiff's injury. Shafir v. Sieben, 233 S.W. 423; Spokane Railroad v. Campbell, 241 U.S. 497; Railroad v. Wagner, 241 U.S. 476; Chicago Railroad v. Schendel, 267 U.S. 289; Railroad v. Layton, 243 U.S. 617; Lorton v. Railroad, 267 S.W. 385; Foster v. Davis, 252 S.W. 413. (2) Refusal of defendant's instruction number seven was not error. Sutter v. Kansas City, 138 Mo.App. 113; Hudgings v. Burge, 194 S.W. 886; Edwards v. Lee, 147 Mo.App. 38; Seago v. Realty Co., 185 Mo.App. 298; Taussig v. Railroad, 186 Mo. 269; Meiners v. St. Louis, 130 Mo. 286; Burdoin v. Trenton, 116 Mo. 358; Warder v. Seitz, 157 Mo. 140; Clark v. Railroad, 234 Mo. 428; Chicago Railroad v. Brown, 229 U.S. 317; Railroad v. Wagner, 241 U.S. 476; Railroad v. Campbell, 241 U.S. 497; Railroad v. Schendel, 267 U.S. 289; Cent. Vermont Ry. v. United States, 205 F. 40. (3) Refusal of defendant's instruction number nineteen was not error. Stuart v. Dickison, 290 Mo. 516; Moore v. Ry. 268 Mo. 31; Jordan v. Ry., 271 S.W. 997; Great Northern Ry. v. Otos, 239 U.S. 349; Railroad v. Campbell, 241 U.S. 497; Railroad v. Wagner, 241 U.S. 476; Schendel v. Chicago Ry., 198 N.W. 450; Great Northern Ry. Co. v. Otos, 150 N.W. 922. (4) Plaintiff's Instruction "B" was proper. Chicago Ry. v. United States, 211 F. 12; Sacre v. Terminal Ry., 260 S.W. 85; Soltesz v. Belz Co., 260 S.W. 990; Sturgis v. Rys., 228 S.W. 861; State ex rel. v. Reynolds, 257 Mo. 39; Lorton v. Mo. Pac. Ry., 267 S.W. 385; Central Vermont Ry. v. United States, 205 F. 40; United States v. Baltimore Ry., 170 F. 456; O'Leary v. Steel Co., 303 Mo. 363; Costello v. Kansas City, 280 Mo. l. c. 592. (5) The injuries plaintiff sustained warrant both the original verdict and the present judgment. Gill v. Baltimore Railroad, 259 S.W. 98; Varley v. Taxicab Co., 240 S.W. 218; Meeker v. Union Power Co., 270 Mo. 574; Zumwalt v. Railroad, 266 S.W. 717; Huggins v. Coast Line, 96 S.C. 267; St. Louis Railroad v. Webster, 99 Ark. 256; Wilson v. Railroad Co., 194 Ill.App. 491; Rock Island v. Steele, 254 S.W. 503; O'Hara v. Davis, 192 N.W. 215; Hart v. Ry., 264 S.W. 902; T. & P. Ry. Co. v. Matkin, 142 S.W. 604.

Ragland, J. All concur, except Gantt, J., not sitting.

OPINION

RAGLAND

This case comes to the writer for opinion on reassignment. It is an action for personal injuries alleged to have been negligently caused, and is bottomed on the Federal Employers' Liability and Safety Appliance acts.

The plaintiff was in the employ of defendant as switchman. The casualty occurred August 19, 1921, while a switching operation was in progress near the loading docks of the Montgomery Ward & Company plant in Kansas City, Missouri. Defendant's main yard was located at Armourdale across the State line, in Kansas. According to the custom in vogue at that time, defendant hauled empty freight cars from its main yard each morning and placed them alongside the docks just mentioned to be loaded. Late in the afternoon it took the loaded cars to its main yard to be there distributed to certain interstate carriers. The loading dock with which we are concerned extended north and south. It was five hundred feet long, about five feet high and was constructed of concrete. Paralleling it and immediately west of it there were two tracks of railroad. The space between the side of an ordinary box car standing on the east track and the dock was eight inches. The two tracks just referred to came together at a switch which was eighty feet north of the north end of the dock. They were owned by Montgomery Ward & Company, but they connected with defendant's tracks, and through an arrangement with the owner were used daily by it for the purposes just mentioned. On the afternoon of the day heretofore referred to, when defendant's switching crew came to remove the loaded cars to its main yard, there were seven cars standing on the east track along the dock. All were loaded and ready to be moved except the sixth car, counting from the north. The sixth was partially loaded. In order to get all the loaded cars and leave the sixth it was necessary to couple all of them together, pull them north past the switch, kick the seventh south on the west track, pull north of the switch again and then kick the sixth south on the east track. This was undertaken. The three members of the crew immediately engaged in the proceeding were the engineer and the two switchmen, plaintiff and one Bagwell. After the seventh car had been shoved down on the west track and the engineer had pulled the string of cars north again past the switch, he then proceeded to move (push) them south onto the east track, the switch having been thrown in the meantime. Bagwell was standing on the east side of the track near the switch, and plaintiff was on the east side about midway between the switch and the dock, that is, about forty feet north of the north end of the dock. The switching operation then to be performed was this: When the north end of the sixth car reached plaintiff, he was to uncouple the sixth from the fifth and then give the engineer a stop signal, so that the engine and the string of five cars would come to a stop and the sixth roll on south alongside the dock. When the cars approached plaintiff they were moving at the rate of from five to six miles an hour. According to plaintiff's testimony: As the north end of the sixth car came along he grasped the lever of the automatic coupler by which the lock pin is raised so as to permit the opening of the knuckles, and endeavored to lift the pin. The effort was not successful, so he "trotted" along with the car and tried a second time to lift the pin with the lever, but without avail. He then discovered that the chain connecting the end of the lever with the top of the pin was too long, that by reason of the "slack" in the chain the pin could not be lifted with the lever. He then let loose of the lever, and reached over between the cars and with his right hand lifted the pin on the fifth car (the pin lift lever of that car was on the opposite side), at the same time giving a stop signal with his left. At the time he completed the uncoupling and was turning from the opening between the cars, he was eight or ten feet from the dock and could have gotten entirely away from the cars before he reached it had his action not been impeded by the catching of his clothing on some projection from the corner of the fifth car. As it was he was caught by that car and rolled in the eight-inch space between its side and the dock. The evidence bearing on the nature and extent of his injuries caused thereby will be referred to in a subsequent paragraph.

According to defendant's witnesses,...