Martin v. St. Louis-San Francisco Ry. Co.

• Citation: 46 S.W.2d 149,329 Mo. 729
• Decision Date: 11 February 1932
• Docket Number: 30669
• Parties: Harry L. Martin v. St. Louis-San Francisco Railway Company, Appellant
• Court: United States State Supreme Court of Missouri

46 S.W.2d 149

329 Mo. 729

Harry L. Martin v. St. Louis-San Francisco Railway Company, Appellant

No. 30669

Supreme Court of Missouri

February 11, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Wm. H Killoren, Judge.

Affirmed.

E T. Miller, A. P. Stewart and C. H. Skinker Jr., for appellant.

(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) Plaintiff's only proof that the independent brakes were released and the double-heading cock cut in was by inference. These facts, established by inference only, were made the foundation and basis of a further inference, to-wit, that employees of the defendant, namely, the conductor or fireman, released the independent brakes and cut in the double-heading cock. An inference cannot be based upon an inference, and a verdict so reached cannot stand. Hamilton v. Railway Co., 250 Mo. 714; State ex rel. v. Cox, 250 S.W. 551; Phillips v. Ins. Co., 288 Mo. 175; State v. Lackland, 136 Mo. 26; Swearingen v. Railroad, 221 Mo. 644; Wright v. United Commercial Travelers, 188 Mo.App. 457; Whitesides v. Railroad, 186 Mo.App. 608; Manning v. Ins. Co., 100 U.S. 693; Looney v. Railroad, 200 U.S. 480; United States v. Ross, 92 U.S. 281. (b) The verdict is based upon speculation and conjecture. No witness testified in this case that the independent air brakes were released, or that the double-heading cock was cut in, or that the angle cock at the head of plaintiff's engine was closed. Upon this record, the jury were not only required to surmise or guess as to whether the plaintiff, or other employees of the defendant, did these things, but also to surmise whether these things, or any of them, were done at all. The element of speculation and conjecture is necessarily more strongly present upon this record than it was upon the former appeal, and a verdict based upon such speculation and conjecture cannot be upheld. Hamilton v. Railway Co., 300 S.W. 791; Warner v. Railroad, 178 Mo. 134; Epperson v. Telegraph Co., 155 Mo. 382; McGrath v. Transit Co., 197 Mo. 97; State ex rel. v. Bland, 313 Mo. 246; Strother v. Railroad, 188 S.W. 1105; Rodgers v. Packing Co., 180 Mo.App. 236; Chicago, etc., Railway Co. v. Coogan, 271 U.S. 472; St. Louis, etc., Railway Co. v. Mills, 271 U.S. 347; Gulf, etc., Railroad Co. v. Wells, 275 U.S. 455. (2) Instruction 2, given for plaintiff, is erroneous. (a) It authorizes the jury to find ultimate facts which can only be arrived at by building an inference upon an inference, and by the use of speculation and conjecture. Authorities cited under (a) and (b) supra. (b) It authorizes the jury to find that the engine and train were caused to move by two things, to-wit, the cutting in of the cut-out cock and the releasing of the engine brakes, when, under the undisputed evidence of plaintiff, a third factor was essential before the engine and train could move, to-wit, the closing of the angle cock on the front of plaintiff's engine. The instruction, therefore, authorizes a finding which is not only unsupported by the evidence, but which is directly contrary to the evidence. An instruction, purporting to cover the whole case and authorizing a verdict, which omits an essential element of the case or permits a finding contrary to the evidence, is erroneous. Black v. Street Ry. Co., 217 Mo. 672; Stid v. Railroad, 236 Mo. 382; Dixon v. Construction Co., 318 Mo. 50; Kuhlman v. Water, Light & Transit Co., 307 Mo. 636; Allen v. Ry. Co., 294 S.W. 87; Degonia v. Railroad, 224 Mo. 589. The error in the instruction complained of was not cured by other given instructions: State ex rel. v. Ellison, 272 Mo. 571; Macklin v. Fogle Const. Co., 31 S.W.2d 19; Quirk v. Elevator Co., 126 Mo. 279; Hall v. Coal & Coke Co., 260 Mo. 351. (3) The court erred in refusing to give defendant's requested instructions B, C, D, E, F, G and H at the close of the plaintiff's case, and again erred in refusing to give defendant's requested instructions J, K, L, M, N and O at the close of the whole case. These were withdrawal instructions designed to eliminate from the consideration of the jury assignments of negligence which were without any support in the evidence, and it was error to refuse them. Chrismer v. Telephone Co., 194 Mo. 189; DeWolf v. Dry Goods Co. (Mo. App.), 240 S.W. 1095; Lewis v. Am. Car & Foundry Co. (Mo. App.), 3 S.W.2d 285; Rosemann v. United Rys. Co., 197 Mo.App. 337. (4) The verdict of the jury is grossly excessive, and the judgment is still grossly excessive, notwithstanding the remittitur. Rose v. Railway, 289 S.W. 920; Westover v. Railway Co., 6 S.W.2d 849; Davenport v. Electric Co., 242 Mo. 111; Young v. Lusk, 268 Mo. 625; Wolfe v. Payne, 294 Mo. 170; Leighton v. Davis, 260 S.W. 986; Busch v. Railroad Co., 17 S.W.2d 341.

W. H. Douglass and C. O. Inman for respondent.

(1) The fact that the train moved, with the evidence undisputed that it could not have moved unless the cut-out cock was cut in (open) and the engine or independent brakes released, established conclusively that the cut-out cock was cut in and the brakes released. (2) The conclusion that the cut-out cock was cut in and engine brakes released is not used as a basis for the finding of the fact that employees of the defendant cut in (open) the cock and released the brakes. The fact that this was done by employees of defendant is found from the undisputed evidence that no one was present or about this train or engine at the time or in a position to cut in (open) the cut-out cock and release the brakes except employees of the defendant. This fact establishes the further fact that it was defendant's employees that released the brakes and cut in (opened) the cock. (3) An issue of fact, if necessary, may be established on circumstantial evidence when a chain of circumstances or facts point to the main fact in issue -- that defendant's employees opened the cock and released the engine brake. Collins v. Paper Mill Co., 143 Mo.App. 333. (4) If it were necessary several inferences may be drawn from the same set of facts where each inference is a logical inference from the facts and circumstances shown. Meyer v. Coal Co., 233 U.S. 184; Koonse v. Railroad, 18 S.W.2d 467; Collins v. Paper Mill Co., 143 Mo.App. 333; Murrell v. Railroad, 279 Mo. 92; Szopieray v. Express & Drying Co., 194 Cal. 106. (5) "Where an inference necessarily and logically follows from the proof of certain facts, then this inference becomes an established fact and may be used as a basis for a further inference." 1 Jones on Evidence (6 Vol. Set) p. 628, sec. 364, and p. 635, sec. 365; 1 Wigmore on Evidence, sec. 41; Ins. Co. v. Lankerhet Co., 70 Ind.App. 324; Power Co. v. Board, 74 Ind.App. 199; Williams v. Wilson, 210 Ala. 289; Sliwowski v. Railroad, 94 Conn. 303; Welsch v. L. & P. Co., 197 Iowa 1012; C. & O. Ry. Co. v. Ware, 122 Va. 246; Hardwick v. Railroad, 181 Mo.App. 156; Phillips v. Ins. Co., 288 Mo. 175. (6) The cases cited by defendant as authority for its statement that inference cannot be piled on inference are merely examples of the rule that where two inferences may be drawn from facts, one favorable and one unfavorable, then the inference so drawn cannot be used by itself as the basis for another inference, as, in such case, the last inference would not be based on logic, but on surmise or conjecture. See McGrath v. Transit Co., 197 Mo. 97, cited by defendant; 1 Jones on Evidence (6 Vol. Set) p. 630, under sec. 364; note sentence followed by note 8. (7) It was not error to omit from plaintiff's main instruction a finding that the angle cock on the front of plaintiff's engine was closed as this was not a contested issue under the pleadings, evidence or instructions and no issue was made of it, but it was assumed by the conduct of both parties in their pleadings at the trial and in the instructions that the questions as to the angle cock was not a contested issue. Davidson v. Transit Co., 211 Mo. 359; Bank v. Davis, 288 Mo. 563. (8) It is not error to refuse withdrawal instructions covering issues which are not submitted to the jury. Dietzman v. Screw Co., 300 Mo. 196; Johnson v. Ry. Co., 259 Mo. 534; Silberell v. Ry. Co., 9 S.W.2d 912; Barton v. Phillips, 7 S.W.2d 712; Rowan v. Wells, 14 S.W.2d 488; Goodwin v. Car & Foundry Co., 285 S.W. 529; Agee v. Ry. Co., 288 S.W. 922; O'Donnell v. Railroad Co., 26 S.W.2d 936. (9) The amount of damages that can be recovered in this case is a Federal question and is controlled by the amount of damages allowed by the Federal courts in actions under the Federal Employers' Liability Act. Kelly v. Railroad, 241 U.S. 491. (10) The judgment in this case is not excessive. Woods v. Terminal Ry. Co., 8 S.W.2d 922; Jennings v. Railroad, 43 F.2d 397; Johannes v. Laundry Co., 274 S.W. 377; Stein v. Rainey, 286 S.W. 53; Skinner v. Davis, 271 S.W. 992.

OPINION

Ragland, J.

This is an action under the Employers' Liability Act to recover damages sustained by plaintiff while employed by defendant as locomotive engineer on one of its interstate freight trains running between Amory, Mississippi, and Memphis, Tennessee. As the facts are set forth somewhat at length in the opinion handed down on a former appeal in this case (Martin v. Railway, 323 Mo. 450), we shall only epitomize them here.

The freight train in question was being drawn by two locomotives both at the head of the train. Plaintiff was the engineer on the second. At a point on defendant's main line just north of a station known as Waites, the coupling between the two locomotives broke, causing them to separate and the air hose connecting them to be pulled apart, thereby automatically setting the brakes and bringing both engines and the train to a stop. The...