McCurry v. Thompson

• Decision Date: 05 June 1944
• Docket Number: 38627
• Parties: Francis Leo McCurry, Appellant, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company
• Court: Missouri Supreme Court

181 S.W.2d 529

352 Mo. 1199

Francis Leo McCurry, Appellant, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company

No. 38627

Supreme Court of Missouri

June 5, 1944

Rehearing Denied July 3, 1944.

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed and remanded.

W. W McCanles, O. D. Robertson and Gayles R. Pine for appellant.

(1) The court committed prejudicial error in giving respondent's Instruction G. It assumes that the plaintiff saw the ram was being dropped and rolled from the drawbar which was in direct conflict with his testimony and it invades the province of the jury in passing on a material issue of fact. Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143; Reel v. Consolidated Inv. Co., 236 S.W. 43; State ex rel. Stevens v. Arnold, 30 S.W.2d 1015. (2) The court committed prejudicial error in giving respondent's Instruction H. The instruction is erroneous in that it makes contributory negligence a defense to plaintiff's right of recovery. Owen v. Kurn, 148 S.W.2d 519. (3) It ignores the negligent violation of the rule, custom, and practice with respect to giving orders and signals. Evans v. A., T. & S.F. Ry. Co., 131 S.W.2d 604; Jones v. St. L. & S.F. Ry. Co., 30 S.W.2d 482; O'Donnell v. B. & O. Rd. Co., 324 Mo. 1097, 26 S.W.2d 929; Martin v. Wabash Ry. Co., 30 S.W.2d 735; Brock v. Railroad Co., 330 Mo. 918, 51 S.W.2d 100; Good v. M., K.T. Ry. Co., 97 S.W.2d 617; Koonse v. Mo. Pac. Railroad Co., 18 S.W.2d 467; McGovern v. Railroad Co., 235 U.S. 389; Pacheco v. Railroad Co., 15 F.2d 467; Lehigh Valley R. Co. v. Doktor, 290 F. 760; Director General v. Templin, 268 F. 483; Rowe v. M., K. & T. Ry. Co., 100 S.W.2d 480. (4) It was prejudicial error for the court to give respondent's Instruction I. There was substantial evidence that plaintiff's injury which resulted in coronary thrombosis or coronary occlusion was caused by the acts of negligence of the respondent as charged. Wild v. Pitcairn, 149 S.W.2d 804; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Scanlon v. K.C., 325 Mo. 125, 28 S.W.2d 84; 11 R.C.L. 582; 4 Wigmore on Evidence, secs. 198-1976; Marra v. Jones Store Co., 170 S.W.2d 441; Kimmie v. Terminal Ry. Assn., 334 Mo. 596, 66 S.W.2d 561; Rocco v. Lehigh Valley Ry. Co., 288 U.S. 275. (5) It was prejudicial error for the court to give respondent's Instruction L. It erroneously makes assumption of risk a defense to this action. Amendment, August 11th, 1939, 53 Statutes 1404, Ch. 685; 45 U.S.C.A., Sec. 54; Tiller v. A. Coast Line R. Co., 87 L.Ed. 446; Owens v. U.P.R. Co., 87 L.Ed. 1221

Thomas J. Cole, L. J. Bishop, D. C. Chastain and Patterson, Chastain & Smith for respondent.

(1) If the defendant's demurrer to the evidence should have been sustained, then the errors alleged to be prejudicial to the appellant are immaterial. Merriam v. Star-Chronicle Pub. Co., 335 Mo. 937, 74 S.W.2d 592. (2) Proof of injury resulting in whole or in part from the negligence of employees of the carrier is essential to a recovery. The sufficiency of the evidence is a federal question and more than a scintilla is required. There can be no recovery if the injury were due solely to the fault of the plaintiff. 45 U.S.C.A., Secs. 51 et seq.; Brady v. Southern Ry. Co., 64 S.Ct. 232; Owens v. Union Pac. R. Co., 319 U.S. 715, 63 S.Ct. 1271; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444; Willis v. Penn. R. Co., 122 F.2d 248. (3) Plaintiff's admitted, signed and sworn claim before the Kansas Workmen's Compensation Commissioner that he suffered a heart attack from unusual and violent exertion is contradictory and conflicting with his testimony (the only evidence) that he was struck by the ram. The claim was an admission against interest and had probative force to establish the facts therein stated. Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Kirkpatrick v. Metropolitan St. Ry. Co., 211 Mo. 68, 109 S.W. 682; Prentiss v. Illinois Life Ins. Co., 225 S.W. 695; Knorp v. Thompson, 175 S.W.2d 889; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; O'Malley v. City of St. Louis, 343 Mo. 14, 119 S.W.2d 785. (4) The jury should not be permitted to speculate or guess which of plaintiff's statements should be accepted. Steele v. K.C. So. R. Co., 265 Mo. 97; Goslin v. Kurn, 173 S.W.2d 79; Stevens v. Thompson, 175 S.W.2d 166. (5) Plaintiff saw or could have seen the ram was going to be dropped and there was no duty to warn him. Plaintiff's testimony contrary to physical law is without probative value. The end of the ram turned in plaintiff's hands even though he testified to the contrary. Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311; State ex rel. K.C. So. R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915. (6) The removal of the hook from the ram, the actions of Whitt and Jonas, and the turning of the ram, all gave plaintiff actual notice that the ram was going to be dropped and the failure to warn was not the proximate cause. Marsanick v. Luechtefeld, 157 S.W.2d 537; Olsen v. No. Pac. Lbr. Co., 119 F. 77, affirming 106 F. 298; Clark v. Wheelock, 293 S.W. 456. (7) Plaintiff was in a position to see that the ram was going to be dropped and Whitt and Jonas could assume that he was looking so they were under no duty to give warning. Marsanick v. Luechtefeld, supra; Clark v. Wheelock, supra; Norwood v. St. L.-S. F.R. Co., 296 S.W. 222; A., T. & S.F. Ry. Co. v. Wyer, 8 F.2d 30; Shane v. Lowden, 232 Mo.App. 360, 106 S.W.2d 956; Mo. Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177. (8) Failure to warn was not negligence as to plaintiff, since warning was by custom to be given by him for the benefit of Whitt and Jonas who were at the heavy end of the ram, and plaintiff was not one of the class as to whom a duty to warn existed. C. & O. Ry. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42; Thompson v. Downey, 78 F.2d 487; Central Vt. R. Co. v. Sullivan, 86 F.2d 171; Ill. State T. Co. v. Mo. Pac. R. Co., 319 Mo. 608, 5 S.W.2d 368; Karr v. Chi., R.I. & P. Ry. Co., 341 Mo. 536, 108 S.W.2d 44. (9) Warning was to prevent injury to the feet and not to prevent a blow by the end of the ram. Restatement, "Negligence," sec. 286 (c); Rutledge v. Mo. Pac. Ry. Co., 110 Mo. 312, 19 S.W. 38; Mansfield v. Wagner Electric Mfg. Co., 294 Mo. 235, 242 S.W. 400. (10) The court did not err in giving defendant's Instruction G -- it does not assume a controverted fact. Hill v. St. L. Pub. Serv. Co., 64 S.W.2d 633; Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 866; Griffith v. Delico Meat Products Co., 347 Mo. 28, 145 S.W.2d 431; Koonse v. Mo. Pac. R. Co., 322 Mo. 813, 18 S.W.2d 467. (11) The court did not err in giving defendant's Instruction H -- it correctly states the law and does not make contributory negligence a complete defense. There was no duty to warn if the plaintiff was in a position to see and could see that the ram was going to be dropped. Authorities -- Points (5), (6) and (7). (12) The court did not err in giving defendant's Instruction I -- if plaintiff's injury consisted of a coronary occlusion then there was no competent evidence that it was caused by the alleged accident. Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Kimmie v. Terminal R. Assn. of St. L., 334 Mo. 596, 66 S.W.2d 561; Cox v. M.-K.-T. R. Co., 335 Mo. 1226, 76 S.W.2d 411; Kourick v. English, 340 Mo. 367, 100 S.W.2d 901; Berry v. K.C. Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98; Derschow v. St. L. Pub. Serv. Co., 339 Mo. 63, 95 S.W.2d 1173; Long v. F.W. Woolworth Co., 87 S.W.2d 191; Hardy-Burlingham Min. Co. v. Baker, 10 F.2d 277; May Dept. Stores v. Bell, 61 F.2d 830; United States v. Hill, 62 F.2d 1022; Ocean Acc. & G. Corp. v. Moore, 85 F.2d 369; Jones v. Mut. L. Ins. Co. of N.Y., 113 F.2d 873. The court did not err in giving defendant's Instruction L -- if plaintiff was injured due to his own actions and physical strength by lifting and straining and not by any negligent act on the part of any other employee, there could be no recovery. Authorities -- Point (2); Authorities -- Point (4); McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37; State ex rel. S.H.C. of Mo. v. Haid, 332 Mo. 606, 59 S.W.2d 1057.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action under the Federal Employers' Liability Act (45 U.S.C.A., Sec. 51, et seq.) for $ 50,000 damages for personal injuries alleged to have been sustained on account of defendant's negligence. Verdict and judgment were for defendant and plaintiff has appealed.

A statement of the evidence most favorable to plaintiff is required. Plaintiff was employed in defendant's shop at Hoisington, Kansas. On March 27th, 1941, he and other employees were engaged in shortening an iron drawbar of a locomotive used in interstate commerce. One end of the drawbar was heated and laid across an anvil and hammered with a steel ram while the other end was supported by a chain. The ram used was an 8 foot 4 inch steel bar, weighing 436 pounds. It was 7 inches in diameter at one end and only about 2 inches at the other. An eyebolt had been put through the ram so that when suspended by the eyebolt the ram would hang level.

In order to use the ram, it was supported from the ceiling by a short chain, a 14 foot iron bar with a hook at each end and an open link connecting with the eyebolt of the ram. When the ram was in use a man stood on either side of it and swung it like a pendulum, while plaintiff stood at the small end of the ram to guide it so the large end would hit the heated end of the drawbar.

When the work was finished, plaintiff and the two men working with him swung the ram toward the drawbar, but with the large heavy end of the ram raised high enough to pass over the drawbar. They then let this end down on top of the...