Meierotto v. Thompson

• Citation: 201 S.W.2d 161
• Decision Date: 10 March 1947
• Docket Number: No. 39984.,39984.
• Parties: JOSEPH T. MEIEROTTO v. FRANK A. THOMPSON, Trustee, ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Debtor, Appellant.
• Court: Missouri Supreme Court

201 S.W.2d 161

JOSEPH T. MEIEROTTO v. FRANK A. THOMPSON, Trustee, ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Debtor, Appellant.

No. 39984.

Supreme Court of Missouri.

Division Two, March 10, 1947.

Motion for Rehearing or to Transfer to Banc Overruled, April 21, 1947.

Appeal from Circuit Court of City of St. Louis. — Hon. Joseph J. Ward, Judge.

AFFIRMED (subject to remittitur).

M.G. Roberts, A.P. Stewart, C.H. Skinker, Jr., and Roscoe Anderson for appellant.

(1) There was no violation of the Boiler Inspection Act for the reasons that the locomotive in question was not in use at the time of the injury and the alleged defect did not render the locomotive unsafe to operate without peril to life or limb. Harlan v. Wab. Ry. Co., 335 Mo. 414, 73 S.W. (2d) 749; Flack v. Atchison, T. & S.F. Ry. Co., 285 Mo. 28 224 S.W. 415; New York, C. & St. L.R. Co. v. Kelly, 70 F. (2d) 548; Sherry v. Baltimore & O.R. Co., 30 F. (2d) 487; Pryor v. Chicago, R.I. & P. Co., 170 Okla. 158, 39 P. (2d) 563; Fryer v. St. Louis-S.F. Ry. Co., 333 Mo. 740, 63 S.W. (2d) 47. (2) The suggestion or direction to respondent to attempt to fix the stoker exhaust pipe was not negligence on the part of appellant as a matter of law. B. & O. Ry. Co. v. Berry, 286 U.S. 272, 76 L. Ed. 1098; Wheelock v. Friewald, 66 F. (2d) 694; McClellan v. Penny. R. Co., 62 F. (2d) 61; Ingram v. Mobile & Ohio R. Co., 326 Mo. 163, 30 S.W. (2d) 989; Brooks v. K.C. Gas Co., 343 Mo. 1226, 127 S.W. (2d) 427; Traffic Motor Truck Corp. v. Claywell, 12 F. (2d) 419. (3) The only negligence alleged in respondent's petition and not abandoned was the direction to respondent to fix the stoker exhaust pipe. Kilburn v. Chicago, M. & St. P. Ry. Co., 298 Mo. 75, 232 S.W. 1017; Bird v. St. L.-S.F. Ry. Co., 336 Mo. 316, 78 S.W. (2d) 389. (4) The court erred in giving and reading to the jury Instruction 1. It is misleading, confusing and instructs on an abandoned issue. Wallace v. F. Burkhart Mfg. Co., 319 Mo. 52, 3 S.W. (2d) 387; Goldman v. Terminal Railroad Assn. of St. Louis, 39 S.W. (2d) 801; Harlan v. Wabash R. Co., 335 Mo. 414, 73 S.W. (2d) 749; Freeman v. Berberich, 332 Mo. 831, 60 S.W. (2d) 393; Weishar v. Kansas City Public Serv. Co., 128 S.W. (2d) 332; Bresler v. Kansas City Public Serv. Co., 186 S.W. (2d) 524; Lee v. Schryack-Wright Grocery Co., 53 S.W. (2d) 406. (5) It permits a finding of negligence not pleaded. Bach v. Diekroeger, 184 S.W. (2d) 755; Grand-Morgan Theatre Co. v. Kearney, 40 F. (2d) 239; Benson v. Smith, 38 S.W. (2d) 749; Muser v. Kansas City, 249 S.W. 681. (6) The court erred in giving and reading to the jury Instruction 3 because it is an abstract statement of law erroneously injecting into the case the proposition of assumption of risk. McCurry v. Thompson, 352 Mo. 1199, 181 S.W. (2d) 529; Young v. Terminal Railroad Assn., 192 S.W. (2d) 402. (7) The court erred in giving and reading to the jury Instruction 7 because it directs the jury to assess double damages for permanent injuries. Keehn v. D.R. & F. Realty & Inv. Co., 328 Mo. 1031, 43 S.W. (2d) 416; Wild v. Piteairn, 347 Mo. 915, 149 S.W. (2d) 800. (8) The court erred in admitting in evidence Sec. 23. Title 45, U.S.C.A.; Sec. 23, Title 45, U.S.C.A. because the evidence showed no violation of the Boiler Inspection Act and it was therefore inadmissible, irrelevant, misleading and prejudicial. Authorities cited under Point (1). (9) The court erred in admitting rebuttal testimony by the witness, Dr. Howard, and the court erred in failing to sustain appellant's motion to strike said testimony because the testimony was an attempt to impeach a witness by contradiction on collateral matters examined about on cross-examination; appellant's witness could not thereafter be impeached or the evidence rebutted because respondent was bound by the answers elicited on cross-examination. Hoffman v. Graber, 153 S.W. (2d) 817; Marrah v. J. & R. Motor Supply, 165 S.W. (2d) 271; Hart v. K.C. Public Serv. Co., 142 S.W. (2d) 348; Grubbs v. Kansas City Public Serv. Co., 329 Mo. 390, 45 S.W. (2d) 71; Golden v. Onerem, 123 S.W. (2d) 617; Connell v. A.C.L. Haase & Sons Fish Co., 302 Mo. 48, 257 S.W. 160; Panjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W. (2d) 969; McKern v. Clavert, 59 Mo. 243; Carder v. Primm, 60 Mo. App. 423; Manget v. O'Neill, 51 Mo. App. 35; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W. (2d) 678; State v. Lynn, 184 S.W. (2d) 760. (10) The court erred in permitting counsel for respondent to make an argument to the jury which was improper, prejudicial and inflammatory, and in failing to instruct the jury to disregard such argument as requested by counsel for appellant. The argument was concerning incompetent, immaterial and prejudicial testimony pertaining to a false issue, calculated to inflame and prejudice the jury against the appellant. Better Roofing Materials Co. v. Sztukouski, 183 S.W. (2d) 400; Walsh v. Terminal Railroad Assn., 182 S.W. (2d) 607; Amsinger v. Najim, 335 Mo. 528, 73 S.W. (2d) 214. (11) The verdict of the jury is excessive and so excessive as to indicate bias and prejudice on the part of the jury. Cunningham v. Doe Run Lead Co., 26 S.W. (2d) 957; Adams v. Quincy, O. & K.C.R. Co., 287 Mo. 535, 229 S.W. 790; Russell v. Mo. Pac. R. Co., 316 Mo. 1303, 295 S.W. 102; Hutchcraft v. Laclede Gas Light Co., 282 S.W. 38; Knott v. Mo. Boiler & Sheet Iron Works, 299 Mo. 613, 253 S.W. 749; Downing v. Loose-Wiles, Biscuit Co., 8 S.W. (2d) 884; Howard v. Mobile & Ohio R. Co., 335 Mo. 295, 73 S.W. (2d) 272; Loduca v. St. Louis-S.F.R. Co., 315 Mo. 331, 289 S.W. 908.

Everett Hullverson for respondent; Orville Richardson of counsel.

(1) There was substantial evidence of a violation of the Boiler Inspection Act. Defendant's duty under the Act was absolute, continuing and nondelegable. Negligence, and notice of defects, assumption of risk and contributory negligence were not in issue. A violation of this Act may be joined with charges of common-law negligence in a suit under the Federal Employers' Liability Act. The Act must be liberally construed and federal law is controlling on the sufficiency of the evidence to make a case for the jury. Under that law the issue of a violation of the Act was for the jury. Lilly v. Grand Trunk R. Co., 317 U.S. 481, 63 S. Ct. 347, 87 L. Ed. 411; Urie v. Thompson, 352 Mo. 211, 176 S.W. (2d) 471, 474; 45 U.S.C.A., Secs. 22-34. (2) Whether reasonable minds would differ or could fairly draw but one conclusion is the final test. Only where there is a complete absence of probative facts to support the conclusion reached does reversible error appear. Hardin v. Ill. Cent. R. Co., 334 Mo. 1169, 70 S.W. (2d) 1075; Lavender v. Kurn, 327 U.S. 645, 66 S. Ct. 74. (3) The locomotive was "in use" within the meaning of the Boiler Inspection Act when plaintiff was injured. It was "on the line" on a passing track to permit another train to pass. It was attached to its tender and cars with steam up, its crew present, and ready to move as soon as the nut which was not "defective" was screwed on the necessary ½ inch. It needed no "repairs," was not in a "place of repair," and had not been taken "out of service" even temporarily. It was in use, though not moving; the plaintiff was attempting to prevent a further and continued violation of the Act. Brady v. Terminal Railroad Assn., 303 U.S. 10, 13, 58 S. Ct. 426, 82 L. Ed. 614; Minneapolis, St. P. & S.S.M. Ry. Co., 269 U.S. 406, 46 S. Ct. 129, 70 L. Ed. 335, affirming 159 Minn. 41, 198 N.W. 403; Southern Ry. Co. v. Snyder, 187 Fed. 492, adhered to in 205 Fed. 868; Erie R. Co. v. Russell, 183 Fed. 722, writ of error dismissed 220 U.S. 607, 31 S. Ct. 722, 55 L. Ed. 607; Gray v. L. & N.R. Co., C.C. Tenn., 197 Fed. 874; Delk v. St. Louis-S.F. Ry. Co., 220 U.S. 580, 31 S. Ct. 617, 55 L. Ed. 590; Great Northern Ry. Co. v. Otos, 239 U.S. 349, 36 S. Ct. 124, 60 L. Ed. 322; Chicago, G.W.R. Co. v. Schendel, 267 U.S. 287, 45 S. Ct. 303, 69 L. Ed. 614, affirming 159 Minn. 166, 198 N.W. 450, 199 N.W. 111; Conrad v. B. & O.R. Co., 345 Mo. 335, 133 S.W. (2d) 350. (4) The locomotive, tender and their appurtenances were not "in proper condition and safe to operate" and could not be employed in the active service of the defendant "without unnecessary peril to life or limb." The water-carrying capacity of the tender was reduced to a dangerous minimum. The tender and pipe did prove to be perilous to health and safety. Lilly v. Grand Trunk R. Co., 317 U.S. 481, 63 S. Ct. 347, 87 L. Ed. 411; Anderson v. B. & O.R. Co., 89 F. (2d) 629; Kidd v. Chicago, R.I. & P. Ry. Co., 310 Mo. 1, 274 S.W. 1079; Dree v. St. Louis-S.F. Ry. Co., 220 Mo. App. 720, 293 S.W. 468; Urie v. Thompson, 352 Mo. 211, 176 S.W. (2d) 471; Arnold v. Alton R. Co., 343 Mo. 1049, 124 S.W. (2d) 1092; Edgington v. So. Pac. Co., 55 P. (2d) 553. (5) There was substantial evidence that the engineer negligently ordered the plaintiff under the tender, and that such negligence in whole or in part caused plaintiff's injury. Here, again federal law controls. Under that law defendant's duty was continuing and nondelegable and the issue was peculiarly one within the province of the jury to decide. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610; Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 S. Ct. 1062, 87 L. Ed. 1444; Owens v. Union Pac. R. Co., 319 U.S. 715; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 89 L. Ed. 520; Blair v. B. & O.R. Co., 323 U.S. 600, 65 S. Ct. 545, 89 L. Ed. 490; Lavender v. Kurn, 327 U.S. 645, 66 S. Ct. 74; 45 U.S.C.A., Secs. 51, 53, 54. (6) It was dangerous to work under the tender under the circumstances. The engineer knew or should have known that fact and that this place would be comparatively safe in another 20 minutes when the water flow stopped. Under all of the circumstances the issue of his negligence was one for the jury to decide. State ex rel. Heine Safety Boiler Co. v. Robertson, 188 S.W. 101, quashing...