Missouri-Kansas-Texas R. Co. v. Miller, MISSOURI-KANSAS-TEXAS

• Decision Date: 25 May 1971
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 42802,42802
• Citation: 486 P.2d 630
• Parties: RAILROAD COMPANY, a Corporation, Plaintiff in Error, v. Jay W. MILLER, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 630

486 P.2d 630

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation Plaintiff in Error, v. Jay W. MILLER, Defendant in Error.

No. 42802.

Supreme Court of Oklahoma.

May 25, 1971.

Rehearing Denied July 6, 1971.

Syllabus by the Court

1. On the issue of whether master has failed to provide a safe place and proper method of accomplishing the work in which injured employee was engaged, evidence of other and better methods is admissible.

2. Railroad has a duty to inspect cars belonging to another railroad for defects before permitting its employees to work with them, and railroad should either remedy defects or refuse to take cars.

3. Under Federal Employers' Liability Act, test of jury case is whether proofs justify with reason conclusion that employer negligence played any part, even the slightest, in producing injury or death for which damages are sought, and it does not matter that, from the evidence, jury may also with reason, on grounds of probability attribute result to other causes, including employee's contributory negligence, since statute expressly imposes liability upon employer to pay damages for injury or death due in whole or in part, to employer's negligence.

4. Standard life and annuity tables, if properly established and authenticated, are admissible in action to recover damages for permanent partial or permanent destruction of earning capacity of person negligently injured.

5. Issue of contributory negligence may be considered in action under Federal Employers' Liability Act only after it has been found that injury complained of resulted in whole or in part from negligence of employer and thereafter, contributory negligence of plaintiff, if any, is determined and considered solely for diminution of damages.

6. In an action for damages for personal injuries sustained, the court will not grant a new trial on ground of excessive damages, unless the amount awarded clearly shows that the jury was actuated by passion, partiality or corruption.

Appeal from the District Court of Pittsburg County; Robert J. Bell, Judge.

Plaintiff sued defendant under Federal Employers' Liability Act by reason of defendant's negligence and prayed for damages. Judgment for plaintiff. Defendant appeals. Affirmed.

William A. Thie, Bonds, Matthews & Mason, A. Camp Bonds, Tom R. Mason, Muskogee, for plaintiff in error.

Stipe, Gossett & Stipe, McAlester, James E. Driscoll, Seminole, for defendant in error.

DAVISON, Vice Chief Justice.

Defendant in error, as plaintiff, an employee of plaintiff in error, defendant, as a switchman received an injury arising out of the course of his employment. He brought this action for damages in the District Court of Pittsburg County, Oklahoma, under the Federal Employers' Liability Act, as set forth in Title 45 U.S.C.A. § 51 et seq.

The parties will hereafter be referred to as they appeared in the trial court.

The defendant is a railroad corporation and is engaged in the operation of a system of railways in the State of Oklahoma and other states. The plaintiff received his injuries in Muskogee County. Defendant's lines run through both Muskogee and Pittsburg Counties, thus giving Pittsburg County proper venue of the action.

Upon a jury trial a verdict was rendered in favor of the plaintiff in the sum of $99,000.00. Judgment thereon was entered on the verdict, motion for new trial was denied and the defendant has perfected this appeal.

Plaintiff bases his cause of action upon the alleged negligence of defendant in the following particulars: (1) failure to provide and maintain for plaintiff a reasonably safe place to work; (2) failure to make timely and adequate inspection of railroad cars under its supervision and control; (3) in negligently permitting a switching movement involving two railroad cars which defendant knew, or in the exercise of ordinary diligence, should have known, of the defective condition of said cars; (4) failure to provide a reasonably safe method of carrying out the switching movement, and (5) failure to maintain the strictest supervision to protect plaintiff from injury in violation of rules and regulations promulgated by defendant.

The defendant answered by way of a general denial, and then alleged that plaintiff had knowledge of the equipment he was working on, denying any negligence on the part of defendant, and affirmatively alleging negligence and contributory negligence on the part of plaintiff.

Plaintiff's petition alleged that while he was switching four (4) cars of pipe and one loaded boxcar to connect with other cars, pursuant to orders, he rode one of the pipe cars and made the coupling and the cars were in a stopped position; that he had used the brake which was on the west side of the car on which he was riding and, after the connection and stopped position of the cars, he was attempting to go from the west side of the car to the ground on the east side of the car for the purpose of lantern signalling the engineer; that the car on which he had been riding was a newly, specially built car for hauling pipe and that said car was defective in that, since it was equipped with a cushion draw bar automatic coupler, it was the customary practice in the railroad industry to have a plate or walkway extending horizontally and flush with the bottom of the ladder extending downward from the braking machanism to the side of the cushion draw bar automatic coupler and above the automatic coupler mechanism and that the new car was not so safely equipped.

Plaintiff further alleged that there was a complete absence of lettering or signs on the newly constructed pipe cars warning that said cars were equipped with cushion draw bars, and that plaintiff, without knowledge of the defective cars so maintained and permitted by defendant to be used in the switching operation, stepped upon the coupler under the misapprehension that the automatic coupler was the type ordinarily used; that in the course of crossing over said coupler, stepped on the draw gear that looked solid, with his left foot, causing the left foot to be trapped and causing him to step on the coupler with his right foot with resultant injury to both feet.

Certain undisputed facts proven by plaintiff were that he was employed by defendant as a switchman in the defendant's yard at Muskogee; that he was switching four (4) cars of pipe classified as a 'shifting load,' under direct order of his foreman; that the injury happened soon after dark and the switching crew were using lanterns; that the involved switch track ran slightly downgrade in a north-south direction; that all signals made by the crewmen, by means of a lantern, were given from the east side of said tracks due to the fact that the only person on the switch engine was the engineer who was sitting on the right of the engine cab, being the east side.

That leading up to plaintiff's injury the switching crew was in the process of adding cars to a cut-off of cars for the purpose of making up a train. The order given to plaintiff by his foreman was to cross over from the east side of the track to the west side due to the fact that the brake was on the west side of the car; that the engine to the south would 'kick' five cars to plaintiff who was directed to and did ride the second car from the south since it appeared to have a good brake; that these cars were directed to be taken by plaintiff and coupled to the cars situated to the north; the plaintiff perfected the coupling of the cars; that plaintiff had never before seen this type of pipe car.

That the new type of pipe cars here involved, equipped with the new style cushion draw bar automatic coupler, had not, before the accident been seen or used in defendant's yard, and the cars were not equipped with a plate or walkway extending over and across the automatic coupler; and that there were no warning signs of danger on the pipe car or the newly constructed pipe cars. The only sign on the rear end of the car where plaintiff received his injury read '10 inch Freightmaster limit.'

Plaintiff testified that after the cars had been coupled the cars had come to a complete stop. It was then necessary for him to cross over to the east side of the track for signalling purposes; that he climbed down the ladder on the left of the pipe car in the usual and customary manner; that in crossing over his left foot became caught in the hydra-cushion drawbar; that he had assumed that since the cars were stopped he could safely cross over to the east side; and that as he attempted to cross the cars did not move but the hydra-cushion drawbar moved in adjusting the slack action or shock input.

Plaintiff further testified that the newly constructed pipe cars did not contain any of the customary signs usually on this type of equipment in that there was no warning of danger upon the cars or in the general area of the coupler and there was no place, such as a cross over, or step, at the end of the car or seal upon which to step; that he thought he was stepping on the end of the north car with his left foot, but that what seemed to have the appearance of a step or sill at the end of the car was actually the draft gear of the hydro-cushion drawbar; that he was unaware that the marking of '10 Inch Freightmaster limit' meant any sign of danger and that the yard was inadequately lighted.

The deposition of J. A. Irwin, the foreman in the defendant yard at the time of the accident, was taken by plaintiff, and in the absence of said witness at the trial, his testimony was read to the jury and became a part of the record.

This witness testified that the load of pipe was a 'shifting' load and that the defendant's rules provided for switching movements of a Shifting load to be done by 'shoving' rather than by 'kicking;' that pipe constitutes a shifting load and requires more precaution in moving it which should be done in a slow manner, and 'it is quite obvious that I didn't follow the rule on this occasion.'...