Moore v. St. Joseph & G. I. Ry. Co.

Citation186 S.W. 1035,268 Mo. 31
Decision Date29 February 1916
Docket NumberNo. 17221.,17221.
PartiesMOORE v. ST. JOSEPH & G. I. RY. CO.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Action by Ralph Moore against the St. Joseph & Grand Island Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Robert A. Brown, of St. Joseph, for appellant. Mytton & Parkinson, of St. Joseph, for respondent.

BLAIR, J.

Moore, the respondent, instituted this action in the Buchanan circuit court under the federal Employers' Liability Act (35 U. S. Stat. at Large, 65, c. 149 [Comp. St. 1913, §§ 8657-8665]), and Fish v. Railroad, 263 Mo. loc. cit. 115, 116, 172 S. W. 340, for damages for personal injuries, and recovered judgment for $25,000 under a count of the petition alleging, among other things, that respondent's injuries were due to appellant's violation of those provisions of the Safety Appliance Acts requiring the attachment of grabirons or handholds and the maintenance of automatic couplers in operative condition upon the rear of engine tenders, and to the fact that an engine and tender operated in a condition violative of the provision mentioned was negligently backed against and over him.

The facts bringing the case within the purview of the federal act are undisputed. Respondent offered testimony tending to prove the allegations of the petition, and the evidence by defendant tended to disprove those allegations and to prove contributory negligence, which appellant pleaded. Numerous assignments are relied upon for reversal. Further facts are stated in the course of the opinion.

I. The ruling denying the petition for removal to the federal court on the ground of diversity of citizenship was correct. K. C. So. Ry. v. Leslie, 238 U. S. loc. cit. 602, 603, 35 Sup. Ct. 844, 59 L. Ed. 1478; Fish v. Ry., supra, 263 Mo. loc. cit. 116, 172 S. W. 340.

II. It is insisted the judgment cannot stand because, it is argued, the verdict is against the great weight of all the credible evidence in the case. The general rule on appeals in actions at law is that, if there is substantial evidence tending to support the verdict, the jury's view of the weight of the evidence is accepted by this court. A careful examination of the entire record satisfies us this assignment is an effort to overthrow a verdict on the ground it is against the weight of the evidence. Respondent's evidence clearly tended to prove the negligence alleged. It is not contended it did not do so except on the theory that it was so contradicted by appellant's evidence that its probative force was destroyed. In fact, however, some of the witnesses whose testimony is relied on as destroying respondent's evidence contradicted themselves. Some were contradicted by others of appellant's witnesses, and some contradicted physical facts tending to make out respondent's case and shown beyond dispute by photographs offered by appellant. In these circumstances the usual rule applicable in cases tried on conflicting evidence unquestionably applies, and the point is ruled against appellant. The decisions cited to the contrary do not deal with cases such as this, wherein is presented but another example of conflicting evidence, with substantial evidence supporting the verdict. In those cases is found something inherently improbable in the evidence held insufficient.

III. Appellant introduced in evidence a rule which, among other things, forbade employés "to go between cars in motion to uncouple them" or "to engage in other dangerous practices." On the trial appellant contended respondent, in violation of this rule, went behind the tender while it was in motion in response to his own signal, and that his doing so was the proximate cause of his injury. Respondent's counsel, while cross-examining one of appellant's expert witnesses, asked him whether it was not customary for employés to go between cars "to fix the knuckles" of couplers in case the pin-lifting rod would not work. The witness answered in the affirmative, and the admission of this testimony is asserted to be erroneous because it appeared the witness knew nothing of any violation of appellant's rule by its employés, but answered from a general knowledge of railroads, not including appellant's. The context shows the witness had already testified that, when a pin-lifting rod was so constructed that it could be readily grasped by employés, no additional security was afforded by placing upon tenders and cars appliances designed to serve only as grabirons and without any other function. It was while respondent's counsel were endeavoring to probe the grounds of this testimony that the question objected to was asked. The context discloses its purpose was simply to show that, despite the equipment of cars and tenders with automatic couplers, occasions arose when it was necessary to go between the cars and to use the hands "to fix the knuckle." No mention of going between moving cars is made in the question or answer, and consequently the force of appellant's rule could not be affected. Further, respondent's violation, if any, of appellant's rule was, at most, but evidence of contributory negligence; and in this case, the action being founded upon violations of the applicable Safety Appliance Act, contributory negligence constitutes neither defense nor mitigation. Second Employers' Liability Cases, 223 U. S. loc. cit. 49, 50, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. There was no error in this ruling.

IV. Over appellant's objection the trial court admitted in evidence respondent's Exhibit G, a photograph of the rear of a tender attached to one of appellant's engines of the class to which belonged the engine and tender by which respondent was injured. Witnesses had testified that the grabirons shown upon the buffer beam or end sill of the tender in the photograph were of the character and in the position in which it was the custom of railroads to place grabirons upon tenders at the time and prior to respondent's injury in June, 1910. The photograph was by these witnesses declared to depict a correct placing of the grabirons according to the then prevalent custom. In admitting the photograph the trial court specifically stated that:

It was admitted "for the purpose of explaining the testimony of certain witnesses who said that prior to June, 1910, and at that time, engines had grabirons on them attached to the end sill, and that when they were so attached they were located as shown and marked in Exhibit G."

In handing the exhibit to the jury immediately thereafter counsel for respondent said:

"Gentlemen, the court has admitted this photograph in evidence to illustrate and show to you gentlemen the location of handholds or grabirons."

On objection being made "to counsel making a statement to the jury" the trial court said to the jury:

"Gentlemen, this picture is admitted in evidence, not to show or tend to show negligence on the part of defendant or that it was under a duty to locate grabirons as indicated in the picture at the time this accident occurred, or to show whether that was so or not, but to explain to you the testimony of certain witnesses who referred to this picture and a lead pencil mark X on one of the grabirons, and testified as to the location of grabirons on the end sill of tenders, when grabirons were put on the end sill of tenders to illustrate the location they said was customary when grabirons were so located."

The exhibit was clearly admissible for the purpose the court stated. Counsel does not contend to the contrary. Being admissible for one purpose, the fact it might not be admissible for others is not available as a means for its exclusion. In such circumstances instructions may be employed to limit the effect of the evidence offered. Union Savings Ass'n v. Edwards, 47 Mo. loc. cit. 449; Wilkins v. Railway, 101 Mo. loc. cit. 106, 13 S. W. 893.

V. Appellant insists the first instruction given for plaintiff is erroneous. That instruction was designed to present the law upon the issues under the first count of the petition, which was grounded upon noncompliance with the Safety Appliance Act relating to grabirons and couplers. The instruction reads:

"The court instructs the jury that, if you find from the evidence that on the 9th day of June, 1910, the defendant was a common carrier, engaged in interstate commerce by railroad, and while so engaged in interstate commerce it used on its line of railroad a locomotive engine and tender attached thereto, No. 45, in moving interstate traffic, and that said tender attached to said engine was equipped with a coupler designed to couple automatically by impact, and to be uncoupled without the necessity of men going between the end of said tender and cars, and that on the said 9th day of June, 1910, and prior thereto, said coupler would not work or accomplish the purpose for which it was designed, and would not couple automatically by impact, and could not be uncoupled without the necessity of men going between the end of said tender and the end of cars, and you find from the evidence that said tender was not provided with secure grabirons or handholds in the end of said tender for greater security to men in coupling and uncoupling said tender, and that the pin-lifting rod and the ladder and the perpendicular handhold on the rear corners of said tender and the steps or stirrups on said tender mentioned in evidence did not afford the same or equal security as grabirons or handholds placed in the end of said tender for greater security to men in coupling and uncoupling said tender, and you further find from the evidence that on said date in the town of Marysville, Kan., at the point mentioned in evidence, the plaintiff was in the employ of the defendant, and was in performance of his duties working in interstate...

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