Neal v. Curtis Co. Mfg. Co.
| Decision Date | 28 July 1931 |
| Docket Number | No. 29263.,No. 29264.,29263.,29264. |
| Parties | GEORGE NEAL, Appellant, v. CURTIS & COMPANY MANUFACTURING COMPANY, Appellant, and ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.
AFFIRMED (as to liability of Curtis Company) and REVERSED (in toto as to Railroad Company) and REMANDED (for new trial as to amount of damages as to both defendants).
Wm. R. Schneider for appellant Manufacturing Company.
(1) The proximate cause of the plaintiff's injuries, if any, was the co-defendant railway's negligence in failing to warn the plaintiff that it was about to strike the car in which he was working. Washburn v. Gas Light Co., 202 Mo. App. 102, 214 S.W. 410, 223 S.W. 725; Seth v. Elec. Co., 241 Ill. 242; Jackson v. Butler, 249 Mo. 342; Shunk v. Harvey (Mo.), 223 S.W. 1066; Swigart v. Lush, 196 Mo. App. 471, 192 S.W. 138. (2) The court erred in refusing to give and read to the jury appellant's Instruction E, which constituted a refusal to submit to the jury appellant's theory of the case. Collins v. Rankin Farms (Mo. App.), 180 S.W. 1053; Livington v. Ins. Co., 3 L. Ed. 421; Williams v. Fleming (Mo.), 284 S.W. 794; Lewis v. Railroad Co., 142 Mo. App. 585; Rutledge v. Ry. Co., 123 Mo. 121. (3) The court erred in giving and reading to the jury co-defendant's instruction numbered 2 which, to the prejudice of appellant, undertook, by peremptory instruction, to relieve the co-defendant of a duty the failure to perform which was the proximate cause of plaintiff's alleged injuries; a question which in any event should have been left to the jury. Huelsenkamp v. Railway Co., 34 Mo. 45. (4) The court erred in giving co-defendant's instruction numbered 8, because it was broader than the evidence and permitted the jury to consider an element of damages not properly before it which increased the amount of the verdict against the appellant. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Kessler v. Power Co. (Mo. App.), 283 S.W. 705; Campbell v. Meyer (Mo. App.), 287 S.W. 842; Smith v. Railroad, 108 Mo. 243. (5) The court erred in giving co-defendant's instruction numbered 8, which assumed to cover the whole case and direct a verdict, but omitted essential elements and improperly assumed a legal duty for the appellant, all to the appellant's detriment and prejudice. Allen v. Ry. Co. (Mo.), 294 S.W. 80; Williams v. Fleming (Mo.), 284 S.W. 794. (6) The verdict is excessive and the result of passion and prejudice.
Mark D Eagleton, Gilbert L. Whitley, James A. Waechter and Allen, Moser & Marsalek for respondent Neal.
(1) The court properly refused appellant's requested instruction for a directed verdict. (a) In ruling upon the demurrer requested by appellant at the close of all the evidence, the trial court was required to assume as true all evidence appearing in the entire record tending to support plaintiff's right of recovery, and to reject all conflicting evidence; to give plaintiff the benefit of all inferences in his favor which a jury, with any degree of propriety, might draw from the testimony, and to reject countervailing inferences favorable to defendant. And after viewing the evidence in the foregoing light, the court could not properly sustain the demurrer, unless the evidence and inferences to be drawn therefrom were so strongly against plaintiff as to leave no room for reasonable minds to differ. Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gas Light Co., 73 Mo. 219; Gratiot v. Railroad, 166 Mo. 466; Gould v. Railroad, 315 Mo. 713. (b) The duty to warn is a positive, continuing and non-delegable duty of the master. Miller v. Railroad, 109 Mo. 350. (c) Whether the master depends upon a third person to discharge his duty to warn the servant, or engages to perform such duty himself, in either case he is liable for a negligent omission to give the servant a warning, which failure results in the latter's injury. Johnson v. Coal Co., 276 Mo. 42; Hutchinson v. Safety Gate Co., 247 Mo. 71; Koerner v. Car Co., 209 Mo. 141; Fogarty v. Transfer Co., 180 Mo. 490; Miller v. Ry. Co., 109 Mo. 350; Hoke v. Railroad, 88 Mo. 360; Moore v. Railroad, 85 Mo. 588; Weaver v. Railroad, 170 Mo. App. 289; Bequette v. Plate Glass Co., 200 Mo. App. 506. (2) The court properly refused appellant's Instruction E. (a) The instruction is palpably erroneous in assuming that the alleged customary procedure referred to therein fulfilled the requirements of ordinary care and as a matter of law obviated the necessity of personal notice that a car was about to be moved. The existence of a custom to do a thing a certain way is not conclusive on the issue of ordinary care and negligence. Johnson v. Coal Co., 276 Mo. 42; Rupp v. Railroad Co. (Mo. App.), 234 S.W. 1054; Fairfield v. Bichler, 195 Mo. App. 45; Timmerman v. Iron Co. (Mo.), 1 S.W. (2d) 797. (b) Whether a bell or whistle was sounded was in dispute, and both plaintiff and Woods testified they heard none. The instruction requires no finding that a bell or whistle was sounded on the occasion of the accident, or, if so, that plaintiff heard same, but is predicated on what would be done by plaintiff if, while working in a car, he heard such a warning. The instruction could serve only to confuse the jury by injecting a feigned issue. Strother v. Milling Co., 261 Mo. 22. (3) The giving of Instruction 2, at the instance of appellant's codefendant the Terminal Railway Company, is not within the scope of review on this appeal. (a) In its motion for a new trial appellant did not complain of any of the instructions given for its codefendant, except Instruction 10. Therefore, the present complaint as to Instruction 2 cannot be entertained. Bodam v. City (Mo. App.), 290 S.W. 621; Areadia Timber Co. v. Harris (Mo.), 285 S.W. 428; Cordry v. Quint (Mo.), 270 S.W. 977; Brainard v. Railroad (Mo.), 5 S.W. (2d) 15. (b) Where tortfeasors are sued jointly, neither on appeal will be heard to complain of alleged error in the instructions given at the request of the other. Leighton v. Davis (Mo.), 260 S.W. 986; Brickell v. Fleming (Mo.), 281 S.W. 951; Maher v. Donk Bros. (Mo.), 20 S.W. (2d) 888. (4) The court's action in giving Instruction 8 for the Terminal Railway Company cannot be reviewed on this appeal, for the reasons given above. Authorities, Point 3, supra. (5) Appellant's complaint with reference to its codefendant's Instruction 7 is unavailing for the same reasons. Authorities, Point 3, supra. (6) The damages awarded by the jury were fair and reasonable. (a) The evidence on this subject should be taken in its light most favorable to plaintiff, all conflicts being conclusively settled by the jury's verdict. Manley v. Wells (Mo.), 292 S.W. 67; Busby v. Tel. Co. (Mo.), 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325; Deland v. Cameron, 112 Mo. App. 710; Tucker v. Kollias (Mo. App.), 16 S.W. (2d) 649. (b) It is not the province of an appellate court, in any jury case, to weigh conflicting testimony. Gannon v. Gas Co., 145 Mo. 502; Reid v. Ins. Co., 58 Mo. 421; Daniel v. Pryor (Mo.), 227 S.W. 104; Holzemer v. Ry. Co., 261 Mo. 411. (c) It was the peculiar province of the jury to determine the extent of plaintiff's injuries and the compensation he was entitled to recover therefor. Hoover v. Ry. (Mo.), 227 S.W. 79; Maloney v. U. Rys. Co. (Mo.), 237 S.W. 516; Sacre v. Ry. Co. (Mo.), 260 S.W. 88. (d) An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Manley v. Wells, supra; Laughlin v. Rys. Co., 275 Mo. 459; Grott v. Shoe Co., 2 S.W. (2d) 785.
Mark D. Eagleton, Gilbert L. Whitley, James A. Waechter and Allen, Moser & Marsalek for appellant Neal.
(1) The court erred in giving respondent's Instruction 2. The instruction is clearly wrong in directing a verdict for respondent "in the absence of knowledge" on the part of its employees of facts which would impart notice to them of the presence of persons in or about the car. If respondent's employees, by the exercise of ordinary care, could have discovered facts indicating the presence of men in the car, the defendant was liable, even though its employees did not have actual knowledge of such facts. Butler v. Railroad, 155 Mo. App. 287; Hudgens v. Railroad, 139 Mo. App. 48; Gessley v. Railroad, 32 Mo. App. 413; Dutcher v. Railroad, 241 Mo. 165; Kame v. Railroad, 254 Mo. 175; Scheckells v. Min. Co. (Mo. App.), 180 S.W. 12; Davidson v. Railroad (Mo.), 229 S.W. 786. (2) The court erred in giving respondent's Instruction 4. The instruction absolves respondent from liability upon a mere finding that there was no activity about the car which would apprise its employees that the car was being unloaded. Even though there was no such activity about the car, the respondent was liable if its employees from other sources knew, or could by the exercise of ordinary care have learned, of the presence of the men in the car. The instruction improperly confines their source of knowledge to activities about the car. Kansas City So. Railroad Co. v. Moles, 121 Fed. 351; Johnson v. Coal Co., 276 Mo. 42. (3) The court erred in giving respondent's Instruction 7. The instruction improperly directs a finding for respondent if Curtis & Company, appellant's employer, did not notify respondent's employees of appellant's presence in the car, and if respondent's employees upon approaching the car saw no activity about it. It is obvious that if respondent's employees, by the exercise of ordinary care could have seen such activity about the car, they were negligent in running into it, whether they actually saw such activity or not. Pearson v. Ry. Co. (Mo. App.), 200 S.W. 441; Johnson v. Coal Co., 276 Mo. 42 (4) The judgment in favor of plaintiff and...
To continue reading
Request your trial