Parks v. Thompson

• Decision Date: 08 December 1952
• Docket Number: No. 43032,No. 2,43032,2
• Citation: 253 S.W.2d 796,363 Mo. 791
• Parties: PARKS v. THOMPSON
• Court: Missouri Supreme Court

Page 796

253 S.W.2d 796

363 Mo. 791

PARKS v. THOMPSON.

No. 43032.

Supreme Court of Missouri, Division No. 2.

Dec. 8, 1952.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 9, 1953.

Jo B. Gardner, Monett, for appellant.

T. J. Cole, St. Louis, E. A. Barbour, Jr., Springfield, Stemmons & Stemmons, Mount Vernon, for respondent.

BOHLING, Commissioner.

U. S. Parks sued Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a corporation, for damages in three counts. Count I was under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for injuries sustained in a train wreck and the jury returned a nine-juror verdict for $25,000. In Count II plaintiff asked $42,000 for his alleged wrongful discharge as locomotive fireman by defendant in breach of plaintiff's contract of employment. In Count III plaintiff alleged defendant had breached a duty owed plaintiff in tort in discharging him and asked for $42,000 compensatory damages and $25,000 exemplary damages. Count III was dismissed prior to the trial upon defendant's motion. The court sustained defendant's motion for a directed verdict on Count II at the close of all the evidence; and granted defendant a new trial as to Count I for error in Instruction No. 1 and on the ground the verdict was excessive. Plaintiff appealed.

Plaintiff was employed as a fireman on defendant's Eastern division and was on the extra board out of St. Louis. Defendant's Eastern division extends from St. Louis to Kansas City; but at the time the terminal for freight service out of St. Louis was Jefferson City, and the terminal for passenger service was Sedalia. Plaintiff had made runs on the freight service to Jefferson City. He had never been on a run west of that point, and was not familiar with the track or the location of the signals west of Jefferson City.

Train orders are issued over the Eastern division; but between St. Louis and Jefferson City there exists 'centralized traffic control,' that is, trains are operated by signals controlled from a designated point without the necessity of train orders; whereas west of Jefferson City trains are operated entirely under orders to the conductor and engineer by the chief dispatcher at Jefferson City.

Plaintiff was injured when defendant's train No. 2d 9 ran into the rear Pullman of No. 1st 9 a short distance west of Syracuse, Missouri, about 7:40 or 7:48 a. m. January 1, 1948. Engineer Fred C. Butler and plaintiff were called on the crew of No. 2d 9, a passenger train scheduled to leave St. Louis at 11:59 p. m. December 31, 1947. When trains are operated in more than one section, the sections are designated first, second, etc., in the order in which they occupy the tracks. Plaintiff testified he was not advised the run would extend west of Jefferson City.

When 2d 9 arrived at Jefferson City about 2:20 a. m. January 1, 1948, 1st 9 had departed.

The weather from St. Louis to Jefferson City was described by plaintiff as not 'so bad,' but they encountered some ice, 'not too bad,' around Jefferson City. At Jefferson City they received orders to wait for a lineman, who was to ride 2d 9 and note the condition of the wires et cetera west of Jefferson City; and 2d 9 pulled out of Jefferson City practically two hours behind 1st 9. As they proceeded west the rain turned into ice and snow, with some sleet, the wind blew the steam and smoke down on plaintiff's side of the locomotive and affected the visibility 'very much.' Plaintiff had difficulty seeing ahead.

West of Jefferson City 2d 9 met eastbound trains at Scott, at California, and at Clarksburg. At California they received a message reading: 'After you meet Number 20 at California and 2d 70, Engine 2209 at Clarksburg, there is no opposing trains in block between Clarksubrg and M. K. T. crossing,' signed with the initials of the Chief Dispatcher, G. C. Reed, at Jefferson City. The M. K. T. crossing is about 1 1/2 miles east of the station at Sedalia, and 12 miles west of the accident hereinafter mentioned. They were told it was thought that the block signals were out west of California. Plaintiff testified the ice broke the wires, and this threw the signals to a stop, or 'red,' position, and standby batteries would cause them to show red for 24 hours.

We deem it more appropriate under the issues presented to develop defendant's operating rules in connection with plaintiff's Count II, but mention here that defendant's rules require trains to stop at red signals.

After meeting 2d 70 at Clarksburg, 2d 9 pulled out of the siding and proceeded west. Plaintiff testified that 2d 9 thereafter passed three red signals and he called them to the engineer, and the engineer said: 'That's o. k., the message takes care of that'; that no stop was made; that after they passed Syracuse the track curved and the steam moved to the right, or engineer's side, and about half way down the hill he saw something 1,000 to 2,000 feet ahead, which looked like the road ended in a snowbank; that there were not torpedoes, fusees, flagman, or lights; that he then saw it was moving and said: 'Oh, my God, rear end'; that the speed of 2d 9 had been about 35 miles an hour and perhaps had increased to 40 going down the hill; that the engineer applied the emergency brake, 'wasn't nothing to keep us from hitting'; and that he, plaintiff, was climbing over the tank when they hit and his back was caught between the cab of the locomotive and the top of the tender, mashed and injured.

There was other evidence to the effect that the average speed of 2d 9 from Clarksburg to the scene of the accident was 52 miles an hour. The locomotive of 2d 9 went inside the rear Pullman of 1st 9 up to the cab, compressing the Pullman into a space of about eight feet, killing 14 and injuring 34 persons.

On June 21, 1951, plaintiff filed his 'First Amended Petition,' upon which trial was had. On July 2, 1951, defendant filed a motion 'To Strike Out All of Count III of Plaintiff's Amended Petition.' This motion was sustained on August 28, 1951. On September 4, 1951, defendant filed his 'First Amended Answer to Plaintiff's First Amended Petition.' The cause, coming on regularly for trial on October 10, 1951, plaintiff, after the jury had been selected for trial, orally moved to strike out defendant's said 'Amended Answer' to Counts I and II, and for judgment on the pleadings, offering to make proof of his damages, on the ground defendant was in default as to said counts, the only counts remaining for trial. The trial court properly overruled the motion.

Plaintiff renews his contention here. His sole authority is section 509.260 RSMo 1949, V.A.M.S., which provides for the filing of an answer within thirty days after the service of the summons and petition. Our code also provides: 'After the pleadings are closed, but within such time as not to dealy the trial, any party may move for judgment on the pleadings.' Section 509.360 RSMo 1949, V.A.M.S. With defendant's answer to plaintiff's amended Counts I and II on file from and after September 4, 1951, plaintiff waived his rights, if any, with respect to defendant being in default by his delay in presenting the issue. The code contemplates trials on the merits that substantial justice be accorded litigants, State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, 129(1), and plaintiff's contention in the circumstances of record is not in harmony with the spirit of the code. Consult Leis v. Massachusetts Bonding Co., Mo.App., 125 S.W.2d 906, 908(4). The record does not establish that plaintiff's First Amended Petition effected any material change in Counts I and II of his original petition. Defendant timely filed a motion to dismiss and answer to plaintiff's original petition, and the record does not establish that it was abandoned as to Counts I and II prior to the filing of defendant's amended answer on September 4, 1951. Defendants have been considered not in default in such circumstances. State ex rel. Christine v. Taylor, 200 Mo.App. 333, 206 S.W. 247, 250(4); Bremen Bank v. Umrath, 55 Mo.App. 43, 50. Consult also sections 509.490, 509.330 RSMo 1949, V.A.M.S., and RSMo 1949, p. 4110, Supreme Court Rule 3.13.

Defendant first contends a new trial was properly granted as to Count I on the stated ground the evidence of the doctors was not sufficient to support a finding of permanent injury and the verdict based on medical testimony was excessive and the court had no measure upon which to require a remittitur.

Trial courts in ruling that a verdict is excessive exercise a discretionary function, weigh the evidence, and may infer from the size of the verdict alone misconduct on the part of the jury; that is, that the verdict is so much against the weight of the evidence as to show bias and prejudice. Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126, 129(4); Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157, 159; Mitchell v. Pla-Mor, Inc., 361 Mo. 946, 237 S.W.2d 189, 192; Bailey v. Intersate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 340, 8 A.L.R.2d 710.

Our review of the ruling calls for a consideration of the evidence most favorable to the defendant and proceeds on the theory the ruling is correct unless the evidence shows the contrary clearly enough to establish an abuse of discretion on the part of the trial court. Grzeskoviak v. Union El. L. & P. Co., 299 Mo. 116, 252 S.W. 364, 365(1); Dietrich v. Cape Brewery & Ice Co., 315 Mo. 507, 286 S.W. 38, 44; Murphy v. Kroger Grocery & B. Co., 350 Mo. 1186, 171 S.W.2d 610, 612(5); Mitchell v. Pla-Mor, Inc., 361 Mo. 946, 237 S.W.2d 189, 192(5); Nix v. Gulf, M. & O. R. Co., Mo.Sup., 240 S.W.2d 709, 713(5). Appellate courts do not possess the wide latitude of trial courts when passing upon the excessiveness of a verdict as an original issue on a defendant's appeal. Cruce v. Gulf, Mobile & O. R. Co., 361 Mo. 1138, 238 S.W.2d 674, 681(15-17); Kasten v. St. Louis Pub Serv. Co., Mo.App., 231...