Parks v. Thompson, 44712

• Decision Date: 09 January 1956
• Docket Number: No. 44712,No. 2,44712,2
• Parties: U. S. PARKS, Respondent, Appellant, v. Guy A. THOMPSON, Trustee of the Missouri Pacific Railroad Company, a Corporation, Appellant, Respondent
• Court: Missouri Supreme Court

Page 687

285 S.W.2d 687

365 Mo. 700

U. S. PARKS, Respondent, Appellant, v. Guy A. THOMPSON, Trustee of the Missouri Pacific Railroad

Company, a Corporation, Appellant, Respondent.

No. 44712.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1956.

H. L. Harvey, St. Louis, E. A. Barbour, Jr., Springfield, for appellant, Guy A. Thompson.

Jo B. Gardner, Monett, for respondent, appellant.

BOHLING, Commissioner.

U. S. Parks recovered a judgment against Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a corporation, for $20,000 under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. The trial was to the court without a jury. Sec. 510.310 (Statutory references are to RSMo 1949 and V.A.M.S. unless otherwise indicated). Each litigant has appealed. Plaintiff's main contention is: 'The amount of plaintiff's recovery should be increased.' Defendant contends the court erred in admitting certain evidence, and that the judgment is excessive. A prior appeal is reported at 363 Mo. 791, 253 S.W.2d 796. A companion case is Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282. The parties state the facts developed at the second trial are substantially the same as stated by the court on the first appeal, with the exception that additional evidence was adduced on the issue of damages. Reference is made to the opinion on the first appeal for a more detailed statement.

Passenger trains are operated at times by defendant in different sections. Plaintiff was injured when defendant's westbound train No. 2d 9, on which he was fireman, ran into the rear Pullman of 1st 9, a short distance west of Syracuse, Missouri, about 7:40 a. m., January 1, 1948, killing a number of passengers, injuring others, and causing property damage. The passengers were on 1st 9, and 2d 9 carried baggage, express and mail. Other crew members on 2d 9 were Conductor Rogers, Engineer Butler, Flagman Journey and a porter.

Defendant's Eastern Division extends from St. Louis to Kansas City. The terminal for freight service was Jefferson City and for passenger service was Sedalia. Plaintiff had made runs in freight service to Jefferson City, but had never made a run west of Jefferson City and was not informed about the track or location of signals west of Jefferson City.

When 2d 9 arrived at Jefferson City about 2:20 a. m., January 1, 1948, 1st 9 had departed. Plaintiff then found out he was going to Sedalia and informed his engineer he did not know about the railroad west of Jefferson City. Second 9 was held at Jefferson City for about an hour and a half for a signalman.

The weather, which had not been good, worsened west of Jefferson City with snow, sleet, wind and ice. This, with the steam and smoke from the engine, affected the visibility ahead.

We state briefly the substance of defendant's operating rules material here. They are more fully set forth at 253 S.W.2d loc. cit. 800, 801.

General Rule B: 'Employees must be conversant with and obey the rules and special instructions. * * *'

Rule 34 required the communication of signal indications between members of engine and train crews.

Rule 108. 'In case of doubt or uncertainty the safe course must be taken.'

Rule 509 required the stopping of trains at red signals, and obtaining a clearance from the dispatcher before proceeding.

Rule 518 required enginemen, in stormy weather, to approach all signals not plainly seen, at restricted speed. (Plaintiff testified restricted speed meant 15 miles an hour, expecting to stop.)

Rule 955 makes firemen subordinate to enginemen.

Rules 963 and 980 required the keeping of a careful lookout.

Rule 979 made firemen responsible with engineers to prevent rule violations. It required firemen to call the attention of conductors or enginemen immediately to any apparent failure to comply with rules or instructions; and made them responsible to the extent of their ability to prevent accidents or violations of rules.

Rule 961 made it the duty of the engineer to handle the engine and prevented firemen from operating engines unless authorized to do so. Article 59 of the Union Contract was to like effect, and, we understand, plaintiff did not qualify under Sec. 26(a) of Special Instructions No. 8 for an engineer in passenger service.

At California 2d 9 received the following message from the dispatcher at Jefferson City: 'After you meet No. 20 at California and 2d 70, Engine 2209 at Clarksburg, there is no opposing trains in block between Clarksburg and M.K.T. crossing.' The M.K.T. crossing is at Sedalia.

Plaintiff testified that after leaving Clarksburg he saw three red signals, which meant stop, and he called them to the engineer, who answered: 'The message takes care of that'; that no stop was made or clearance obtained; that all he did was call the signals to the engineer, he did not mention to the engineer he was violating the rules and signals or ask him to stop; that west of Syracuse the track curved to the right, had a slight downgrade; that the steam changed to the other side of the engine and he saw what looked like the road ending in a snowbank and, a little closer, it looked like a train; that he shouted a warning to the engineer; that the engineer applied the emergency brakes; that there were no torpedoes, fusees, flagman or lights; that the speed of 2d 9 had been about 30-35 miles an hour and perhaps increased to 40 miles an hour on the downgrade. Plaintiff was injured in the ensuing wreck.

As a result of the hearing investigating the accident plaintiff was dismissed from service January 14, 1948.

There is no merit in plaintiff's point that he was not contributorily negligent. The case was tried below on the theory that defendant was negligent and also that plaintiff was guilty of contributory negligence. In plaintiff's suggested findings of fact and conclusions of law to the trial court, plaintiff, in more than one instance, admitted he was contributorily negligent. The trial court stated, among other things in its findings, that defendant admitted liability and plaintiff admitted some contributory negligence. Such was the trial theory and, although the case is here de novo, the parties are bound by their trial theory. Purvis v. Hardin, 343 Mo. 652, 122 S.W.2d 936, 939; Duffley v. McCaskey, 345 Mo. 550, 134 S.W.2d 62, 65, 126 A.L.R. 853; Smithpeter v. Wabash R. Co., 360 Mo. 835, 231 S.W.2d 135, 146, 19 A.L.R.2d 950. The contention was ruled against plaintiff on the prior appeal, 253 S.W.2d loc. cit. 801.

Defendant makes the point that the court erred in admitting, over objections interposed, evidence of 'the amount plaintiff earned as a fireman prior to his discharge, for the reason that such evidence was speculative. Rogers v. Thompson , 265 S.W.2d 282; Parks v. Thompson , 253 S.W.2d 796.' Plaintiff testified he earned around $300 a month as a fireman for defendant; and that following his injuries his earnings were about $150 a month. The Rogers opinion has an observation arguendo 265 S.W.2d loc. cit. 289, that the reinstatement of a discharged employee rests in conjecture, but the case considered that the prior earnings of a discharged employee had some evidentiary value on the issue of damages for an injury sustained in the occurrence resulting in the employee's discharge. We find nothing in the Parks case in conflict therewith. The presentation does not establish error.

The trial court found plaintiff's damages at $30,000, reduced the amount $10,000 on account of the contributory negligence of plaintiff, and entered judgment for $20,000. Plaintiff says we should increase the judgment to $42,750, with interest on $20,000 from the date of trial. Defendant contends that $20,000 is excessive and should be reduced.

When plaintiff realized a collision would occur he tried to get the curtain of the cab loose but it was frozen. He was climbing over the bar across the top of the coal tender when the wreck occurred and the engine cab came down on his back just below the belt line and mashed and injured him. He was knocked out for a short time and later climbed down from the engine and went to the rear coach of 2d 9.

Plaintiff was hospitalized until January 13, 1948, except while attending the fourday investigation of the accident at Sedalia. He made seven out-patient visits to the Missouri Pacific hospital at St. Louis between January 20th and April 6, 1948. He was again admitted to said hospital July 9th and dismissed July 12, 1948. He was admitted to the Missouri Baptist hospital November 4, 1949, as a patient of Dr. R. D. Woolsey, and dismissed November 7, 1949.

Plaintiff testified he was never completely relieved of pain and has had to go to bed on several occasions; that his sleep is interfered with unless he sleeps with a board under the mattress and when he sits in a straight chair for any length of time, he has to move frequently; that he could do no lifting, or pick up heavy things and carry them, or stoop, bend down to the ground and work, or use his arms, as for instance, in painting; that he takes pills to relieve the pain when he has these 'spells.' He stated he would be 58 September 5, 1954, and was 52 at the time of the accident. We note that plaintiff's exhibits 1 and 1-A, the Missouri Pacific hospital records concerning plaintiff's admittances on January 3 and July 9, 1948, respectively, give his date of birth as September 5, 1892, and plaintiff's exhibit 8, the Missouri Baptist hospital record of November, 1949, mentions his age as 57. Plaintiff claimed a life expectancy on the basis of age 57-16.43 years. See 42 V.A.M.S. p. 802. Plaintiff was earning $300 monthly at the time of his injury and has been operating a taxicab for some time, earning around $150 a month.

Two depositions of Dr. R. D. Woolsey, a neurosurgeon, are in the record. The first, dated June 16, 1951, is mentioned in the former opinion, 253 S.W.2d loc. cit. 799. The second deposition is dated August 18, 1953. He was called to plainti...