Pashea v. Terminal R. Ass'n of St. Louis

• Decision Date: 08 September 1942
• Docket Number: 38127
• Citation: 165 S.W.2d 691,350 Mo. 132
• Parties: John G. Pashea v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

165 S.W.2d 691

350 Mo. 132

John G. Pashea v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 38127

Supreme Court of Missouri

September 8, 1942

Rehearing Denied and Motion to Transfer to Banc Overruled November 10, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Affirmed.

Carleton S. Hadley, Walter N. Davis and Arnot L Sheppard for appellant.

(1) Respondent's evidence that the sudden and violent stop of the train while moving south threw him north over the rear end of the train is directly in conflict with well known physical laws, and is therefore wholly insufficient to make a prima facie case. Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311; Daniels v. Kansas City Electric R. Co., 177 Mo.App. 280. (2) Respondent's evidence is wholly insufficient to establish that the stop was unusually sudden or violent. Gulf, Mobile & Northern R. Co. v. Wells, 275 U.S. 455, 72 L.Ed. 370, and cases cited. (a) Because this action is based upon the Federal Employers' Liability Act, the decisions of the federal courts are controlling. Cox v. M.-K.-T. R. Co., 335 Mo. 1226, 76 S.W.2d 411. (b) The rule of the federal court determining under what conditions a verdict will be directed is that "where the evidence is undisputed, or of such conclusive character that if a verdict were returned for one party, whether plaintiff or defendant, it would have to be set aside in the exercise of a sound judicial discretion, a verdict may and should be directed for the other party." Small v. Lamborn, 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Pa. R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Southern Ry. Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239. (1) Respondent was riding upon a freight train, not as a passenger but as appellant's servant. If it is conceded that he was knocked off the freight car, the evidence is yet insufficient to warrant this judgment; whether judged by the federal, Missouri, or the general rule. Chesapeake & Ohio R. Co. v. Thomason, 70 F.2d 860; Martin v. St. Louis-S. F. R. Co., 302 Mo. 506, 258 S.W. 1023; Hedrick v. Mo. Pac. R. Co., 195 Mo. 104; Hawk v. C., B. & Q. R. Co., 130 Mo.App. 658; Portuchek v. Wabash R. Co., 101 Mo.App. 52; Elliott v. C., M. & St. P. R. Co., 236 S.W. 17; Hunt v. C., B. & Q. R. Co., 165 N.W. 105. The evidence of appellant is so conclusive that there was no unusually sudden or violent stop that respondent's contrary theory is wholly insubstantial. (1-a) The physical facts testified to by respondent contradict his expressed opinion that the stop was extraordinary. First: He heard no "running out" of slack. Second: There was no decrease of speed before the stop. Third: He heard no grinding or squeaking of brake shoes against the wheels. Fourth: The entire train of 63 cars stopped almost instantly. He says it did not move more than a foot or two after the stop. (1-b) Moreover, this court's rule respecting the sufficiency of respondent's evidence in this case apparently now parallels the federal court's rule. Appellant's uncontradicted evidence shows that the train was handled in the usual manner; that the air brakes were properly applied; that the speed at the time of the application of the brakes was not more than from four to six miles an hour; that at such speed there can be no suddenly violent stop, even though the independent or engine brake is used (as it was not), rather than the automatic brake (which was used). This evidence of appellant is not denied. Since respondent failed to explain or deny it, after opportunity to do so, it will be accepted as true. Adams v. Othenin's Estate, 161 S.W.2d 415; State ex rel. Bowdon v. Allen, 85 S.W.2d 63; Rohrmoser v. Household Finance Corp., 86 S.W.2d 103; Wills v. Berberich's Delivery Co., 134 S.W.2d 125. (c) Respondent tried to leave the impression that the alleged sudden stop may have resulted from an application of the independent or engine brake, or that there may have been a car with a defective air brake mechanism, called a "dynamiter" (a car upon which the brakes set suddenly). His testimony does not prove but only suggests these theories. Any verdict based upon these premises will necessarily result from mere speculation, and therefore cannot be upheld. Lappin v. Prebe, 131 S.W.2d 511, and cases cited; Wills v. Berberich's Delivery Co., 134 S.W.2d 125. (3) Respondent submitted his case upon a finding of general negligence, requiring the jury to find only (1) an unusually sudden stop and jerk; (2) which threw respondent over the end of the car; and (3) that the stop directly resulted from appellant's negligence. (a) Res ipsa loquitur does not apply to this case, as the cause of the alleged sudden stop is not shown. If the cause is not known, how can it be said that it (the cause) was a negligent one? Pointer v. Mountain Ry. Construction Co., 269 Mo. 104. (b) Moreover, respondent testified to nothing except the bare casualty. The fact of injury alone is never a sufficient basis for the application of res ipsa loquitur. Pointer v. Mountain Ry. Construction Co., 269 Mo. 104; Batson v. Western Union Tel. Co., 75 F.2d 154; Interstate Circuit, Inc., v. Le Normand, 100 F.2d 160; Tayer v. York Ice Machinery Co., 119 S.W.2d 240. (c) Even if we accept respondent's evidence as being one hundred per centum true, it does no more at best than balance probabilities. It goes no further than to show "that the accident may have happened as the result of one of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause." Interstate Circuit, Inc., v. Le Normand, 100 F.2d 160; Polokoff v. Sanell, 52 S.W.2d 443; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872. This court has gone even further and held that to make res ipsa loquitur effective, "the facts relied on ought to be such as reasonably to exclude all defensive inferences attributable by operation of law to the negligence of the plaintiff, or that of a fellow servant (absent a fellow-servant statute), defects in the lethal instrumentality which are latent; (2) or so recent in happening as to afford no reasonable opportunity for their discovery, lack of causal connection, and the assumption of the usual hazards of the employment." Tayer v. York Ice Machine Corp., 119 S.W.2d 240; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686, L. R. A. 1917E, 233.

Cox, Blair & Kooreman for respondent.

(1) Appellant's reliance upon Gulf, Mobile & Northern Railroad Co. v. Wells, 275 U.S. 455, is not warranted. The facts of that case do not resemble those of this case. The decisions demonstrate that this claim of appellant is not valid. (2) "It is the duty of a reviewing court, after a verdict for plaintiff, to assume the most favorable statement of the plaintiff's case to be true, unless some particular request for instructions makes it mandatory to deal with conflicting evidence." Texas & Pac. Ry Co. v. Behymer, 189 U.S. 468. The Missouri decisions support the rule. (a) The fact that a jury might "have drawn a different conclusion from his" (plaintiff's) "evidence or have disbelieved it in essential points" makes no difference. The jury's finding settles those matters. Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468. The Missouri decisions are the same way. (b) There is no authority for any rule which questions a jury's power and duty to find, as it is convinced it ought to find, on conflicting evidence. Phoenix Ins. Co. v. Dosten, 109 U.S. l. c. 32; Delk v. St. L. & S. F. R. Co., 220 U.S. l. c. 587. (3) Appellant claims that there is some "rule in the federal courts" which aids it here, whereby it may secure a reversal upon the weight of the evidence. Appllant's citations are not in point, and there is no such rule. The usual rule applies and assures to respondent that the evidence is to be viewed in the most favorable light from his point of view. Tex. & Pac. Ry. Co. v. Behymer, 189 U.S. 468. That matter is fully covered by a recent decision of this court and a long line of United States Supreme Court decisions, cited by this court. Hardin v. I. C. R., 334 Mo. 1169, 70 S.W.2d 1075, and cases cited, certiorari denied, 293 U.S. 574; Parrent v. M. & O. Rd. Co., 334 Mo. 1202. (4) There was ample evidence to justify the jury in finding a sudden and violent stop occurred. Respondent was a veteran brakeman. He was on the car when the shock came. He had experienced some violent shocks in the same position, given him by a like cause. He had both the general and particular experiences to qualify him to speak and was in a position to enable him to know. He was in a position of peril, circumstances considered. Appellant's citations do not apply. Tex. & Pac. Ry. Co. v. Behymer, 189 U.S. 468; Meyers v. Wells, 273 S.W. 110; Robert v. N. Y. C. R. Co., 122 S.W.2d 1. (5) Both divisions of this court have often announced the rule appellant now invokes, as follows: "It requires an extraordinary case to authorize a court to regard sworn testimony as manifestly impossible and untrue . . . so frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other." Schupback v. Meshevsky, 300 S.W. 465; Parrent v. M. & O. R. Co., 334 Mo. 1202; Gately v. St. L.-S. F. Ry. Co., 332 Mo. 1; Murphy v. Wolferman, Inc., 148 S.W.2d 481. Another statement of the rule is to the effect that physical facts may be proved and considered, if relevant, but "proof of such a nature cannot be construed to establish a particular conclusion,...