Pierce v. New York Cent. R. Co.

• Decision Date: 13 April 1953
• Docket Number: No. 1,No. 43312,43312,1
• Citation: 257 S.W.2d 84
• Parties: PIERCE v. NEW YORK CENT. R. CO
• Court: Missouri Supreme Court

Page 84

257 S.W.2d 84

PIERCE v. NEW YORK CENT. R. CO.

No. 43312.

Supreme Court of Missouri, Division No. 1.

April 13, 1953.

Wilton D. Chapman, St. Louis, for defendant-appellant.

Miller & Landau, St. Louis, for respondent.

DALTON, Judge.

Action for damages under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. for personal injuries sustained. Verdict and judgment were for plaintiff in the sum of $35,000. Defendant has appealed.

Defendant is a common carrier of freight and passengers for hire by railroad in interstate commerce. Plaintiff was employed as a trucker at defendant's freight depot on Front Street in East St. Louis, Illinois. His duties consisted of loading and unloading freight and to do this work he was furnished a two-wheel hand truck and a three-wheel motor driven vehicle called a 'chore boy.' On April 30, 1951, plaintiff with others was engaged in unloading freight from a box car parked on track 'C', located adjacent to defendant's depot platform. The edge of the car was some eight inches to a foot from the edge of the platform. A sheet of steel, referred to as a 'bridge', extended across the space between the car and the platform for the width of the freight car door.

Shortly after the work of unloading the particular car had started, and while plaintiff was standing in the doorway of the car with one foot inside the car and the other on the 'bridge', some other freight cars were 'kicked' or shunted in upon track 'C'. These cars collided with the car, which was being unloaded at the depot platform, and moved it down some six to eight car lengths. Plaintiff was thrown from the car door, but his right leg went underneath the platform and the car, and he was dragged by his right leg for about twenty feet down the platform and sustained injuries to his leg and back.

Plaintiff's evidence tended to show an established custom to notify the workmen engaged in unloading cars of any proposed switching movement on the track where they were working, so that they could get out of the cars and remove the 'bridges', but in this case no notice was given. The cause was submitted solely on negligence in failing to warn of the movement of the cars in question. Other facts will be stated in the course of the opinion.

Appellant assigns error on the refusal of its request for a directed verdict, on the limitation of cross-examination of plaintiff, on the admission of certain evidence, on the giving of four instructions and on an alleged excessive verdict.

In support of its assignment that the court erred in refusing to direct a verdict for defendant, it is contended (1) that 'there was no evidence that at the time of his injury plaintiff was working on a shipment involved in interstate commerce'; and (2) that 'there was no evidence that the cars which struck the car in which plaintiff was working was caused to do so by defendant.'

Plaintiff's first amended petition on which the cause was tried contained an allegation: '(2) That on and prior to the 30th day of April, 1951 * * * plaintiff and defendant were engaged in interstate commerce, and that this action is brought under the provisions of the Federal Employers' Liability Act.' This allegation was expressly admitted by defendant's answer. There was a further specific allegation: '(6) That at all the times herein mentioned plaintiff and defendant were engaged in interstate commerce by railroad * * * and that this action is governed and controlled by the provisions of Sec. 51 et seq. Title 45 U.S.C.A.' This allegation was not specifically denied. Instead the answer contained this statement: 'Defendant * * * denies the averments contained in Paragraph Number 6 not specifically admitted herein.' No averment contained in paragraph Numbered 6 was specifically admitted and no averment was specifically denied. This answer, in the form of a qualified general denial, undertook to shift to the court and opposing counsel the burden of determining what was admitted and what was denied. It was insufficient to put the allegation in paragraph 6, as to interstate commerce, in issue. James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W.2d 118, 125(10-13); Montgomery v. Clem, 221 Mo.App. 486, 282 S.W. 1051, 1052; Lokey v. Rudy-Patrick Seed Co., Mo.App., 285 S.W. 1028, 1032(1-3). Further, early in the trial and during the examination of plaintiff as a witness, counsel for plaintiff started a question with reference to the destination of the freight being moved and then raised a question as to whether interstate commerce was admitted. The court said: 'I believe it is so admitted.' Defendant made no objection to this construction of its answer by the court and it may not now complain.

As to the second point, the question is whether the evidence was sufficient for the jury to infer and find that 'the defendant caused other cars to be switched * * * into and against the car in which plaintiff was working', as submitted in plaintiff's Instruction 1.

The evidence shows that plaintiff was an employee of defendant engaged in his usual and ordinary duties as a trucker unloading and distributing freight from a freight car parked on defendant's track 'C' at defendant's freight house on Front Street in East St. Louis, Illinois. There were other tracks designated by letters, such as A, B, D, E, etc. 'These tracks cross over and interlock so that trains can run back and forth from one track to another by means of switches.' The tracks 'run straight back' and 'this particular freight house at that end is way out to the end, to itself.' 'There are other freight houses around there in that radius', but they were blocks away. Defendant had its own tracks up to its own freight house and 'the other freight houses' tracks don't run there.' 'The New York Central was the only one that run into the freight house' where plaintiff was working. 'Where cars are moved about such as this group of cars was moved into the car upon which Pierce was working * * * the New York Central engine handles them.' The Terminal would not have handled a movement of that kind. A witness for plaintiff, after testifying that he was employed by the New York Central on April 30, 1951 and was working with plaintiff in the same car, on track 'C' testified: 'Well, they kicked in a couple of cars on us * * * naturally, the cars come down the lead and on C track and hit that car * * * and knocked it on down the platform. There was another car below them, the two coupled up and rolled on down the track.' (Italics ours.) With reference to the custom and practice on the part of the New York Central Railroad to warn of any intent to move a car that was being unloaded, the witness said: 'They usually come down and notify us to get the bridges out and get ready when they are going to shove any. * * * Our foreman usually notifies us.' No objection was raised to the use of the word 'they' in any of this testimony, which could be construed as a reference to defendant.

While there was no direct evidence that one of defendant's locomotive in charge of defendant's agents was responsible for the switching movement in question, there was evidence from which such an inference could be drawn and there was no evidence that the movement was not one for which defendant was responsible. Appellant relies upon the rule that, if the injury might have resulted from more than one cause for one of which the defendant is liable and for the other defendant is not liable, it is necessary for the plaintiff to prove the injury arose from a cause for which defendant is liable. Goransson v. Riter-Conley Mfg. Co., 186 Mo. 300, 85 S.W. 338, 340. Appellant says that, 'if there was negligent moving of cars or engines, it could have been by some other railroad in the area or some other agency' and the court and jury could not speculate that defendant was responsible. We think the facts and circumstances in evidence were such that an inference could properly be drawn that the switching movement in question was caused by defendant. Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125, 131; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 97; Winters v. Terminal R. Ass'n of St. Louis, Mo.Sup., 252 S.W.2d 380, 386.

Plaintiff was married to his present wife on May 6, 1946. He was injured on April 30, 1951 and, at the time of the trial, April 30, 1952, he testified that, as a result of injuries sustained, he sometimes suffers with dizziness and pains in his head; and that when the pain hits in his head, 'It seems nervousness, dizziness like' and his hands 'will be shaking like, and nervous.' After this testimony, defendant's counsel sought to question plaintiff as to whether he had ever been married before. Counsel insisted that he had the right to cross-examine plaintiff and to find out about his previous home environment because 'a great many things can cause nervousness ousness besides trauma.' Counsel offered to prove a prior marriage and he said he could after that inquire into plaintiff's home environment and marital life on the theory that such was vital in view of plaintiff's claim for damages for an alleged nervous condition and other disability. The trial court did not abuse its discretion in so limiting the cross-examination of plaintiff and refusing to permit the inquiry. While there was medical evidence that home environment could cause nervousness, there was no evidence that any home environment, as it existed during a marriage existing prior to May 6, 1946, could have produced any of the conditions of which plaintiff complained subsequent to April 30, 1951. The prior marriage was collateral and immaterial. Bush v. Kansas city Public Serv. Co., 350 Mo. 876, 169 S.W.2d 331, 333; Hancock v. Blackwell, 139 Mo. 440, 455, 41 S.W. 205; Dick & Bros. Quincy Brewery Co. v. Ellision, 287 Mo. 139, 229 S.W. 1059, 1063. Further, the extent to which cross-examination may be carried as to such matters is largely...