Poe v. Illinois Cent. R. Co.

• Decision Date: 19 June 1934
• Docket Number: 32117
• Citation: 73 S.W.2d 779,335 Mo. 507
• Parties: Harold Poe v. Illinois Central Railroad Company, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 779

335 Mo. 507

Harold Poe v. Illinois Central Railroad Company, Appellant

No. 32117

Supreme Court of Missouri

June 19, 1934

Motion for Rehearing Overruied June 19, 1934.

Motion to Transfer to Court en Banc Overruled June 19, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Reversed and remanded.

Watts & Gentry for appellant; E. C. Craig and V W. Foster of counsel.

(1) The court erred in overruling the demurrer to the evidence at the close of all the evidence in the case, for the following reasons: (a) Because there is an utter failure of proof tending to show that the presence of the pile of gravel over which plaintiff says he fell was known to the defendant, or would, by the exercise of ordinary care on its part, have been known to the defendant before plaintiff was injured, if he was injured as he claims. Under the Federal Employers' Liability Act, on which this suit is based, as well as under the common-law rule, it is necessary, in order for a plaintiff to recover damages which he alleges were suffered by the master's negligence in failing to exercise ordinary care to furnish him a reasonably safe place in which to work, for the servant who is plaintiff in such an action to show either actual or constructive notice to the master of the defective condition of the premises, otherwise the master cannot be held guilty of negligence. Federal Employers' Liability Act, U.S. Code Ann., Title 45, Chap. 2, Sec. 51; Roebuck v. Railroad Co., 99 Kan. 544, 162 P. 1153; Hoyer v. Railroad Co., 255 F. 497; Penn Railroad Co. v. Glas, 239 F. 259; Seaboard Air Line v. Horton, 233 U.S. 501; Southern Ry. Co. v Gray, 241 U.S. 339; Railroad Co. v. Harris, 247 U.S. 371; Hicks v. Railroad Co., 40 S.W.2d 512; Williams v. Terminal Railroad Assn., 20 S.W.2d 584; Winslow v. Railroad Co., 192 S.W. 121; Goldie v. Werner, 151 Ill. 551; Howe v. Medaris, 183 Ill. 290; L. E. & W. Railroad v. Wilson, 189 Ill. 98; Pinkley v. Ry. Co., 234 Ill. 474. The attempt by the plaintiff to have his witness Sweet identify the pile of gravel over which plaintiff claims he fell as a pile of gravel which Sweet says he saw in defendant's yards nearly two days before plaintiff's accident was an utter failure. The only way the jury could determine that the pile of gravel which Sweet testified he saw was the one over which plaintiff says he fell was by guesswork. A jury may not guess, but must base a verdict upon substantial testimony, otherwise a judgment resting upon such a verdict must be reversed. This is particularly emphasized by the courts of the United States, by whose construction of the Federal Employers' Liability Act state courts are bound, even if that construction is contrary to the rules ordinarily applied by the state court in other negligence cases. Illinois Trust Co. v. Railroad Co., 5 S.W.2d 368; C. M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564; Gulf, M. & N. Railroad Co. v. Wells, 275 U.S. 455, 48 S.Ct. 152; Western A. Railroad Co. v. Hughes, 278 U.S. 496, 49 S.Ct. 232; C. & O. Ry. Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 443; C. & O. Ry. v. Chamberlain, 53 S.Ct. 591. (b) Because the evidence given by plaintiff as to the manner in which he claims to have been injured is quite contrary to physical facts: "Where the testimony of a witness is positively contradicted by physical facts, neither the court nor the jury can be permitted to credit it. . . . Judgments cannot and should not stand if they are entered upon testimony that cannot be true." Hickey v. Railroad Co., 8 F.2d 131; A. T. & S. F. Ry. Co. v. McNulty, 285 F. 101; Erie Railroad v. Hurlburt, 221 F. 910; Ry. Co. v. Cundieff, 171 F. 325; C. & N. Ry. Co. v. Andrews, 130 F. 71; Ry. Co. v. Pounds, 82 F. 217; Collier v. Ry. Co., 28 S.Ct. 571; United States v. McGill, 56 F.2d 524; Woolworth v. Davis, 41 F.2d 347; Larabee Flour Mills Co. v. Carignano, 49 F.2d 153; A. C. & F. Co. v. Kindermann, 216 F. 499; Waters-Pierce Oil Co. v. Van Elderen, 137 F. 557. (c) Because the plaintiff's own evidence as to how he fell and struck his knee and injured it, as well as his evidence to show that his present condition resulted from that fall, even if not absolutely contrary to physical facts, is so unsubstantial as not to afford any basis for a verdict by the jury and a judgment based on such a verdict. Slight evidence, or a mere scintilla, will not do. Gunning v. Cooley, 50 S.Ct. 231; Railroad Co. v. Wells, 275 U.S. 455, 48 S.Ct. 151; Hardy-Burlingham Mining Co. v. Baker, 10 F.2d 277; Randall v. Ry. Co., 109 U.S. 482; Copeland v. Hines, 269 F. 361; Sparf v. United States, 156 U.S. 100; Mt. Adams Co. v. Lowery, 74 F. 463; Minahan v. Ry. Co., 138 F. 37; Southern Ry. v. Walters, 284 U.S. 190. (d) Because it clearly appears that by the release which plaintiff admits he executed and delivered to the defendant on the first day of February, 1930, the plaintiff forever released and discharged the defendant from all claims of every kind and character growing out of his alleged injury on December 18, 1920, on account of which this suit was brought. Yerxa Andrews & Thurston, Inc., v. Viviano, 44 S.W.2d 98; Brennecke v. Ganahl Lbr. Co., 44 S.W.2d 627; Allgood v. Tarkio Elec. & Water Co., 6 S.W.2d 51; Higgins v. Am. Car Co., 22 S.W.2d 1043; Ry. Co. v. Belliwith, 83 F. 437; Book v. Anderson, 179 Mo.App. 631, 162 S.W. 641; Hall v. Ry. Co., 209 S.W. 582; Thompson v. Ry. Co., 27 S.W.2d 58; Woosley v. Wells, 281 S.W. 695; Mateer v. Ry. Co., 105 Mo. 320, 16 S.W. 839; Bank v. Hall, 129 Mo.App. 286, 108 S.W. 633; Whitney v. Johnson, 14 F.2d 24. The cases cited under (a), (b) and (c), with reference to the quantum of proof required and the unsubstantial evidence offered and its insufficiency under the Federal Rule, are equally applicable to plaintiff's evidence concerning the facts surrounding his execution of the release.

Louis E. Miller and Charles A. Lich for respondent.

(1) There was substantial evidence to the effect that the release which plaintiff signed was fraudulently procured by means of concealment and misrepresentation justifying the submission of this issue to the jury for determination. Rau v. Robertson, 260 S.W. 751; Ensler v. Ry. Co., 23 S.W.2d 1034; McMillan v. Israel, 30 S.W.2d 626; Brown v. Adams Transfer & Storage Co., 31 S.W.2d 117; Houghtaling v. Banfield, 8 S.W.2d 1023; Horstein v. Portland Cement Co., 18 S.W.2d 121. (a) There was substantial evidence to the effect that the presence of pile of gravel over which plaintiff fell was known to the defendant, or by the exercise of ordinary care on its part could have been known. Crookston Lumber Co. v. Boutin, 149 F. 680; Bergert v. Payne, 274 F. 784; Hardy Mining Co. v. Baker, 10 F.2d 279; Gunning v. Cooley, 281 U.S. 90. (b) Because the evidence as to the manner of plaintiff's fall is not contrary to physical facts. Kibble v. Railroad, 227 S.W. 42; Stubs v. American Press, 254 S.W. 105; State ex rel. v. Allen, 256 S.W. 1049; Middleton v. Power Co., 196 A. 263; Braun v. Wells, 267 S.W. 98. (c) Because there was substantial evidence of defendant's negligence and of the injuries received by plaintiff as a direct and proximate result thereof. See authorities cited under Point 1(a). (2) The court properly gave and read to the jury plaintiff's Instruction 1. Sec. 1062, R. S. 1929; Foster v. Railway Co., 183 Mo.App. 602.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Plaintiff was injured by stumbling and falling, as he claims, over a pile of gravel in defendant's switchyard at East St. Louis. He sued for damages alleging negligence on the part of defendant. He recovered judgment for $ 9150, from which defendant appealed. Both parties were engaged in interstate commerce and the action was properly brought under the Federal Employers' Liability Act. There are several specifications of negligence in plaintiff's petition but the case was submitted to the jury on only one viz., that defendant knew or in the exercise of ordinary care could and should have known of the presence of said pile of gravel, which was in plaintiff's pathway as he performed his work and of the presence of which he was ignorant, in time to have warned him thereof and negligently failed to do so. Defendant by its answer denied the alleged negligence and also pleaded in bar a settlement and release by plaintiff of any claim he may have had. By reply plaintiff assailed the validity of the release on the ground that his signature thereto was procured by the fraud and misrepresentation of defendant's claim agent, that he did not and could not read it and did not know it was a release. That issue was submitted to the jury. Defendant contends that the evidence was not sufficient to justify its submission, also that there was no evidence of negligence on defendant's part, for both of which reasons the court should have sustained its demurrer to the evidence and directed a verdict in its favor.

Plaintiff worked at night, his working hours being from seven P. M., to seven A. M. The accident occurred about four o'clock in the morning of December 18, 1928. Plaintiff was a car oiler his duties being to go along the side of a train when made up in the yard and put oil and packing, "dope" as he called it, for lubrication in the journal boxes at the ends of each set of car wheels. He carried a bucket containing materials and a light which he said did not give "any big light" but was sufficient to illuminate the journal box when directed upon it so that he could see to open and fill it. The yard was unlighted at the place where he was injured. There were fifteen or sixteen tracks in the yard, running north and south parallel to each other. On the occasion in question a train, No. 78, had been made up on track 5. Plaintiff was working on the...