Rodney v. St. Louis S. W. Ry. Co.

• Decision Date: 22 December 1894
• Citation: 28 S.W. 887,127 Mo. 676
• Parties: RODNEY v. ST. LOUIS S. W. RY. CO.
• Court: Missouri Supreme Court

28 S.W. 887

127 Mo. 676

RODNEY v. ST. LOUIS S. W. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 22, 1894.

MASTER AND SERVANT — DEFECTIVE APPLIANCE — INJURIES TO SWITCHMAN — NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE — EVIDENCE — INSTRUCTIONS — PHYSICAL PAIN — EXCESSIVE DAMAGES — REMITTITUR.

1. In an action against a railroad company by a switch foreman for injuries received while uncoupling cars, caused by a defective drawhead, it was not error to exclude an answer to a question to defendant's superintendent, as follows: "State if an expert switchman, while those cars passed backward and forward, coupling and uncoupling them, if a car was in that condition, would likely be noticed, — the condition of the drawhead," — especially in the absence of evidence that plaintiff ever coupled, or attempted to couple, the defective car.

2. Where, in such case, the defect, and defendant's knowledge of it, were admitted, and there was no evidence that the car was furnished to plaintiff by any other person than defendant, or in any other manner than cars had always been furnished to him by it, it was proper to charge that defendant was liable, in the absence of contributory negligence, if the defect was not obvious, and could not have been discovered by the exercise of reasonable care, and the car was not marked so as to convey to employés information of its unsafe condition.

3. Where a railroad company knew that a car was defective, and so marked it, and ordered it to be taken out of a train and put on the repair track, but its servants, in violation of such order, placed it in a train, without any danger mark on it, their negligence is that of the company, in respect to its duty to furnish safe appliances, and not the negligence of fellow servants of another employé, who is injured by such defects.

4. In an action for injuries the court told the jury that while the evidence might not prove any specific sum that plaintiff was damaged in, by reason of his physical pain and mental anguish, they might allow him what they believed to be just and fair to compensate him for such sufferings. Held not open to the objection that the charge did not prescribe a standard for the measurement of the damages for such sufferings, or confine the jury to the amount which they found from the evidence plaintiff ought to be allowed therefor.

5. A judgment for $12,500 in favor of a switchman 28 years old, earning $100 per month, whose arm was mashed and broken between the elbow and the shoulder, and amputated 13 days afterwards, resulting in erysipelas all over his body, lasting 8 or 10 days and causing intense agony and $200 expense, is excessive, but not so excessive as to induce the belief that it was the result of prejudice, and entitle defendant to a reversal as of right. Barclay, J., dissenting.

6. Under Rev. St. § 2304, which requires the supreme court to award a new trial, reverse or affirm the judgment of the trial court, "or give such judgment as such court ought to have given," where the damages are excessive, and the trial court fails to require plaintiff to remit the excess, the supreme court may require the remittitur as a condition of affirmance. Burdict v. Railway Co. (Mo. Sup.) 27 S. W. 453, followed.

Appeal from circuit court, Mississippi county; H. C. O'Bryan, Judge.

Action by R. B. Rodney against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Modified.

Sam. H. West and W. H. Miller, for appellant. Wilson & Moore and Wilson Cramer, for respondent.

BRACE, J.

This is an action for personal injuries sustained by the plaintiff while engaged as switch foreman in the service of the defendant, in its yards at Bird Point, in which plaintiff obtained a judgment for $12,500, and the defendant appeals. The gravamen of the plaintiff's cause of action, charged in the petition, is that on the 21st day of December, 1891, there was stored on the side tracks in said yards a certain car, loaded with cotton; that it was plaintiff's duty, in conjunction with others, managing the switch engine, to place said car into a train, for forwarding to its destination, and in so doing it was his duty to uncouple said car from others to which it was attached, and in order to perform this duty it became necessary that the engine should back up the train "and give him the slack," so that the coupling pin could be removed; that while engaged in the performance of such duty, after giving the signal to back up, the plaintiff stepped between the cars as the engine eased up the slack, and endeavored to draw the coupling pin with his left hand, when the drawhead of the car gave way, and was forced back under the car to which it belonged, thereby allowing the projecting timbers, known as the "deadwoods," on the ends of said cars, to come together, catching and fracturing the left arm of plaintiff, breaking, crushing, and mangling the arm between the shoulder and the elbow; that at the time said injury was inflicted upon the plaintiff said car was not in good condition, but was defective, in that it was not provided with the necessary and usual accompaniments of follow plates and springs, which hold the drawhead in place during a concussion, and prevent the same from being forced back under the car, and the deadwoods from coming together; that said defect was not known or apparent to the plaintiff, but was well known to the defendant, or ought to have been so known. The answer denies the allegations of the petition, except that it admits that the car was in bad order and dangerous condition, but avers that defendant had so discovered it to be on the 17th day of December, 1891, and had so marked said car as to convey an order to the next employé handling it that it was dangerous, and was to be handled with caution, but that either the plaintiff or some fellow servant of plaintiff had negligently disregarded said order or warning, and that in consequence of such negligence of plaintiff or his fellow servant said car had been placed in the train of cars where it was when the plaintiff received the injury; that plaintiff's injury resulted from this and other acts of contributory negligence by plaintiff.

The evidence will be noticed, so far as is necessary, in the course of the opinion. The court refused all the instructions asked for by the defendant, except the usual one upon the credibility of witnesses, and submitted the case to the jury under the following instructions: "(1) The court instructs you, gentlemen of the jury, that the law imposes upon the defendant the duty to provide reasonably safe cars for the purposes for which they are designed, and that when cars shall be disabled, unsafe, or dangerous, to give proper warning or notice of such unsafe or dangerous condition to such employés as may be charged with their handling, and that among other considerations for the imposition of this duty is the protection of their employés engaged in handling and operating them from unnecessary danger of injury or death, and that any failure upon the defendant's part to comply with this duty is negligence, as matter of law, on defendant's part, whether such want of compliance is with respect to cars owned by defendant or owned by other parties, if defendant shall have them on their road, to be handled and operated by their employés. (2) If you believe from the evidence that while plaintiff was in the defendant's employ, and in the discharge of duties imposed upon him by the defendant, by virtue of such employment, and without knowledge of any defect or unsafe condition of cars which he was handling, and while exercising caution and prudence in the discharge of said duty, had his arm crushed and broken by and between the deadwood of one car and the truss pin of another, occasioned by such truss pin and deadwood meeting, which resulted from a defective drawbar or drawhead, rendering the car unsafe; and if you further believe such defect was not obvious to one exercising the duties of switchman, and that said car was not marked in any way so as to convey to the employés of defendant the information that it was in unsafe condition, or to put them upon inquiry as to its true condition, — then you will find the issues for the plaintiff. (3) If, from the evidence, you believe that plaintiff could have avoided the accident or injury to himself by prudence, caution, or care, your verdict should be for the defendant. (4) If, from the evidence, you believe plaintiff, or a reasonably careful and prudent person circumstanced as plaintiff was, could have discovered the defective condition of the car coupling of the car by which he was hurt, by exercising prudence and care in discharging the duty imposed by his employment, then you will find the issues for the defendant, whether plaintiff knew of the condition of the car or not....