Russell v. Missouri Pac. R. Co.
| Citation | 295 S.W. 102 |
| Decision Date | 11 April 1927 |
| Docket Number | No. 25449.,25449. |
| Parties | RUSSELL v. MISSOURI PAC. R. CO. |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Circuit Court; Franklin Miller, Judge.
Action by James M. Russell against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
James F. Green and M. U. Hayden, both of St. Louis, for appellant.
N. Murry Edwards and Charles E. Morrow, both of St. Louis, for respondent.
This is a personal injury case, in which the jury returned a $40,000 verdict. A remittitur of $25,000 was entered, and judgment rendered for $15,000. from which judgment defendant has appealed.
The petition alleged plaintiff's cause of action alternatively in two counts. The first count charged defendant with negligence at common law and under the statutes of Missouri governing fellow servants of railroad employees. The second count charged defendant with negligence under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). During the trial and before the case was submitted, plaintiff dismissed as to the first count and went to the jury on the second count of the petition. This count charged that plaintiff was an employee of defendant, and was engaged in interstate commerce at the time he was injured; that defendant negligently failed to furnish plaintiff a reasonably safe claw bar with which to do certain work therein alleged to have been required of him; that defendant negligently furnished plaintiff with a claw bar which was defective, dangerous, and not reasonably safe for said use; that defendant negligently ordered, directed, required and caused plaintiff to do said work with said defective, dangerous, and unsafe claw bar; that defendant and its servant Winstanley, who was holding the car door undergoing repair, let go his hold thereon and negligently caused, suffered, and permitted said car door to move while plaintiff was pulling a nail therefrom; and that defendant and its servant Winstanley negligently failed to hold said door and keep the same from moving while plaintiff was pulling said nail. Plaintiff's injuries are alleged to have been caused by said nail striking his right eye, whereby his right eyeball was cut, lacerated, and bruised, and the sight completely destroyed and the eyeball permanently disfigured. It was also alleged that the left eye thereby became infected and inflamed and the sight permanently weakened and Unpaired ; that because of said injuries he suffered great physical pain and would so suffer in the future; that his nervous system was permanently impaired; that he lost the earnings of his labor of $5 a day, and would lose said earnings in the future; and that his earning capacity has been permanently impaired.
Defendant filed a general demurrer to the petition, which was overruled. Defendant thereafter filed answer to said second count, admitting that it is a railroad corporation, and that at all the times mentioned in said petition, plaintiff was employed by defendant and engaged in interstate commerce. The answer also pleaded a general denial, the simple tool doctrine, and assumption of risk.
The reply was a general denial.
Plaintiff's evidence consisted of his own testimony, that of his wife, and that of two eye specialists, one of the latter being employed by the Missouri Pacific Hospital Association ; said testimony tending to support the allegations in the second count of plaintiff's petition. Defendant introduced no evidence except the testimony of its employee Winstanley, who was working with plaintiff at the time he was injured. At the close of plaintiff's case, and again at the close of the whole case, plaintiff interposed a demurrer to the evidence, which was overruled. The evidence will hereafter be more particularly noted in connection with the points urged by appellant.
The first assignment of error relates to the admission of testimony, but no alleged error of this character is pointed out or urged in the brief, and we shall treat this assignment as abandoned.
Appellant next assigns error in the action of the court overruling defendant's demurrer to the evidence at the close of plaintiff's case and again at the close of the whole case. The particular points urged in this connection are that the proof fails to show that the claw bar was not reasonably safe for respondent's use, or that its alleged defective condition was the proximate cause of respondent's injury. In pressing this claim, counsel for appellant ignore the alleged negligence of plaintiff's coemployee in letting go his hold upon the door, stating in their reply brief that plaintiff made no effort to prove this allegation of negligence. We do not so read the evidence. Plaintiff testified that he was told by Mr. Hoppes, the foreman whose duty it was to oversee the repairing of cars, to repair a certain car door. The track sloped considerably to the east, and the car laid out for repairs was blocked at the east end by a piece of railroad tie against the wheel. The door to be repaired was on the south side of this car, and stood about one-third or one-half open, banging on rollers at the top, but "swinging loose at the bottom, on account of the boards being decayed and rotten it would not hold in the guide." The particular repair undertaken was to place a new board on the bottom of the door,...
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