Russell v. Missouri Pacific Railroad Company

• Decision Date: 11 April 1927
• Docket Number: 25449
• Parties: James M. Russell v. Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

295 S.W. 102

316 Mo. 1303

James M. Russell v. Missouri Pacific Railroad Company, Appellant

No. 25449

Supreme Court of Missouri

April 11, 1927

Motion for Rehearing Overruled May 24, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. Franklin Miller, Judge.

Affirmed.

James F. Green and M. U. Hayden for appellant.

(1) The burden rested upon respondent to establish by the greater weight of the evidence, not only the alleged defective condition of the claw bar, and that in such condition it was not reasonably safe for the use which respondent was making of it at the time of his injury, but also a causal connection between said condition and his injury. The proof in this case wholly fails to show either 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. It is not established either by the evidence, or by reasonable inference deducible therefrom that this accident could have been prevented and would not have occurred in precisely the same manner if, at the time respondent had been using a V-shaped claw bar in perfect condition. Lowe v. Railroad Co., 265 Mo. 587; Zasemowich v. Am. Mfg. Co., 213 S.W. 799; Patrum v. Railroad Co., 259 Mo. 109; Trigg v. Lumber Co., 187 Mo. 227; Chrismer v. Telephone Co., 194 Mo. 189; Brands v. Car Co., 213 Mo. 698; Coin v. Lounge Co., 222 Mo. 488; Warner v Railway Co., 178 Mo. 125; Strother v. Railroad Co., 188 S.W. 1102; Cadwell v. Stove Co., 238 S.W. 415; Forbes v. Dunnavant, 198 Mo. 193; Mathis v. Stock Yards Co., 185 Mo. 434; Trainer v. Mining Co., 243 Mo. 359; C. & N.W. Railway Co. v. Bower, 241 U.S. 470. (2) At the time of this accident appellant was engaged in interstate commerce and respondent was employed in such commerce. The case was tried under, and is governed by the provisions of, the Federal Employers' Liability Act. Therefore, the questions whether appellant was negligent as charged, and whether respondent assumed the risk of injury under the facts established by the evidence, are to be determined by the law as declared by the Supreme Court of the United States. C. & N.W. Railway Co. v. Bower, 241 U.S. 470; Second Employers' Liability Cases, 223 U.S. 1; Railroad v. Vreeland, 227 U.S. 59; Railway Co. v. Horton, 233 U.S. 492; Pryor v. Williams, 254 U.S.43; Lopez v. Hines, 254 S.W. 37; McIntyre v. Railway Co., 286 Mo. 234. (3) Respondent assumed the risk of whatever injury, if any, was reasonably likely to occur as the result of using the claw bar in the condition in which he says it was at the time of the accident. He was experienced in its use, and thoroughly familiar with its construction and with its condition at the time and with such danger as might reasonably ensue from using it in that condition. His complaint to Hoppes establishes those facts. His complaint to Hoppes did not refer to, or have in contemplation, the danger of such an accident as the one in which he was injured, nor was such an accident within the contemplation of Hoppes when the latter promised to provide respondent with a new claw bar. The complaint and promise were not sufficient to suspend the operation of the rule of assumed risk. Pryor v. Williams, 254 U.S. 43; Railway Co. v. Horton, 233 U.S. 492; Jacobs v. Railway Co., 241 U.S. 229; C. & N.W. Railway Co. v. Bower, 241 U.S. 470. (4) The trial court erred in not sustaining appellant's motion for a new trial upon the ground that the verdict was so excessive as to indicate bias, passion and prejudice on the part of the jury toward appellant. Hallenbeck v. Railway Co., 141 Mo. 97; Greenwell v. Railway Co., 224 S.W. 404; Markey v. Railroad, 185 Mo. 348; Johnson v. Coal Co., 205 S.W. 615; Adams v. Railroad, 229 S.W. 790; Burtch v. Railway Co., 236 S.W. 338; Hurst v. Railroad, 219 S.W. 566; Fitzsimmons v. Railroad Co., 242 S.W. 915; Varley v. Taxicab Co., 240 S.W. 228; Merb v. Terminal Railway Co., 252 S.W. 370.

N. Murry Edwards and Charles E. Morrow for respondent.

(1) The defendant's general demurrer to the evidence was properly refused. (a) The defendant was guilty of actionable negligence in furnishing plaintiff and requiring him to use a claw bar which was defective and not reasonably safe for use. Williams v. Pryor, 272 Mo. 613; State ex rel. v. Reynolds, 200 S.W. 58. (b) The defendant is liable for the negligence of plaintiff's fellow-servant Winstanley in negligently letting go his hold on the door while plaintiff was pulling the nail. Sec. 1, Employers Liability Act, 35, sec. 65 (Comp. St. 1916, sec. 8657). (c) There was substantial evidence to support the two specifications of negligence above. The defendant requested a general demurrer to the evidence and did not request instructions withdrawing either of said specifications of negligence and thereafter requested two instructions which were given, submitting them both to the jury, which authorized a verdict for plaintiff if the facts hypothesized therein were found and defendant is estopped to assert that there was not sufficient evidence to support the same. Torrence v. Pryor, 210 S.W. 430; State ex rel v. Allen, 272 S.W. 925; Davidson v. Heinz, 246 S.W. 295; Crum v. Crum, 231 Mo. 626; Berkson v. Railway Co., 144 Mo. 211; Water Co. v. City of Neosho, 136 Mo. 498. (2) The plaintiff did not assume as a matter of law the dangers which caused his injury. (a) He had been promised a new and good claw bar and relied upon the promise, and during the time reasonably required for its performance or until the particular time specified for its performance, the plaintiff relying upon the promise does not assume the risk, unless the danger was so imminent that no ordinarily prudent man would rely upon such promises. Seaboard Airline Ry. Co. v. Horton, 233 U.S. 492. Plaintiff's foreman was his immediate superior and the proper person to whom to make complaint and his promise to remedy the condition relieves plaintiff of any assumption of risk. Carnahan v. Railroad, 102 Neb. 76. (b) The plaintiff only assumed the ordinary risks and dangers of his employment which were obvious and known to him or by the exercise of ordinary care could have been known to him. The negligence of Winstanley in letting go his hold upon the door was not a danger obvious to the plaintiff and was not and could not have been known to him before he was injured. Chesapeake Railroad Co. v. DeAtley, 241 U.S. 310; Louisville & N. Railroad Co. v. Stewart, 241 U.S. 261; Boldt v. Railroad Co., 245 U.S. 441; Pope v. Terminal Railroad, 254 S.W. 43; Preston v. Railroad, 239 S.W. 1080; Martin v. Railroad, 253 S.W. 513; Morato v. Railroad Co., 87 Ore. 219; Louisville & N. Railroad Co. v. Mullins, 181 Ky. 148; Sanlomassimo v. Railroad, 105 A. 14; Hudson v. Railroad, 176 N.C. 488; Costoni v. Railroad, 78 N.H. 348; Louisville & N. Railroad Co. v. Wright, 80 So. 93; Central R. Co. v. Sharkey, 259 F. 144; San Pedro, Railroad Co. v. Brown, 258 F. 806; Illinois Central Railroad Co. v. Stewart, 223 F. 30; Chicago Railroad Co. v. Ward, 173 P. 212; Illinois Central Railroad Co. v. Norris, 245 F. 926; Willever v. Railroad, 89 N. J. L. 697; Reul v. Railroad, 166 Wis. 128; Southern Ry. Co. v. Fisher, 74 So. 580.

Atwood, J. All concur, except Gantt, J., not sitting.

OPINION

ATWOOD

This is a personal injury case in which the jury returned a forty thousand dollar verdict. A remittitur of twenty-five thousand dollars was entered, and judgment rendered for fifteen thousand dollars 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 Employer's Liability Act. 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 eye ball was cut, lacerated and bruised, and the sight completely destroyed and the eye ball permanently disfigured. It was also alleged that the left eye thereby became infected and inflamed and the sight permanently weakened and impaired; 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 five dollars 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...