Sallee v. St. L.-S.F. Railway Co.
| Decision Date | 31 December 1928 |
| Docket Number | No. 27166.,27166. |
| Citation | 12 S.W.2d 476 |
| Parties | OLIVER LOUIS SALLEE v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Rosskopf, Judge.
AFFIRMED (upon condition).
E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.
(1) Instruction 1, given for plaintiff, is erroneous in that it authorized the jury, in determining the measure of plaintiff's damages, to consider all the facts and circumstances in evidence. Where, as in the instant case, there are facts and circumstances in evidence which would tend to prejudice the jury against the defendant and in favor of plaintiff, and there is an excessive verdict, such an instruction constitutes reversible error. May v. Railroad, 284 Mo. 508; Sacre v. Ry Co., 260 S.W. 86. (2) The court erred in overruling defendant's motion to discharge the jury because of the highly prejudicial statements and conduct of plaintiff's counsel in repeatedly asking the witness Corbett if he had not been injured the day before by this same brake staff. (a) There was no issue as to defendant's knowledge of the defective condition of the hand-brake, because, under the acts of Congress with reference to safety appliances, defendant was under an absolute duty to maintain secure and efficient hand-brakes. Sec. 8618, U.S. Comp. Stat. 1918; Minn. & St. L. Railroad Co. v. Gottschall, 244 U.S. 66; Delk v. Frisco, 220 U.S. 580. (b) The trial court having properly sustained objections to testimony that another employee of defendant was injured the day previous by this same brake staff, and having sustained defendant's motion to strike out this testimony, the action of plaintiff's counsel in thereafter repeatedly referring to such testimony in the presence of the jury was willful misconduct calculated to create, and, in fact, creating, in the minds of the jury great bias and prejudice against the defendant. Where plaintiff's counsel is guilty of highly prejudicial conduct and the verdict is excessive this court will reverse and remand the case. Neff v. City of Cameron, 213 Mo. 350; Chawkley v. Railway, 297 S.W. 29; Haynes v. Town of Trenton, 108 Mo. 123; Wojtylak v. Coal Co., 188 Mo. 260. (c) The fact that the verdict is excessive authorizes a reversal and remand of the case, even though there were no prejudicial conduct in the case. Le Brecht v. Railway, 237 S.W. 114; Jones v. Railroad, 228 S.W. 785. (3) The verdict is grossly excessive. Applegate v. Railroad, 252 Mo. 173; Foster v. Davis, 252 S.W. 437; Johnson v. Coal Co., 276 Mo. 42; Miller v. Schaff, 228 S.W. 491; Kinney v. Railway, 261 Mo. 97; Newcomb v. Railroad, 182 Mo. 687; Bryant v. Railway, 228 S.W. 476; Greenwell v. Railway, 224 S.W. 410; Markey v. Railroad, 185 Mo. 348; Lessenden v. Railway, 238 Mo. 247; Yost v. Railroad, 245 Mo. 219; Fitzsimmons v. Railroad, 294 Mo. 551; Thompson v. Smith, 253 S.W. 1029.
Abbott, Fauntleroy, Cullen & Edwards and Charles P. Noell for respondent.
(1) Under the conditions and circumstances existing in this record, the ruling of the trial court on a motion to discharge the jury was discretionary and the overruling of said motion was no abuse of discretion after the objectionable testimony and the objectionable statements had been stricken out. Boyer v. Mo. Pac. Ry. Co., 293 S.W. 386. (2) In a personal injury action, where there are no facts or circumstances which could be said to unduly excite sympathy, it is not error to instruct that the jury may consider in connection with all the facts and circumstances the character and extent of plaintiff's injury and whether it is permanent. Zini v. Term. Railroad Assn., 250 S.W. 47; Salmanz v. Railroad, 271 Mo. 395; Hearst v. C.B. & Q. Railroad, 280 Mo. 566. (3) So long as the principle of compensation is not violated, no limitation is placed by public policy or the law upon the amount and award of damages for personal injuries. Galveston Co. v. Hopkins, 202 S.W. 222; Meager v. Union E., L. & P. Co., 279 Mo. 605; Bond v. Railway Co., 288 S.W. 777; Varley v. Taxicab Co., 240 S.W. 218.
Plaintiff (respondent) brought this action against the defendant railroad corporation to recover damages for personal injuries suffered by him on March 8, 1924, while he was in the employ of defendant as a switchman in defendant's railroad yards in the city of St. Louis. The action is brought under the provisions of the Federal Employers' Liability Act and the Federal Safety Appliance Act. It is not disputed by defendant (appellant) that the action properly falls within the purview of those two acts of Congress, and hence it stands unquestioned that the action was well brought. Besides, the evidence herein shows that both plaintiff and defendant were engaged in interstate commerce at the time of plaintiff's injury, and that the railway car which injured plaintiff was in interstate transit.
The petition charges negligence on the part of defendant as follows: "The defendant hauled and permitted to be hauled and used on its line a car which did not comply with the aforementioned United States statute (Act of April 14, 1910, Chap. 160, Sec. 2), in that the hand-brake was so defective, insecure and inefficient that while plaintiff was on top of the car, which car was used in interstate commerce, and, while plaintiff was attempting to use the said hand brake, the said hand-brake broke, causing the plaintiff to fall from the top of the car, which was moving at the time, injuring plaintiff as hereinafter described" in said petition. The petition prays damages in the sum of $85,000. The answer is a general denial.
The evidence of plaintiff tends to show that, as a member of defendant's switching crew, he was engaged in making what is known in railroad parlance as a "running or flying switch" with an open coal car, numbered C.N.J. 81532. On commencing such switching operation, the car is coupled to the switching-engine, and immediately after the switching-engine has passed over the switch junction, the switch is thrown and the car is quickly uncoupled from the switching-engine, thus permitting the car to pass onto the cross-over switch and thence onto an adjacent track by reason of the momentum given to it at the commencement of the switching movement. It was the duty of plaintiff to board the car before the switching operation, and, after the operation had been completed, to bring the car to a stop by means of a hand brake on the west, or front, end of the car. It was shown in evidence that the car in question, numbered C.N.J. 81532, was loaded with machinery, and that the shipment of machinery originated in the State of Oklahoma and was consigned to an industrial plant on defendant's railroad line in the city of St. Louis. The car in question was delivered to defendant by a connecting carrier in the city of St. Louis on March 7, 1924, the day before plaintiff's injury, to be delivered by defendant at the plant of the consignee of the shipment, which was located on defendant's railroad line. There was evidence to the effect that the staff of the hand-brake on said car was bent, or out of alignment, on the day the car was delivered to defendant by the connecting carrier, and that the car was tagged with a "bad order tag," nailed on the side of the car near the hand-brake, on which card was written, "Brake staff bent." Plaintiff testified that he stepped upon the footboard of the switching-engine and caught hold of the handhold on the car, C.N.J. 81532, and pulled himself onto the end platform of the car, through which platform the staff of the hand-brake passed; that he stood near the middle of the platform, at the front, or west end, of the car, near the brake staff; that, when the car had passed about half way through the cross-over switch, he took up a little slack on the brake; that the brake staff "was a little bent, not very much;" that he put his weight on it, and as he did so the brake staff broke; that there was "a three-eighths-inch hole through the brake staff, and it broke off right at this hole;" that the car was then moving at a speed of about ten or fifteen miles an hour; and that the breaking of the brake staff caused plaintiff to fall off, and in front of, the car, and across the rail of the switch track, resulting in his left leg being run over and crushed by the wheels of the car, and in other injuries to be presently mentioned. There was also evidence that the brake staff broke in two just above the ratchet wheel, at a point where a three-eighths-inch cotter-key passed through the staff; that the upper or severed portion of the broken brake staff was found lying near the body of plaintiff and just outside the switch rail; that both surfaces of the break in the staff (that is, the portion remaining on the car and the severed portion of the staff) disclosed that "part of the break had rusted and the other part was fresh," indicating that there had been a partial crack or break in the staff prior to the day of plaintiff's injury. The foregoing is a sufficient statement of the evidentiary facts bearing upon the cause of plaintiff's fall and injury. Other evidence, bearing upon the nature and extent of plaintiff's injuries, will be mentioned and discussed in the course of our opinion. No evidence was offered on behalf of the defendant.
The submission of the cause to a jury resulted in a unanimous verdict for plaintiff and against the defendant railroad corporation, assessing plaintiff's damages in the sum of $40,000. Prior to the overruling of defendant's motion for a new trial, the trial court ordered plaintiff to file and enter a remittitur in the sum of $10,000 as of the date of the original verdict and the judgment thereon, and the remittitur being so filed and entered by plaintiff, defendant's motion for new trial was overruled and the original judgment was ordered to be vacated and set aside, and a new judgment was entered in favor of plaintiff...
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