Sanders v. Illinois Cent. R. Co.
| Decision Date | 13 September 1954 |
| Docket Number | No. 43605,43605 |
| Citation | 364 Mo. 1010,270 S.W.2d 731 |
| Parties | Dwight SANDERS, (Plalntiff) Respondent, v. ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation, (Defendant) Appellant. |
| Court | Missouri Supreme Court |
Watts & Gentry, St. Louis, for appellant, J. H. Wright, H. J. Deany, Chicago, Ill., of counsel.
Max C. Nelson, John C. Casey, St. Louis, for respondent, Roberts P. Elam, St. Louis, of counsel.
This is an action for damages for personal injuries sustained by plaintiff, Dwight Sanders, on July 18, 1951, when he was caused to be thrown from the top of a refrigerator car which was a part of a string of freight cars being moved at the time by a switching crew of defendant, Illinois Central Railroad Company, in the latter's yard at Centralia, Illinois.
Upon a trial to a jury in the Circuit Court of the City of St. Louis, a verdict of nine jurors was returned in favor of plaintiff, and against defendant, for the sum of $88,000.
In due time defendant filed its motion for judgment in accordance with its previous motion for a directed verdict, or, in the alternative, for a new trial upon the ground, among other things, that the verdict was excessive.
Upon consideration of the matter the court entered an order requiring a remititur of $18,000 as a condition to the overruling of the motion for a new trial. Plaintiff made the suggested remittitur, whereupon the court rendered a new judgment for plaintiff, and against defendant, for the sum of $70,000, and at the same time overruled defendant's motion for a new trial. Defendant thereupon gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
Plaintiff was an employee of the Southern Illinois Ice Company, which maintains a large icehouse in defendant's yard at Centralia from which it supplies ice for icing refrigerator cars as they pass through Centralia in fruit and vegetable trains to whatever their respective destinations may be.
Standing immediately between two switch tracks, the one for northbound and the other for southbound traffic, is a platform 950 feet in length, which permits 17 cars to be spotted alongside of it and iced simultaneously. The platform is about 14 1/2 feet in height, or roughly even with the top of a refrigerator car. From the icehouse there is an elevated runway extending out to the platform over which large blocks of ice are brought out to the platform by means of an endless chain mechanism, and then are moved along the platform to points adjacent to the bunkers at the respective ends of the refrigerator cars into which they are to be placed. Two men work together at icing a car, one standing out on top of the car at the bunker he is to fill, while the other remains on the platform and shoves the blocks of ice across a skidway to the man on the car, who breaks the blocks up into proper sizes with a large metal pick and forces them down into the bunker. Each block of ice weighs about 100 pounds when it is put into the bunker, and from 18 to 20 blocks are required for fully servicing a car.
On the day in question a train of 60 refrigerator cars loaded with perishable merchandise had entered the yard from the south and had been placed by the road crew upon the northbound track running alongside the icing platform. Defendant's icing clerk thereupon informed the ice company by telephone of the service to be required, which, in this case, was limited to supplying ice to but a single car which was attached to the extreme rear end of the train behind the caboose at a point near the south end of the icing platform.
After the cars had been placed on the track running alongside the icing platform, the road engine was uncopled and moved away by the regular crew, and any further movement of the cars or any part of them delegated to a switching crew with the aid of a switch engine.
Plaintiff was ordered out to the job by one Jolliff, the ice company's engineer, who accompanied him on the job and as a matter of fact went out upon the top of the car with him. However before going over upon the car plaintiff and Jolliff were first careful to ascertain that the engine had been disconnected, a precautionary measure they were required to observe under the rules and regulations of the company.
In filling his bunker plaintiff faced to the south, which meant that his back was turned to the head of the string of cars of which the one upon which he was employed was the last. He had completed his task of filling the bunker, and was leaning over in the process of fastening the lid or cover down upon it, when the car was suddenly moved forward, causing him to be precipitated to the ground below, where he sustained the very serious injuries for which he seeks to be compensated in this proceeding.
It was the usual practice for the icing clerk to give notice in advance that a car was coming in to be iced so that the ice company's employees could have the blocks of ice out on the platform and be ready to fill the bunkers as soon as the car arrived. However on this occasion, as has already appeared, there was no notice given until after the car had been spotted, which meant that the job was thereby prolonged by the additional time it took to bring plaintiff and his co-workers out to the car and to convey the ice to the proper location. Approximately 4 minutes were required for the actual work of filling the bunkers, and from 5 to 10 minutes to bring the men and ice out to the platform, with an added 2 or 3 minutes in this instance due to difficulty which was encountered by reason of having blocks of ice become caught in the conveyor. Meanwhile a switching crew had detached some 25 cars from the train and distributed them to various other switch tracks in the yard, leaving only 35 cars on the track running alongside the icing platform. Plaintiff was aware before he started in on the job that the 25 cars had been uncoupled and moved away, which, as a matter of fact, was something customarily done in such cases so as to avoid having the string of cars extend so far up the track as to block a road crossing some 750 feet north of the icing platform.
After the 25 cars had been uncoupled and moved to various other switch tracks in the yard, the switching crew returned to move out the remaining 35 cars which had been left standing alongside the icing platform. The switch engine was headed south with a single car in front of it, and coupled into the string of cars with such little force that the jar of the coupling could not have extended down to the car upon which plaintiff was working so as to have put him on notice of what was taking place. Instead it was the sudden movement forward when the slack was taken up that caused him to be thrown off the car to the ground below as the train started up at a speed of 3 or 4 miles an hour.
There was an abundance of evidence that cars which had been spotted for icing were not to be moved until the switching crew was informed that the icing job had been completed; and it was wholly undisputed that on this occasion there was no notice given of any kind or character that the string of cars was about to be moved. Prior to the coupling some members of the switching crew observed 2 or 3 men on the icing platform, but none of them saw plaintiff and Jolliff on top of the car, which was for the reason that they did not go down close enough to the car to be in a position to ascertain with certainty if there was any one still upon it. It was also shown that defendant had rules which provided, in effect, that cars upon or about which men might be working were not to be moved without first finding out whether men were so engaged, and without giving them notice before the engine was coupled to the cars.
In view of the evidence which was so largely in accord, there is no pretense by defendant that plaintiff did not have a submissible case of actionable negligence on its part in the respect pleaded and submitted, that is, in failing and omitting to give plaintiff a timely and adequate warning of the starting and movement of the train including the car upon which plaintiff was employed. Instead, so far as any question of negligence is concerned, defendant rests its whole complaint upon the single proposition that the court erred in giving plaintiff's principal instruction No. 1 for the alleged reason that such instruction, while purporting to cover the whole case and direct a verdict in plaintiff's favor, ignored the issue of contributory negligence which had been pleaded in the answer, and which, in defendant's view of the case, had been supported by substantial evidence.
While neither party makes any suggestion that the law of Illinois has either been invoked or must be applied, the question of the submission of the defense of contributory negligence, being a matter of procedure, would in any event be governed by the law of Missouri. Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Williams v. East St. Louis Ry. Co., Mo.App., 100 S.W.2d 51. Our own rule is, as defendant points out, that when the defendant pleads contributory negligence, and there is evidence to support it, an instruction for the plaintiff which purports to cover the whole case and direct a verdict is erroneous if it omits a requirement for a finding upon the issue of contributory negligence, unless the defendant cures the error by submitting the issue in an instruction of its own. Heigold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; Smith v. Gately Stores, Mo.App., 24 S.W.2d 200; Kaiser v. Jaccard, Mo.App., 52 S.W.2d 18.
In this case, as has already been pointed out, defendant did plead contributory negligence but asked no instruction upon it, as a consequence of which plaintiff's instruction No. 1 was necessarily erroneous for ignoring the issue of contributory negligence if there was substantial evidence to have warranted its submission. This is therefore...
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