Smiley v. St. Louis-San Francisco Ry. Co.

• Decision Date: 11 July 1949
• Docket Number: 40988
• Citation: 222 S.W.2d 481,359 Mo. 474
• Parties: Clifford J. Smiley, Respondent, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

222 S.W.2d 481

359 Mo. 474

Clifford J. Smiley, Respondent, v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

No. 40988

Supreme Court of Missouri

July 11, 1949

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed (subject to remittitur).

SYLLABUS

Plaintiff was injured while completing a coupling of two railroad cars which failed to couple upon impact. There was a submissible case under the Automatic Coupler Act. The verdict of $ 50,000 was excessive by $ 22,500.

M. G. Roberts, Frank C. Mann, C. Wallace Walter and Mann, Mann, Walter & Powell for appellant.

(1) Absent a mechanical defect in the pin or coupler and none was here established, a violation of the statute (45 U.S.C.A., Section 2) can be established only by evidence that in a movement of the car made for the purpose and with the intent to couple it automatically by impact with another car, and upon a fair trial, and with an earnest and honest effort to couple by impact it failed to couple automatically. Illinois State Trust Co. v. Mo. Pac. R. Co., 319 Mo. 608, 5 S.W.2d 368; Southern Ry. Co. v. Stewart, 119 F.2d 85, same case on certiorari, 315 U.S. 283, 86 L.Ed. 849; Chicago, M., St. P. and T.R. Co. v. Lineham, 66 F.2d 373; Martin v. St. Louis-S.F.R. Co., 323 Mo. 450, 19 S.W.2d 470; Rittenhouse v. St. Louis-S.F.R. Co., 299 Mo. 199, 252 S.W. 945. (2) The testimony establishes without contradiction that when the Pennsylvania coal car was placed on track 3, it was not a movement made for the purpose of coupling that car to the one east of it. It is likewise established that the movement of the three cars into track 3, which occasioned plaintiff's injury, was not one made for the purpose of coupling those cars to the west car then on track 3, or to effect a coupling between the Pennsylvania coal car and the one east of it. Plaintiff's injury was, therefore, not the result of the failure of the coupler to couple automatically by impact as a result of a movement made for that purpose. St. Louis-S.F.R. Co. v. Conarty, 238 U.S. 243, 59 L.Ed. 1290; Lang v. N.Y. Central R. Co., 255 U.S. 455, 65 L.Ed. 729; And cases cited under Point (1). (3) Plaintiff failed to establish, as he necessarily must, that prior to his examination of the pin and coupler there had previously been a movement of that car for the purpose of effecting a coupling and with sufficient force to cause it, if in good mechanical condition, to have coupled automatically by impact. This cannot be established by speculation, guess work or conjecture. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819; State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511. (4) Where the violation of the statute, if established, was not the cause but merely one of the conditions which brought about the situation resulting in the injury, the violation is not the proximate cause of the injury. Illinois State Trust Co. v. Mo. Pac. R. Co., 319 Mo. 608, 5 S.W.2d 368; Martin v. St. Louis-S.F.R. Co., 323 Mo. 450, 19 S.W.2d 470; Rittenhouse v. St. Louis-S.F.R. Co., 299 Mo. 199, 252 S.W. 945; St. Louis-S.F.R. Co. v. Conarty, 238 U.S. 243, 59 L.Ed. 1290; Lang v. New York Central R. Co., 255 U.S. 455, 65 L.Ed. 729. (5) The judgment of $ 50,000 is grossly excessive. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157; Aly v. Terminal R. Assn., 342 Mo. 1116, 119 S.W.2d 363; Mann v. St. Louis-S.F.R. Co., 72 S.W.2d 977; Cole v. St. Louis-S.F.R. Co., 332 Mo. 999, 61 S.W.2d 344; Reeves v. Thompson, 211 S.W.2d 23; Ford v. Louisville & N.R. Co., 355 Mo. 362, 196 S.W.2d 163; Willis v. Atchison, T. & S.F.R. Co., 352 Mo. 490, 178 S.W.2d 341.

Chas. P. Noell and Jo B. Gardner for respondent; J. H. Haley, Jr., of counsel.

(1) Plaintiff established a violation of the Safety Appliance Act and the jury under the testimony was authorized in its finding that such violation was the proximate cause of plaintiff's injury. Lavender v. Kurn, 337 U.S. 645; San Antonio & A.P.R. Co. v. Wagner, 241 U.S. 476, 60 L.Ed. 1110; Louisville & Nashville R. Co. v. Layton, 243 U.S. 617, 61 L.Ed. 931; McAllister v. St. Louis Merchant's Bridge Term. R. Co., 25 S.W.2d 791; Davis v. Wolfe, 263 U.S. 239, 68 L.Ed. 284, 45 U.S.C.A. 2, 51 et seq; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585. (2) The judgment should be affirmed notwithstanding appellant's allegation that it is excessive. This court is without jurisdiction to redetermine the factual issue of the amount of damages, and for this court to exercise such jurisdiction would deprive respondent of his right to trial by jury, and of a substantial right under the Federal Employers' Liability Act. Dimick v. Sheidt, 293 U.S. 474, 79 L.Ed. 603; Lavender v. Kurn, supra; Brady v. Southern R. Co., 320 U.S. 476, 88 L.Ed. 239; C. & O.R. Co. v. Kelly, 241 U.S. 485, 60 L.Ed. 1117; Sec. 22, Art. 1, Constitution of Missouri; Amendment XIV, Constitution of the United States, 45 U.S.C.A. 51 et seq. (3) If this court does have such jurisdiction, the question of excessiveness must be determined in accordance with Federal law and the verdict is not excessive under those decisions. Brady v. Southern R. Co., supra; C. & O.R. Co. v. Kelly, supra; Affolder v. N.Y., C., & St. Louis R. Co., 79 F.Supp. 365. (4) The rule of uniformity of maximum damages should be abandoned in cases under the Federal Employers' Liability Act. C. & O.R. Co. v. Kelly, supra; Cole v. Chi., St. Paul, Minneapolis & Omaha R. Co., 59 F.Supp. 443; Evans v. General Explosives Co., 293 Mo. 364, 239 S.W. 487; Avance v. Thompson, 320 Ill.App. 406, 51 N.E.2d 334; McKinney v. Pittsburg, L.E.R. Co., 57 F.Supp. 813; Stanfield v. Kurn, 111 F.2d 469; Southern R. Co. v. Montgomery, 46 F.2d 990; Searfoss v. Lehigh Valley R. Co., 76 F.2d 762. (5) The judgment is not excessive under the decisions of this court. Joyce v. M-K-T.R. Co., 354 Mo. 410, 189 S.W.2d 568.

OPINION

Conkling, J.

Clifford J. Smiley, plaintiff-respondent, a switchman, recovered a judgment of $ 50,000 for personal injuries against his employer, St. Louis-San Francisco Railway Company, appellant. This appeal presents two main questions, (1) was there shown a violation of the automatic coupler statute (45 U.S.C.A. § 2) which proximately caused plaintiff's injury, and (2) was this verdict excessive?

Plaintiff was one of defendant's switching crew operating in its yards in Springfield, Missouri, about 10:45 A.M., on September 21, 1946. The facts relied on and which the jury could and did reasonably find, stated most favorably to plaintiff, are as follows: Plaintiff, and other members of the George Kirkham switching crew, were moving freight cars between defendant's "old yard" and its "Kansas yard", about 2 miles west. This accident occurred in the old yard, which extended east and west and had 9 parallel switch tracks, all connected by lead tracks at the west and east limits of the yard. The west lead track ran southwest and northeast. Along the south edge of the old yard was track number 1, the west bound main line track. The switch tracks of the old yard numbered 2 to 10, north from track 1. The old yard was on a slight down grade to the west toward the west lead track.

At that time another switch crew, of which John Banks was foreman (hereinafter called the "Banks' crew") was also working on and off of the west lead of the old yard placing freight cars on various tracks, including track 3.

Foreman Kirkham and his crew were ordered by Yardmaster LaVelle to move certain cars from track 6 of the old yard over to the Kansas yard; to return certain cars from the Kansas yard to track 2 of the old yard; and then to shove the cars on track 3 of the old yard over to the Kansas yard. The yardmaster told them that "track number 3 is loaded", which meant that the cars on it were "ready to be moved out". Shortly before Kirkham's crew reached the old yard with the cars directed by LaVelle to be brought from the Kansas yard, Banks' crew had kicked some cars in on track 3. Seeing Kirkham's crew approaching, and in order not to interfere with Kirkham's operations, Banks had his engine and the cars it was switching moved in onto track 1 east of the west lead. Kirkham's crew pulled the cars they brought from the Kansas yard in on track 2. Most of those cars were then cut loose from Kirkham's engine and left on track 2. Plaintiff was on top of those cars. After setting the brakes on the three west cars left standing on track 2, plaintiff got down near the west lead, between tracks 2 and 3, and walked east to prepare the cars on track 3 to be shoved to the Kansas yard. Kirkham's engine was then working from the east lead track at the east end of the old yard setting some of the cars it had brought from the Kansas yard onto other tracks.

After Kirkham's crew had pulled in on track 2, Banks' crew pulled back off of track 1 and from the west lead resumed kicking the cars they were switching in onto the various tracks of the old yard. Banks' crew were merely kicking the various cars in their drag in onto the various tracks to classify or sort them. It was not the duty of Banks' crew to couple together the various cars kicked in on those tracks (including track 3) and no effort was made by them to couple those cars. Other employees testified it was plaintiff's duty, as field man, to couple the cars on track 3. George D Laker, a switchman in Banks' crew testified that the west end of the west car on track 3 was 400 to 500 feet east of the west lead; that when Pennsylvania coal car 863,205 was kicked into track 3 a box car, then coupled to the west end of that Pennsylvania coal car, was kicked in at the same time; that when those two cars were kicked in onto track 3 no effort was made to couple those cars...