Snyder v. Chicago, R. I. & P. R. Co.

• Decision Date: 03 March 1973
• Docket Number: No. KCD,KCD
• Citation: 521 S.W.2d 161
• Court: Missouri Court of Appeals
• Parties: William R. SNYDER, Jr., Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, a corporation, Respondent. 26245.

Page 161

521 S.W.2d 161

William R. SNYDER, Jr., Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, a

corporation, Respondent.

No. KCD 26245.

Missouri Court of Appeals, Kansas City District.

March 3, 1973.

Rehearing Denied March 31, 1975.

Gage, Tucker, Hodges, Kreamer, Kelly & Varner, by William L. Turner, Myron S. Silverman, Kansas City, Terry, Stewart & Negaard, by Jack C. Terry, Independence, Lehmberg, Bremyer, Wise, Jones & Hopp, by John K. Bremyer, McPherson, Kan., for appellant.

James & McCanse, David R. Odegard, J. Michael Joy, Kansas City, for respondent.

Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.

SHANGLER, Judge.

The plaintiff brought an action against his employer railroad company under the Federal Employers' Liability Act for heart damage alleged to have resulted from the failure of the employer to furnish him with a sage place to work, safe tools and sufficient help. The jury returned a verdict for the defendant and plaintiff appeals.

The plaintiff was a foreman in charge of a maintenance crew, a position which did not normally require him to do heavy lifting or strenuous physical work. The defendant had made improvement by the replacement of a stretch of track with heavier rail, so the plaintiff was directed by his supervisor to collect one such discarded rail and move it to another site. That particular rail was 39 feet long and weighed 1495 pounds. The normal complement of the crew assigned to plaintiff was eight men, but for numerous reasons only four men--ranged in age from 17 to 61 years--were working at the time of the event in question.

The plaintiff and his crew proceeded to the work-site where they found the rail in a ditch near an auxiliary track. The crew maneuvered the rail onto the middle of the track. Then, by means of a railroad tie at one end of the rail and jacket at the other, they raised the rail onto a push car (a four-wheeled vehicle with a surface length of some six and one-half feet) which stood about thirty inches above the surface of the track. After the support of the tie and jack were removed, the crew pushed the cart under the rail until it would move no further. At this point, the plaintiff and another of the crew positioned themselves at the extended end of the rail and pushed upward while three men pushed against the cart in such a manner as to induce the rail to tip over upon it. On the third effort, the crew succeeded. As the plaintiff was pushing up on the rail on this final effort, he felt a cutting pain in his lower chest, felt nauseated, had difficulty breathing and reeled as though drunk.

On this appeal, the plaintiff asserts numerous errors for reversal. The respondent contests these assertions but contends further that even if reversible error was committed, the judgment cannot be affected because the plaintiff failed to make a submissible case. The specific contention is that plaintiff failed to prove medical causation in that the opinions of his physicians, Doctors Pierson and Stoesz, the only testimony on that issue in the case, were framed on an hypothesis unsupported by the evidence. Both physicians found a causal relationship between the strenuous effort involved in lifting the rail and the cardiac injury. These opinions were given in response to hypotheticals which posed a state of facts which assumed that plaintiff and one co-worker exerted themselves against the weight of the rail by a lifting movement. The respondent argues that the hypotheticals misspeak the evidence of the plaintiff that the three other crewmen were thrusting forward on the push car while plaintiff was only easing their effort by pushing upward on the rail, so that all five men, and not plaintiff and co-worker alone, exerted themselves against the weight of the rail; and, whereas the questions assumed that plaintiff actually lifted the rail, his testimony was that he pushed the rail upward.

Hypothetical questions should be framed on the proof and must not assume facts not in evidence. Hamilton v. Slover, 440 S.W.2d 947, 955(9) (Mo.1969). A medical opinion of causation given in response to a hypothetical unsupported by or in contradiction of the evidence, is incompetent on the issue. Schears v. Missouri Pacific Railroad Company, 355 S.W.2d 314, 321(7, 8) (Mo. banc 1962).

It is, as respondent contends, that the medical opinions were based upon the amount of exertion by the plaintiff while loading the rail, but the hypotheticals posed did not misrepresent that effort. Each of the questions assumed that three men were pushing on the cart while plaintiff and another exerted pressure on the rail. The meaning is clear enough: all five men were engaged in a wedging effort to topple the rail onto the cart. As to the other contention, to condemn the medical opinions which found causation between lifting and the injury rather than from a pushing upward, the movement described by the plaintiff, would be--in the context of all the evidence--to succumb to semantical flummery.

The plaintiff submitted his cause of action by Instruction No. 6 (MAI 24.01):

Your verdict must be for the plaintiff if you believe:

First, defendant failed to provide reasonably adequate help, and

Second, defendant was thereby negligent, and

Third, such negligence directly resulted in whole or in part in injury to plaintiff, William Riley Snyder. (Emphasis supplied.)

The defendant conversed this submission by Instruction No. 7 (MAI 33.03(5), 33.04(4)):

Your verdict must be for defendant unless you believe that defendant was negligent and that plaintiff sustained damage as a direct result thereof. (Emphasis supplied.)

The plaintiff contends that Instruction No. 7, given by the defendant as a converse of the causation and damage elements of the verdict director, does not conform sufficiently to the language of that submission--in that the converse substitutes damage for injury and omits altogether the phrase in whole or in part--and for these reasons is prejudicially erroneous.

Our procedures allow a defendant the unqualified right to converse the verdict director of the plaintiff (Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373, 377(11-13) (banc 1935)) by one of the three methods shown by the MAI 33.01 general comment. The defendant adopted the second method which requires no independent evidence for support but merely converses propositions submitted in the verdict director. The risk of non-persuasion of these propositions remains on the plaintiff and for that reason the language of the converse must conform substantially to the language of the verdict director. MAI 33.01, Converse Instructions--General Comment; Plas-Chem Corporation v. Solmica, Inc., 434 S.W.2d 522, 528(7) (Mo.1968). A second method converse, faithful to the requirement of MAI 33.01 for substantial conformance to the proposition of the verdict director, would have submitted:

Your verdict must be for the defendant unless you believe that defendant was negligent, and that such negligence directly resulted in whole or in part in injury to plaintiff.

Instead, the converse (Instruction No. 7) actually submitted:

Your verdict must be for defendant unless you believe that defendant was negligent and that plaintiff sustained damage as a direct result thereof.

The defendant concedes these discrepancies, but contends that they do not misdirect the law and therefore are mere inadvertences without prejudice to the plaintiff. The requirements and directions of MAI are...