Spencer v. Quincy, Omaha & Kansas City Railroad Company

• Citation: 297 S.W. 353,317 Mo. 492
• Decision Date: 25 June 1927
• Docket Number: 25999
• Parties: Emmett Spencer v. Quincy, Omaha & Kansas City Railroad Company, Appellant
• Court: Missouri Supreme Court

297 S.W. 353

317 Mo. 492

Emmett Spencer v. Quincy, Omaha & Kansas City Railroad Company, Appellant

No. 25999

Supreme Court of Missouri

June 25, 1927

Motion for Rehearing Overruled July 30, 1927.

Appeal from Livingston Circuit Court; Hon. Arch B. Davis Judge.

Affirmed (on condition).

J G. Trimble, S. L. Sheetz and H. J. Nelson for appellant.

(1) Defendant's demurrer to plaintiff's case should have been sustained, and the peremptory instruction to find for defendant, offered at the close of all the evidence, should also have been given, for the following reasons: (a) There was an entire failure of proof and no case made for submission to the jury, because there was no evidence of negligence on the part of the defendant. (b) The petition alleged an insufficient number of men was furnished to do the work, but no one testified four men could not safely do the work. Plaintiff merely testified he did not think four men could carry the piling, but the piling were not being carried when being handled by the lancing method. (c) Plaintiff failed to show the condition of the ground over which the men were moving the piling had any connection whatever with plaintiff's injury, so that the only allegation of negligence remaining as the basis for plaintiff's attempt to make a case was that the lancing method was not reasonably safe. There was no proof that method was not reasonably safe. Plaintiff merely proved other methods have been used on other railroads, and were more economical and faster. (d) Defendant had a right to select its own method of doing the work, and was not bound to follow the method used on some other railroad. Proof of a different method used on other railroads twenty-five to thirty years before, or that other methods were safer, did not constitute competent proof that the lancing method used on defendant's railroad was not reasonably safe, and there was no evidence tending to prove that method was not reasonably safe. 18 R. C. L. 588; Chrismer v. Bell Tel. Co., 194 Mo. 189, 209, 6 L. R A. (N. S.) 492, note; Coin v. Lounge Co., 222 Mo. 488, 506; Steinhauser v. Spraul, 127 Mo. 562. (e) Even if it be held that plaintiff introduced some proof in support of the allegation that lancing was not a reasonably safe method, yet there was no proof plaintiff's injury resulted from any necessarily dangerous element mentioned by any witness, hence the dangers referred to in the lancing method were not the proximate causes of plaintiff's injury, and created no basis for submitting to the jury the question of whether lancing was a reasonably safe method of doing the work. Manifestly, the injury to plaintiff was not the result of the method used to handle the piles, but was the result of the careless way in which the method was applied to a particular pile at a particular stage of the operation. To make a case, the master must be guilty of the negligence charged, and said negligence must have been the proximate cause of the injury. Proof of a danger which did not cause the injury is irrelevant. Harris v. Decker, 190 S.W. 969. (f) If it be assumed that in using the lancing method there was danger of a man being injured in the way plaintiff was injured, yet the danger was obvious to plaintiff when he assumed the position he occupied between the "ways" at the time of the injury. There was no hidden or unknown danger. It was a simple process, and at all times obvious that a way not already weighted down with other piling would be moved forward with the piling if the men handling the lug hooks failed to raise the pile high enough to clear the way. Plaintiff himself had placed in position the way which struck his foot, and did nothing to prevent the way from moving. This case was brought under the Federal Employers' Liability Act, and plaintiff must be deemed to have assumed the risk of being injured in the way in which he was injured. Seaboard Air Line v. Horton, 233 U.S. 492; Pryor v. Williams, 254 U.S. 43; Steinhauser v. Spraul, 127 Mo. 562. (2) The court erred in permitting plaintiff's witnesses to testify to other methods in use on other railroads for doing the same kind of work, because said evidence was irrelevant, and did not tend to prove any issue in the case. (3) Plaintiff's given instruction numbered 3 is in conflict with Instruction D-5 given on behalf of defendant which told the jury there was no evidence that defendant was negligent in not furnishing more men to handle the piles. (4) Plaintiff's given instructions numbered 5, 5a and 7 are each beyond the scope of the pleadings in the case and were improperly included among the instructions. Plaintiff founded his right to recover upon charges of negligence. There was no plea of contributory negligence. Instructions on contributory negligence and accident could only mislead and confuse. Lamar v. Salt Co., 242 S.W. 691; Bethurkas v. Railway, 249 S.W. 439; Beard v. Railroad, 272 Mo. 156; Turnbow v. Dunham, 272 Mo. 65; Felver v. Railroad, 216 Mo. 209; Nehring v. Monroe, 191 S.W. 1055; Head v. Lumber Co., 281 S.W. 441; Yawitz v. Novak, 286 S.W. 67. (5) Plaintiff's given instruction numbered 11 is erroneous. (a) Plaintiff's expert witnesses testified the method of doing the work was reasonably safe. This instruction told the jury they might disregard that testimony, thus depriving defendant of this beneficial testimony introduced by plaintiff and by which he was bound. Kansas City v. Morris, 276 Mo. 167. (b) There was much testimony of doctors as to facts they found on physical examinations and X-ray pictures. This testimony was founded on the fact that examinations of plaintiff were made and the pictures were pictures of the plaintiff's leg. Under this instruction the jury were told this evidence did not "even tend to prove" anything whatever and was not entitled to be "given any weight" whatever. This instruction took away from the jury all evidence concerning what the doctors found by their physical examinations and what the pictures showed regarding injury or non-injury to the bony structures. It was highly prejudicial to defendant. Kansas City v. Morris, 276 Mo. 167. (6) The verdict is so excessive as to plainly show it was the result of sympathy, passion and prejudice and should be set aside. Henry v. Railroad, 282 S.W. 424. A mere remittitur will not cure the error. Kelly v. Box Co., 248 S.W. 590; Divine v. Wells, 300 Mo. 117; Dietrich v. Brewery, 286 S.W. 44; Chambers v. Kennedy, 274 S.W. 729; Allen v. Autenrieth, 280 S.W. 81. The instruction on measure of damages did not authorize any allowance of damages for loss of earnings in the future. The amount of the verdict indicates the jury must have allowed damages therefor.

Davis & Ashby and Hubbell Bros. for respondent.

(1) The lancing method of moving piles, is not a reasonably safe method. Foster v. Ry. Co., 115 Mo. 165; Fogus v Ry. Co., 50 Mo.App. 250. (a) Plaintiff was injured by defendant's said negligent method of doing the work. (b) The negligent method of doing the work was the proximate cause of the injury. (c) Negligence of the master concurred with the negligence of a fellow-servant to produce the injury. Kreigh v. Westinghouse Co., 53 L.Ed. 988, 214 U.S. 249; Beck v. Co., 210 Mo.App. 351, 239 S.W. 166; Appelgate v. Railroad Co., 252 Mo. 173, 198. (d) Plaintiff need not show that defendant could have anticipated the very injury which occurred. Buckner v. Horse & Mule Co., 221 Mo. 700; Kidd v. Ry. Co., 274 S.W. 1090; Walter v. Portland Cement Co., 250 S.W. 587. (e) The negligent method of doing the work was the proximate cause of the injury where a "square" should have been used instead of a measuring board. Simick v. Bridge & Iron Co., 232 S.W. 243. (f) The plaintiff is entitled to recover where the men were loading timber by hand, whereas skids and other appliances should have been furnished and used to load timber onto the car. Olson v. Carlson, 132 P. 722, 74 Wash. 39; Luff v. Foundry Co., 204 S.W. 597. (g) Assumption of risk is fully discussed in the following authorities: Voorhees v. Railroad Co., 14 F.2d 901; Allen v. Ross, 290 S.W. 122; Davis v. Crane, 12 F.2d 357; Gila Valley, G. & N. R. Co. v. Hall, 232 U.S. 94, 58 L.Ed. 521; Kidd v. Ry. Co., 274 S.W. 1090; Adams v. Railroad Co., 287 Mo. 535, 553; Director General of Railroads v. Templin, 286 F. 485, 254 U.S. 655; Hall v. Ry. Co., 279 S.W. 152, 46 S.Ct. 483; Ross v. May, 140 N. E. (Ind.) 581. (2) The reasonably proper method of doing the work is the correct test of reasonable care. The evidence of plaintiff's expert bridge builders is competent. Tex. & Pac. Railroad Co. v. Behymer, 47 L.Ed. 906, 189 U.S. 465; Midland Valley Railroad Co. v. Bell, 242 F. 803; LeHigh Valley Railroad Co. v. Normile, 254 F. 680; Kreigh v. Westinghouse Co., 53 L.Ed. 984, 214 U.S. 249; Wells-Stone Merc. Co. v. Truax, 44 W.Va. 531; Fairfield v. Bicher, 195 Mo App. 51; Enloe v. Car & Foundry Co., 240 Mo. 443; O'Dowd v. Railroad, 166 Mo.App. 670; Trans. Line v. Hope, 24 L.Ed. 478, 95 U.S. 297. (3) The fact, that plaintiff's instructions placed additional burdens on the plaintiff, and gave the defendant the benefit of issues not sustained by its pleadings or evidence, does not give the defendant any ground of complaint in this court. Wolfe v. Payne, 294 Mo. 170, 68 L.Ed. 28; Turnbow v. Rys. Co., 277 Mo. 644; Walter v. Portland Cement Co., 250 S.W. 588; Block v. U.S. Fid. & Guar. Co., 290 S.W. 439; McIntyre v. Ry. Co., 286 Mo. 234, 227 S.W. 1047; Kidd v. Ry. Co., 310 Mo. 40. (4) Plaintiff's instruction numbered 11 is correct. Smith v. Telephone Co., 113 Mo.App. 443; Buckalew v. Railroad, 107 Mo.App. 588; Kansas City v. Morris, 276 Mo. 158. (5) Any excess in the verdict should be cured by a remittitur. Hammond v. Railroad Co., 15 F.2d 67; Stahl v. Ry. Co., 287 S.W. 634, 46 A. L. R. 1300,...