Stone v. New York, C. & St. L. R. Co., 42803

• Decision Date: 14 April 1952
• Docket Number: No. 42803,No. 1,42803,1
• Citation: 249 S.W.2d 442
• Court: Missouri Supreme Court
• Parties: STONE v. NEW YORK, C. & ST. L. R. CO

Page 442

249 S.W.2d 442

STONE v. NEW YORK, C. & ST. L. R. CO.

No. 42803.

Supreme Court of Missouri, Division No. 1.

April 14, 1952.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 13, 1952.

As Modified on Court's own Motion June 13, 1952.

Jones, Hocker, Gladney & Grand, Lon Hocker, St. Louis, for appellant.

Tyree C. Derrick, Karl E. Holderle, Jr., St. Louis, for respondent.

LOZIER, Commissioner.

This is a Federal Employers' Liability Act (herein called the Act) case. Secs. 51-60, 45 U.S.C.A. Plaintiff-respondent (herein called plaintiff) had a $60,000 verdict against defendant-appellant (herein called defendant). To avoid sustention of defendant's motion for new trial, plaintiff remitted $10,000. Defendant appeals from the ensuing $50,000 judgment.

Plaintiff's injuries resulted from a 'wrenched' back. They consisted of a herniated disc (later excised) and damage to two lower vertebrae, the causa equina and the right peroneal and sciatic nerves, and a 'dropped' right foot.

Defendant's first assignment is that the trial court erred in failing to sustain its motion for a directed verdict. As we have concluded that plaintiff did not make a submissible case under the Act, we need not rule the other matters briefed and argued here.

Before describing the circumstances under which plaintiff sustained his injury, we should state that the record does not contain evidence upon which to base any inferences either that defendant was negligent or that plaintiff's injuries resulted from defendant's alleged negligent acts or omissions. The general principles involved are also first stated.

Under the Act, the railroad is not an absolute insurer of its employees; the Act imposes liability only for injuries due to negligence. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. Negligence under the Act is determined by Federal decisional law. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. The employee must show that the railroad was negligent and that such negligence was the proximate cause, in whole or in part, of the injury. Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Atchison, T. & S. F. Ry. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896.

'Negligence cannot be based merely upon what is possible to occur. 'Negligence which imposes liability must result from a faulty or defective foresight. Negligence is predicated on what should have been anticipated, rather than what happened.'' Williams v. Terminal R. Ass'n of St. Louis, 339 Mo. 594, 98 S.W.2d 651, 655. The standard is 'what a reasonable and prudent person would have done under the same circumstances.' Wilkerson v. McCarthy, supra [336 U.S. 53, 69 S.Ct. 417]. 'Foreseeability' depends upon the danger to be avoided and consequences reasonably to be anticipated. Urie v. Thompson, supra.

Generally, determination of a defendant's negligence is for the jury. 'To the maximum extent proper, questions in actions arising under the Act should be left to the jury'. Tiller v. Atlantic Coast Line R. Co., supra [318 U.S. 54, 63 S.Ct. 451]. See Tatum v. Gulf, M. & O. R. Co., 359 Mo. 709, 223 S.W.2d 418. Negligence issues must be submitted if the 'evidence might justify a finding either way on those issues.' Wilkerson v. McCarthy, supra. 'Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.' Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 744, 90 L.Ed. 916. See Tatum v. Gulf, Mobile & O. R. Co., supra; Nance v. Atchison, T. & S. F. R. Co., 360 Mo. 980, 232 S.W.2d 547. And '* * * it is the trial judge's function to determine whether the evidence in its entirety would rationally support a verdict for the plaintiff, assuming that the jury took, as it would be entitled to take, a view of the evidence most favorable to the plaintiff.' Concurring opinion of Mr. Justice Frankfurter in Wilkerson v. McCarthy, supra. The appellate court neither weighs the evidence nor determines the credibility of the witnesses. Lavender v. Kurn, supra. 'The rule as to when a directed verdict is proper, heretofore referred to, is applicable to questions of proximate cause.' Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 236, 88 L.Ed. 239.

Plaintiff, aged 44 when injured, had been either a farmer or a common laborer all his life. He began working for defendant in November, 1948; was on the 'extra gang' for five or six months; was then transferred to the section crew. Slagle was the 'boss' and Stoughton was 'straw boss' or Slagle's assistant. Other members of the crew were Hopkins, Fish and Denny.

Plaintiff was injured on or about May 2, 1949, while working on defendant's Y track at Argus, Indiana. This Y is a connecting track between the Lake Erie (east-west) and the Nickel Plate (north-south) main lines. The crew was 'trimming,' which for a track under ballast (as was this Y), consists of: digging out around the end of the tie, under the tie and in the 'crib' on each side. The rails are jacked up to relieve the pressure on the tie; the spikes are pulled and the plates 'knocked off'; the tie is 'jerked' and sometimes the trench is deepened. The tie is pulled out, 'usually always with two men working together pulling' with tongs. 'It generally pulls right out if there is nothing wrong.' When the two cannot pull it out, the rails are jacked higher. According to plaintiff, 'sometime they raise the track about an inch, sometime they raise the track more.' If the two cannot pull the tie, efforts are made by the two pulling and a third man 'prying.' If that doesn't work, a fourth 'mauls' the other end of the tie while the two pull and the third 'prys.' If there is an old spike protruding downward from the tie, 'it usually takes three or four men' to pull the tie. 'It is awful hard' for two men, without someone prying and someone mauling, to pull such a tie.

Plaintiff and Fish were pulling ties with tie tongs. Plaintiff had often used tie tongs and a 'lot of times' he had pulled out ties by himself. Plaintiff came to a certain tie. 'I practically maybe took hold of the tongs and pulled it myself. I don't know for sure, anyway, I know Fish had to get on the tie with me, and we both couldn't pull it, and Stoughton was around somewhere, we asked him; we told him about the tie; it was hard to come out or something [and then, plaintiff later admitted, he asked for 'more jack' and Stoughton jacked up the rails higher]: so he [Stoughton] picks up a bar, walks over to the other end; 'maybe,' he says to me, 'you are not trying, you ain't pulling hard enough.' So he puts the tie, fixed a bar under the end of the tie, he got a 'prizen hold' over the rail and give us a lift. We give a pull and it wouldn't come, * * * the tie seemed loose but something seemed to be holding it * * * and he [Stoughton] said, 'you are not pulling, if you can't pull that tie I will get somebody on both tongs that can.' * * * Well, we both got back down and give a hard pull with him a prying and I hurt my back. * * * I just raised up and turned the tongs loose. I guess I was pretty mad. I said, 'I am never going to pull on a tie like that that hard again.' * * * I said, 'I am not pulling on no damned tie that hard any more.' * * * I didn't work any more on that tie. * * * I just walked up the track, I was kind of bent over, I had a pretty severe pain so I walked away and rubbed my back, got straightened up a little and directly back, I would say, ten or fifteen minutes, I came back on the job.' Plaintiff worked the rest of that day and continued to work with the crew regularly, outside of two days, until June 7, 1949.

The tongs were 'not defective, and didn't slip off or break.' Plaintiff did not fall down and nothing struck him--'it was just the force of the pull, the jerk.' Fish, who was pulling with him, 'wasn't laying down on the job.' Fish didn't give any 'unexplained' or 'unexpected' jerk. The jerk that plaintiff and Fish made 'was ordinarily enough to pull a tie [without a spike in it] out.'

While plaintiff was away, the tie was pulled by two men pulling, one 'prying' and one 'mauling.' It had a five or six-inch spike extending from its bottom. Plaintiff had never pulled on such a tie before, although he had seen them.

Fish had been a section hand for defendant for 28 or 30 months. He and plaintiff had 'pulled quite a few ties together' that day. Generally, one man alone was sufficient on the tongs, but 'we doubled up and the tie wouldn't come. We would jerk it, it might move an inch I would say at a time and Mr. Stone asked for more jack. * * * We had the rails off the tie, you have to have a jack under each rail.' The rails were probably 3/4 inch up off the tie. Stoughton gave the jacks another notch when plaintiff asked for it. 'We still couldn't pull it. * * * Mr. Stone asked for more jack and we couldn't give it any more, had it high enough then, and so we doubled up and Dick [Stoughton] came down with a bar and put it over the south rail and pried on the other end, and bumped it as we jerked and it still couldn't come. So Prock [plaintiff] and I gave it a big jerk, that is when he quit and said he hurt his back. * * * Dick [Stoughton] claimed he 'wasn't pulling hard enough and oh, they kinda' got into it back and forth. * * * Dick said he [plaintiff] wasn't pulling hard enough, if he couldn't pull to get to hell off of it and he would get somebody that would. * * * We gave it another pull. * * * I was pulling just as hard as he was and there was no jerk or jar that I noticed.'

Fish had had experience of that kind. 'It is nothing unusual to have a spike sticking through a tie. * * * It usually takes two or three men to try and get a tie like that out. * * * They most generally hook two men on them. * * *' Also, generally, the trench is dug deeper, 'kind of a V...