Talbert v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 11 February 1929
• Docket Number: 28946
• Citation: 15 S.W.2d 762,321 Mo. 1080
• Parties: Rollin E. Talbert, Administrator of Estate of Clyde Lillard, v. Chicago, Rock Island & Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

15 S.W.2d 762

321 Mo. 1080

Rollin E. Talbert, Administrator of Estate of Clyde Lillard, v. Chicago, Rock Island & Pacific Railway Company, Appellant

No. 28946

Supreme Court of Missouri

February 11, 1929

Motion for Rehearing Overruled March 27, 1929.

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Luther Burks, Henry S. Conrad, L. E. Durham, Hale Houts and Ilus M. Lee for appellant.

(1) The evidence was not sufficient to make a case for the jury under the Federal Employer's Liability Act. (a) Plaintiff was not entitled to recover unless he proved a safety appliance defect in respect to the coupler in question and that such defect was the cause of deceased going upon the track where he was injured. Without such proof, deceased's own act in going upon the track was in violation of the Safety Appliance Act and the sole proximate cause of his injuries. Talbert v. Railway, 314 Mo. 352; Gilbert v. Railway, 128 F. 529; C. & O. Railway v. Charleton, 247 F. 34; Charleton v. Railway, 267 F. 988; State ex rel v. Ellison, 271 Mo. 463; Nelson v. Railway, 246 U.S. 253; Great Northern Ry. v. Wiles, 240 U.S. 444; Flack v. Railroad, 285 Mo. 28; Railway v Rankin, 241 U.S. 321. (b) The evidence was not sufficient to take to the jury the question of alleged violation of Safety Appliance Act by defendant in respect to the coupler in question, or that any such safety appliance defect was the cause of deceased's going upon the track in front of the car. Talbert v. Railway, supra; Midland Railway v. Fulghan, 181 F. 94; St. L. & S. F. v. Mills, 271 U.S. 347; Weekley v. B. & O. Railroad, 4 F.2d 312; K. C. M. & O. Railway v. Wood, 262 S.W. 520; State ex rel. v. Cox, 298 Mo. 433; Yarnell v. Railway, 113 Mo. 580; Guthrie v. Holmes, 272 Mo. 252; Coony v. Railroad, 200 U.S. 488; Chicago M. & St. P. Railway v. Coogan, 271 U.S. 472; Frese v. Railroad, 290 Mo. 515. (2) The court erred in admitting the testimony of Mr. Talbert, Newcomb v. Railway, 169 Mo. 431. (3) The verdict was excessive on both counts of the petition. (a) The evidence of the pecuniary loss was not sufficient under Count One. N. O. & M. E. Railway v. Harris, 38 S.Ct. 535; McCord v. Schaff, 279 Mo. 558; Secs. 7547-7549, R. S. 1919; C. & E. I. Railroad v. Vester, 93 N.E. 1039. (b) The verdict of the jury, and the judgment after the remittitur was required by the court, are wholly unreasonable and excessive for conscious suffering of the deceased. St. L. & I. M. Railway v. Craft, 237 U.S. 648; Pullian v. Wheelock, 3 S.W.2d 377; Spencer v. Railroad, 297 S.W. 347; Hughly v. Lenox, 219 S.W. 326; Fries v. Railway, 198 N.W. 998; Mattise v. Mfg. Co., 16 So. 400; Wasicek v. Baking Co., 191 N.W. 503; Rogers v. Furniture Co., 211 N.W. 782.

Rosenberger, McVey & Freet for respondent.

(1) Proof of a defective coupler and unsafe roadbed establishes negligence as against the railway company under the Federal Employers' Liability and Safety Appliance Acts. C., B. & Q. Ry. Co. v. U.S., 220 U.S. 559; Railroad Co. v. Layton, 243 U.S. 617; Ry. Co. v. Brown, 229 U.S. 317; Ry. Co. v. Auchenbaugh, 16 F.2d 550; Railroad Co. v. Parker, 242 U.S. 56; Railroad Co. v. Wagner, 341 U.S. 476. The duty to comply with the Safety Appliance Act is absolute, and failure to comply renders the company liable to an employee injured by such failure. Cases above, and 39 C. J. 385; Ry. Co. v. Taylor, 210 U.S. 281. (2) As the evidence establishes the negligence of the defendant, the presumption exists that the deceased was in the exercise of due care. Heine v. Railroad, 144 Mo.App. 443; Johnson v. Ry. Co., 150 Mo.App. 304; Buesching v. Gas Light Co., 73 Mo. 219. (3) The question of proximate cause was for the jury upon the facts here in evidence. A. B. C. Co. v. Dixon, 22 Ariz. 163; Newton v. Ry. Co., 152 Mo.App. 167; Flynn v. Ry. Co., 78 Mo. 195; Parsons v. Ry. Co., 94 Mo. 286; Richter v. Ry. Co., 145 Mo.App. 14; Ry. Co. v. Thomas, 188 P. 268; Erie Ry. Co. v. Russell, 183 F. 722. (4) The negligence of the defendant was the proximate cause of Lillard's injury and death. (a) Eyewitnesses are unnecessary. Facts and circumstances surrounding the situation are sufficient, if they fairly suggest the defendant's negligence operated proximately to produce the hurt, and afford a reasonable inference to that effect. Johnston v. Railroad, 150 Mo.App. 304; Settle v. Ry. Co., 127 Mo. 336; Boggess v. Rys. Co., 207 Mo.App. 1; Ry. Co. v. Gottschell, 244 U.S. 66; Rase v. Ry. Co., 120 N.W. 360; Nevinger v. Hann, 197 Mo.App. 416; I. C. C. Co. v. Conwell, 190 P. 88; 45 C. J. 1267-a, and notes; Heine v. Railway, 144 Mo.App. 443. (b) The evidence establishes that the roadbed was defective and unsafe to the knowledge of the railway company. (c) The evidence establishes that Lillard went upon the unsafe roadbed for the purpose of aligning the coupler and opening the knuckle. (d) The evidence establishes that the coupling apparatus was defective and out of alignment, and that the coupler did not comply with the Safety Appliance Act. (e) The evidence establishes that Lillard's presence upon the track was by reason of the defective coupler; that Lillard saw that the coupler was out of alignment and would not couple, and the knuckle was closed; that the coupling apparatus was defective and out of order, and would not couple automatically on impact, and that it was necessary for Lillard to go between the rails to align the coupler and open the knuckle. (5) There was no error in the admission of the testimony of the witness Talbert as to the condition of the coupler two weeks after the accident. (a) The evidence establishes that the coupler was in the same condition at the time of the examination that it was at the time of the injuries to Lillard. (b) The probative value in any event was for the jury. Riley v. Independence, 258 Mo. 681. (6) The verdict under the first count of the amended petition was fair and reasonable. (a) Each case must be considered on its own facts. Duffy v. Rys. Co., 217 S.W. 887. (b) The equivalent in amount of the verdict on the first count, $ 4,096.80, as of 1914, under the rulings of this court, was only $ 1303.52. (c) The amount was reasonable. Hiller v. Kepler, 266 P. 73; Ry. Co. v. Collard, 185 S.W. 1108; Biondi v. Coal Co., 297 S.W. 173; Hurst v. Ry. Co., 280 Mo. 566; Rocca v. Light Co., 245 P. 473; Cotton Oil Co. v. Brookshire, 166 P. 410. (7) The sum of $ 10,000 allowed on the second count for conscious pain and suffering is fair and reasonable. (a) $ 10,000 in February, 1927, is the equivalent of $ 3180.81 in January, 1914. (b) The intent of the law is at all times to afford just compensation in value. Hurst v. Ry. Co., 280 Mo. 566. (c) Money today is cheap; money in 1914 was dear. A larger sum will now be required, when the purchasing power of money is small. The difference in value is at least forty per cent. 25 Monthly Labor Review, 637 (U.S.); Hurst v. Ry. Co., 280 Mo. 566; Duffy v. Rys. Co., 217 S.W. 887; Smith v. Ry., 213 S.W. 486; Hays v. Ry. Co., 183 Mo.App. 608. (d) Lapse of time between the injury and the verdict (in this case fourteen years) is to be taken into consideration by the jury in compensating the injured party for damages. 17 C. J. 821; Frazer v. Bigelow, 141 Mass. 126; Lincoln v. Claflin, 74 U.S. 139; Bernhard v. R. G. I. Co., 79 Conn. 388; Thompson v. Ry. Co., 58 N.Y. 524. (e) The very nature of the pain and suffering negatives the idea that a decision can be reached by the application of any standard of values. Suffering has no scale of prices. The Little Silver, 189 F. 986; Bigelow v. Railway Co., 48 Mo. 376; Schenkel v. Traction Co., 194 Pa. 182. (f) An appellate court will not interfere with the award of damages, unless the amount is so alarmingly unauthorized by the evidence as to shock the judicial sense of right and to compel a conviction that the verdict was the result of prejudice, bias and passion. Appellant offers no criticism of the trial, other than the amount of the verdict. Grott v. Shoe Co., 2 S.W.2d 790; Flach v. Ball, 240 S.W. 469.

White, C. J. All concur, except Frank, J., not sitting.

OPINION

WHITE

Clyde Lillard was killed on the eighth day of January, 1914, while in the service of the defendant company, through the negligence, it is alleged, of the defendant. The action is in two counts, the first for damages accruing to the mother of the deceased, and the second for damages on account of conscious suffering of Lillard after his injury and before his death. On a trial in February, 1927, in the Circuit Court of Jackson County, the plaintiff recovered judgment for $ 4096.80 on the first count, and for $ 18,000 on the second count. The trial court required the plaintiff to remit $ 8000 from the second count as a condition for overruling defendant's motion for rehearing, and the judgment stood on the first count at the sum mentioned, and at $ 10,000 on the second count. From that judgment the defendant appealed.

Clyde Lillard at the time of his injury was employed by the defendant as a brakeman on a local freight train, which was engaged in interstate commerce. On January 8th that train arrived at the station Walters in Oklahoma. At that point there are three tracks, designated as the main track, the house track, and the passing track, all running north and south. The passing track was on the west of the main track, and the house track was on the east of the main track and on the opposite side of the station. When they arrived at that point, the crew became engaged in switching cars, which were pulled from the house track onto the main track and then "kicked" down onto the passing track. A car called the ballast car was kicked in that manner down the passing track, to be coupled to cars which stood on that track. Lillard in the performance of his duty was...