Tash v. St. Louis-S.F. Ry. Co., No. 31629.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Ferguson
• Citation: 76 S.W.2d 690
• Parties: LOUIS S. TASH v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Decision Date: 16 November 1934
• Docket Number: No. 31629.

76 S.W.2d 690 LOUIS S. TASH
v.
ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant. No. 31629. Supreme Court of Missouri. Division One, November 16, 1934.

[76 S.W.2d 691]

Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.

AFFIRMED (upon condition).

E.T. Miller and Mann, Mann & Miller for appellant.

(1) The demurrer to the evidence should have been sustained. (a) In passing on the demurrer to the evidence, the court is bound by the decisions of the Federal court, both as to the question of defendant's negligence and plaintiff's assumption of the risk. York v. Railroad Co., 62 S.W. (2d) 477; Hoch v. Railroad Co., 315 Mo. 1199, 287 S.W. 1047. (b) No actionable negligence was shown either with respect to the charge that there was a piece of coal lying on the ground over which plaintiff stumbled, or with respect to the charge of escaping steam. If the jury was warranted in finding that plaintiff stumbled over a piece of coal lying on the ground, which we deny, there was no evidence as to the length of time the coal had been in this place, or how it got there. To convict defendant of negligence because of the presence of coal the burden was on the plaintiff to prove not only that the coal was there but that the defendant knew, or by the exercise of ordinary care could have known, of the presence of the coal in time to have removed it and that it was under a duty to remove it because its presence in that place would, in the judgment of a man of ordinary prudence, probably result in injury to plaintiff. Chicago & N.W. Railroad Co. v. Payne, 8 Fed. (2d) 332; Chesapeake & O. Ry. Co. v. Burton, 50 Fed. (2d) 730; Hatton v. Railroad Co., 261 Fed. 669; Cole v. Savings & Loan Society, 124 Fed. 113; Haggard v. McGrew Coal Co., 200 S.W. 1074; Manche v. St. Louis B. & B. Co., 262 S.W. 1022; Wilson v. Railroad Co., 319 Mo. 308, 5 S.W. (2d) 22, certiorari denied 73 L. Ed. 543; Williams v. Railroad Co., 119 Mo. 316; Windlow v. Railroad Co., 192 S.W. 125; Eudy v. Federal L. Co., 220 S.W. 506; Rowden v. Daniels, 151 Mo. App. 24; Burns v. Railroad Co., 129 Mo. 55; Smith v. Union Elec. L. & P. Co., 148 Mo. App. 584; Glasscock v. Swafford Brothers D.G. Co., 106 Mo. App. 666. Negligence cannot be established by resorting to speculation, guesswork or conjecture, or by building inference upon inference. Sabol v. St. Louis C. Co., 313 Mo. 527, 282 S.W. 428; State ex rel. Macon v. Trimble, 12 S.W. (2d) 734; State ex rel. Mo. Pub. Utilities Co. v. Cox, 298 Mo. 433, 250 S.W. 552; Hamilton v. Railroad Co., 250 Mo. 714; Thompson v. Railroad Co., 274 S.W. 531; Layton v. Chinberg, 282 S.W. 436; Strother v. Railroad Co., 188 S.W. 1102; Weber v. Valier & Spies M. Co., 242 S.W. 989. The Supreme Court of the United States has consistently held that in cases arising under the Federal Employers' Liability Act the scintilla of evidence rule does not obtain and negligence may not be established by building inference upon inference, or by resorting to speculation. Chicago, M. & St. P. Railroad Co. v. Coogan, 271 U.S. 472, 70 L. Ed. 1045; Gulf, M. & N. Railroad Co. v. Wells, 275 U.S. 455, 72 L. Ed. 372; Western & A. Railroad Co. v. Hughes, 278 U.S. 496, 73 L. Ed. 473; Atchison, T. & S.F. Railroad Co. v. Toops, 281 U.S. 351, 74 L. Ed. 896. There was no evidence from which the jury could find defendant guilty of negligence in "causing and permitting steam and vapor to be ejected and escape" from the locomotive. Plaintiff's theory is that one of defendant's employees was upon engine 1510 and by opening the blow-off cock caused an unusual quantity of steam to escape from this engine as plaintiff was passing it. Plaintiff saw no one on this engine and there is no proof that one of defendant's employees was on it. All the proof is to the contrary. A causal connection must be shown between the alleged negligent act and the injury to plaintiff, and the injury must have been one reasonably to have been anticipated as the result of the negligent act. Johns-Manville, Inc., v. Pocker, 26 Fed. (2d) 204; Chicago & N.W. Railroad Co. v. Payne, 8 Fed. (2d) 332; American Brewing Assn. v. Talbot, 141 Mo. 683; Fuchs v. St. Louis, 167 Mo. 645; State ex rel. Lusk v. Ellison, 271 Mo. 473; Newhouse v. St. Louis B.B. & E. Co., 326 Mo. 1047, 33 S.W. (2d) 936; Wecker v. Grafeman, McI. I.C. Co., 31 S.W. (2d) 977; Chandler v. Kansas City M.G. Co., 174 Mo. 328. (c) Plaintiff assumed the risk as a matter of law. York v. Railroad Co., 62 S.W. (2d) 475; Hoch v. Railroad Co., 315 Mo. 1199, 287 S.W. 1047; Osborn v. Railroad Co., 1 S.W. (2d) 181; Martin v. Railroad Co., 30 S.W. (2d) 735; Delaware, L.W. Railroad Co. v. Koske, 279 U.S. 7, 73 L. Ed. 578; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 165, 72 L. Ed. 513; Jacobs v. Railroad Co., 241 U.S. 229, 60 L. Ed. 970. (2) An instruction which submits as a basis of recovery an act of negligence not supported by the evidence is error. Gandy v. Railroad Co., 44 S.W. (2d) 638; Kitchen v. Schlueter M. Co., 323 Mo. 1193. 20 S.W. (2d) 682; Talbert v. Railroad Co., 314 Mo. 358, 284 S.W. 503; Kuhlman v. Water, L. & T. Co., 307 Mo. 635, 271 S.W. 797; State ex rel. Central C. & C. Co. v. Ellison, 270 Mo. 652, 195 S.W. 723; State ex rel. Natl. N. Assn. v. Ellison, 176 S.W. 13; Degonia v. Railroad Co., 224 Mo. 588. (3) To justify a recovery for permanent injuries the evidence must warrant such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. Lebrecht v. Railroad Co., 237 S.W. 113; Keehn v. D.R.F. Realty & I. Co., 43 S.W. (2d) 421; Stahlberg v. Brandes, 299 S.W. 838; Bante v. Wells, 34 S.W. (2d) 981; Clark v. Railroad Co., 23 S.W. (2d) 179; Wilbur v. Railroad Co., 110 Mo. App. 698. (4) The verdict and judgment of $8,000 is grossly excessive. Clark v. Railroad Co., 23 S.W. (2d) 179. In the following cases, in each of which the injury was much greater and of a permanent nature, remittiturs were ordered reducing the judgment substantially below this verdict. Hudson v. Railroad Co., 246 S.W. 578; Wahmet v. Am. Radiator Co., 294 S.W. 1016; Hulse v. St. Joseph Ry. Co., 214 S.W. 155; Parks v. United Rys. Co., 235 S.W. 1069; Sullivan v. Railroad Co., 12 S.W. (2d) 741.

Atwood, Wickersham & Chilcott for respondent.

(1) There was ample evidence from which the jury could find that defendant was negligent in causing and permitting lumps of coal to be and remain on the passageway, thereby rendering plaintiff's working place not reasonably safe. Laughlin v. Ry. Co., 205 S.W. 3; Kelly v. Ry. Co., 141 Mo. App. 490; Strobel v. Gerst Brothers Mfg. Co., 148 Mo. App. 32; Vordermark v. Hill-Behan Lbr. Co., 12 S.W. (2d) 498; Hoffman v. Peerless White Lime Co., 296 S.W. 770; Smith v. So. Ill. & Mo. Bridge Co., 30 S.W. 1077; Koonse v. Standard Steel Works Co., 300 S.W. 533; Dixon v. Frazier-Davis Const. Co., 298 S.W. 827; Morgeneier v. Grafeman Dairy Co., 220 S.W. 1009; Milzark v. Natl. Biscuit Co., 259 S.W. 835; Bodenmueller v. Columbia Box Co., 237 S.W. 879; Hawkins v. Railroad Co., 189 Mo. App. 201; Brown v. Railroad Co., 227 Mo. 1069; Lock v. Railroad Co., 219 S.W. 919; Glidewell v. Railroad Co., 236 S.W. 677; Koerner v. St. Louis Car Co., 209 Mo. 141; Schuh v. American C. & F. Co., 241 S.W. 641; Bright v. St. L. Vitrified & Fire Brick Co., 201 S.W. 643; Brown v. Ry. Co., 286 S.W. 45; Kidd v. Ry. Co., 274 S.W. 1079; Webster v. International Shoe Co., 18 S.W. (2d) 133; Martin v. Ry. Co., 46 S.W. 149. (2) Plaintiff's Instruction 1 was proper. The charges of negligence as to lumps of coal and escaping steam were pleaded in the conjunctive; each of which was a proximate cause of plaintiff's fall. Plaintiff's Instruction 1 submitted these two charges in the conjunctive. "When the grounds of negligence are stated in the conjunctive and the jury is required to find negligence in the several respects, and one of the grounds of negligence is alone sufficient to warrant the verdict, it is not error merely because some other ground is without evidence to support it as plaintiff has merely been required to prove more than necessary." Troutman v. Oil Co., 224 S.W. 1014; Rigg v. Railroad Co., 212 S.W. 878; Chambers v. Hinds, 233 S.W. 949; Webster v. International Shoe Co., 18 S.W. (2d) 133; Pinnell v. Railroad Co., 263 S.W. 182; Degonia v. Railroad Co., 224 Mo. 564; O'Hara v. Laclede Gaslight Co., 244 Mo. 395; Guthrie v. Gillespie, 6 S.W. (2d) 886; Brainard v. Railroad Co., 5 S.W. (2d) 15; Bonnarens v. Railroad Co., 273 S.W. 1043. (3) Plaintiff did not assume the risk, as a matter of law, either as to the escaping steam or the coal on the passageway. Chicago, R.I. & P. Ry. Co. v. Ward, 64 L. Ed. 430; Gila Valley, G. & N. Railroad Co. v. Hall, 58 L. Ed. 521; Choctaw, O. & G. Railroad Co. v. McDade, 48 L. Ed. 96; Cross v. Railroad Co., 186 S.W. 1130. (4) The verdict was not excessive, but very modest in amount. Flach v. Ball, 240 S.W. 469.

FERGUSON, C.

Plaintiff was employed by the defendant railway company, at Monett, Missouri, as "an engine hostler." In the course of that employment he was injured and brought this action, under the Federal Employers' Liability Act, for damages, for the injuries sustained. A verdict for plaintiff was returned, and judgment entered thereon, assessing damages at the sum of $8000 and defendant has appealed. The applicability of the Federal Employers' Liability Act is not challenged.

Appellant's first contention is that its demurrer to the evidence should have been sustained and that the trial court erred in refusing to direct a verdict for defendant. This necessitates a resume of the evidence, especially that adduced by the plaintiff. It was the duty of the engine hostler to move the incoming locomotive engines from the yard to the roundhouse and the outgoing engines from the roundhouse to the yard and see that they were there properly serviced with water, sand and fuel and placed for the outgoing trains. Twenty-one roundhouse tracks...