Tatum v. Gulf, Mobile & Ohio Railroad Co.

• Decision Date: 20 September 1949
• Docket Number: No. 41036.,41036.
• Court: Missouri Supreme Court
• Parties: JAMES R. TATUM, Plaintiff-Respondent, v. GULF, MOBILE & OHIO RAILROAD COMPANY, a Corporation, Defendant-Appellant.

223 S.W.2d 418

JAMES R. TATUM, Plaintiff-Respondent, v. GULF, MOBILE & OHIO RAILROAD COMPANY, a Corporation, Defendant-Appellant.

No. 41036.

Supreme Court of Missouri.

Division Two, September 20, 1949.

Motion for Rehearing or to Transfer to Banc Overruled, October 10, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. David J. Murphy, Judge.

AFFIRMED (subject to remittitur).

Wayne Ely, Robert C. Ely and Ernest D. Grinnell, Jr., for appellant; D.S. Wright of counsel.

(1) The court erred in overruling defendant's motion for a directed verdict. The evidence fails to show that defendant negligently or carelessly failed to provide plaintiff a reasonably safe place to work or failed to keep or maintain the trestle in a reasonably safe condition. Baltimore & Ohio R. Co. v. Berry, 286 U.S. 272, 76 L. Ed. 1098, reversing Berry v. B. & O.R. Co., 43 S.W. (2d) 782; Cawman v. Pennsylvania Reading Seashore Lines, 110 Fed. (2d) 832, certiorari denied, 85 L. Ed. 427; Bailey v. Central Vermont R. Co., 319 U.S. 350, 87 L. Ed. 1444; Patton v. Texas & Pac. R. Co., 179 U.S. 658, 45 L. Ed. 361; Missouri Pac. R. Co. v. Hathcock, 139 S.W. (2d) 35; Pauly v. McCarthy, 330 U.S. 802, 91 L. Ed. 1261, reversing 166 P. (2d) 501; Ellis v. Union Pacific, 329 U.S. 649, 91 L. Ed. 572; Davis v. Shirer, 288 F. 293; Kenny v. Boston & Maine R. Co., 92 N.H. 495, 33 Atl. (2d) 557; Bly v. Southern R. Co., 183 Va. 162, 31 S.E. (2d) 564, 32 S.E. (2d) 659, 172 A.L.R. 584; McGovern v. Northern Pac. Ry. Co., 132 F. (2d) 213; Satterlee v. St. Louis-S.F. Ry. Co., 82 S.W. (2d) 69. (2) The evidence shows that plaintiff's injuries resulted solely from his own negligence and carelessness in failing to properly appraise the situation with which he was faced. Baltimore & Ohio v. Berry, 286 U.S. 272, 76 L. Ed. 1098; Missouri Pacific Ry. v. Hathcock, 139 S.W. (2d) 39. (3) The case was pleaded, tried, and submitted under the Federal Employers' Liability Act and there can be no recovery if plaintiff's own negligence was the sole cause of his injury. Plaintiff's evidence shows that his own negligence was the sole cause of his injuries. Therefore, the court should have directed a verdict for defendant. 45 U.S.C.A., Sec. 51 et seq.; Wolfe v. Henwood, 162 Fed. (2d) 998; certiorari denied 92 L. Ed. 24; Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42, 58 L. Ed. 838; Davis v. Kennedy, 266 U.S. 147, 69 L. Ed. 212; Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 73 L. Ed. 601; Chicago, St. P.M. & O.R. Co. v. Arnold, 160 Fed. (2d) 1002. (4) Witness Feuchter was not qualified to testify that from the standpoint of practical railroading there was nothing to prevent extending the trestle, or putting catwalks or guardrails along the side of the trestle and that it would not interfere with the operation of the railroad, and his answers in this regard were speculative and invaded the province of the jury. Grace v. Union Electric Co., 200 S.W. (2d) 364; Bebout v. Kurn, 348 Mo. 501, 154 S.W. (2d) 120; Ambruster v. Levitt Realty & Inv. Co., 341 Mo. 364, 104 S.W. (2d) 74; Fuchs v. St. Louis, 167 Mo. 680, 67 S.W. 610; Sullivan v. Union Electric L. & P. Co., 331 Mo. 1065, 56 S.W. (2d) 97; Clark v. Prue, 151 S.W. (2d) 487; Pioneer Lumber Co. v. Van Cleave, 279 S.W. 241; 32 C.J.S., secs. 456, 457, 445, 446. (5) There was no pleading to cover witness Feuchter's testimony that there was no artificial illumination, such as floodlights on the west side of the trestle, and that the lantern was "more like a match." Atchison v. Chicago, R.I. & P. Ry. Co., 80 Mo. 213; Fuchs v. St. Louis, 167 Mo. 680, 67 S.W. 610; Garven v. Chicago, R.I. & P. Ry. Co., 75 S.W. 193. (6) Defendant's offer to prove the custom regarding the construction of trestles in "open country" was probative evidence on the issue of negligence, and refusal of defendant's offer to prove this custom was prejudicial error. Cassin v. Lusk, 277 Mo. 663, 210 S.W. 902; Satterlee v. St. Louis-S.F. Ry Co., 336 Mo. 943, 82 S.W. (2d) 69. (7) Instruction 1 permitted the jury to find that the trestle was dangerous and unsafe and not a reasonably safe place in which to work if they found that it was dark. There was no pleading of failure to illuminate the trestle. This instruction told the jury that a greater duty rested on defendant than the law imposes. Hogan v. Kansas City Pub. Serv. Co., 322 Mo. 1103, 65 A.L.R. 129, 19 S.W. (2d) 707; Isaacs v. Smith, 275 S.W. 555. (8) The court erred in refusing Instruction B. The instruction was designed to withdraw plaintiff's charges that defendant negligently caused and permitted the train to be stopped so that the caboose was on the trestle and that defendant negligently failed to stop the train so that the caboose would not be on the trestle. The stopping of a train so that the caboose is on a trestle does not constitute negligence. Berry v. Baltimore & Ohio, 43 S.W. (2d) 782; Cawman v. Pennsylvania-Reading Seashore Lines, 110 F. (2d) 832, certiorari denied 85 L. Ed. 427. (9) The court erred in refusing Instruction C. The purpose of Instruction C was to present affirmatively to the jury the defense that plaintiff could have safely alighted from the east side of the caboose and that his negligence in alighting from the west side of the caboose was the sole cause of his injuries. Defendant was entitled to have its theory of the case presented affirmatively to the jury. State ex rel. and to the use of Dunklin County v. McKay, 325 Mo. 1075, 30 S.W. (2d) 83; Wilson v. Thompson, 345 Mo. 319, 133 S.W. (2d) 331; Gower v. Trumbo, 181 S.W. (2d) 653; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W. (2d) 461; Baltimore & Ohio v. Berry, 286 U.S. 272, 76 L. Ed. 1098. (10) The court erred in refusing Instruction D. The instruction would have informed the jury that plaintiff did not complain that defendant failed to furnish him with an adequate lantern and that they could not return a verdict for plaintiff on such ground. After the erroneous admission of testimony in regard to the adequacy of the lantern this instruction would have been proper. Gutzweiler's Admr. v. Lackmann, 39 Mo. 91. (11) The verdict was so excessive as to indicate that it resulted from prejudice. A verdict which results from prejudice, or disregard of the evidence, or both, cannot be cured by remittitur, and will not be permitted to stand. Chitty v. St. Louis, I.M. & S. Ry. Co., 188 Mo. 64, 49 S.W. 868; Bente v. Finley, 83 S.W. (2d) 155; English v. Thrower, 146 S.W. (2d) 667. (12) The medical evidence is not sufficient to sustain a verdict of $50,000. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W. (2d) 157; Span v. Jackson, Walker Coal & Mining Co., 322 Mo. 158, 16 S.W. (2d) 190; Mickel v. Thompson, 348 Mo. 991, 156 S.W. (2d) 721; Mauck v. Atchison, T. & S.F. Ry. Co., 154 S.W. (2d) 73; West v. Kurn, 148 S.W. (2d) 752.

Mark D. Eagleton and Wm. H. Allen for respondent.

(1) The question whether the defendant railroad company negligently violated the duty which it owed plaintiff to exercise ordinary care to furnish him a reasonably safe place to work was clearly one for the jury. Pauly v. McCarthy, 330 U.S. 802, 91 L. Ed. 1261, 67 S. Ct. 962, reversing, on certiorari, Pauly v. McCarthy, 166 Pac. (2d) 501; Cawman v. Pennsylvania-Reading Seashore Lines, 110 F. (2d) 832, certiorari denied, 311 U.S. 666, 85 L. Ed. 427, 61 S. Ct. 24; Bailey v. Central Vermont R. Co., 319 U.S. 350, 63 S. Ct. 1062, 87 L. Ed. 1444; Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S. Ct. 598, 91 L. Ed. 572; Lavender v. Kurn, 327 U.S. 645, 66 S. Ct. 740, 90 L. Ed. 916; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 87 L. Ed. 610, 63 S. Ct. 444, 143 A.L.R. 967; Bly v. Southern R. Co., 183 Va. 162, 172 A.L.R. 584, 31 S.E. (2d) 564, 32 S.E. (2d) 659. (2) The rights which the Employers' Liability Act creates are federal rights protected by federal rather than local rules of law. Whether in this case plaintiff made a case for the jury is consequently one to be determined by the law as found in the decisions of the federal courts. Bailey v. Central Vermont R. Co., 319 U.S. 350, 87 L. Ed. 1444, 63 S. Ct. 1062; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 87 L. Ed. 610, 63 S. Ct. 444. (3) The common law duty of an employer to exercise reasonable care to furnish his employees a safe place to work is deeply engrained in the Federal Jurisprudence. It is a duty which becomes more imperative as the risk increases. Reasonable care becomes then a demand of highest supremacy. That is the rule that obtains under the Federal Employers' Liability Act. Bailey v. Central Vermont R. Co., 319 U.S. 350, 87 L. Ed. 1444, 63 S. Ct. 1062; Ellis v. Union Pac. R. Co., 329 U.S. 629, 91 L. Ed. 572, 67 S. Ct. 598; Northwestern P.R. Co. v. Fiedler, 52 F. (2d) 400. (4) That duty on the part of a carrier is a continuing one, from which it is not relieved by the fact that the employee's work at the place in question is fleeting or infrequent. Bailey v. Central Vermont R. Co., 319 U.S. 350, 87 L. Ed. 1444, 63 S. Ct. 1062; Ellis v. Union Pac. R. Co., 329 U.S. 629, 91 L. Ed. 572, 67 S. Ct. 598. (5) Appellant's contention that plaintiff was negligent and that his negligence constituted the sole cause of his injury is plainly without merit. Plaintiff was obviously not guilty of negligence as a matter of law. And since the evidence fully warranted the jury in finding that plaintiff's injuries resulted "in whole or in part" from the negligent failure of defendant to furnish him a reasonably safe place to work, under the Employers' Liability Act negligence, if any, on his part could not defeat a recovery. Title 45, U.S.C.A., Sec. 51, Act of April 22, 1908, c. 149, as amended August 11, 1939, c. 685; Title 45, U.S.C.A., Sec. 53; Rocco v. Lehigh Valley R. Co., 288 U.S. 275; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610; Godsby v. Thompson, 352 Mo. 681, 179 S.W. (2d) 44. (6) There was no error in admitting the testimony of Feuchter, as an expert, to the...