Truesdale v. Wheelock

• Citation: 74 S.W.2d 585,335 Mo. 924
• Decision Date: 18 September 1934
• Docket Number: 31549
• Parties: Jennie May Truesdale, Administratrix of the Estate of William May, v. William Wheelock and William G. Bierd, Receivers of the Chicago & Alton Railroad Company, a Corporation, Appellants
• Court: Missouri Supreme Court

74 S.W.2d 585

335 Mo. 924

Jennie May Truesdale, Administratrix of the Estate of William May, v. William Wheelock and William G. Bierd, Receivers of the Chicago & Alton Railroad Company, a Corporation, Appellants

No. 31549

Supreme Court of Missouri

September 18, 1934

Rehearing Overruled July 17, 1934.

Motion to Transfer to Banc Overruled September 18, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Fred J Hoffmeister, Judge; Opinion filed at May Term, 1934 June 12, 1934; motion for rehearing filed; motion overruled July 17, 1934; motion to transfer to Court en Banc filed motion overruled at September Term, September 18, 1934.

Affirmed (upon condition).

Jones, Hocker, Sullivan, Gladney & Reeder and Wm. O. Reeder for appellants; Silas H. Strawn of counsel.

(1) The violation of the Safety Appliance Act must be the proximate cause of the injury. 2 Roberts Fed. Liabilities of Carriers, p. 1714; Peters v. Wabash Ry. Co., 42 S.W.2d 588; Davis v. Hand, 290 F. 73; Lang v. Railroad Co., 255 U.S. 455; Illinois State Trust Co. v. Railroad Co., 319 Mo. 608; McCalmont v. Railroad Co., 283 F. 736; Martin v. Ry. Co., 323 Mo. 450; Southern Ry. Co. v. Youngblood, 286 U.S. 313, 76 L.Ed. 1124; Kane v. Ry. Co., 251 Mo. 13; Bacon v. Payne, 190 N.W. 716; L. & N. Railroad v. Napier, 3 S.W.2d 1070. (2) Plaintiff has the burden of showing "causal connection" between defect complained of and injury. New York Cent. Railroad v. Ambrose, 280 U.S. 490; Watson v. Ry. Co., 136 S.E. 921; Penn. Railroad v. Chamberlain, 77 L.Ed. 503; Sparkman v. Railroad Co., 191 Mo.App. 463. (3) Where the "causal connection" is to be arrived at by speculation or conjecture, the case should not be submitted to the jury; or if submitted, the verdict should be set aside. Where the evidence is no more than evenly balanced, plaintiff fails to make a case. Inferences cannot prevail over proven facts. 2 Roberts Fed. Liab. of Carriers, p. 1717; New York Cent. Railroad v. Ambrose, 280 U.S. 490; Atchison, T. & S. F. Ry. v. Toops, 281 U.S. 355; Chicago, M. & St. P. Ry. v. Coogan, 271 U.S. 472; Lynch v. Ry. Co., 58 F.2d 177; Burnett v. Railroad Co., 33 F.2d 580; Penn. Railroad v. Chamberlain, 77 L.Ed. 503; Hamilton v. Ry. Co., 318 Mo. 123; Southern Ry. Co. v. Walters, 284 U.S. 190. (4) May had reached a place of safety on the west side after cars had been uncoupled. His act in returning between the moving cars in violation of company rule was the sole and proximate cause of his death. Davis v. Kennedy, 266 U.S. 147; Sou. Ry. v. Hylton, 37 F.2d 847; Frese v. Railroad Co., 263 U.S. 1; Sou. Ry. v. Youngblood, 286 U.S. 313. (5) Plaintiff's Instruction 1 was unwarranted and prejudicial to defendants because not based upon any evidence. (6) Defendants' Instruction P should have been given, because the evidence conclusively showed that May was familiar with the rule and violated it. (7) The verdict and judgment is excessive. Kidd v. Ry. Co., 310 Mo. 1; Brown v. Ry. Co., 315 Mo. 409; Burtch v. Wabash Ry., 236 S.W. 338. (8) In determining whether damages are excessive the court will take judicial notice of the buying power of the dollar, resulting from changes in the economic situation. Hurst v. Ry. Co., 219 S.W. 566; Roach v. Rys. Co., 228 S.W. 520; Duffy v. Rys. Co., 217 S.W. 883; Smith v. Ry. Co., 279 Mo. 191.

N. Murry Edwards and Robert A. Harris for respondent.

(1) Defendants' foreman ordered plaintiff's intestate, William May, to go between the ends of the cars because the coupler, coupling lever and pin were defective and could not be operated from the side of the cars. May was crushed and killed between the couplers while trying to make the same operate. The defective coupler was therefore the proximate cause of the injury and death. The court did not therefore err in submitting the case to the jury under the Safety Appliance Act. Lorton v. Ry. Co., 267 S.W. 390; Penn. Ry. Co. v. Jones, 300 F. 525; Minn. St. P. & S. M. Ry. Co. v. Goneau, 269 U.S. 406, 46 S.Ct. 129; Carter v. Railroad Co., 271 S.W. 358, 307 Mo. 395; Donegan v. Ry. Co., 165 F. 869; McAllister v. Ry. Co., 25 S.W.2d 791; Foster v. Davis, 252 S.W. 433. (2) Plaintiff's witnesses testified that they saw the deceased William May in between the ends of the cars trying to operate the defective coupler, pin and lever, where he had gone because he could not operate the same from the side of the car. It was, therefore, not error for the court to submit this question to the jury in plaintiff's Instruction 1, which told the jury that they must find, among other things, in order to find for plaintiff, that May was in between the ends of said cars adjusting, making operative and attempting to adjust and make operative said pin lift, coupling pin, coupling lever and coupler on said string of cars. Lorton v. Ry. Co., 267 S.W. 392. (3) The court did not err in refusing defendants' Instruction P which sought to submit to the jury the deceased May's contributory negligence in violating the company rule of going between moving cars. This instruction was properly refused because the case was submitted to the jury solely under the Safety Appliance Act. Roberts Fed. Liab. of Carriers (2 Ed.), p. 1688, sec. 866; McAllister v. St. Louis Merchants Bridge Terminal Co., 25 S.W.2d 797; Callicotte v. Ry. Co., 204 S.W. 529; St. L. S.W. Ry. Co. v. Hosey, 247 S.W. 328. (4) The evidence showed that William May, the deceased, was thirty-three years old and had an expectancy of thirty-three years, and left surviving him a wife thirty-two years of age and six minor children ranging from two to fourteen years of age, five of whom were in school. May earned $ 200 a month and contributed $ 175 to $ 185 per month to the support of his wife and children and he had an earning expectancy of $ 80,000. A verdict of $ 35,000 was not excessive. Moran v. Ry. Co., 48 S.W.2d 881; Case v. Ry. Co., 30 S.W.2d 1073; Mo. Pac. Railroad Co. v. Bushey, 20 S.W.2d 614; Clay v. Ry. Co., 104 Minn. 185, 115 N.W. 949; Gulf, C. & S. F. Ry. Co. v. Moser, 277 S.W. 722; Looney v. Railroad Co., 48 L. R. 806, 135 S.E. 262; Brickman v. Railroad Co., 74 S.C. 306, 54 S.E. 553. (a) Where a verdict is near the amount which should be returned it is discretionary with the jury and the appellate courts will not interfere. Grott v. Shoe Co., 2 S.W.2d 785; Flach v. Ball, 240 S.W. 469; Evans v. General Explosive Co., 293 Mo. 364.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an action under the Federal Safety Appliance Act (U.S.C. A., Title 45, secs. 1-16 and 51-59) brought by the administratrix of the estate of William May, deceased, for damages for his death while employed by defendants as a switchman. It was submitted solely upon a violation of Section 2 of the act with reference to couplers. Plaintiff had a verdict for $ 35,000. Defendants appealed from the judgment entered thereon.

May was killed while engaged in a switching operation at Wood River, Illinois. The yard there was used by both the Chicago & Alton and the Big Four. There was a lead track north and south through the yard. From this lead track, there were switch tracks, called classification tracks, numbered from 1 to 8 beginning at the north, upon which cars were placed for making up trains. The tracks ran gradually downgrade toward the south. The yard office was on the east side of the lead track. May was a member of a Chicago & Alton switching crew which in the movement, in progress when he was killed, was attempting to switch a car onto track No. 7. The switch engine, coupled to six cars, was backing south on the lead track. There was a Big Four switch engine, coupled to a string of 20 to 25 cars on track No. 4, waiting to back out onto the lead and go out of the yard when the Chicago & Alton cleared the lead. The Chicago & Alton crew consisted of Plumb, engineer, Smith, fireman, Garvey, foreman, May and O'Neill, switchmen. O'Neill went to track No. 7, to throw the switch. It was a dark night and he did not see what took place. Neither did Smith, who was on the left side of the engine.

Only the end car, a tank car referred to as the S. T. C. X. car was to be switched onto track No. 7. The second car from the south end was also a tank car, R. P. X. 517. It was moving in interstate transportation. The coupler on the south end of this car was in bad condition. The defect was that the pin could not be pulled by operating the lever at the side of the car, because the pin had been jammed and had dropped out of the slot in which it worked. This was a defect which could not be seen by inspection from the outside, but it was discovered after the accident, the car bad-ordered for that defect, and taken to the rip track where this coupler was removed and replaced. Combs, a Chicago & Alton inspector, was with the switching crew looking over the cars they had brought into the yard. May was acting as pin puller; Garvey giving lantern signals for all movements. May also carried a lantern. The east side of the cars was the working side for the movement because the engineer was on that side. Three members of the Big Four crew, Laughlin, Woodyard and Mueller were on the east side of the lead, waiting for the Chicago & Alton to get out of their way, and were following its movement. The Chicago & Alton switch engine was backing south on the lead. May, at the northeast corner of the S. T. C. X. car, was to pull pin with the lever when Garvey gave a kick signal. Upon this signal, the engineer would accelerate the motion of the train; then, if the pin was pulled, the foreman would signal for the other cars to be stopped and the end car would roll down the track of its own momentum. Garvey gave the kick signal, the train moved faster, and May attempted to pull the pin with the...