Van Loon v. Terminal Railway Co.

• Decision Date: 11 April 1928
• Docket Number: No. 26321.,26321.
• Citation: 6 S.W.2d 587
• Parties: WILLIAM VAN LOON v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

6 S.W.2d 587

WILLIAM VAN LOON v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Appellant.

No. 26321.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

AFFIRMED.

J.L. Howell and R.E. Blodgett for appellant.

(1) Instruction 4 requested by the plaintiff and given by the court was erroneous in that it assumed facts the existence of which should have been submitted to the jury. Eudy v. Federal Lead Co., 220 S.W. 504; Cowan v. Brick Co., 222 S.W. 924; Stark v. Bingaman, 223 S.W. 946; Gott v. Railways Co., 222 S.W. 827; Rice v. Bridge & Transit Co., 216 S.W. 746; Orris v. Railway Co., 279 Mo. 1; Bollmeyer v. Eagle Mill Co., 206 S.W. 917; Miller v. Busey, 186 S.W. 983; Martin v. Investment Co., 226 S.W. 650; Henson v. Kansas City, 210 S.W. 13. (2) The court erred in giving Instruction 4 requested by the plaintiff, inasmuch as that instruction is in conflict with Instruction 5 given on behalf of defendant. Cases cited above. (3) The court erred in giving Instruction 4 requested by plaintiff, because that instruction is in conflict with Instruction 6 given on behalf of defendant. Cases supra. (4) The court erred in giving Instruction 8, requested by plaintiff, in that said instruction is self-contradictory. Pryor v. Williams, 254 U.S. 43, 65 L. Ed. 120. (5) The verdict is excessive.

Charles P. Noell for respondent; Glen Mohler of Counsel.

(1) There is no error in Instruction 4 requested by plaintiff and given by the court. (a) The evidence is undisputed that the car on track 1 was not at a sufficient distance from the North Belt track to permit plaintiff to ascend the ladder of the rear car of his train in reasonable safety, and that the car was in dangerous proximity to said train on this account. An instruction is not erroneous where it assumes an undisputed fact. Midway Bank & Trust Co. v. Davis, 288 Mo. 563; Koenig v. Rys. Co., 243 S.W. 123; Davidson v. Transit Co., 211 Mo. 356; Deschner v. Ry. Co., 200 Mo. 310; Montgomery v. Packing Co., 217 S.W. 867; Taylor v. Iron Co., 133 Mo. 366. (b) The instruction required the jury to find, and they found, that the defendant knew that the car was standing in close proximity to the North Belt track and at a distance not sufficient to permit plaintiff to climb the ladder with reasonable safety. The jury could not have found defendant knew of such fact, without also finding the fact to exist. McMillan v. Bausch (Mo.), 234 S.W. 835; Hotchkiss v. Bruner, 42 Colo. 306; Gerard v. Coke & Coal Co., 207 Mo. 242; Leine v. Contracting Co., 134 Mo. App. 564; Donmann v. St. Louis, 152 Mo. 186; Geary v. Ry. Co., 138 Mo. 251; Brady v. Railroad, 206 Mo. 509. (2) Instruction 8 is not self-contradictory, but when read as a whole correctly submitted to the jury the question of assumption of risk. Gerard v. Coal & Coke Co., 207 Mo. 259; Bradley v. Railroad, 138 Mo. 308; Seaboard Airline v. Horton, 233 U.S. 492; Choctaw Railroad Co. v. McDade, 191 U.S. 64. (3) The verdict is not excessive, considering the nature and extent of the injuries and large loss of earnings. Hoff v. Wabash Railroad Co., 254 S.W. 874; Hughes v. M.R.B.T., 274 S.W. 711.

ATWOOD, J.

This is an action for damages on account of personal injuries sustained by plaintiff while he was working as a brakeman in one of defendant's switching crews then engaged in interstate commerce. The cause was tried on plaintiff's second amended petition, all assignments of negligence thereof having been withdrawn except assignments one and three as follows:

"(1) Defendant's agents, servants and employees negligently and carelessly placed and permitted said railroad car, with which plaintiff came in contact as aforesaid, to remain on said switch track in such close proximity to the track along and upon which the train or cut of cars aforesaid was moving, that there was not sufficient clearance between said railroad car and the said train or cut of cars to permit plaintiff, in the discharge of his duties as rear brakeman aforesaid, to safely pass or clear said railroad car on said switch track without being thrust against and in contact with the same and thereby knocked from said train and injured.

"(3) Defendant's agents, servants and employees in charge of and directing the movement of said train or cut of cars upon which plaintiff was then working as aforesaid, negligently and carelessly caused said train to be moved past said railroad car when they knew, or by the exercise of ordinary care could have known, that there was not sufficient clearance between said railroad car and said train or cut of cars to permit plaintiff, in the discharge of his duties aforesaid, to safely pass or clear said railroad car."

Defendant's answer was a general denial coupled with pleas of assumption of risk and contributory negligence. The reply was a general denial. The jury returned a verdict for plaintiff in the sum of $28,500, for which judgment was entered. On consideration of defendant's motion for a new trial the trial court indicated that the motion would be sustained on the ground that the verdict was excessive unless within ten days plaintiff would enter a remittitur in the sum of $12,000. Plaintiff thereupon entered a remittitur in the sum of $12,000 and from the judgment for $16,500 defendant has appealed.

While no question is raised in this appeal as to the sufficiency of the evidence to go to the jury, or the correctness of the action of the trial court in overruling defendant's demurrer to the evidence, a brief resume of`the evidence will be of assistance in reaching a proper understanding and disposition of the objections here made which relate to the giving of certain instructions at the request of plaintiff and the size of the verdict.

The train`in connection with which plaintiff was injured was concededly enroute from Madison, Illinois, to a railroad yard in the northern part of St. Louis, Missouri. The accident occurred on a part of defendant's lines known as the Carrie Avenue yard. The freight train in question shortly after dark on November 19, 1921, the day of accident, entered the yard upon the main line from the south going north, its destination being the Katy yards in the north part of St. Louis, where the train was to be delivered to a road engine and crew of the M.K. & T. Railroad Company, the train having been made up for that purpose in Madison, Illinois. Just north of the street known as Carrie Avenue the main line in this yard divides into two forks or branches known as the North Belt and West Belt, respectively, the North Belt being in effect a continuation of the main line, while the West Belt ran off to the west. There was a switch at the fork which it was plaintiff's duty to reline after his train had passed over on the North Belt. Further north was another switch connecting a lead track likewise extending west from the North Belt. Still further north on the North Belt and extending also to the west was side track No. 1 which was connected with the North Belt by a switch which was about 240 feet north of the first switch mentioned. The train which plaintiff's crew was switching consisted of an engine, tender and 47 freight cars, without a caboose. It stopped at the first switch and plaintiff's foreman, Mudge, lined the switch to permit the train to go upon the North Belt. It was plaintiff's duty, as rear brakeman, after the train had passed over the switch, to reline it with the West Belt to take care of a Wabash passenger train which was then almost due. This switch was on the east or right-hand side of the train going north. At the southwest and northwest corners of the rear car on his train were ladders reaching to the top of the car, while at the southeast and northwest corners the ladders were short and did not extend to the top of the car. After relining the switch it was plaintiff's duty to run and catch the rear car of his train, climb to the top thereof and ride there in order to give and receive signals. After plaintiff had relined the switch on this occasion he ran and caught the ladder at the southwest corner of the rear car, and while so doing and when he had reached the top of the ladder he was struck on his left side by a car standing on side track number 1 in close proximity to the moving train, and was knocked from the car upon which he was riding to the track below and thereby injured. The car which struck him had been placed there shortly before plaintiff's train arrived in the yards. The switching operations by which this car was so placed were under the direct control of defendant's yardmaster, Isgrigg, and one Hassler, foreman of another one of defendant's switching crews. Hassler testified that he was standing at the south end of track 4 about seventy feet southwest of the switch on the North Belt leading on to track one, watching plaintiff's train go by, and he then saw that the car his crew had placed on track number 1 was very close, permitting not over a foot of clearance between plaintiff's train and the car. The car was also noticed by Mudge, the conductor of plaintiff's crew, before his train passed it, and he gave his engineer the stop signal. The engineer complied with the signal and Mudge called attention to the fact that the car was close. Isgrigg was then standing by Hassler about seventy feet south of the switch to track number 1, and he told Mudge to get by if he could, that the car was only there temporarily. It does not appear that plaintiff had any knowledge of these matters. The head brakeman, who watched the car from the footboard of the engine as they passed, said that the car cleared the cab by only three to six inches. There was testimony that the over-hang of the engine cab was about twelve inches more than a freight car.

Four of appellant's five assignments of errors are on account of the giving of instructions numbered 4 and 8 requested by plaintiff, which...