Walsh v. Terminal R. Ass'n of St. Louis

• Decision Date: 09 September 1946
• Docket Number: 39671
• Citation: 196 S.W.2d 192,355 Mo. 377
• Parties: William P. Walsh v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

196 S.W.2d 192

355 Mo. 377

William P. Walsh v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 39671

Supreme Court of Missouri

September 9, 1946

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

Affirmed.

Warner Fuller and Arnot L. Sheppard for appellant.

(1) There is no proof by respondent that the reels were moving when he jumped out of the car. Adelsberger v Sheehy, 59 S.W.2d 644; Steele v. Railroad, 265 Mo. 97. (2) But had he testified that the reels in the south end moved north, his testimony would have been contrary to physical laws. Dunn v. Alton R. Co., 340 Mo. 1037 104 S.W.2d 311. (3) The evidence fails to show actual or constructive knowledge on the part of the switching crew of respondent's presence in the car. Therefore, his evidence fails to show a situation which created a duty upon the switching crew to warn him the car was to be moved. Consequently, failure to warn could not have been the proximate cause of respondent's injury. Lovell v. K.C. Sou. R. Co., 121 Mo.App. 466, 97 S.W. 193; Cunningham v. Philadelphia & Reading R. Co., 249 Pa. 134, 94 A. 467; Campbell v. N.Y., N.H. & H.R. Co., 92 Conn. 322, 102 A. 597. (4) Respondent's primary theory of recovery is that he was not warned of the intended movement of the car, and that appellant's employees negligently failed to discover his presence in the car. For these reasons he is bound by his testimony that no one looked into the car; and cannot now rely upon Ganzenbach's contradictory testimony that he looked into the car. Meese v. Thompson, Trustee, etc., 344 Mo. 177, 129 S.W.2d 847; Trower v. M.-K.-T. R. Co., 347 Mo. 900, 149 S.W.2d 792; Drapel v. L. & N.R. Co., 348 Mo. 886, 156 S.W.2d 626. (5) Before negligence may be the proximate cause of an injury, the injury (a) must have been the natural and probable result of the negligent act, and (b) must have been reasonably foreseeable in the light of attending circumstances. Brady v. Southern R. Co., 320 U.S. 476, 88 L.Ed. 239. (6) To justify respondent's reliance upon the existence of an emergency compelling him to jump from the car, his proof must show: (a) the existence of an actual emergency or at least such an appearance of immediate danger that an ordinarily prudent person would have rational grounds for believing the appearance to be a fact; (b) that the emergency resulted from defendant's negligence; and (c) that the emergency did not result from the concurrent negligence of plaintiff and defendant. Hall v. St. L.-S. F.R. Co., 240 S.W. 175; Shaw v. Fulkerson, 96 S.W.2d 495; 45 C.J., sec. 519, p. 966. (7) Not only does the evidence fail to prove that appellant was negligent and that its negligence was the proximate cause of respondent's injury; but it establishes beyond doubt that the proximate cause (whether the creation of the hazard or respondent's jumping be considered as the proximate cause) was a separate, independent and intervening act of respondent himself, viz., either the loosening of the reels or his jumping from the car, for neither of which was appellant responsible. This court has clearly delineated the characteristics of an independent intervening cause. Smith v. Mabrey, 348 Mo. 644, 154 S.W.2d 770; Kennedy v. Independent Quarry & Construction Co., 316 Mo. 782, 291 S.W. 475. (8) Respondent's Instruction 1 is erroneous because it predicates a recovery upon a theory which is not supported by any evidence. It hypothesizes that "the reels of cable . . . started to move and roll . . . and that the rolling and shifting . . . made it dangerous and unsafe for plaintiff to remain in said car." (9) The instruction is confusing and misleading. The direct cause of his jumping from the car was either the alleged emergency claimed to have been created by the alleged rolling reels or his jumping from the car, either of which was obviously an independent intervening cause; and, moreover, the proximate cause. Smith v. Mabrey, 348 Mo. 644, 154 S.W.2d 770; Kennedy v. Independent Quarry & Construction Co., 316 Mo. 782, 291 Mo. 475. (10) It fails to present fairly the entire situation shown by the evidence. Peppers v. St. L.-S.F.R. Co., 316 Mo. 1104, 295 S.W. 757; Millhauser v. K.C. Pub. Serv. Co., 55 S.W.2d 673; Freeman v. Berberich, 60 S.W.2d 393. (11) The instruction does not require the jury to find any facts by which appellant's switching crew would be actually or constructively notified of the likelihood of respondent's presence in the car; but proceeds upon the theory that appellant's employees were in duty bound to warn him regardless of the circumstances. Lovell v. K.C. So. R. Co., 121 Mo.App. 466, 97 S.W. 193; Cunningham v. Philadelphia & Reading R. Co., 249 Pa. 134, 94 A. 467; Campbell v. N.Y., N.H. & H.R. Co., 92 Conn. 322, 102 A. 597. (12) It gives the jury a roving commission to find the existence of the duty to warn upon any facts which seemed to it properly to warrant such a conclusion. Allen v. Mo. Pac. R. Co., 294 S.W. 80; Allen v. Quercus Lbr. Co., 190 Mo.App. 399, 177 S.W. 753; Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260. (13) The instruction unduly emphasizes the alleged failure of appellant to warn, and unduly de-emphasizes appellant's proof of warning; and is for that reason misleading. See authorities under (10), supra; Weinel v. Hesse, 174 S.W.2d 903. (14) The verdict of the jury in the sum of $ 75,000, is so grossly excessive as to establish conclusively that appellant did not have a fair trial. Minneapolis, St. P. & S.S.M.R. Co., 283 U.S. 520, 75 L.Ed. 1243; Jones v. P.R. Co., 182 S.W.2d 157.

Charles P. Noell for respondent; Douglas H. Jones of counsel.

(1) The previous opinion of this Court on a former appeal properly held that plaintiff had made a submissible case. Walsh v Terminal Railroad Assn., 182 S.W.2d 607. (2) That holding was correct and became the law of this case. Morris v. DuPont de Nemours, 346 Mo. 126, 139 S.W.2d 984; Trower v. M.-K.-T. R. Co., 184 S.W.2d 428; Davidson v. St. Louis-S.F.R. Co., 301 Mo. 79, 256 S.W. 169. (3) Plaintiff proved a sudden emergency arose. His evidence was not contradictory and was not self-destructive. Walsh v. Terminal Railroad Assn., 182 S.W.2d 607. (4) Defendant had notice of plaintiff's presence in the car. The facts showed that defendant had knowledge of plaintiff's presence. The court so held in its previous opinion. That became the law of this case. The law generally holds defendant liable where a car is moved without warning. This car was moved without warning and defendant is liable. Walsh v. Terminal Railroad Assn, 182 S.W.2d 607. (5) Defendant's switch foreman testified he looked in the car. Plaintiff was in the car. When "to look is to see," defendant's employee is held to have seen plaintiff in the car. Walsh v. Terminal Railroad Assn., 182 S.W.2d 607; Beal v. St. Louis-S.F. Ry. Co., 256 S.W. 733; Logan v. Chicago, B. & Q.R. Co., 300 Mo. 611, 254 S.W. 705; English v. Wabash Ry. Co., 341 Mo. 550, 108 S.W.2d 51; Dutcher v. Wabash R. Co., 241 Mo. 137, 145 S.W. 63; Hoelzel v. Chicago, R.I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126. (6) Circumstantial evidence of actual knowledge of plaintiff's presence is conclusive. Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43; McCain v. Trenton Gas & Electric Co., 222 Mo.App. 1146, 15 S.W.2d 970; Ellis v. Metropolitan St. Ry. Co., 234 Mo. 657, 138 S.W. 23. (7) Railroad cannot be excused from liability for moving a car without warning and it is not necessary to prove actual knowledge. Carner v. St. Louis-S.F. Ry. Co., 338 Mo. 257, 89 S.W.2d 947; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Johnson v. Terminal Railroad Assn., 191 S.W.2d 676. (8) Defendant's failure to warn of movement of car was proximate cause of plaintiff's injuries. The previous opinion so held and the facts of the instant case so show. The evidence was ample to prove a submissible case of failure to warn. Walsh v. Terminal Railroad Assn., 182 S.W.2d 607; Wright v. Spieldoch, 354 Mo. 1076. (9) Emergency. Defendant's negligent act created a compelling emergency which forced plaintiff to escape imminent peril. Walsh v. Terminal Railroad Assn., 182 S.W.2d 607; Kleiber v. People's Ry. Co., 107 Mo. 240, 17 S.W. 946; 45 C.J., pp. 962, 963; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Hall v. Frisco Ry., 240 S.W. 175; Parker v. Frisco Ry., 41 S.W.2d 386; Jenkins v. Kurn, 348 Mo. 942, 156 S.W.2d 668, 61 S.Ct. 934, 313 U.S. 256; Bartlett v. Taylor, 168 S.W.2d 168; Clark v. A. & E. Bridge Co., 324 Mo. 544, 24 S.W.2d 143. (10) Plaintiff not bound by contradictory evidence of defendant's witnesses. Walsh v. Terminal Railroad Assn., 182 S.W.2d 607; Rodan v. St. Louis Transit Co., 207 Mo. 382, 105 S.W. 1061; Draper v. L. & N.R. Co., 348 Mo. 886, 156 S.W.2d 266; Smith v. Kansas City Pub. Serv. Co., 43 S.W.2d 548; Jones v. C., R.I. & P.R. Co., 108 S.W.2d 94; Perryman v. Missouri Pac. Ry. Co., 31 S.W.2d 4; Smith v. K.C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Clancy v. St. Louis Transit Co., 192 Mo. 615, 91 S.W. 500; Beier v. St. Louis Transit Co., 197 Mo. 215, 94 S.W. 876. (11) Weight of evidence. Plaintiff's verdict is supported by clear, cogent and convincing testimony. Appellate courts will not weigh conflicting evidence, but will affirm verdict where supported by substantial evidence. Pickett v. Cooper, 192 S.W.2d 412; State ex rel. Interstate Oil Co. v. Bland, 190 S.W.2d 227; Mooney v. Terminal Railroad Assn., 186 S.W.2d 450. (12) Respondent's Instruction 1 was correct. (13) Defendant waived claimed errors by submitting the same issues to the jury under its own given instructions. Cole v. St. Louis-S. F.R. Co., 332 Mo. 999, 61 S.W.2d 344; Fowlkes v. Fleming, 322 Mo. 718, 17 S.W.2d 511; Gary v. Averill, 12 S.W.2d 747; Foster v. Kansas City, C.C. & St. J. Ry. Co., 325 Mo. 18, 26 S.W.2d...