Weed v. Am. Car & Foundry Co.

• Decision Date: 02 March 1929
• Docket Number: No. 27190.,27190.
• Court: Missouri Supreme Court
• Parties: NEVELS WEED v. AMERICAN CAR & FOUNDRY COMPANY ET AL., Appellants.

14 S.W.2d 652

NEVELS WEED v. AMERICAN CAR & FOUNDRY COMPANY ET AL., Appellants.

No. 27190.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

AFFIRMED AND REMANDED.

Watts & Gentry and Arnot L. Sheppard for appellants; G.A. Orth of counsel.

(1) Respondent failed to make a prima-facie case of negligence and the trial court should have peremptorily instructed the jury to return a verdict against him at the close of all the evidence. Therefore, it makes no difference whether erroneous instructions were given to the jury or not. (a) The evidence fails to show respondent was acting within the scope of his employment at the time of his injury. Duvall v. Packing Co., 119 Mo. App. 150; B. & O. Railroad v. Doty, 133 Fed. 870; Coleman v. Lbr. Co., 79 S.W. 981; Schaub v. Railroad, 106 Mo. 92. (b) The evidence wholly fails to show any negligence on the part of appellants. Lynch v. Gas Light Co., 223 S.W. 111. (c) Respondent's evidence is so self-contradictory as not to be worthy of any credit at all, especially on the two points that were really at issue in the case, viz., whether he was acting within the scope of his employment and whether he was injured while inside the car or while scrambling out from under it. Steele v. Railroad, 265 Mo. 115; Flack v. Railway, 224 S.W. 421; Lindsey v. Shaner, 236 S.W. 322; Dempsey v. L. & T. Co., 256 S.W. 157; Huffnagle v. Pauly, 219 S.W. 379; Jones v. Railroad, 287 Mo. 64; Harper v. Railroad, 186 Mo. App. 296; Faith v. Ins. Co., 208 S.W. 124: Van Bibber v. Swift & Co., 286 Mo. 317. A mere scintilla is insufficient. Near v. Railway, 261 Mo. 8; Evens-Howard Co. v. Gammon, 204 S.W. 832; Layton v. Chinberg, 282 S.W. 436. (2) There was no error in the instructions given to the jury which presented the issues made by the pleadings and the evidence. There is but one charge of negligence contained in respondent's petition, viz., moving the car without warning, although two separate paragraphs appear in respondent's petition which, when taken together, charge the one ground of negligence. Mills v. Steadley & Co., 279 S.W. 160; Sabol v. Cooperage Co., 282 S.W. 425; Kelley v. Robinson, 262 F. 695. (3) The verdict of the jury is conclusive on all of the facts in issue, and by such verdict the jury found that respondent was not acting within the scope of his employment at the time of his injury and that there was no failure to warn him of the intended movement of the car. Hinson v. Morris, 298 S.W. 258. (4) Conceding, for the sake of argument only, that appellant's Instruction 9 or any or all of its instructions is or are erroneous, nevertheless, there is no reversible error in the record, which discloses that the verdict of the jury is manifestly for the right party, and respondent has not been in any way prejudiced by such alleged erroneous instructions. Dorroh v. Holland Bank, 7 S.W. (2d) 374. (5) If the trial court is satisfied that the verdict is the result of passion and prejudice, it is the court's duty to grant a new trial, and such discretion will not be interfered with unless abused. King v. Mann, 286 S.W. 104; Rigby v. Transit Co., 153 Mo. App. 330. The action of the trial court, however, in granting respondent a new trial on this ground in this cause is unquestionably an abuse of his discretion, for the reason that there is nothing whatever in the record to indicate that the jury was in any way influenced by any bias and passion against respondent, except such as naturally and necessarily arise when a jury becomes thoroughly convinced that a plaintiff is committing perjury, as is shown so clearly by this record.

Charles A. Lich and Louis E. Miller for respondent.

(1) One of the grounds on which the motion for the new trial was sustained was that the verdict of the jury was so unjust, unmerited, and unfounded as to indicate that the same was the result of passion and prejudice on the part of the jury. This is but a stronger way of saying that the verdict was against the weight of the evidence; and appellants in their brief have very fairly stated the rule of law which is that if the trial court is satisfied that the verdict is the result of passion and prejudice, it is the trial court's duty to grant a new trial, and such discretion will not be interfered with unless abused. (2) A case was made for the jury. The evidence for the purpose of determining this fact must be viewed in the light most favorable to the plaintiff, and the plaintiff shall be given the benefit of all reasonable inferences arising therefrom. There was in effect a rule requiring the man so delegated to look under the car to see if anybody was working under the same before giving the signal to move the car. The undisputed evidence shows that the car company's delegate, Ben Bush, failed to look under the car, but gave the signal to move the car forward without looking thereunder and without knowing whether or not any men were in a position of danger, and notwithstanding the fact that Simmons signaled Bush not to move the car. These facts condemn the defendants of such gross negligence — in fact almost criminal negligence — as to make it very plain why the trial court in sustaining plaintiff's motion for a new trial held that the verdict of the jury was the result of bias and prejudice on the part of the jurors against this plaintiff. (3) Appellate courts have in numerous decisions praised trial judges who had the courage to right the wrongs of juries. Littig v. Urbauer-Atwood Heating Co., 237 S.W. 782; Carnie v. Toll, 281 S.W. 41. There is no evidence to show that the trial judge abused his discretion in granting a new trial on account of bias and prejudice. (4) All of the defendants' instructions entirely ignore the humanitarian theory of this case. The first assignment of negligence contained in plaintiff's petition is predicated upon the humanitarian theory, and it makes no difference whether the plaintiff was guilty of contributory negligence. If the plaintiff was under the car where he had a right to be, and the defendant knew or by the exercise of reasonable care could have known that the plaintiff was working thereunder in a position of peril and danger, and notwithstanding this moved the car and injured him, then there is no question but that the defendants are liable regardless of whether the plaintiff should have jumped or done one of a hundred other things to have avoided being injured. Defendants' sixth instruction entirely ignores this theory and directs a verdict for the defendant if the evidence shows that a whistle was blown to warn plaintiff without any regard to whether or not plaintiff heard the whistle. Defendants' ninth instruction has the same vice; and defendants' twelfth instruction is likewise faulty for the same reason. The court erred in giving at the request of defendant instructions which ignored the humanitarian doctrine under which the case was under plaintiff's instruction submitted to the jury. Bussey v. Don, 259 S.W. 791; Hale v. Railroad Co., 287 Mo. 499.

DAVIS, C.

This is an action for personal injuries sustained by plaintiff on or about July 1, 1924. The jury returned a verdict in favor of defendants, but the trial court entered an order sustaining plaintiff's motion for a new trial filed, and defendants appealed.

The gist of the amended petition may be briefly stated. The substantive averments are that plaintiff was employed by defendant corporation and was by defendants directed and it became his duty to work upon cars in the course of manufacture. While about his usual and customary duties of driving rivets in a car, (a) that defendants carelessly and negligently moved and caused to be moved the car on which plaintiff was working, when the defendants knew, or by the exercise of reasonable care, could and should have seen and known that plaintiff was in a position of danger and peril; (b) that defendants failed and neglected to warn or notify plaintiff that they intended to move said car forward, so that plaintiff could have gotten to a position of safety and thereby have avoided being run over by said car. The answer was a general denial and a plea of contributory negligence that, by the exercise of ordinary care, plaintiff should and could have walked along in the direction in which the car was being slowly moved, or should and could have ridden on the car while it was being moved, instead of standing still and permitting the car to run over him.

The trial court sustained the motion for a new trial on four grounds thereof. (1) "Because the verdict is so unjust, unmerited and unfounded as to indicate that said verdict is the result of bias and prejudice on the part of the jury against the plaintiff and in favor of defendants. (2) In substance, because the court erred in submitting to the jury various blank forms of verdict, which tended to confuse and mislead the jury. (3) Because the instructions, given on behalf of defendants, conflict with each and every instruction given on behalf of plaintiff. (4) Because each and every instruction given on behalf of defendants does not truly and properly declare the law."

The evidence for plaintiff warrants the finding that plaintiff, a negro man, about twenty-five years of age at the time of trial, commenced working for defendant corporation in August, 1922, as a heater of rivets. These rivets were heated red-hot, and were thus inserted by a sticker, by means of tongs, in holes in box cars under construction. The employee who heated the rivets was known as a "heater," and the one who inserted them in holes, as a "sticker." The rivets were set by an employee called a "riveter" or "driver," who accomplished the work by the use of a pneumatic hammer or air gun in rounding off the rivets. An employee known as a "bucker" held against the opposite end of the rivet a bar of flat iron so that the air gun could act upon it. The defendant...