Wheeler v. Mo. Pac. Railroad Co.

• Decision Date: 02 March 1929
• Docket Number: No. 27189.,27189.
• Parties: JAMES WHEELER v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

18 S.W.2d 494

JAMES WHEELER v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 27189.

Supreme Court of Missouri, Division No. 2.

March 2, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.

AFFIRMED.

Thomas J. Cole and Harry R. Stocker for appellant.

(1) There is no proof in this record of any negligence warranting the submission of the case to a jury, and the action of the court in overruling appellant's demurrer to the evidence was erroneous. The judgment should be reversed outright. Neth v. Delano, 184 Mo. App. 652; Davidson v. Frisco, 229 S.W. 786, 256 S.W. 169; Karagas v. Ry. Co., 232 S.W. 1100; Shaffer v. Frisco, 201 Mo. App. 107; Woods v. Ry. Co., 200 S.W. 616; Howell v. Ry. Co., 69 S.E. 59; Brookshire v. Elec. Co., 68 S.E. 215; Wilson v. Southern Ry., 62 S.E. 972; C.R.I. & P. Ry. Co. v. West, 254 Pac. 91. (2) Instruction 8 requested by respondent and given over appellant's objection and exception was reversible error. This case was brought and tried upon the theory of the application of the Federal Employers' Liability Act. The law as declared by the Federal courts and by the courts of Missouri does not impose upon a defendant the burden of proving that contributory negligence of plaintiff was the sole cause of plaintiff being injured. Payne v. Railway, 129 Mo. 405; Newcomb v. Railway, 169 Mo. 409; Hoff v. Transit Co., 213 Mo. 445; Krehmeyer v. Transit Co., 220 Mo. 639; G.N. Ry. Co. v. Weils Adm., 240 U.S. 444. (3) The trial court erred in not sustaining appellant's objection to improper and prejudicial argument to the jury by respondent's counsel and in not, in accordance with appellant's request, instructing the jury to disregard such improper and prejudicial argument. Hinchman v. Railroad Co., 136 Mich. 341; 2 R.C.L. 413, sec. 11. (4) The judgment is still excessive, even though the circuit court did order a remittitur of $3000 from the grossly excessive amount of the verdict; the verdict and judgment being so excessive as to indicate bias, passion and prejudice towards appellant.

Douglass & Inman for respondent.

(1) The evidence of plaintiff that he saw Frank turn the wheel loose while in the act of turning it while it was in an upright position on the floor, when Williams, plaintiff and Frank were holding it and turning it around, and that the wheel fell when turned loose by Frank while being turned, made a question for the jury as to whether the act of Frank was a negligent act. Karagas v. Railroad, 232 S.W. 1100; Kusturin v. Railroad, 287 Ill. 306; Simonich v. Railroad, 217 Ill. App. 336; Settle v. Railroad, 127 Mo. 336. (2) There was no error in plaintiff's Instruction 8 which told the jury that contributory negligence of plaintiff would not defeat a recovery unless it was the sole cause of the accident. This was a suit under the Federal Employers' Liability Act, but defendant in its answer alleged that plaintiff was not entitled to recover if guilty of the acts of contributory negligence alleged in this answer and in the instruction. It was, therefore, necessary to tell the jury in the instruction how much contributory negligence was necessary to defeat a recovery. Rigley v. Prior, 233 S.W. 828; Railroad v. Lindley, 201 Fed. 844; Koenig v. Railway Co., 243 S.W. 118. (3) There was no error in the argument of plaintiff's counsel as alleged by defendant, because the argument was proper; the statements made were not prejudicial; there was no proper objection pointing out the alleged improper statements, but a mere general objection, and no request made to rebuke counsel or exceptions saved to the failure of the court to rebuke counsel. Norris v. Railroad, 239 Mo. 695; State v. Phillips, 233 Mo. 299; Quint v. Clothing Co., 247 S.W. 238; Johnson v. Express Co., 244 S.W. 1072; Torreyson v. Railway Co., 246 Mo. 696; Ternetz v. Cement Co., 252 S.W. 71; McKinney v. Laundry Co., 198 Mo. App. 386; Eastman v. Railways Co., 232 S.W. 727. (4) The verdict in this case is not excessive in view of the extent of the injury, the age and life expectancy of plaintiff, the time that he was laid up and unable to work and the pain and suffering endured by him. Zumwalt v. Railroad Co., 265 S.W. 717.

HENWOOD, C.

This is an action for damages under the Federal Employers' Liability Act, in which James Wheeler, plaintiff below, obtained a verdict in the sum of $15,000 for personal injuries suffered by him while employed by the defendant railroad company. Plaintiff complied with an order of remittitur, by which his award of damages was reduced to $12,000, and defendant's appeal from the judgment entered for that amount brings the case here for review.

Under the pleadings, it is admitted that, at the time in question, plaintiff was employed by defendant in interstate commerce. As to the item of negligence upon which the case was submitted, plaintiff alleges in his petition that, while he and two of his co-employees were engaged in moving a large iron wheel on defendant's freight platform, "one of the men assisting to move said wheel negligently turned it loose and failed to support it, thereby causing it to fall on plaintiff and injuring him." In its answer, defendant denies negligence on its part, and further pleads assumption of risk and contributory negligence on the part of plaintiff. The reply is a general denial of the affirmative allegations contained in the answer.

According to the testimony of plaintiff (a Negro), he was about twenty-one years old, at the time of his injuries, and had been employed by defendant for about eleven months. During the last six months of that employment, he had worked on one of defendant's freight platforms in St. Louis. There were three other men in his gang, Jones and Williams (Negroes), and Doyle, also known as Swenk (a white man), and the gang worked under his orders on the day in question. On the afternoon of August 25, 1923, defendant's foreman, Proesig, told him to take his gang and load two pianos in a freight car on the west side of the platform. These pianos were in piano boxes on the east side of the platform and were destined to Dupo, Illinois. Plaintiff sent Jones for a "dolly," which he intended to use in loading the pianos, and he and Williams and Doyle went to the east side of the platform, where they found a large iron wheel leaning against one of the piano boxes. This wheel was about five feet and four or five inches in diameter, with a smooth rim about six or eight inches in width, and weighed about 1,000 pounds. The lower part of the wheel was resting on the platform, about three feet from the piano box. The platform slanted toward the west, and was rough and uneven. While they were engaged in moving it,

"Doyle turned loose the wheel," and it fell on plaintiff. Plaintiff was standing near the center of the wheel, facing north, holding it "somewhere about the hub." Williams was on the east side, facing west, and Doyle on the west side, facing east. Plaintiff used a book in illustrating the position of the wheel and the manner in which they undertook to move it. In this connection, he was interrogated at length; in part, as follows:

DIRECT EXAMINATION.

"Q. Where were you going to move this wheel to? A. We were going to lean it up against a post.

"Q. Where was that post with reference to the piano box? A. The post was sitting just west of the piano.

"Q. About how far? A. Well, I don't know, sir; I believe it was about six or eight feet.

"Q. Did you take hold of it to move it? A. I told the men we would have to move it, the wheel, in order to load the piano, so I asked them to `come on, let's move it.'

"Q. Now, just state what you did then. A... . The wheel was leaning kind of on the corner of the piano and I got in the center and we lifted the wheel, see, and then we were going to pull the wheel over, and this man Doyle turned the wheel loose and it fell on me.

"Q. Now, can you show us just about how this wheel was leaning up against the piano by taking this book and illustrating with the corner of this as being the corner of the piano box? A. Yes, sir.

"Q. All right. A. About like that. [Witness takes book and illustrates position of wheel.]

"Q. Now, just show us — when it was in this position you say the post was over here? A. Yes, sir.

"Q. Where was Williams, the colored man? A. He was over here.

"Q. Where were you? A. I was here.

"Q. You were about there? A. Yes, sir.

"Q. Where was Doyle? A. Down in the front.

"Q. In the position in which you all had hold of the wheel, what did you then do? A. We raised it up.

"Q. Then what did you do? A. We was going to straighten it around this way (illustrating).

"Q. In what way? A. Like this (illustrating).

"Q. Straighten it around. Where did you say Doyle was? A. On that side.

"Q. On that end? A. Yes, sir.

"Q. Did you notice just where he was and what he was doing when he turned loose of it? A. Yes, sir.

"Q. What was he doing? A. When we were straightening the (wheel) up, we pushed it up to the piano so it would be standing about so, and we had turned the wheel around and he let go of the wheel to walk around to the front part of the wheel and it fell on me.

"Q. Then it was that you say Doyle moved from the position on the side like around to the front? A. Yes, sir.

"Q. I will ask you whether or not that is the time he turned loose of the wheel? A. Yes, sir."

CROSS-EXAMINATION.

"Q. It was standing so that the top part of the rim leaned against the box and the bottom part of the rim was out from the box? A. Yes, sir.

"Q. About how far would you say the bottom part of the rim was out from the box? A. I don't know, sir; about three feet, I guess.

"Q. You think it was leaning at that much of an angle? A. Yes, sir.

"Q. What I am trying to get at is this: Suppose this part here would be the rim of the wheel towards (Doyle), he standing here facing east. Was he standing right out in front of it facing that way (indicating) or around on the same side that you...