Whitaker v. Pitcairn

• Decision Date: 20 July 1943
• Docket Number: No. 37983.,37983.
• Citation: 174 S.W.2d 163
• Parties: JAMES W. WHITAKER v. NORMAN B. PITCAIRN and FRANK C. NICODEMUS, JR., Receivers for the WABASH RAILWAY COMPANY, a Corporation, Appellants.
• Court: Missouri Supreme Court

174 S.W.2d 163

JAMES W. WHITAKER v. NORMAN B. PITCAIRN and FRANK C. NICODEMUS, JR., Receivers for the WABASH RAILWAY COMPANY, a Corporation, Appellants.

No. 37983.

Supreme Court of Missouri.

Division Two, July 20, 1943.

Rehearing Denied, September 7, 1943.

Motion to Transfer to Banc Overruled, October 4, 1943.

Appeal from Circuit Court of City of St. Louis. — Hon. William S. Connor, Judge.

AFFIRMED.

Joseph H. Miller, R.B. Elster, J.S. Fathman and Wilton D. Chapman for appellants.

(1) The trial court committed error in giving Instruction 1, whereby the court told the jury that if they found from the evidence that the train was derailed and overturned that was sufficient to warrant a finding by them that the derailment and overturning were caused by the negligence of defendants. It erroneously told the jury that the mere happening of the accident was evidence of negligence on the part of defendants. Williams v. St. L.-S.F. Railway Co., 85 S.W. (2d) 624; Patton v. T. & P.R. Co., 179 U.S. 658; So. Ry. Co. v. Stewart, 115 Fed. (2d) 317. (2) The trial court committed error in giving Instruction 1, which submitted the case to the jury under the res ipsa rule, and also erred in failing and refusing to give and read to the jury the peremptory instruction to find for the defendants at the close of the whole case, for the reason that all of the evidence in this case showed that the immediate cause of the washing out of the ballast under the rail and the consequent derailing of the train was an unprecedented rain in the nature of a "cloudburst," "an unbelievable rain," "an awful rain," "a flash flood" — an act of God; thereupon plaintiff's prima facie case, based upon proof of the derailment, was undermined and fell and disappeared from the case, and the burden was then upon plaintiff to prove specific negligence, if he could. Hurck v. Mo. Pac. Ry. Co., 158 S.W. 581; Wallar v. So. Pac. Co., 37 Fed. Supp. 475; Brunell v. Mountain States Power Co., 81 Fed. (2d) 305; Hagan Cushing Co. v. Washington Power Co., 99 Fed. (2d) 614. (3) The trial court erred in failing to give and read to the jury at the close of all the evidence defendants' instruction in the nature of a demurrer to the evidence, and also erred in giving and reading to the jury plaintiff's Instruction 1, which submitted the case to the jury under the res ipsa rule, for the reason that the res ipsa rule is not applicable in a case between a master and a servant brought under the provisions of the Federal Employers' Liability Act. No. Pac. Ry. v. Dixon, 139 Fed. 739; Patton v. T. & P.R. Co., 179 U.S. 658; N.O. & N.E.R. Co. v. Harris, 247 U.S. 367; Midland Valley Ry. Co. v. Julghan, 181 Fed. 91; Roberts, Injuries Interstate Employees, sec. 22, p. 48; Richey, Fed. Employers' Liability (2d Ed.), sec. 163, p. 320; Sweeney v. Erving, 228 U.S. 233; Chicago & N.W. Ry. Co. v. O'Brien, 67 C.C.A. 421, 132 Fed. 593; C. & O. & T.P.R. Co. v. Southfork Coal Co., 1 L.R.A. (N.S.) 533, 139 Fed. 528; So. Ry. Co. v. Deer, 240 Fed. 72. (4) The verdict of the jury is excessive in amount, and shows upon its face that it is the result of prejudice against defendants and improper conduct by the jurors.

Mark D. Eagleton, James A. Waechter and Roberts P. Elam for respondent.

(1) Where the facts of a case are otherwise such as to make the doctrine of res ipsa loquitur applicable, that doctrine is fully applicable in cases between master and servant brought under the Federal Employers' Liability Act, such as is the case at bar. Williams v. St. Louis-S.F.R. Co., 337 Mo. 667, 85 S.W. (2d) 624; Noce v. St. Louis-S.F.R. Co., 337 Mo. 689, 85 S.W. (2d) 637; Benner v. Terminal R. Assn., 156 S.W. (2d) 657, certiorari denied 86 L. Ed. 668; Sibert v. Litchfield & M.R. Co., 159 S.W. (2d) 612; Southern R. Co. v. Derr, 6 Cir., 240 Fed. 73; Central R. Co. of N.J. v. Peluso, 286 Fed. 661, certiorari denied 261 U.S. 613, 43 S. Ct. 359, 67 L. Ed. 827; Baltimore & O.R. Co. v. Kast, 299 Fed. 413, certiorari denied 266 U.S. 613, 45 S. Ct. 95, 69 L. Ed. 468; Erie R. Co. v. Murphy, 9 Fed. (2d) 525; Cochran v. Pittsburgh & L.E.R. Co., 31 Fed. (2d) 769; Chesapeake & O.R. Co. v. Smith, 42 Fed. (2d) 111, certiorari denied 282 U.S. 856, 51 S. Ct. 32, 75 L. Ed. 758; Lowery v. Hocking Valley R. Co., 60 Fed. (2d) 78; Carpenter v. Baltimore & O.R. Co., 109 Fed. (2d) 375; Eker v. Pettibone, 7 Cir., 110 Fed. (2d) 451; Terminal R. Assn. v. Staengel, 122 Fed. (2d) 271, certiorari denied 62 S. Ct. 181, 86 L. Ed. 98. (2) The facts of this case, which showed plaintiff to have been injured as the result of the derailment and wrecking of defendants' train upon which he was working, were such as to permit an inference of negligence on the part of the defendants, and to make a prima facie case for plaintiff under the doctrine of res ipsa loquitur. Sawyer v. Hannibal & St. J.R. Co., 37 Mo. 240; Stoher v. St. Louis, I.M. & S.R. Co., 91 Mo. 509, 4 S.W. 389; Furnish v. Mo. Pac. R. Co., 102 Mo. 438, 13 S.W. 1044; Smiley v. St. Louis & H.R. Co., 160 Mo. 629, 61 S.W. 667; Bond v. St. Louis-S.F.R. Co., 315 Mo. 987, 288 S.W. 777; Williams v. St. Louis-S.F.R. Co., 337 Mo. 667, 85 S.W. (2d) 624; Cochran v. Pittsburgh & L.E.R. Co., 31 Fed. (2d) 769; Lowery v. Hocking Valley R. Co., 60 Fed. (2d) 78; Eker v. Pettibone, 110 Fed. (2d) 451; Terminal R. Assn. v. Staengel, 122 Fed. (2d) 271. (3) The plaintiff having made a prima facie case upon the inference of negligence on the part of defendants arising from the fact of the derailment and wrecking of defendants' train, the plaintiff's case could not be taken from the jury upon defendants' evidence in rebuttal, no matter how strong defendants' evidence might be. Turner v. M.-K.-T.R. Co., 346 Mo. 28, 142 S.W. (2d) 455; Evans v. Missouri Pacific R. Co., 342 Mo. 420, 116 S.W. (2d) 8; State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W. (2d) 638; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W. (2d) 969; Sweeney v. Erving, 228 U.S. 233, 33 S. Ct. 416, 57 L. Ed. 815; Chicago, M. & St. P.R. Co. v. Irving, 234 Fed. 562; Atlas Powder Co. v. Benson, 287 Fed. 797; New York Central R. Co. v. Johnson, 27 Fed. (2d) 699; Cochran v. Pittsburgh & L.E.R. Co., 31 Fed. (2d) 769; Doughnut Machine Corp. v. Bibbey, 65 Fed. (2d) 634; Gibson v. Southern Pac. Co., 5 Cir., 67 Fed. (2d) 758; Fisher v. Washington Coca-Cola Bottling Works, 84 Fed. (2d) 261; Hagan & Cushing Co. v. Washington Water Power Co., 99 Fed. (2d) 614. (4) In any event, even defendants' evidence showed that the derailment was caused by the grossest kind of negligence on the part of defendants' agents and servants. Bond v. St. Louis-S.F.R. Co., 315 Mo. 987, 288 S.W. 777; Gleeson v. Virginia-Midland R. Co., 140 U.S. 435, 11 S. Ct. 859, 35 L. Ed. 458; Chicago, St. P.M. & O.R. Co. v. Henkel, 8 Cir., 52 Fed. (2d) 313. (5) There was no error in Instruction No. 1 given by the trial court at the instance and request of plaintiff. That instruction is entirely correct in both form and substance, and is directly adapted from the form of instruction recommended by this Court for use in res ipsa loquitur cases. Authorities cited under point (1), supra; Harke v. Haase, 335 Mo. 1104, 75 S.W. (2d) 1001. (6) Defendants' contentions that the verdict is excessive and otherwise improper, not being supported by citation of authority, are not presented in such manner that they may be given consideration by this court. Pence v. Kansas City Laundry Serv. Co., 332 Mo. 930, 59 S.W. (2d) 633; Richards v. Earls, 345 Mo. 260, 133 S.W. (2d) 381; Hart v. Missouri State Life Ins. Co., 229 Mo. App. 607, 79 S.W. (2d) 793, 794; Murphy v. Fidelity National Bank & Trust Co., 226 Mo. App. 1181, 49 S.W. (2d) 668. (7) In any event, there is no merit to defendants' contentions in these connections. Thompson v. City of Lamar, 322 Mo. 514, 17 S.W. (2d) 960. (8) The defendants' appeal in this case is so utterly lacking in merit, and so clearly presents no fairly debatable questions of law or fact, that it is manifestly frivolous and taken for vexation and delay, and, accordingly, 10 per cent damages should be assessed against defendants, under the statute, for vexatious appeal. Authorities cited under points (1)-(3), inclusive, supra; Sec. 1230, R.S. 1939; Bonnell v. U.S. Express Co., 45 Mo. 422; Phillips v. Phillips, 107 Mo. 360, 17 S.W. 974; Fiedler v. Bambrick Bros. Const. Co., 178 S.W. 763; Taylor v. Scott, 26 Mo. App. 249; President Min. & Mill. Co. v. Coquard, 40 Mo. App. 40; Mooneyham v. Cella, 91 Mo. App. 260; Winscott v. Guarantee Inv. Co., 63 Mo. App. 367; Boillot v. Income Guaranty Co., 124 S.W. (2d) 608; Prudential Ins. Co. v. German Mut. Fire Ins. Assn., 142 S.W. (2d) 500; Bonzon v. Metropolitan Life Ins. Co., 143 S.W. (2d) 336.

ELLISON, J.

The plaintiff-respondent recovered judgment against the appellants-defendants receivers of the Wabash Railway Company for $23,333.33 damages for personal injuries sustained while he, as head brakeman, was riding on the locomotive of freight train No. 98 which turned over 2½ miles east of Moberly, Missouri on June 27, 1939. It is uncontroverted now that one of the probable causes of the derailment was a very heavy rainfall earlier that night, which had washed out the ballast under the ties and a rail of the track. Respondent's petition alleged he did not know the cause of the wreck and pleaded under the res ipsa loquitur doctrine. Appellants' answer pleaded contributory negligence, assumption of risk, Act of God, and that respondent as one of the train crew was in control of the train. Respondent's reply was a general denial. At the trial respondent offered testimony showing the amount and hour of the rainfall; and that it was the duty of the appellants' railroad trackmen to inspect the track after hard rains; but that no such inspection was made after the rain referred to.

Appellants' assignments of error are: (1) that the res ipsa loquitur doctrine is not applicable to the case because it was brought under the Federal Employers'...