Wild v. Pitcairn

• Decision Date: 18 April 1941
• Docket Number: 37171
• Citation: 149 S.W.2d 800,347 Mo. 915
• Parties: Richard F. Wild v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of Wabash Railway Company, Appellants
• Court: Missouri Supreme Court

149 S.W.2d 800

347 Mo. 915

Richard F. Wild v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of Wabash Railway Company, Appellants

No. 37171

Supreme Court of Missouri

April 18, 1941

Rehearing Denied March 13, 1941.

Motion to Transfer to Banc Denied April 18, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Affirmed on remittitur of $ 5000 for $ 15,000.

Nat S. Brown and Homer Hall for appellants.

(1) The verdict is based upon conjecture and speculation and for that reason the court erred in overruling the demurrers and the judgment should be reversed. Smart v. Kansas City, 91 Mo.App. 586; Epperson v. Telegraph Co., 155 Mo 346, 50 S.W. 795, 55 S.W. 1050; Warner v. Railway Co., 178 Mo. 134, 77 S.W. 70; Riley v. Wabash Ry. Co., 328 Mo. 910, 44 S.W.2d 141; Fryer v. St. L.-S. F. Ry. Co., 333 Mo. 740, 63 S.W.2d 47; State ex rel. v. Bland, 313 Mo. 254, 281 S.W. 690; Patton v. Texas & Pac. Ry. Co., 179 U.S. 663, 45 L.Ed. 364; Baltimore & Ohio Railroad Co. v. Groeger, 266 U.S. 531, 45 S.Ct. 173, 69 L.Ed. 419; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 478; Northern Ry. Co. v. Page, 274 U.S. 72; New York Cent. Railroad Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 199, 74 L.Ed. 562; Grand Trunk Western Railway Co. v. Holstein, 67 F.2d 780; Burnett v. Pennsylvania Ry. Co., 33 F.2d 580; Lynch v. Delaware, L. & W. Ry. Co., 58 F.2d 177; Watkins v. Boston & Maine Railway, 83 N.H. 10, 138 A. 315; O'Dea v. Byram, 176 Minn. 67, 222 N.W. 520; Smith v. Bank, 99 Mass. 605, 97 Am. Dec. 59; Searles v. Railroad, 101 N.Y. 661, 5 N.E. 66; Peirce v. Kile, 80 F. 865, 26 C. C. A. 201; 2 Roberts, Fed. Liabilities of Carriers (2 Ed.), 1250, sec. 654. (2) The verdict and judgment are not based upon substantial evidence. A mere scintilla of proof is not sufficient and as the verdict is based upon speculation and conjecture the plaintiff was not entitled to recover and the trial court erred in overruling defendants' demurrer at the close of all the evidence and erred in overruling defendants' motion for a new trial. Warner v. St. Louis & M. Ry. Co., 178 Mo. 125, 77 S.W. 69; Carpenter v. Wabash Ry. Co., 71 S.W.2d 1072; Rose v. Thompson, 141 S.W.2d 828. (3) The plaintiff is not entitled to recover and the demurrer to the evidence ought to have been sustained and given for the reason that plaintiff failed to prove by substantial evidence that the handbrake was defective. That is the only ground upon which the defendants could be held liable in this case. Federal Safety Appliance Act, 45 U. S. C., Sec. 11; Peters v. Wabash Ry. Co., 328 Mo. 924, 42 S.W.2d 588; Chicago Great Western Railway Co. v. Schendel, 267 U.S. 287; Brady v. Term. Railway Assn., 303 U.S. 10, 58 S.Ct. 428; Grand Trunk Western Railway Co. v. Holstein, 67 F.2d 780; Philadelphia & R. Railroad Co. v. Auchenbach, 16 F.2d 550; McCalmont v. Penn. Ry. Co., 283 F. 736. (4) When the evidence shows as it did in this case that the injury might have resulted from one of several causes, for one of which the defendant was not liable, the plaintiff is not entitled to recover. The trial court erred in overruling the demurrer to the evidence requested at the close of all the evidence for the reason that the evidence introduced by the plaintiff showed that the brake wheel might have reversed, resulting in plaintiff's injury, from causes for which the defendant would not be liable in this case, that is, from a stone, nut or bolt getting between the brake shoe and the car wheel, or from flat places on the car wheels, or from the brake chain slipping. For this reason the court erred in overruling the demurrer to the evidence. Warner v. St. Louis & M. R. Ry. Co., 178 Mo. 134, 77 S.W. 67; Kane v. Mo. Pac. Ry. Co., 251 Mo. 46, 157 S.W. 644; Hamilton v. St. L.-S. F. Ry. Co., 318 Mo. 123, 300 S.W. 792; Fryer v. St. L.-S. F. Ry. Co., 333 Mo. 740, 63 S.W.2d 47; Coin v. Talge Lounge Co., 222 Mo. 508, 121 S.W. 1; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041; Patton v. Texas & Pac. Ry. Co., 179 U.S. 663, 45 L.Ed. 364; Grand Trunk Western Railroad Co. v. Holstein, 67 F.2d 780; Burnett v. Pennsylvania Ry. Co., 33 F.2d 580. (5) The testimony of plaintiff that he was thrown from the brake platform to the track on the east side of the car by the revolving of the brake wheel from right to left is contrary to the physical facts, physical law and general knowledge, and for this reason the court erred in submitting the case to the jury. Payne v. C. & A. Ry. Co., 136 Mo. 575; Gurley v. Mo. Pac. Ry. Co., 104 Mo. 233; Highfill v. Wells, 16 S.W.2d 103; Tate v. M.-K.-T. Ry. Co., 93 S.W.2d 876; Carner v. St. L.-S. F. Ry. Co., 338 Mo. 257, 89 S.W.2d 950; Gwaltney v. Kansas City So. Ry. Co., 339 Mo. 249, 96 S.W.2d 357; Roseman v. United Rys. Co., 251 S.W. 106; Rohmann v. Richmond Heights, 135 S.W.2d 383; State ex rel. v. Shain, 340 Mo. 1195, 105 S.W.2d 919; Dunn v. Alton Ry. Co., 340 Mo. 1037, 104 S.W.2d 311; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1082; Hardin v. I. C. Ry. Co., 334 Mo. 1169, 70 S.W.2d 1079; Freeman v. Term. Railroad Assn., 341 Mo. 288, 107 S.W.2d 36.

Mark D. Eagleton and Roberts P. Elam for respondent.

(1) The plaintiff's entire case was predicated upon an alleged violation by defendants of the provisions of the Safety Appliance Act (45 U.S.C. A., Sec. 11), and the order of the Interstate Commerce Commission entered pursuant thereto on March 13, 1911, which required that the cars upon which plaintiff was working be ". . . equipped with efficient hand brakes." The defendants' duty to have such cars so equipped was positive, absolute, unconditional, unqualified, mandatory and continuous. Henry v. Cleveland, C. C. & St. L. Ry. Co., 332 Mo. 1072, 61 S.W.2d 341; Colwell v. St. L.-S. F. Ry. Co., 335 Mo. 494, 73 S.W.2d 226; Lehigh Valley Railway Co. v. Howell, 6 F.2d 785; Didinger v. Penn. Ry. Co., 39 F.2d 799; Spotts v. B. & O. Ry. Co., 102 F.2d 163. (a) The test of the defendants' performance of their duty under the act, and the commission's order, was the performance of the handbrake. The failure of a brake to work efficiently sustains the charge that the act, and the order of the commission, have been violated. Henry v. Cleveland, C. C. & St. L. Ry. Co., 61 S.W.2d 341; Cason v. Kansas City Term. Ry. Co., 123 S.W.2d 137; Gieseking v. Litchfield & M. Ry. Co., 344 Mo. 672, 127 S.W.2d 707; Kimberling v. Wabash Ry. Co., 337 Mo. 702, 85 S.W.2d 738; Didinger v. Penn. Ry. Co., 39 F.2d 799; Detroit, T. & I. Railway Co. v. Hahn, 47 F.2d 60; Spotts v. B. & O. Ry. Co., 102 F.2d 163. (b) The plaintiff's unequivocal and uncontradicted testimony that the hand brake failed to hold, and suddenly reversed, when he was using it in the ordinary and usual manner, and when he had used all means and devices provided, and known to him from his twenty-five years experience as a switchman, to make it hold and prevent it from reversing, was direct, positive and substantial evidence that the brake was then inefficient. No inference or presumption from this testimony was necessary to establish such inefficiency of the brake. Such testimony precludes any inference that the brake was then efficient. Colwell v. St. L.-S. F. Ry. Co., 73 S.W.2d 226; Cason v. Kansas City Term. Ry. Co., 123 S.W.2d 137; Kimberling v. Wabash Ry. Co., 85 S.W.2d 740; Didinger v. Penn. Ry. Co., 39 F.2d 799; Detroit, T. & I. Railway Co. v. Hahn, 47 F.2d 60; Chesapeake & O. Railway Co. v. Gowen, 65 F.2d 261; Spotts v. B. & O. Ry. Co., 102 F.2d 163. (c) It was not necessary for plaintiff to show, and he made no effort or attempt to show, any precise defect in the hand brake, or the precise cause of its inefficient operation on the occasion of his injury. Cason v. Kansas City Term. Co., 123 S.W.2d 137; Gieseking v. Litchfield & M. Ry. Co., 127 S.W.2d 707; Didinger v. Penn. Ry. Co., 39 F.2d 799; Spotts v. B. & O. Ry. Co., 102 F.2d 163. (2) The cross-examination of defendants' witness, Dr. Pence, showing that he, after having treated plaintiff at defendants' employees' hospital as his patient, saw no objection to his giving, and would and did give freely, information about plaintiff's condition and treatment to the defendants' claim agents and representatives, was proper to show the witness' credibility, interest, and conduct, and his demeanor and attitude toward the respective parties. Czezewzka v. Benton-Bellefontaine Ry. Co., 121 Mo. 201, 25 S.W. 914; Gordon v. Kansas City So. Ry. Co., 22 Mo. 516, 121 S.W. 86; 70 C. J., pp. 1000-1002, 1004-1005, secs. 1205, 1213. (3) The plaintiff's given Instruction 1 was proper in both form and substance, and required a finding of all the ultimate facts essential to a recovery by him under the theory of the pleadings and the proof. Kimberling v. Wabash Ry. Co., 337 Mo. 702, 85 S.W.2d 741. (a) The plaintiff's given Instruction 2 was proper in both form and substance, in that: It did not authorize the recovery of double damages, but properly authorized the plaintiff to recover for such physical injuries, if any, and damages resulting from such physical injuries, if any, as the jury might find from the evidence plaintiff sustained on the occasion in question. Keehn v. Realty Co., 328 Mo. 1031, 43 S.W.2d 417; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 909. (b) Both the pleadings and the evidence were sufficient to permit the jury to award plaintiff damages for loss of earnings in the future not to exceed $ 2163.56 per year, and for future pain and suffering. Hoffschlaeger Co. v. Fraga, 290 F. 149; Chesapeake & O. Railway Co. v. Carnahan, 241 U.S. 245, 36 S.Ct. 594, 60 L.Ed. 979. (4) The verdict and judgment are not excessive in view of the nature, character and extent of plaintiff's injuries and damages, and in the light of awards upheld for...