Williamson v. St. Louis-S.F. Ry. Co.

• Decision Date: 18 September 1934
• Docket Number: No. 32145.,32145.
• Parties: JOHN W. WILLIAMSON, Administrator of the Estate of RUSHTON E. HALBERT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

74 S.W.2d 583

JOHN W. WILLIAMSON, Administrator of the Estate of RUSHTON E. HALBERT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.

No. 32145.

Supreme Court of Missouri, Division One.

September 18, 1934.^*

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

AFFIRMED.

E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.

(1) Where the violation of the Safety Appliance Act or the "causal connection" between such violation and the injury is to be arrived at by speculation or conjecture the case should not be submitted to the jury, or, if submitted, the verdict should be set aside. Weekly v. Railroad Co., 4 Fed. (2d) 312; Talbert v. Ry. Co., 314 Mo. 370; Schendel v. Ry. Co., 206 N.W. 436; Fryer v. Ry. Co., 63 S.W. (2d) 55; Robison v. Ry. Co., 334 Mo. 81; Penn. Railroad Co. v. Chamberlain, 288 U.S. 333; Atchison, T. & S.F. Ry. v. Toops, 281 U.S. 351; Gulf, M. & N. Railroad Co. v. Wells, 275 U.S. 455; Shidloski v. Ry., 64 S.W. (2d) 262. (2) It is not enough to show that the accident may or could have resulted from any one of several causes, for some of which the defendant was responsible, and for some of which it was not. Hamilton v. Ry. Co., 318 Mo. 134; Fryer v. Ry. Co., 63 S.W. (2d) 55; New York Cent. Railroad Co. v. Ambrose, 280 U.S. 490; McGrath v. St. Louis Transit Co., 197 Mo. 104. (3) The court erred in admitting irrelevant, incompetent, immaterial and prejudicial evidence on behalf of plaintiff in that plaintiff's witness Ellis was permitted to testify as an expert witness that, in his opinion, the couplers on the Frisco car and the Missouri Pacific car involved in this accident would not couple automatically by impact. The opinion of this witness was based upon a prior opinion of the same witness that, because the coupler was low, it threw it out of line and gave it more lateral play. An expert witness should not be permitted to give an opinion based on a prior opinion. McAnany v. Henrici, 238 Mo. 103; Cardinale v. Kemp, 309 Mo. 275. To permit a witness, expert or otherwise, to state his conclusion as to an ultimate fact which the jury must decide, is a direct invasion of the province of the jury and constitutes reversible error. Taylor v. Railroad, 185 Mo. 255; Deiner v. Sutermeister, 266 Mo. 521; Roscoe v. St. Ry. Co., 202 Mo. 595; Fields v. Luck, 44 S.W. (2d) 18; Castanie v. Railroad, 249 Mo. 192; Mahany v. K.C. Rys. Co., 286 Mo. 619; Langston v. Railroad, 147 Mo. 465. (4) The verdict of the jury is grossly excessive. The pecuniary loss of the widow must be limited to the present cash value of such contributions as she would have received from the continued life of the deceased. Gulf, Colorado & S.F. Ry. Co. v. Moser, 275 U.S. 133; Railway v. Kelly, 241 U.S. 491; C. & O. Ry. Co. v. Gainey, 241 U.S. 494.

N. Murry Edwards and Robert A. Harris for respondent.

(1) Direct or positive proof is not required to show that a negligent act or defect was the cause of an injury to, or death of, an employee engaged in interstate commerce. 2 Roberts on Federal Liabilities of Carriers (2 Ed.), p. 1572, sec. 819; Halt v. Ry. Co., 279 S.W. 148, certiorari denied 271 U.S. 668; Strother v. Railroad Co., 188 S.W. 1102; Pittsburgh C.C. & St. L. Railroad Co. v. Edwards, 190 Ind. 57, 129 N.E. 310; Rocha v. Payne, 108 Neb. 246, 187 N.W. 804; Louisville & N. Railroad Co. v. Allen's Admr., 174 Ky. 736, 192 S.W. 863; Swartwood v. Railroad Co., 169 N.Y. App. Div. 759, 155 N.Y. Supp. 778; Mulligan v. Railroad Co., 104 S.C. 173, 88 S.E. 445; Steele v. Railroad Co., 103 S.C. 102, 87 S.E. 639. (2) Proof that couplers came together and failed to couple automatically by impact sustains a charge of defective couplers and a violation of the Safety Appliance Act. San Antonio Ry. Co. v. Wagner, 241 U.S. 479; Atlantic City Railroad Co. v. Parker, 242 U.S. 56; Johnson v. Southern Pacific, 196 U.S. 1; Chicago, R.I. & P. Ry. v. Brown, 229 U.S. 320; Delk v. Ry. Co., 220 U.S. 580. (3) Automatic couplers must not only be placed on cars, but kept in repair, and the statute is not complied with where drawbars are allowed to get out of line to such extent as to necessitate employees going between cars to align them in making a coupling. Kansas City, M. & O. Co. v. Wood, 262 S.W. 521; Texas & P. Ry. Co. v. Sprole, 202 S.W. 986; Jordan v. Ry. Co., 271 S.W. 997; San Antonio v. Wagner, 241 U.S. 476. (a) The deceased being an experienced railroad man was not required to make an experiment of having the couplers of the cars come in contact with each other to determine whether or not they would couple automatically by impact before attempting to line up and adjust the couplers. St. Louis & S.F. Ry. Co. v. Kirk, 101 So. 379. (4) Halbert, the deceased, was engaged in switching cars at the time he was injured and killed. His lantern was seen to disappear between the cars, whereupon they were stopped and he was found crushed between the couplers. The evidence indicates that one of the couplers was defective and that the cars struck by impact, but did not couple. It was therefore a question for the jury as to whether or not the defective coupler was the proximate cause of the injury and death. Demerce v. Ry. Co., 142 N.W. 147; Foster v. Davis, 252 S.W. 433; Lorton v. Railroad Co., 267 S.W. 385; McAllister v. Ry. Co., 25 S.W. (2d) 791. (a) The fact that defendant's engineer testified in plaintiff's case that there was no impact did not make it conclusive upon plaintiff, but it was a question for the jury under the other evidence as to whether there was an impact. Perryman v. Railroad Co., 31 S.W. (2d) 7. (5) The court did not err in admitting the testimony of witness Ellis as an expert. His opinion was based on the evidence and his twenty-five years of experience and was properly admitted in evidence. Crecelius v. Ry. Co., 284 Mo. 27; Finnegan v. Ry. Co., 261 Mo. 483; Neely v. Ry. Co., 14 S.W. (2d) 977; Goins v. Ry. Co., 47 Mo. App. 181. (6) The court did not err in giving plaintiff's Instruction 1. This instruction is a correct statement of the law and has been approved by the United States Supreme Court and by this court. San Antonio, A.P. Ry. Co. v. Wagner, 241 U.S. 476; Jordan v. Ry. Co., 271 S.W. 997. (7) The verdict of $25,000 is not excessive. The deceased was thirty-one years old, had an expectancy of thirty-five years, left a widow twenty-six years old and a four-month-old minor son. The deceased earned an average of $152.49 per month for a year previous to his death and expended all but $20 to $25 per month for the support of his wife and child. Deceased had a total expected earning capacity of over $64,000. Moran v. Ry. Co., 48 S.W. (2d) 881; Case v. Ry. Co., 30 S.W. (2d) 1073; Mo. Pac. Railroad Co. v. Bushey, 20 S.W. (2d) 614; Clay v. Ry. Co., 104 Minn. 1, 115 N.W. 949; Gulf, C. & F. Ry. Co. v. Moser, 277 S.W. 722; Looney v. Railroad Co., 135 S.E. 262; Brickman v. Railroad Co., 74 S.W. 306, 54 S.E. 553. (a) Plaintiff's measure of damage Instruction 2 was a correct declaration of the law on the measure of damages in this case. Lorton v. Ry. Co., 267 S.W. 385; Gulf, C. & S.F. Ry. v. Moser, 275 U.S. 135.

GANTT, J.

Action under the Federal Employers' Liability and Safety Appliance Acts to recover damages for the widow and minor child of Rushton E. Halbert who was injured at two A.M. and died at nine A.M. on February 27, 1930, while working as a switchman for defendant in its railroad yard at Memphis, Tennessee.

The petition charged a violation of the Safety Appliance Act with reference to automatic couplings, and further charged that said violation was the proximate cause of the death of Halbert. The answer was a general denial. Judgment for plaintiff for $25,000. Defendant appealed.

Defendant contends that there was no substantial evidence tending to show a violation of said act, and further contends that if there was such evidence said violation was not the proximate cause of Halbert's death. In other words, it contends for a directed verdict.

It was admitted that defendant and deceased were, at the time, engaged in interstate commerce.

[1] There was evidence tending to show the following: The tracks run north and south in said yard. The injury to Halbert resulted from a switching movement on the storeroom track leading from track No. 1. They were straight and level tracks. At the time six cars were standing on the storeroom track. The car on the north end of the six standing cars was a loaded Missouri Pacific box car. An engine headed north with five cars coupled to its tender was north of the six standing cars and on the same track. The car on the south end of the cars coupled to the engine was a loaded Frisco box car. The movement was to back the engine and cars and couple the Frisco car to the Missouri Pacific car. If in good condition, drawbars will couple automatically if the knuckle of one drawbar is open, or if the knuckle of both drawbars are open. In this case the knuckle of the Frisco drawbar was closed, but the knuckle of the Missouri Pacific drawbar was open. It was the duty of Halbert to make this coupling. On a signal from him the engineer backed the engine and cars. After the engine and cars were backed four or five car lengths, and when the Frisco car was within a car length of the Missouri Pacific car, Halbert, who was on the ladder on the east side of the moving Frisco car and at the south end of said car, gave the engineer a "slow down" signal and continued to so signal until the engine and cars were moving "real slow" and near the standing cars. At that time Halbert stepped from the ladder to the ground and walked south about ten feet. He and his lantern then disappeared. Thereupon the engineer applied the emergency brake to the engine and stopped the engine and cars. While the engine and cars were backing south, the foreman of the crew was walking south on the east side of the six standing cars. On reaching the south end of said cars he turned and...