Williamson v. Wabash R. Co.

• Citation: 196 S.W.2d 129,355 Mo. 248
• Decision Date: 08 July 1946
• Docket Number: 39672
• Parties: J. F. Williamson v. Wabash Railroad Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

196 S.W.2d 129

355 Mo. 248

J. F. Williamson v. Wabash Railroad Company, a Corporation, Appellant

No. 39672

Supreme Court of Missouri

July 8, 1946

Motion for Rehearing or to Transfer to Banc Overruled September 9 1946.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed.

J H. Miller, John S. Marley and Sebree, Shook & Gisler for appellant.

(1) The court erred in denying defendant's motion for a directed verdict at the close of the evidence. Unadilla Valley R. Co. v. Dibble, 31 F.2d 239; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 224; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; Frese v. C., B. & Q.R. Co., 263 U.S. 1, 68 L.Ed. 131; Dunworth v. Grand Trunk Western Ry. Co., 127 F. 307; Southern Ry. Co. v. Hylton, 37 F.2d 843; Van Der Veer v. Delaware, L. & W.R. Co., 84 F.2d 980; Yoakum v. Lusk, 223 S.W. 53; Flack v. A., T. & S.F. Ry. Co., 285 Mo. 28, 224 S.W. 415. (2) The court erred in refusing to give defendant's Instruction A declaring plaintiff guilty of contributory negligence as a matter of law. Same authorities cited under Point (1). (3) The court erred in giving plaintiff's Instruction 1 directing a verdict for plaintiff. Same authorities cited under Point (1). (4) The court erred in not sustaining defendant's motion for new trial on account of the mistake or perjury of plaintiff's doctor, M. B. Casebolt. (5) Although reduced by remittitur, the verdict is still so excessive as to require a new trial. Kiefer v. St. Joseph, 243 S.W. 104; Lynch v. Baldwin, 117 S.W.2d 273; Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S.W.2d 536; Page v. Payne, 293 Mo. 600, 240 S.W. 156.

Trusty & Pugh, Guy W. Green, Jr., and Raymond L. Falzone for respondent.

(1) The court properly denied defendant's motion for a directed verdict because defendant admits the negligence of its engineer and conductor and plaintiff's negligence, if any, could only be contributory. Wilson v. C., B. & Q.R. Co., 296 S.W. 1017; Hawthorne v. Int. G.N., 63 S.W.2d 243; Taylor v. A., T. & S.F. Ry. Co., 292 Ill.App. 457, 11 N.E.2d 610, certiorari denied, 304 U.S. 560, 58 S.Ct. 942, 82 L.Ed. 1528; Shepard v. Payne, 60 Utah 140; Texas R. Co. v. Leighty, 88 Tex. 604, 32 S.W. 515; Miller v. Central R. Co. of N.J., 58 F.2d 635; Gildner v. B. & O. Co., 90 F.2d 635; Rocco v. Lehigh Valley R. Co., 288 U.S. 275, 53 S.Ct. 343; Hawthorne v. Int. G.N.R. Co., 144 S.W.2d 76; Id., 156 S.W.2d 668; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91; Unadilla Valley R. Co. v. Dibble, 31 F.2d 239; Davis v. Kennedy, 266 U.S. 147, 49 S.Ct. 33; Frese v. C., B. & Q. Ry. Co., 263 U.S. 1, 44 S.Ct. 1; Southern Ry. Co. v. Hylton, 37 F.2d 843; Van Derveer v. Delaware L. & W.R. Co., 84 F.2d 980; Virginian Ry. Co. v. Linkous, 230 F. 88. (2) The court correctly refused defendant's Instruction A, declaring plaintiff negligent as a matter of law because the admitted negligence of the conductor and engineer was the primary, sole cause of the collision. Authorities Point (1), supra. (3) The court did not err in giving plaintiff's Instruction 1 directing a verdict for the plaintiff because defendant admitted that the conductor and engineer were negligent, and there was no question of proximate cause raised by the pleadings or evidence. Miller v. Collins, 40 S.W.2d 1062. (4) The court did not err in denying defendant's motion for new trial because of the alleged mistake or perjury of Dr. M. B. Casebolt. Sec. 1168, R.S. 1939; Civil Code, Sec. 847.115, Missouri Session Acts, 1943; Reich v. Thompson, 142 S.W.2d 486; Noren v. American School of Osteopathy, 2 S.W.2d 215; Green v. Terminal R. Assn. of St. Louis, 109 S.W. 715; Carson v. Hagist, 143 S.W.2d 355; Citizens Bank v. Thompson, 132 S.W.2d 700; Gavin v. Forrest, 72 S.W.2d 177; Neal v. K.C. Rys., 229 S.W. 215. (5) The verdict is not excessive. Noce v. St. L. & S.F.R. Co., 85 S.W.2d 637; Mooney v. Terminal, 186 S.W.2d 450; Petty v. K.C. Pub. Serv. Co., 345 Mo. 823; Hurst v. C., B. & Q.R. Co., 280 Mo. 566, 219 S.W. 566; Dodd, Administratrix, v. M.K. & T. Ry. Co., 345 Mo. 1205; Gieskeing v. Litchfield Ry. Co., 127 S.W.2d 700; Whitaker v. Pitcairn, 174 S.W.2d 163; Gately v. St. L. & S.F.R. Co., 56 S.W.2d 54; Mann v. Frisco, 72 S.W.2d 977; Clayton v. Wells, 26 S.W.2d 969; Philibert v. Benjamin Ansehl Co., 119 S.W. 797; Hillis v. Home Owners' Loan Corp., 154 S.W.2d 761.

OPINION

Tipton, J.

This is an action under the Federal Employers' Liability Act, filed in the circuit court of Jackson County, Missouri. Respondent, J. F. Williamson, obtained a judgment for $ 17,500 for injuries received by him on account of a collision of two trains operated by appellant, Wabash Railroad Company. From this judgment appellant has duly appealed.

Appellant's first assignment of error is that the court should have sustained its motion for a directed verdict at the close of all of the evidence.

The record shows that on April 11, 1944, the crew of appellant's freight train No. 92 consisted of the engineer J. M. Meck, the fireman Ewing, the conductor Carson Adams, the rear brakeman John Hawkins, and the head brakeman Respondent Williamson. This crew took charge of the train at Stanberry, Missouri, and there they checked their watches. Before the train left Stanberry the crew was given a train order to the effect that passenger train No. 11 would wait at Gallatin until 2:15 a.m. for train No. 92, and that No. 92 should stop at Jameson if it could not reach Gallatin in time to clear No. 11 by 2:10 a.m., or five minutes before No. 11 was due to leave Gallatin.

Respondent was sitting on the left side of the engine in the brakeman's seat, which is ahead of the fireman's seat, looking ahead. There are three curves between Jameson and Gallatin at which the speed had to be reduced to 35 miles an hour. When No. 92 got to Jameson respondent looked at his watch and it was 2:05 a.m. As the engineer did not slow down there respondent said to him, "John, we can't make it." The engineer replied, "I've got plenty of time." Respondent testified that he knew they could not cover the 6.7 miles to Gallatin in time to clear No. 11 by 2:10 as required by the train order. After the above statements between the engineer and respondent nothing further was said between them until respondent called, "Headlight." The engineer leaned out of the window to see around the curve and at the same time applied the emergency brake. The other train was then about 100 yards away. When respondent saw the headlight the freight train was on straight track, looking across the inside curve, and No. 11 was on the other side of the curve. The fireman, respondent and the engineer jumped off the engine on the fireman's side. At the time of the collision No. 92 had reduced its speed to about 10 miles an hour and No. 11 had practically stopped. The engineer of No. 11 first saw No. 92 when it was about 700 feet away.

Respondent introduced in evidence several operating rules of appellant. Rule 865 makes the conductor responsible for the movement, safety and proper care of the train and for the vigilance and conduct of the men employed thereon. Rule 99 makes the conductor and engineer equally and jointly responsible for the protection of the train. Rule 106 makes both the conductor and engineer responsible for the safety of the train, the observance of rules, and the taking of every precaution for protection in situations not covered by rules. Rule 835 makes the engineer and fireman jointly and equally responsible for the movement and protection of the train.

During the trial appellant admitted that both the conductor and engineer were negligent, but contended that respondent violated rule 738 and, therefore, its motion for a directed verdict should have been sustained. That rule reads as follows:

"Conductors, trainmen, yardmen, signalmen, operators and others whose duties are connected with the movement of trains, engines or cars, must familiarize themselves with the rules governing the duties of others as well as of themselves and must be prepared, in case of emergency, to act in any capacity to insure safety. The designation 'conductors' and 'trainmen' in any rule will also include yardmen, when applicable. While general regulations are subdivided for convenience they apply equally to all and must be observed wherever they relate in any way to the proper discharge of the duties of any employe. Trainmen, firemen and yardmen must remind their conductors or engine foremen, and enginemen of the contents of train orders, or the time of superior trains which must be cleared, should there be occasion to do so."

Both appellant's and defendant's witnesses testified that at Jameson respondent said to the engineer, "John, we can't make it." Respondent contends that he complied with rule 738 when he made that statement, that he thereby reminded the engineer of the contents of the train order.

On the other hand, appellant contends that since respondent testified that he knew they could not cover the 6.7 miles to Gallatin in time to clear train No. 11 by 2:10 as required by the train order, an emergency arose; and since the engineer did not stop the train at Jameson he should have set the air brake and stopped the train.

Appellant's superintendent, L. A. High, testified that under the circumstances that existed, if respondent could not persuade the engineer to stop the train, "then he should have acted in any capacity to have stopped the train as required under rule 738." We do not think appellant's construction of this rule is proper. This rule is plain and unambiguous. It requires all employes whose duties are connected with the movement of trains to familiarize themselves with the rules governing the duties of others as well as themselves, and to be prepared to act in...