Willis v. Terminal R. R. Ass'n of St. Louis

• Decision Date: 13 November 1967
• Docket Number: No. 52380,No. 2,52380,2
• Citation: 421 S.W.2d 220
• Parties: W. V. WILLIS, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 220

421 S.W.2d 220

W. V. WILLIS, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.

No. 52380.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 11, 1967.

Jo B. Gardner, Monett, for plaintiff-respondent.

Robert C. Ely, David L. Campbell, St. Louis, for defendant-appellant.

EAGER, Justice.

Plaintiff, a passenger conductor on a Wabash train running between St. Louis and Decatur, Illinois, was injured on November 21, 1963, in a collision. He sued both the Wabash Railroad and the Terminal Railroad Association of St. Louis; he recovered $30,500 (after a remittitur of $7,500) against the Terminal, but the jury's verdict was for the Wabash. The Terminal, only, has appealed.

At the time of his injury plaintiff was collecting tickets in the seventh car of a ten-car train, pulled by two diesel units. It was proceeding on the 'West Belt Line' tracks of the Terminal and was on the 'westward' track, which was not its usual run; plaintiff testified that the Terminal dispatcher had put them on that track and that they had the right of way. In any event, the Wabash train, moving at about five miles an hour, collided head on with a Terminal diesel unit or units pulling loaded freight cars and moving in the opposite direction. Plaintiff further testified that he felt the brake application and the collision at the 'same time,' and that there was no warning. He was thrown against and under a seat and lost consciousness for a short time, but he was able to and did make some investigation of the accident; thereafter he apparently 'sat out' the rest of the trip letting others do the remainder of his work. At Decatur he went to the Wabash Employees' Hospital and was there for ten days; he later had from 24 to 26 treatments from a chiropractor. He resumed his work on January 9, 1964, but testified that his condition had, to the time of trial, caused him to lose from two to four trips a month. The medical evidence was somewhat contradictory, as might be expected, but plaintiff's theory was, generally, that the accident had activated an existing osteoarthritis in the cervical and lumbar regions of his spine, which had previously caused no pain, and that the conditions as of trial time were permanent. We shall not find it necessary to consider the injuries or the damages in any detail, although points are made in the briefs concerning them. There was no further testimony concerning the supposed negligence of either defendant except as already stated.

Plaintiff pleaded (Par. 3 of petition) that: '* * * defendants' locomotive, track, road-bed, switches and all other equipment in the complex of tracks then and there existing, including the control, operation, condition and maintenance thereof, and dispatching and directing locomotives and trains on said track, were exclusively within the control of defendants' agents, servants and employees other than plaintiff.' He further pleaded that the collision was unusual and extraordinary and that it would not have been expected or anticipated without negligence of defendants' employees. It is not contended that this petition stated anything but general negligence. A joint answer was filed by the defendants and therein they admitted 'the allegations of Paragraph 3' of the petition. At the close of all the evidence each defendant moved separately for a directed verdict; these motions were overruled. Plaintiff's verdict Instruction, No. 4, was as follows: 'Your verdict must be for plaintiff if you believe:

'1st, The defendants caused their locomotive units to collide, and,

'2nd, Defendants were thereby negligent, and,

'3rd, As a direct result of such negligence the plaintiff sustained damage. (M.A.I. 17.01 (modified)--Offered by Plaintiff.)' As indicated, the jury returned a verdict against the Terminal for $38,000, reduced by remittitur to $30,500. Terminal filed its motion (a) for judgment, or (b) for a new trial. In (a) it raised the insufficiency of the evidence of defendant's negligence and also the insufficiency of the evidence to show whether the collision was caused by negligence of Terminal or Wabash. In (b) it raised, among other things, very specific allegations of error as to Instruction 4. These motions were overruled, one before and one after the remittitur.

We shall discuss, more or less as one point, the submissibility of the case on the res ipsa theory and the propriety of Instruction No. 4. Defendant Terminal says here: (1) that plaintiff failed to make a submissible case of negligence against it; (2) that Instruction No. 4 assumed negligence of Terminal and did not require a finding of such as a causative factor; that it gave no guide to the jury for a determination of Terminal's negligence; and that, as a res ipsa submission, it was not supported by evidence of exclusive control on the part of Terminal and did not conform to MAI. It further complains of the instruction, if considered as a submission of specific negligence, but plaintiff expressly disclaims any such theory. Plaintiff says: that a submissible res ipsa case was made by the evidence and the answer of defendants, and that the instruction was proper on the admitted and proven facts; specifically, counsel say: 'Since the verdict was for Wabash and against Terminal, and in view of the evidence, this admission can be narrowed to defendant Terminal.' In other words, plaintiff's counsel seems now to say that since Wabash was exonerated, the admission of the joint answer may be considered as an admission by Terminal that it was in sole control. If such is the intent, we do not think that any such conclusion follows.

The doctrine of res ipsa loquitur has been discussed so many times that it would be foolish to review here its general import and meaning. In Layton v. Palmer, Mo., 309 S.W.2d 561, 66 A.L.R.2d 1242, the doctrine was concisely stated, at loc.cit. 564, as follows: 'It is firmly established in our jurisprudence that the res ipsa loquitur doctrine only applies when: (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Clark v. Linwood Hotel, 365 Mo. 982, 291 S.W.2d 102, 104--105, and McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641.' We note, however, that in many authorities the requirement of control is referred to as 'exclusive control'. It must be conceded here that the head-on collision of two trains is an occurrence which does not ordinarily happen if all of those in charge use due care, and that as between plaintiff on one side and the two defendants on the other, the latter possessed superior knowledge or means of information as to the cause of the collision.

The underlying issue here is whether the evidence establishes such a measure of control in the defendants as to permit a submission against both on the theory of res ipsa loquitur. We have concluded that it does not. And, with reference to plaintiff's contention that the admission of the answer may now 'be narrowed to defendant Terminal,' we hold that this is not valid. The submission of a case, res ipsa or otherwise, must be proper when made,--not as supposedly modified or varied by the subsequent verdict. We have quoted paragraph 3 of the petition and the admission thereof in defendant's answer verbatim. We do not construe the admission as one that the defendants had joint control of each and all of the separate instrumentalities and functions, but simply as meaning that the defendants in the aggregate had control of all such, and not that they had or exercised a joint control of each and all such instrumentalities and functions. But even if we are wrong in that construction, we shall not...