Willis v. Wabash R. Co.

• Decision Date: 14 November 1955
• Docket Number: No. 44638,No. 1,44638,1
• Citation: 284 S.W.2d 503
• Parties: Omer E. WILLIS, Respondent, v. WABASH BAILROAD COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 503

284 S.W.2d 503

Omer E. WILLIS, Respondent, v. WABASH BAILROAD COMPANY, a Corporation, Appellant.

No. 44638.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 12, 1955.

Wayne Ely, Robert C. Ely, Alphonso H. Voorhees, St. Louis, for appellant.

Hullverson & Richardson, St. Louis, for respondent.

COIL, Commissioner.

Omer E. Willis, a railroad fireman, and plaintiff below, had a verdict for $30,000 in his action under the F.E.L.A., 45 U.S.C.A. Sec. 51 et seq., for damages for alleged personal injuries sustained when he fell from the catwalk of a diesel engine. Wabash Railroad Company, defendant below, has appealed from the judgment for $22,000 entered after an $8,000 remittitur. Wabash contends that the trial court erred: in failing to direct a defendant's verdict; in giving and refusing instructions; and in restricting defendant's, and in failing to restrict plaintiff's, cross-examination. Defendant also contends that the judgment is excessive.

Plaintiff's verdict-directing instructions (3 and 4) hypothesized respectively: defendant's negligence in violating its rule 30 requiring the engine's bell to be rung when the engine was about to move; and defendant's engineer's negligence in moving the engine when he knew or should have known that plaintiff was on the engine's catwalk for the purpose of urinating.

In our determination of whether plaintiff made a submissible case in the respects above noted, we review the evidence from a standpoint favorable to plaintiff, give him the benefit of defendant's evidence favorable to him and not contrary to his own testimony or to his fundamental evidentiary theory, give him the benefit of all reasonable inferences, and disregard defendant's evidence unfavorable to plaintiff. The evidence so viewed justifies this statement.

During the afternoon and evening of February 16, 1953, plaintiff was the fireman, and J. R. Foster the engineer, in defendant's crew operating diesel 407 engaged in switching movements in defendant's Kansas City yards. Plaintiff and Foster had worked together on only one prior occasion. Shortly prior to 8:30 p. m. on that cold night (temperature 10~ above zero), defendant's 43-car freight train (Moberly to Kansas City) arrived in the yards. Its road engine was cut off and engine 407 coupled on (headed east into the west end of the train's westernmost car). Thereafter, the train remained stationary for 15 or 20 minutes, during which time the air was 'bled off the brake drums' of the freight cars preparatory to the train's movement west to another section of the yards. During this interval, plaintiff sat in the fireman's seat on the engine cab's left side for a few minutes, then went out the engine cab's rear door, checked two lanterns (lit one and cleaned the other), returned to the cab and said to the engineer, 'I have to go out and take a leak,' to which Foster replied, 'Okay, Earl'; whereupon plaintiff went through the door (on the fireman's side) which led to a 'running board' or 'catwalk', a platform 15 to 18 inches wide and about 4 feet above the ground. About 4 or 5 feet above the 'catwalk' was a grab iron to which one could hold. Plaintiff, facing north, began to unbutton his trousers, when the train, without warning by bell or otherwise, backed westwardly, throwing plaintiff to the ground. If plaintiff had known that the engine was about to move, he would have held to the grab iron and thereby would have avoided falling to the ground. Most enginemen go to a diesel's rear steps for the purpose, but they may urinate from the 'catwalk' so long as they are not in public view.

Defendant's transportation department rule 30 was: 'The engine bell must be rung when an engine is about to move and while approaching and passing public crossings at grade.' Plaintiff testified that this rule applied and was customarily observed by defendant's engineers when a switch engine was 'about to move' after having been stationary under the circumstances shown in evidence. Most of defendant's evidence was to the contrary as to the custom and practice and usual interpretation of the rule, but some of defendant's witnesses testified in such manner that the jury reasonably could have found that their testimony corroborated plaintiff. Plaintiff also testified that the 'only way I know an engine is going to move is when the bell rings'.

There was also evidence that an engineer customarily would not move an engine until the fireman was in position in the cab or until he knew where the fireman was. Defendant's engineer's testimony, construed favorably from plaintiff's standpoint, was that he did not in fact know where the fireman was at the time he moved the engine but that he thought that plaintiff had left the engine, had walked 1,600 feet west to use a toilet in the yard office, and that plaintiff would be waiting there to reboard the engine.

Plaintiff's instructions 3 and 4 in pertinent part were:

'Instruction No. 3. * * * You are now instructed that if you find from the evidence that on the occasion and at the time and place mentioned in evidence Mr. Willis left the cab of the locomotive and stepped out upon the running board on the north side of the locomotive to answer a call of nature, and that while so doing the engineer moved the locomotive to the west without notice or warning to Mr. Willis, causing him to fall and be injured, and

'If you further find from the evidence that at that time and place there was in full force and effect a rule of the defendant requiring the engineer to ring the bell before moving the locomotive under the circumstances aforesaid, and at such time and place, and that such rule was applicable to the movement made by the engineer at that time and place, and that the bell was not rung and that in so failing to cause the bell to be rung the defendant failed to exercise ordinary care for the safety of Mr. Willis and was negligent, and that such negligence on the part of the defendant directly contributed either in whole or in part to bring about injury to plaintiff, then you are instructed that Mr. Willis is entitled to recover and your verdict should be in his favor.

'Instruction No. 4. Gentlemen of the jury, you are also instructed that if you find from the evidence that on the occasion mentioned in evidence there was a custom and practice of the defendant, if you so find, forbidding the engineer from starting or moving a locomotive until the fireman was in his position is the cab or until the engineer knew that the fireman was in a place of reasonable safety, and that on this occasion the engineer moved the locomotive before Mr. Willis had resumed his position in the cab, and before the engineer knew where Mr. Willis was, and

'If you also find from the evidence that Mr. Willis had left the cab of the locomotive and had stepped out upon the running board to answer a call of nature, and that he had so informed the engineer before leaving the cab of the locomotive, and that in causing the locomotive to be moved under the circumstances aforesaid the defendant railroad company failed to exercise ordinary care for the safety of Mr. Willis and was negligent, and that such negligence on the part of the defendant directly contributed either in whole or in part to bring about injury to plaintiff, then you are instructed that Mr. Willis is entitled to recover, and your verdict should be in his favor.'

We think it is apparent from the evidence heretofore reviewed that there was substantial evidence to support each fact hypothesized in each of the foregoing instructions. Defendant does not argue to the contrary except to contend that there was no evidence of a custom that the engineer was to know that the fireman was in a place of reasonable safety before moving the engine, and that there was no evidence that defendant's engineer knew that plaintiff had proceeded to the catwalk for his stated purpose.

Suffice to say as to those evidentiary contentions that defendant's engineer testified to the effect that it was part of the engineer's job to see that the fireman was at his post, and another defendant's witness testified that it was the custom and practice for an engineer not to continue engine movements until he knows where his fireman is. The jury reasonably could find from that testimony that the engineer was not to move the engine unless and until he knew his fireman was in a reasonably safe place. There also was evidence from which the jury reasonably could find that the engineer knew or should have known that plaintiff was on the catwalk for the accomplishment of his stated purpose at the time the engine was moved. We have noted heretofore that plaintiff and engineer Foster had worked together only once before. Foster, therefore, could not well rely upon what plaintiff 'usually did,' and there was no evidence that Foster otherwise had knowledge of plaintiff's habits. We have noted also that enginemen, including plaintiff, could, in so far as any rule, custom, or practice was concerned, stand on the engine's back steps or catwalk for plaintiff's purpose; that plaintiff told Foster when and why he was leaving the cab and then proceeded out a door which led to the catwalk rather than through the rear door which led more directly to the rear steps; that it was a very cold night; and that the closest toilet was 1,600 feet away. From all the foregoing, it was a reasonable inference that Foster should have known, his thoughts to the contrary notwithstanding, that plaintiff would not leave the catwalk of the engine.

The real burden of defendant's argument to support his contention that no submissible case was made, is that the evidence showed that the purpose of rule 30 'was to warn men on the ground near the train and not men on the engine,' and that the purpose of any custom with reference to the fireman being at his post was to assist the engineer in the...