Wilmoth v. Chicago, R. I. & P. R. Co.

• Decision Date: 20 November 1972
• Docket Number: No. 1,No. 55973,55973,1
• Citation: 486 S.W.2d 631
• Parties: Della WILMOTH, Executrix of the Estate of E. A. Wilmoth, Deceased, Respondent, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a corporation, (Rock Island Lines), Appellant
• Court: Missouri Supreme Court

Page 631

486 S.W.2d 631

Della WILMOTH, Executrix of the Estate of E. A. Wilmoth, Deceased, Respondent, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a

corporation, (Rock Island Lines), Appellant.

No. 55973.

Supreme Court of Missouri, Division No. 1.

Nov. 20, 1972.

Gage, Tucker, Hodges, Kreamer, Kelly & Varner, William L. Turner, Kansas City, Terry, Stewart & Negaard, Jack C. Terry, Independence, Lehmberg, Bremyer, Wise, Jones & Hopp, John K. Bremyer, McPherson, Kan., for respondent.

Thad C. McCanse, James & McCanse, Kansas City, for appellant.

KEITH P. BONDURANT, Special Judge.

This is an action brought under the Federal Employers' Liability Act by the Executrix of E. A. Wilmoth, deceased, for his wrongful death. Mr. Wilmoth died of a heart attack while employed as a station agent by defendant railroad at McPherson, Kansas, his death occurring in the depot shortly after he had unloaded a number of sacks of mail from defendant's train. The case was submitted to the jury on the basis that defendant failed to provide plaintiff's decedent with sufficient help. Plaintiff received a judgment in the amount of $45,000.00. Defendant seeks a reversal of plaintiff's judgment and an entry of judgment in its favor on the ground that plaintiff failed to make a submissible case, and alternatively claims errors in instructions and in admission of evidence entitling defendant to a new trial.

Since the amount in dispute exceeds $30,000.00 and the trial and appeal occurred prior to January 1, 1972, this court has jurisdiction under Section 3 of Article V of the Missouri Constitution as amended in 1970, and § 477.040, RSMo 1969.

Defendant railroad's first and most basic claim of error is that there was no credible evidence that the railroad failed to provide sufficient help which was the only basis four finding defendant negligent. The Federal Employers' Liability Act, 45 U.S.C.A., § 51 et seq., places a duty upon the employer to provide a sufficient number of employees to perform assigned work. This duty cannot be delegated nor transferred to another. Johnson v. Missouri-Kansas-Texas R. Co., Mo.Sup., 334 S.W.2d 41; Blair v. Baltimore & Ohio R. Co., 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490; Southern Ry Co. v. Welch, 6th Cir., 247 F.2d 340. It applies to a particular assigned task under circumstances of particular difficulty even though such task has been performed by fewer employees in the past or under less difficult circumstances. Southern Ry Co. v. Welch, supra.

In ruling on defendant's motion for a directed verdict, the trial court was required to submit the case to the jury is the plaintiff's evidence justified with reason the conclusion that the employer's negligence played any part, even the slightest, in producing the death of the decedent. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Kiger v. Terminal R. R. Ass'n of St. Louis, Mo.Sup., 311 S.W.2d 5, 8; Cleghorn v. Terminal R. R. Ass'n of St. Louis, Mo.Sup., 289 S.W.2d 13; Southern Ry. Co. v. Welch, supra. In addition to stating that even the slightest causal connection is enough to sustain a finding of liability, the United States Supreme Court has held that little evidence is required to create a jury issue as to such connection. Stinson v. Atlantic Coast Line R. Co., 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93. The burden of the employee is met when there is proof, even though entirely circumstantial, from which the jury may with reason make the inference that the defendant's negligence contributed in any way to decedent's death. Rogers v. Missouri Pacific R. Co., supra, which reversed and disapproved the opinion of this court in Rogers v. Thompson, Trustee,284 S.W.2d 467, states the rule as follows: '* * * the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that * * * the jury may also with reason * * * attribute the result to other causes, including the employee's contributory negligence.' 352 U.S. 500, 506, 77 S.Ct. 443, 448.

The question, then, is whether there was any credible evidence, direct or inferred, from which the jury could have found that the railroad was negligent in failing to provide sufficient help to decedent in connection with his duties, and that its negligence played even the slightest part in promotion the death of the deceased. We believe the plaintiff's evidence amply sustained this burden.

Decedent was 61 years old at the time of his death. He had been employed by the Rock Island at McPherson, Kansas, continuously for 16 years. Since 1955, examinations by Doctor Nunemaker, a medical examiner for the railroad, had revealed that decedent was suffering from high blood pressure and hypertension, which was diagnosed as more than mild. Doctor Nunemaker performed follow-up examinations in January and March 1957, at the specific request of defendant's chief surgeon, and his findings were presented to the defendant. Decedent was under the care of Doctor Collier and Doctor Johnson, partners. Doctor Collier, a surgeon, was the appointed McPherson railroad doctor for defendant, but Doctor Johnson handled medical problems of railroad employees, including decedent. Doctor Johnson testified that decedent had a history of high blood pressure and was treated for this disease from March 1960, Until August 1964. Decedent was worried about his heart and on August 20, 1960, a myocardial strain was revealed by an electrocardiogram.

When decedent was first assigned to the McPherson station in 1948 his duties as station agent involved the supervision of a telegraph operator, yard clerk, ticket clerk and cashier. By 1964, the year of decedent's death, he had assumed the duties of the telegrapher, yard clerk and ticket clerk in addition to his regular duties as the agent. The railroad had reduced its station personnel from five men to two, decedent and Mark Penland. Decedent's scheduled duty hours were from 7:00 a.m. until 3:00 p.m. After decedent completed his regular shift, he was required to perform duties normally performed by the yard clerk which extended his quitting time by two to two and one-half hours so that his arrival at home was rarely before 5:30 p.m. Penland did not work on Saturdays. In order to help decedent handle the Saturday work, his high school son, Carl Wilmoth, worked Saturdays without pay and at other times when he could get away from school.

When decedent first reported to McPherson, he had an hour off for lunch which had been later reduced to 20 minutes. Between 1948 and 1964 the population of McPherson had increased from 9,000 to 11,000. Decedent's son, Carl, testified that from the time he first started going to the depot until his father's death, the number of railroad cars consigned in and out of McPherson locally on a daily basis increased from 30--40 to 60--70. During that period, expansion of operations by a refinery, a flour mill, and a feed company in McPherson caused much increase in rail shipments so that the dollar volume of business done at the station rose from $50,000--$60,000 to about $100,000 per month.

During the daytime two trains arrived at the McPherson station. Train No. 39 arrived daily at about 12:40 p.m. Train No. 40 was scheduled to arrive at 4:30 p.m. Defendant's witnesses, Konovalski and Golden, testified that Train No. 39 would have to be unloaded and on its way in 11 or 12 minutes. Upon its arrival an average of 50 sacks of mail, averaging 35 pounds each, would have to be unloaded. There would also be parcel post packages weighing up to 70 pounds, in addition to empty and full cream cans weighing approximately 100 pounds apiece. There were also sacks of 'slugs' and 'refrigerators' which were so heavy that even dragging them could cause back strain. To remove the mail and baggage from Train No. 39 required the use of a flat platform truck, pulled manually, and weighing about 500 pounds. It had large iron wheels and was very difficult to pull. Prior to the change in Penland's lunch hour, both decedent and Penland would pull this vehicle to the side of the train, unload all the baggage and mail onto the truck, pull the loaded truck weighing approximately 1500 pounds and unload the contents onto a pick-up truck. There was evidence that on some occasions Penland would unload the baggage and mail without help, but the witness William Snyder, a section foreman, testified that decedent and Penland customarily worked together to unload No. 39, and that he and some of his men would also volunteer to help out when the loads were heavy.

Mark Penland's hours had been from 8:00 a.m. to 5:00 p.m., with a lunch hour from 11:00 a.m. to 12:00 noon. Three or four months before decedent's death, Penland's hours were changed to 9:00 a.m. to 6:00 p.m., and his lunch hour was subsequently changed to 12:30 p.m. to 1:30 p.m. There was evidence presented from which the jury could infer that Penland's working hours were changed in order to eliminate overtime payment. Regardless of the reason, the change in Penland's lunch hour made him absent at the time Train No. 39 got to the station and necessitated decedent's handling the unloading of the train alone. Carl Wilmoth testified that in order to relieve the strain on his father, he came down to the station from high school when he could to help his father unload. William Snyder testified that on many days the quantity of mail and baggage was so great that he and his section crew would volunteer part of their lunch hour to assist decedent. When the decedent would work the train alone, which was shown to be the majority of the time after Penland's lunch hour was changed, he would be 'real hot, tired and sweating.' He would be exhausted when he got home and his condition required him to lie down and rest before he could have dinner.

On November 19, 1964,...