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

• Decision Date: 10 November 1952
• Docket Number: No. 43116,No. 2,43116,2
• Citation: 252 S.W.2d 380,363 Mo. 606
• Parties: WINTERS v. TERMINAL R. ASS'N OF ST. LOUIS
• Court: Missouri Supreme Court

Page 380

252 S.W.2d 380

363 Mo. 606

WINTERS v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 43116.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1952.

Warner Fuller and Arnot L. Sheppard, St. Louis, for appellant.

Hullverson & Richardson, St. Louis, for respondent.

BARRETT, Commissioner.

Emery Winters was employed by the Terminal Railroad as a baggageman. As he was pulling a two-wheeled 'nose' or barrow truck through the Union Station's subway a stationary barrow truck to his left was struck from the rear causing the iron handle of the second truck to strike and crush his left hand. A barrow truck is about twelve feet long and has two wheels in the middle and a single wheel at each end which 'sort of balances up and down' depending on the load. The wheels at the ends of the truck do not rest on the floor at the same time and as the truck is pulled or pushed both end wheels are off the floor. A barrow truck is so constructed that it swings and pivots readily upon its two center wheels. There is a solid iron handle at each end and the truck weights about 750 pounds. Winters' truck was loaded with 'a corpse' (a casket), hence he had 'the right of way' and was in motion pulling his truck with his back towards the east end of it with the palms of his hands on the east end handle with the backs of his closed hands toward the front of his body. George Burlingame, another baggageman, was standing at the head of a line of five or six empty trucks waiting his turn to use elevator eighteen, loosely holding the handle of his truck, when something struck the truck from behind jerking it from his grip and the iron handle on his truck struck Winters' left hand. To recover damages for his resulting injuries Winters instituted this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., and a jury has awarded him $8000. The Terminal's liability was hypothesized and submitted upon the single specification of negligence that 'as Mr. Winters walked by Mr. Burlingame's truck an employee of the Terminal Railroad to the rear of Mr. Burlingame's truck suddenly and without warning caused the rear of Mr. Burlingame's truck to be given a hard jolt, and that as a result thereof the front end of said truck was turned into and against the left hand of plaintiff, and that Mr. Winters was given no warning of the jolt to Mr. Burlingame's truck and its movement toward him * * *.'

The Terminal employs several hundred baggagemen who work various shifts around the clock and the employees are not all personally acquainted with one another. Burlingame and Winters were not acquainted although they recognized one another as Terminal baggagemen. Burlingame described the subway and its physical surroundings and in particularly describing the collision and resulting injury to Winters' hand said, 'Well, my truck, something struck my truck from behind me, and these trucks like I had, the flat truck swing very easily, they pivot kind of on these two center wheels and due to their weight they will swing one end, will kick out very easily if something should hit it from the other end it will kick out or they are sensitive; you hit a little bump or something in the pavement and if you haven't got a good hold on it, it will swing right--swing out of your hand almost.' He said, 'And something hit my truck, I don't know what it was but it hit my truck a blow and my truck kicked out, the front end of my truck kicked out into the path of Mr. Winters.' In describing the force of the collision he said, 'it was a pretty solid jar because it just kicked the truck out of my hold * * * it was a pretty hard lick, it seemed like to me, because the way it swung around so quick * * *.' As to who or what specific truck bumped into Burlingame's truck he said, 'I don't know who he was.' He could not describe or identify any particular employee in the line of five or six trucks behind him. He said that there were 'several employees behind me * * * mail and baggage handlers.' He was facing in the opposite direction and did not see 'something bump into his truck.' He 'inquired around of everybody that is usually around at that time of the morning, if they saw what happened, but I didn't get anybody to admit they did.' He could not say from his personal observation just what hit his truck. He said, 'Well, something solid, that's all, I didn't see it. I didn't see it but I felt it and it was-- * * *. The impact was solid.'

Winters, in describing the occurrence, said that as he proceeded through the subway near elevator eighteen he saw several 'flat' (barrow) trucks lined up waiting, each truck with a man--'none of them moving,' all facing east and west except that the head truck, Burlingame's, was headed a little bit southwest. As he walked through the five foot space left as a passageway 'this front truck all of a sudden it whipped out, I never seen it because I was in front of it; it come over against my hand and mashed my hand against the truck I was pulling.' He said that he did not actually see the movement of Burlingame's truck,--'Well, I didn't see it but when I turned around it was headed more south than it was.' As to the men and trucks in the standing line he said that there were no trucks in the standing line behind Burlingame except empty 'flat' trucks, very close together, a man with each truck. He said that directly to the rear of Burlingame's truck there was a flat truck with a man but he did not know the man's name although he had 'seen him around there several times * * * pulling flat trucks and doing Terminal work around there' and 'was a Terminal employee.' His cross-examination was, 'Q. I asked you if you knew who they were. A. By seeing them, yes, sir. Q. But you didn't know the names of any of them? A. No, I didn't. Q. Did you try to find out the names of any of them? A. Well, I asked a few of them. Q. Did you have any luck? A. No.' There were no witnesses, other than a doctor, offered by the railroad. It was developed, however, from the plaintiff and his single witness, Burlingame, upon the merits of the cause, that there was nothing to prevent people other than Terminal employees from using the passageway where Winters was injured, and that visitors and employees of other companies walked through that particular section of the subway. And 'from time to time,' the commissary department of the Wabash used that portion of the passageway.

Upon this appeal the Terminal urges that the plaintiff's evidence wholly failed to sustain and support the required inferences of negligence hypothesized and submitted, hence, that plaintiff failed to make a prima facie or submissible case and, therefore, the trial court having failed to direct a verdict in its favor, that this court should reverse the judgment with directions that a judgment be entered in favor of the railroad. It is insisted that the evidence does not show a collision between two of defendant's trucks, 'violently' or otherwise. Since neither Winters nor Burlingame saw what caused Burlingame's truck to move or saw that another truck struck Burlingame's truck it is said that there is no substantial evidence that another truck in fact struck Burlingame's truck and so no one knows what caused his truck to strike Winters' hand. It is further argued that 'There is no evidence that Burlingame's truck was caused to move by the negligent act of anyone. No one knows whose act caused it to move, just as no one knows what act it was which caused it to move. It cannot be said that an unknown act by an unknown person was a negligent act.' Finally, since neither Burlingame nor plaintiff saw or knows who did the unknown act, it is urged that 'there is no evidence that the unknown person who did the unknown act, who was in the employ of an unknown person, was acting within the scope of his employment as a servant of defendant at the time of plaintiff's accident.' It is said, since these four necessary requisites are not proved by the evidence, that the jury necessarily arrived at its verdict by mere speculation and conjecture. Or, alternatively, the Terminal submits that 'At best the evidence for plaintiff does no more than present circumstances which might justify factual inferences that plaintiff's hurt was caused by one of two or more causes, 'for only one of which the defendant would be liable'; whereas, the burden was on him 'to show the cause for which defendant was responsible produced the result'', Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74, an unpermitted piling of inference upon inference so that the conclusion reached by the jury is too remote and has no sound logical foundation in fact. Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125.

This cause, admittedly, is governed by the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51, and, in interpreting the act and determining this appeal, it is the duty of this court to apply the test of liability as it has been laid down and determined by the Supreme Court of the United States. Boston & M. R. R. v. Coppellotti, 1 Cir., 167 F.2d 201, 204. And the test of liability under the act is negligence which that court has defined 'as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done.' Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610, 617. Upon this appeal there is no problem with respect to this general rule and ultimate test of liability. The appellant tacitly concedes, as it must, that it was the duty of its employees in handling their barrow trucks to avoid such a violent collision with other trucks as would endanger follow employees, and that if as a matter of fact some Terminal employee suddenly and without warning so handled his truck that it collided with Burlingame's...