Wolfe v. Payne
| Decision Date | 01 June 1922 |
| Parties | LEE A. WOLFE v. JOHN BARTON PAYNE, Direcfor General of Railroads, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.
Affirmed (upon condition).
Jones Hocker, Sullivan & Angert for appellant.
(1) The failure of the fireman to cause to be obeyed the stop signal alleged to have been given by the plaintiff was not the juridical cause of his injury. Walsh v. Railway Co., 102 Mo. 587; Harper v. Terminal Co., 187 Mo. 586; Kane v. Railroad, 251 Mo. 26. (2) There was no evidence to go to the jury of a negligent jerk of the train. Hedrick v. Railroad Co., 195 Mo. 120. (3) The grab-iron being required by law and provided for use in coupling and uncoupling cars, the defendant owed the plaintiff no duty with respect thereto. Federal Safety Appliance Act, sec. 3; U. S. Comp. St. 1918, sec. 8608; St. Louis Ry. Co. v. Conarty, 238 U.S. 248; Rutledge v. Ry. Co., 110 Mo. 312; York v Railway, 117 Mo. 411; Hogan v. Ry. Co., 209 N.Y. 20; Kiernan v. Mfg. Co., 134 N.Y. (App.Div.) 192; Labbatt on Master & Servant, sec. 921. (4) The defect in the grab-iron was so inconsequential as that it was not negligence to fail to anticipate injury from it. Hill v. Railway Co., 47 L. R. A. (N. S.) 1144 and note. (5) The defendant had not had possession of the car sufficiently long to charge him with notice of the condition of the grab-iron. Gordon v. Railroad Co., 222 Mo. 527. (6) The verdict of a jury cannot overturn physical facts. Champagne v. Hainey, 189 Mo. 726; Roberts v. Railway, 56 Mo.App. 64; Spiro v. Transit Co., 102 Mo.App. 263. (7) It is error to give an instruction so lengthy and verbose as to confuse instead of enlighten the jury. Williams v. Ransom, 234 Mo. 66; Stid v. Railroad, 236 Mo. 398; Crowl v. Am. Linseed Co., 255 Mo. 331; Andrew v. Linebaugh, 260 Mo. 651; Heman v. Hartman, 189 Mo. 241; Sidway v. Live Stock Co., 163 Mo. 376. (8) It is error to invite a jury to find a fact of which there is no evidence. Modlagi v. Foundry Co., 248 Mo. 601. (9) Under the decisions of this court in kindred cases the verdict of fifteen thousand dollars is full compensation for plaintiff's hurts, if there was no contributory negligence on his part. Greenwell v. Ry. Co., 224 S.W. 404; Nealy v. Railroad Co., 229 S.W. 219; Neff v. Cameron, 213 Mo. 366. (10) The plaintiff having a choice of three ways to ride, and choosing the more dangerous, was guilty of contributory negligence as a matter of law. Moore v. Ry. Co., 146 Mo. 582; Hurst v. Ry. Co., 163 Mo. 322; Hirsch v. Bread Co., 150 Mo.App. 174. (11) The full compensation allowed by the jury for his hurts should be reduced here by his own undoubted contributory negligence. Act of Congress, April 22, 1908, Sec. 3, U. S. Comp. St. sec. 8659, i. e., Federal Employers' Liability Act, sec. 3.
Sidney Thorne Able and Charles P. Noell for respondent.
(1) Under the express provisions of the Federal Employer's Liability Act, if the negligence (violation of a signal) of an employee in whole or in part causes injury to another employee a right of recovery by the injured employee exists. Waters v. Guile, 234 F. 532. (2) Plaintiff assumed an unnecessary burden in his instruction in requiring the jury to find this additional ground of negligence before entitling him to recover. Callicotte v. Ry. Co., 204 S.W. 529, 274 Mo. 689. (3) While the train was being slowed up "as if to stop" upon a stop signal being given at the time by the plaintiff, it was negligence, within the meaning of the Federal Employer's Liability Act entitling plaintiff to recover, for the fireman and engineer in violation of such signal to cause the train to suddenly start forward at an increased rate of speed, jerking the slack out of the train, when such negligent action concurs with a movement in a loose grab-iron, causing the plaintiff to fall from the train and be injured, for such injury resulted "in part" (within the meaning of such terms as used in the act) from the violation of such signal. Acts of Congress, U. S. Comp. Stat. 1918, sec. 8657; Waters v. Guile, 234 F. 532. This was not submitted to the jury as an independent ground of negligence entitling the plaintiff to recover by any instructions other than those of the defendant. Appellant admits that the grab-iron was required by the Safety Appliance Act to be secure and that it was not secure and that such insecure grab-iron contributed to plaintiff's fall and injuries; then where plaintiff's petition states a cause of action under the Safety Appliance Act the respondent in the trial court assumed an unnecessary burden in requiring that additional negligence be also found before entitling the plaintiff to recover. Callicotte v. Ry. Co., 204 S.W. 529, 274 Mo. 689. (4) Grab-irons were in use on freight cars before a safety appliance act was ever thought of, and the mere fact that such act requires those that are on the sides and ends of such cars and which are or can be used in coupling cars to be secure, or if there are none that can be used for such purpose to install secure ones for such purpose, making it negligence per se to fail to do so, in no way inhibits the use of such appliance for any other use in the operation of trains. That the plaintiff was making no unusual use of such appliance is shown by the testimony. There is no evidence in the case, nor could there be any obtained, that the trainmen were instructed not to get upon the stirrup and hold on to the grab-iron above it at either end of the car for the purpose of giving signals for the movement of the train. That such appliances are used for other purposes is illustrated in these cases: Boehmer v. Penn. Railroad, 252 F. 554, 252 U.S. 496, 40 S.Ct. 409; United States v. B. & M. Railroad Co., 168 F. 148. (5) An employee engaged about duties other than the ones which the Safety Appliance Act specifically mentions is entitled to the advantages which the Safety Appliance Act add to those of the Employer's Liability Act where the defective appliance contributes to cause his injuries. Gotschall v. Railways, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995; Director General of Railroads v. Ronald, 265 F. 138; Reap v. Hines, 273 F. 92; L. & N. Railroad v. Layton, 243 U.S. 617, 37 S.Ct. 456; Tyon v. Wabash Ry. Co., 232 S.W. 786; C., B. & Q. Ry. Co. v. United States, 220 U.S. 558, 55 L.Ed. 582; Grand Trunk Ry. v. Lindsay, 233 U.S. 42, 58 L.Ed. 838; Great Northern Ry. Co. v. Otos, 239 U.S. 349, 36 S.Ct. 124. (a) The plaintiff therefore assumed in the court below an unnecessary burden not binding upon him on appeal, as he is not the appellant or complaining party. Callicotte v. Ry., 204 S.W. 529, 274 Mo. 689; Moore v. Ry. Co., 268 Mo. 31. (b) This, therefore, makes it unnecessary for the court to examine many points of the briefs of appellant. (6) A grab-iron which was so loose that it could slide in and out of the car for an inch and a half, and had a movement up and down, cannot be said, as a matter of law, to be so inconsequential that it was not negligence under the Federal Employers' Liability Act to leave it in such condition, on the ground that defendant could not anticipate injury from it. (7) The grab-iron being insecure was a violation of the Safety Appliance Act, and therefore the question of negligence does not arise. Miller v. Ry. Co., 169 F. 567; Gates v. Crane Co., 204 S.W. 38; Carpenter v. Railroad, 189 Mo.App. 169; Davis v. Ry., 151 F. 1009, 172 F. 961; Yazoo Railroad Co. v. Long, 201 F. 881; Carroll v. Fertilizer Co., 204 S.W. 1133. (8) If the plaintiff asks a long instruction correct in substance and the trial court refuses it and gives a shorter one which fairly covers the plaintiff's case, there is no wrong done the plaintiff, and an appellate court, of course, would hold that he was not entitled to a new trial. Williams v. Ransom, 234 Mo. 71. A long instruction of respondent which, in part, is erroneous, to the detriment of appellant, and which conflicted with a proper instruction of the appellant, would, of course, warrant a reversal. Stid v. Railroad, 236 Mo. 399. No appellate court has ever remanded a case on account of the length of an instruction unless the instruction was shown to be erroneous in substance, to the detriment of the appellant. Appellant must "point out wherein the instruction was too long and wherein it was calculated to mislead and confuse the jury," to the detriment of defendant. Crowl v. Am. Linseed Co., 255 Mo. 305, 331; R. S. 1919, secs. 1276, 1513; Andrew v. Linebaugh, 260 Mo. 651; Sidway v. Land & Live Stock Co., 163 Mo. 386; Bryant v. Rys. Co., 217 S.W. 634. "Appellant has no right to complain," where it secured the giving of nine instructions which take up six pages of the printed record, clearly covering appellant's contentions why the plaintiff should not recover, because the plaintiff joined in one instruction the question of negligence and measure of damages, where such instruction correctly declared the law. Heman v. Hartman, 189 Mo. 25. (9) The "question of the proper measure of damages is inseparably connected with the right of action, and in cases arising under the Federal Employers' Liability Act it must be settled according to general principles of law as administered in the Federal courts." C. & O. Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 632. Under the decisions of the Federal courts, Erie v. Downs, 250 F. 415, appellant realized that the amount approved by the jury and trial court in this case was not excessive for the injury sustained. But appellant does contend that the amount received was the full amount under the evidence that could lawfully stand. This we deny.
James T. Blair, C. J., and Higbee, Elder and Walker, JJ., concur; Woodson, J., thinks...
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