Wright v. Chicago, B. & Q. R. Co.

• Citation: 392 S.W.2d 401
• Decision Date: 12 July 1965
• Docket Number: No. 50947,No. 2,50947,2
• Court: United States State Supreme Court of Missouri
• Parties: Garland WRIGHT, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, A Corporation, Appellant

Page 401

392 S.W.2d 401

Garland WRIGHT, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, A

Corporation, Appellant.

No. 50947.

Supreme Court of Missouri, Division No. 2.

July 12, 1965.

Frank X. Mattes, St. Louis, and Edward Murphy, East St. Louis, Ill. William R. Kirby, St. Louis, of counsel, for respondent.

Lucas & Murphy, by Joseph A. Murphy, St. Louis, for appellant.

PRITCHARD, Commissioner.

Plaintiff was a railroad car inspector for defendant in its railroad yards in North Kansas City, Missouri, on the day of the occurrence herein, November 18, 1962. Plaintiff claims damages for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. His case was submitted to the jury upon two conjunctive theories of negligence embodied in Instructions Nos. 6 and 7. The first of these is to the effect that a manner and method of straightening a bent 'sill step' on a boxcar by use of a wooden 2"' X 4"' pry or lever was not reasonably safe; the second is that plaintiff's co-worker, a foreman, suddenly and without any warning slackened off or let up on the lifting of said timber and changed positions and shifted the weight and pressure to plaintiff, thereby causing his injuries, as claimed, to his low back and groin (a herniated intervertebral disk, and a right inguinal hernia).

Defendant says that there was insufficient evidence to justify submission of the two theories of negligence to the jury and to support the verdict for damages based on a herniated disk. It also contends that questions by plaintiff's counsel to the jury panel during the voir dire examination with respect to the amount sued for ($75,000.00 prayed for in the petition; $64,550.00 or $64,355.00 stated during voir dire examination) pledged the jury in advance to a verdict, and that its motion for mistrial and to discharge the jury by reason thereof was improperly denied. Further points of defendant on this appeal are that the verdict of the jury was so excessive as to show that it was the result of bias and prejudice of the jury; and that the final judgment is excessive.

The jury returned a verdict of $64,355.00. On after-trial rulings the court ordered a remittitur of $18,855.00 upon the ground that the verdict was excessive, to which remittitur plaintiff consented, and final judgment was entered in the amount of $45,500.00.

Plaintiff's version of the occurrence follows, to which we give full credence and favorable inference as well as to his other evidence inasmuch as the sufficiency of the evidence to support the verdict is challenged. Bunch v. Missouri Pacific Railroad Company, Mo., 386 S.W.2d 40, 42.

Plaintiff was employed by defendant with duties as a car inspector when he was injured. His duties consisted of placing train cars 'on air' (coupling the hoses between them), and inspecting them for 'penalty' defects. There was a string of about 40 cars upon the north-south yard track 8, which cars plaintiff's foreman, Fischer, told him to inspect and to put on air. Plaintiff walked north along the west side of the train of cars inspecting them as he went. As he reached the boxcar in question he saw that the sill step (or stirrup) thereon was bent about 4 inches underneath, inward and upward. This sill step was constructed in a 'U' shape, of flat iron 5/8 inch thick and about 2 inches wide. It hangs down from the edge or overhang of the car bed and makes a stirrup 12 inches in length and width. The metal was twisted about half way around so that its ends could be welded or riveted to the edge of the boxcar. Plaintiff marked the bent sill step with chalk, walked on the the north end of the train of cars, and then started back down the east side thereof. After plaintiff had walked south for several car lengths, Fischer called to him to come over to the west side of the track. Plaintiff climbed over car couplings and saw that Fischer was carrying two two-by-four boards 10 feet long and nailed together. When they got back to the boxcar with the bent sill step Fischer said to plaintiff, 'We will put the two-by-four in through the sill step underneath the car.'

At the point where the boxcar with the bent sill step was located, the distance between tracks 7 and 8 was 8 feet; from the bottom of the floor of the car to the ground the distance was about 3 1/2 feet, the overhang of the car was about 1 1/2 feet; the ties extended out from the rails on track 8 about 1 1/2 feet; the ties were about 2 1/2 inches above the ground; and the rails of track 8 were 5 or 6 inches above the ties. The weight of the two-by-four boards, being old ones, was about 20 pounds.

Fischer told plaintiff they could insert the two-by-fours through the sill step underneath the floor of the car and push the step out. Plaintiff protested, 'It's impossible. That's a heavy-duty. It should be sent to the repair track.' Fischer replied that they could do it and when plaintiff suggested they could get another man, he replied further that one was not needed.

Plaintiff then placed himself about 2 1/2 feet from the side of the car with the two-by-four on his right shoulder. He glanced back and saw Fischer standing east of the rail on track 7 with his feet on the ties and with the two-by-fours on his left shoulder. Fischer then shouted 'go.' Plaintiff turned back to the boxcar and they both lifted up until Fischer shouted 'stop.' Fischer then said, 'We will take another bite,' so plaintiff pushed the two-by-four through and again put it on his right shoulder, croushed down again, looked back at Fischer, who was then standing in the same position, and who again shouted 'go,' so they 'went up.' About that time plaintiff felt 'an awful lot of weight' on him, a twist in his back and a kind of pulling in his side, and plaintiff knew Fischer had quit lifting, because (as plaintiff testified) he would not have gotten all that weight if Fischer had not quit. Plaintiff did not turn loose of the timbers but glanced over his right shoulder and saw that Fischer had changed positions--he was standing on top of the east rail on track 7 with the board above his shoulder, at which time he said 'go' again. Plaintiff turned and went up again, and that time he had to go up on his toes, and when he came down his knees buckled. Plaintiff told Fischer that he could not lift any more; that he had hurt his back.

On the second attempt the sill was bent downward 2 or 3 inches (from its original approximate 4 inches). When plaintiff was doing the work he was holding up the weight of the boards and against the 'spring' (tension) of the cold sill step. He testified that cold steel would spring when it is hit or pulled--it always goes back. When one surges on it, if it is pushed out 3 inches it will go back approximately one inch.

On the first attempt Fischer shouted 'stop,' but did not do so the second time, and did not tell plaintiff he was going to turn loose or give him any warning about letting up on the upward push of the boards.

Plaintiff testified that he never did no the work, or see it done, the way it was done at the time of his injury. For heavy repairs the car is taken to the shop to be heated with an acetylene torch and straightened on the car with a sledge hammer or something to knock it out. Another way to straighten the sill is to burn out the rivets, take it off the car and into the shop where it is heated and pounded back into position.

Floyd B. Warner testified for plaintiff that he had worked in the car department of the Union Pacific Railroad, on the repair ('rip') tracks and in the yards, for 41 years. He had repaired and seen repaired bent sill steps on many occasions. There was in existence a custom and practice on his railroad in doing that type of work, which was 'open, universal, common, notorious and well known.' That custom and practice, Warner testified, was that the sill step was heated and forced into proper shape or position by hammering or exerting pressure, or if it is badly bent, the rivets or bolts are cut out and the sill step is removed and taken to the furnace, fabricated and welded, brought back and bolted or riveted on the car. That kind of work is done on the repair tracks. Warner had never seen the work done by the use of two-by-four timbers on cold metal; there is a resiliency in all metal which when struck gives a spring reaction. On cross-examination Warner testified that the sill step is always removed from the car unless it is possible to bring heat to the car, which is done in remote cases to expedite the movement of a train.

Cecil H. Whitmer of the Kansas City Terminal Railway car department testified that the existing custom and practice of straightening bent sill steps is to 'bad-order' the car and take it to the 'rip' track to be straightened by the use of heat. He had never seen that type of work done upon cold metal with a couple of boards.

William Delbert Crosley testified to the existing custom and practice substantially the same as Warner and Whitmer, and that he had never seen the work done where a couple of boards were used to pry up a sill step when the metal was cold.

In its attack upon the sufficiency of the evidence to support the verdict, defendant says that under Instruction No. 6 plaintiff failed to adduce sufficient proof that the method used to straighten the sill step was dangerous and not customarily used in the Kansas City area, and that defendant knew or should have so known. The only argument made is that plaintiff did not 'bad-order' the car, but instead put two chalk marks on it, when he was first on the west side of the car in his inspection trip. Defendant says, 'Had plaintiff not thought that the sill step was to be straightened in the yards he would have bad-ordered the car and the same would have been sent to the repair track for attention to the sill step.' The argument overlooks the fact that during his tour of duty plaintiff could have much later 'bad-ordered' the car as the...