Zachritz v. St. Louis-San Francisco Ry. Co.

• Decision Date: 30 March 1935
• Citation: 81 S.W.2d 608,336 Mo. 801
• Parties: William F. Zachritz v. St. Louis-San Francisco Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

81 S.W.2d 608

336 Mo. 801

William F. Zachritz v. St. Louis-San Francisco Railway Company, a Corporation, Appellant

Supreme Court of Missouri

March 30, 1935

Rehearing Denied March 5, 1935.

Motion to Transfer to Banc Denied March 30, 1935.

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed.

E. T Miller, Henry S. Conrad, L. E. Durham and Hale Houts for appellant.

(1) The questions raised. If plaintiff failed to establish any asserted ground for recovery, judgment should be reversed outright for failure of the court to direct a verdict for defendant. If plaintiff failed as to either ground asserted, the judgment must be reversed for error of the court in refusing to withdraw the ground not supported. Crossno v. Terminal Railroad Assn., 328 Mo. 834; Willis v. Applebaum, 26 S.W.2d 823; Cox v. Terminal Railroad Assn., 43 S.W.2d 576. (2) The handrail was of standard construction and there was no evidence of defect. It complied with the safety appliance and boiler inspection acts and was not "old, worn, and extremely slick" in violation of said acts "by reason of long and continued use." The court therefore erred in refusing to give withdrawal Instruction D-13. The court also erred in refusing to give withdrawal Instruction D-15, to the effect plaintiff was not entitled to recover because defendant did not have the handrail painted. 45 U.S.C. A., secs. 4, 12, 15, 23, 28, 29, 30, 32. (a) Plaintiff was required to show that the handhold was defective and mere proof that he fell was not enough. Riley v. Wabash, 328 Mo. 922; Fryer v. Railway Co., 63 S.W.2d 51; Baltimore & Ohio v. Groeger, 266 U.S. 521. (b) The handrail complied with the regulations of the interstate commerce commission and such fact was conclusive of its sufficiency. Napier v. A. Coast Line, 272 U.S. 611, 47 S.Ct. 209; Cent. Vermont Ry. v. Perry, 10 F.2d 132; Erie Railroad v. Lindquist, 27 F.2d 99; Landcaster v. Allen, 217 S.W. 1032; Payne v. Albright, 235 S.W. 291; Mahutga v. Ry. Co., 234 N.W. 476; Auschwitz v. Ry. Co., 178 N.E. 409. (c) Nor would a smooth and unpainted surface of the handrail have constituted a defect and violation of the safety appliance and boiler inspection acts if the Interstate Commerce Commission had not adopted rules and specifications for such handrails. Independently of the Interstate Commerce Commission rules and as an original proposition smoothness of the handrail was not a submissible ground of recovery. Baltimore & Ohio Railroad v. Groeger, 266 U.S. 530, 45 S.Ct. 172; Fredericks v. Railroad Co., 36 F.2d 718; Ford v. McAdoo, 131 N.E. 876, certiorari denied, 257 U.S. 641; Link v. Railroad Co., 58 F.2d 177; N. Y. Central v. Ambrose, 280 U.S. 486; Myers v. Strauss, 264 S.W. 801. (d) The evidence was insufficient to show that plaintiff's injury was caused by the smoothness of the surface of the rail so as to make the issue submissible. C. M. & St. P. Ry. v. Coogan, 271 U.S. 478; Lynch v. Railroad Co., 58 F.2d 177; Pennsylvania v. Chamberlain, 288 U.S. 333; Coin v. Lounge Co., 222 Mo. 508; Strother v. Railroad Co., 188 S.W. 1105; Hamilton v. Ry. Co., 300 S.W. 787; Santa Fe v. Toops, 281 U.S. 351; St. Louis-S. F. Ry. v. Mills, 271 U.S. 344; Gunning v. Cooley, 281 U.S. 90. (3) The court erred in refusing to give defendant's requested Instruction D-14, by which defendant sought to have withdrawn from the jury the issue of liability "on account of the presence of oil or grease" on the handrail. (a) Defendant was not to be charged with violation of the Safety Appliance and Boiler Inspection Acts by reason of any presence of oil or grease on the handrail. Authorities cited point 1, supra; Gunning v. Cooley, supra; Williams v. Railroad Co., 257 Mo. 116; Riley v. Wabash Ry., 328 Mo. 923; authorities cited point 2 (d), supra; Ford v. Railroad Co., 54 F.2d 344, certiorari denied 285 U.S. 549, 52 S.Ct. 405; Reeves v. Ry. Co., 179 N.W. 689; Slater v. Ry. Co., 178 N.W. 815; O'Dea v. Byram, 222 N.W. 520. (b) Common-law negligence in respect to the presence of oil or grease on the handrail was not charged by the petition nor disclosed by the evidence. Bello v. Stuever, 44 S.W.2d 621; Byrd v. Ry. Co., 46 S.W.2d 223; Haggard v. McGrew Coal Co., 200 S.W. 1074; Lowe v. Railroad, 265 Mo. 592; Burnes v. Railroad, 129 Mo. 52; Hatton v. Railroad Co., 261 F. 669; Slater v. Ry. Co., supra; Reeves v. Ry. Co., supra; Davis v. Kennedy, 266 U.S. 148; Osborne v. Ry. Co., 1 S.W.2d 181; Hoch v. Ry. Co., 287 S.W. 1047, 315 Mo. 1199; McIntyre v. Ry. Co., 286 Mo. 256; Pryor v. Williams, 254 U.S. 43. (4) Under the pleadings and evidence plaintiff failed to make a case and the court erred in refusing to direct a verdict for the defendant at the close of all the evidence by the giving of defendant's requested Instruction D-3. Riley v. Wabash, 328 Mo. 910; Fryer v. Ry. Co., supra; Baltimore & Ohio v. Groeger, supra; Ford v. Railroad Co., supra; authorities cited 2 and 3, supra.

W. W. McCanles and Hogsett, Smith, Murray & Trippe for respondent.

(1) The court did not err in the admission of evidence. It was a proper matter of expert testimony to prove the effect of long years of wear upon the metal of a handrail. Neely v. Ry. Co., 14 S.W.2d 977; State ex rel. C. G. W. Ry. Co. v. Trimble, 14 S.W.2d 980; Combs v. Construction Co., 205 Mo. 367; Meily v. Railroad Co., 215 Mo. 567; Crecelius v. Ry. Co., 284 Mo. 42; Kidd v. Ry. Co., 310 Mo. 44; Turner v. Timber Co., 188 Mo.App. 493. Witness Concannon was a qualified expert. Combs v. Construction Co., 205 Mo. 367; Graney v. Ry. Co., 157 Mo. 666; Meily v. Railroad Co., 215 Mo. 567; Adams v. Railroad Co., 287 Mo. 551; Thompson v. City of Lamar, 17 S.W.2d 975; Herman v. Foundry Co., 245 S.W. 389. Even on defendant's theory that the matter testified to by Concannon was a matter of common knowledge (with which theory respondent does not agree), the admission of the evidence was harmless in any event. Thompson v. City of Lamar, 17 S.W.2d 975; Adams v. Railroad Co., 287 Mo. 551. The evidence of Concannon as to the reason for painting handrails was not "speculative" or "a conclusion of the witness," but was a plain statement of fact. Defendant itself offered evidence as to the reason why handrails are painted; and cannot complain because plaintiff offered evidence to the contrary. James v. Chandelier Co., 325 Mo. 1054, 30 S.W.2d 118; Conduitt v. Electric Co., 326 Mo. 133, 31 S.W.2d 21. (2) The verdict was not excessive. Woods v. Ry. Co., 8 S.W.2d 922; Kepner v. Ry. Co., 15 S.W.2d 825; Skinner v. Davis, Director-General, 280 S.W. 37, 312 Mo. 581; Evans v. General Explosives Co., 293 Mo. 364, 239 S.W. 487. This court will take into consideration the depreciation in the value of the dollar. Hurst v. Ry. Co., 280 Mo. 575; Hulse v. Ry. Co., 214 S.W. 156; Charlton v. Jackson, 183 Mo.App. 613; 3 A. L. R. 610, 10 A. L. R. 179.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This case, coming to the writer on reassignment, is an appeal from a judgment, in the amount of $ 20,000, against appellant railroad company and in favor of respondent. Respondent, Zachritz, based his suit upon an alleged violation, by appellant, of the Federal Safety Appliance Act, the Boiler Inspection Act, and also upon common-law negligence under the Federal Employers' Liability Act.

Appellant seeks an outright reversal of the judgment on the theory that the evidence failed to prove either a violation of the Safety Appliance Act or the Boiler Inspection Act or negligence. Zachritz was a locomotive engineer employed by appellant. On May 15, 1930, the day he received his injuries, he was in the yards at West Tulsa, Oklahoma, switching freight cars carrying interstate freight. Respondent was, therefore, engaged in work connected with interstate transportation. He went to work at four P. M. on the day in question and intended to work until twelve midnight. At about eleven-thirty he left his engine for a few minutes on a private errand, leaving the fireman of the crew temporarily in charge of the engine. While plaintiff was absent a signal was given to move the engine forward. The fireman, in compliance with this signal, moved the engine forward at a rate of speed, estimated by witnesses, of from four to six miles per hour. Zachritz attempted to catch the engine and board it on the fireman's side. In doing so he took hold of the handrail of the tender with his right hand and attempted to step on the lower step leading to the cab. For some reason he fell under the engine, or tender, and injured his leg to such an extent that it became necessary to amputate it between the foot and knee. Respondent also complained of injuries to his spine.

Respondent maintains that the evidence was sufficient to sustain the charge of a violation of the Safety Appliance or Boiler Inspection Acts in that there was evidence showing the handrail to be extremely slick due to wear and long and continued use. It is also urged that the charge of negligence was sustained because it was shown that there was grease and oil on the handrail which caused it to be slick. These questions in the order stated.

Respondent testified that as he attempted to board the engine his hand slipped downward on the handrail about two feet causing him to miss his step and fall under the tender of the engine. Respondent's evidence utterly fails to show any defect whatever unless it can be said that a smooth, slick handrail must be considered defective. Considering the uses to which handrails are put and the purpose for which they are required to be placed on tenders and engines it cannot be said that a slick handrail is defective. Note the testimony of respondent's witnesses, who were members of the crew at the time he was injured. Higgenbothem, the fireman, testified:

"Q. Just tell the...