RALPH ADAMS, by Next Friend, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, and WILLIAM G. MCADOO, Director General of Railroads, Appellants.
Supreme Court of Missouri, Division One
April 9, 1921
287 Mo. 535
2. ——: ——: Substituted By Body of Petition. Where the answer, although entitled, “Answer of William G. McAdoo, Director General of Railroads,” purports in its body to be the answer of the Director General of Railroads, without naming him, “now in possession of said railroad,” and the record shows that the attorney for Hines defended the case, it will be held that said Hines was substituted for McAdoo.
3. ——: ——: Order No. 50. After the promulgation of Order No. 50 by the Director General of Railroads on October 28, 1918, the railroad company, joined with him as defendant, was no longer subject to suit for personal injuries arising during Federal control, whether happening after or before the date of said order.
4. ——: ——: Misjoinder. Where the railroad company and the Director General of Railroads were joined as defendants, the erroneous judgment against the railroad company does not affect the validity of the judgment against the Director General.
5. NEGLIGENCE: Pleading: Impossibility. A charge in the petition that defendant‘s negligent act “caused a piece of metal to break off of said rail, said spike and said spike maul,” does not charge an impossibility.
6. ——: Expert: Striking Spike. The matter of qualification of experts is largely within the discretion of the trial court, and it does not abuse its discretion in permitting a section-man, who has had eighteen months’ experience as a trackman, to testify that the prop-
7. INSTRUCTION: Supported by Evidence: Proximate Cause. The circumstantial evidence showed a small moon-shaped nick in the rail, and three or four nicks in the iron maul, after the injury; that plaintiff heard a ringing sound, as if the maul had struck the rail, when the fellow-servant struck at the spike; that the spike was against the rail when it was struck; that concurrently with the blow some substance, hard and sharp, cut a gash in plaintiff‘s eye, so that the fluid therefrom immediately escaped into the plaintiff‘s hand. Held, that there was evidence that a piece of steel broke off of the spike, the rail or the maul, as charged in the petition, and such evidence was sufficient to support an instruction submitting that issue to the jury.
8. ——: ——: Negligence: Driving Spike. And evidence that the proper way to drive a spike was for the “nipper” to put an iron bar under the tie and pry the tie up tight against the rail before any attempt to drive the spike was made, and for the driver and spike to be on the same side of the rail, and that he stood on the opposite side and struck the spike with the iron maul before the “nipper” had attempted to pry up the tie, is abundant evidence of the driver‘s negligence in driving the spike.
9. NEGLIGENCE: Assumption of Risk. Under the Federal Employers’ Liability Act assumption of risk is a defense, which, to be available, must be pleaded by defendant.
10. ——: ——: Instruction: Established Method. Where the instruction simply says that plaintiff did not assume the risk of any dangerous method of work employed by the driver of spikes in using his maul, unless plaintiff knew or could have known thereof by due care prior to his injury, a criticism that there is no evidence that defendants were negligent in establishing the method of doing the work lacks substance.
11. ——: ——: ——: Extraordinary Vigilance. An instruction telling the jury that it was not the duty of the plaintiff “to maintain extraordinary vigilance to discover defects and dangers in the method of doing the work,” where the work referred to is the work which defendants did through their servant at the time of plaintiff‘s injury, and not their method of doing such work generally, is not erroneous. Under no circumstances was plaintiff required to exercise more than ordinary care to anticipate said servant‘s negligent act in doing the work.
13. EXCESSIVE VERDICT: $20,000. Where the injury to a youth eighteen years of age consisted of the loss of one eye, and there is a lurking chance of the impairment of his other eye by reason of the injury sustained, a verdict of $20,000 is too large by $7,500.
Appeal from Grundy Circuit Court.—Hon. L. B. Woods, Judge.
REVERSED AND REMANDED.
Hall & Hall and J. G. Trimble for appellants.
(1) All the errors assigned affecting the defendant railroad company may be summed into one, the judgment must be reversed as to that defendant because this court will take judicial notice of the proclamations of the President and orders of the Director General as well as the Federal Control Act and the Transportation Act. These show the defendant railroad company was not operating the road at the time of the injury to plaintiff October 28, 1918, and, therefore, no judgment can be entered against it. Nor. Pac. Ry. Co. v. State, 250 U. S. 148. Kersten v. Hines, 223 S. W. 592. Cravens v. Hines, 218 S. W. 912. The practice seems to be to reverse the judgment as to the defendant railroad company and deal with the judgment against the Director General of Railroads as if he had been the only party to the action from the beginning. That course would not be proper in this case, as we think the allegations show the Director General is made a party at his own order (not because interested), that “defendants” jointly owned and operated the road and that plaintiff was a joint employee having been made solely to prejudice the jury, defendant Hines is entitled to a reversal of the judgment, regardless of any other errors in the case. (2) The court committed error in refusing to
Platt Hubbell and Geo. H. Hubbell for respondent.
(1) Judgment should be affirmed against the legally substituted defendant. Kersten v. Hines, 223 S. W. 586; Section 206 (a)
SMALL, C.—Appeal from the Circuit Court of Grundy County. Suit for personal injuries. The railroad company and William G. McAdoo, Director General of Railroads, were defendants when the petition was filed November 19, 1918.
The petition alleged that on October 28, 1918, plaintiff was in the employ of defendants as a common laborer with a section-crew engaged in repairing the tracks of defendants at Knox City, Missouri. That he, on that date, lost his left eye, because one James, a fellow-servant working with him, attempted to drive a spike into a tie and “negligently struck at said spike and negligently struck said spike and rail with said maul,” and “thereby caused a piece of metal to break off of said rail, said
At the January term, 1919, defendant railroad company filed a motion to dismiss, because at the time the injury was alleged to have occurred, to-wit, October 28, 1918, its railroad was and for sometime previously had been in possession of and operated by the United States Government by defendant, McAdoo, as Director General of Railroads, under the Act of Congress approved August 29, 1916; that plaintiff and his co-employees were not servants of defendant railroad company, at the time of his injury, but of said Director General, and that by virtue of an order made and published by said Director General, on October 28, 1918, all suits sought to be prosecuted upon causes of action accruing while he was in possession and control of said railroad, should be prosecuted solely against him as such Director General, and in no other manner, and by no other name; that, inasmuch as said Director General had been made a party to said suit, the cause should be dismissed as to defendant railroad company.
On the hearing of this motion to dismiss, it was shown by evidence of defendant railroad company that said William G. McAdoo had resigned as Director General of Railroads, and Walker D. Hines was appointed his successor on January 10, 1919, and said Hines had issued an order saying that in all actions pending it should be unnecessary to use his name, but it should be sufficient if the name of defendant should be, “The Director General of Railroads.” Said motion was overruled January 27, 1919.
On February 14, 1919, an answer entitled, “Answer of William G. McAdoo, Director General of Railroads,”
Furthermore, defendants’ attorney testified, on the hearing of said motion, that he represented Walker D. Hines, Director General of Railroads. Said answer, while entitled, as aforesaid, purports to be the answer of the Director General of Railroads, without naming him, “now in possession of said railroad,” as well as in possession thereof when plaintiff alleges he was injured.
In the title of the case on the record of the entry of the verdict and judgment, the railroad company and Walker D. Hines, Director General, are named as defendants, and the name of William G. McAdoo is omitted.
On said February 14, 1919, defendant railroad company also filed its answer. Both the answer of the Director General of Railroads and the railroad company set up that at the time complained of by plaintiff the said Director General, and not the railroad company, was in possession of and operating the railroad of the defendant company, and that employees, officers and agents operating said railroad were the servants, and their acts were the acts, of the United States Government and said Director General. Both answers also put the allegations of the petition in issue.
As to the evidence. Plaintiff testified, in substance: That he was eighteen years old at the time of his injury. Had been through the first year in high school. Was six feet tall, and weighed 196 pounds before his left eye was put out; since then, 180. His eye was destroyed while at work as a section-hand on the railroad of the defendants on October 28, 1918. He had worked about a week before that time. He was working to save money to take a business course in school. He never worked for a railroad previously, except for a week in the spring prior to the accident. The wage he received from defendants was $3.75 per day. He and other members of the section crew on the morning of October 28, 1918, had been repairing the main track west of the depot at Knox
Plaintiff‘s medical testimony showed that the sight of his left eye was destroyed, and it was shrunken and shriveled. It was inflamed for some time after the accident, but had no settled inflammation in it at the time of the trial, although it was somewhat inflamed then, which might, however, have been from catching cold in it. The substance which struck it had never been removed from plaintiff‘s eye. If it was still in there it might months or years afterwards set up inflammation that might cause the right eye to become inflamed, in which event it might become necessary to enucleate the left eye in order to save the right eye.
W. O. Westfall testified for plaintiff: That he was the “nipper,” and it was his business to put an iron bar under the tie and pry the tie up tight against the rail before they attempted to drive the spike, in order to make it solid, so that the spike would drive better. That, on this occasion, James struck the spike before he had the tie pried up tight, and before he was ready for the spike to be struck. That this was the first time he had ever seen them strike a spike before he had the tie pried up against the rail.
Two experts of twenty-five or thirty years’ experience as section-men and track-foremen, testified for plaintiff, without objection, that the proper way to drive a spike was for the man to be on the same side of the rail as the spike, because, if he undertook to drive it while standing on the opposite side of the rail, he would be more likely to chip the rail and hurt somebody, than to hit the spike; also, that the spike never should be struck until the “nipper” had the tie up against the rail; that is what the “nipper is there for.”
Fred Barlow, of eighteen months’ experience as a section-man, over defendant‘s objection that he was not sufficiently qualified, testified to the same effect as the other two experts.
Plaintiff‘s mother, Rosa Adams, testified that plaintiff was always studious and industrious and a great reader before the accident, but since then he could not read long at a time.
Plaintiff also read in evidence,
It was admitted by defendants that the track being repaired where the injury happened was used in interstate traffic.
Defendants introduced no evidence, except Order No. 4 and Order No. 50, the latter dated October 28, 1918, of the Director General of Railroads, with the understanding that either party could read any part thereof in evidence.
The court gave a number of instructions for the plaintiff. The court refused instructions asked by the defendants to the effect that the plaintiff could not recover against both defendants, or the defendant railroad company. And the record further recites as follows: “And the defendant, Walker D. Hines, Director General of Railroads, prayed the court to instruct the jury as follows: ‘3. Under the pleadings and all the evidence in the case, plaintiff is not entitled to recover against the defendant, Walker D. Hines, Director General of Railroads, and your verdict will be for said defendant.’ Which said instruction, the court refused to give to the jury, and to the action of the court in refusing to give said instruction, the defendant, Walker D. Hines, Director General of Railroads, saved his exceptions at the time.”
During the argument of plaintiff‘s counsel, defendants’ counsel objected to certain portions thereof, which objections the court sustained, and on request of defendants’ counsel instructed the jury to disregard, and which
The jury found a verdict for the plaintiff for $20,000, and judgment was rendered that plaintiff recover that sum against the “United States Railroad Administration and of and from all interest and rights of the Quincy, Omaha & Kansas City Railroad Company in and to money, funds or property, real, personal or mixed, which has been received or is yet to be received from the Government of the United States or the Railroad Administration thereof.” There was also judgment for said sum against the defendant railroad company.
Each of the defendants, Walker D. Hines, Director General, and defendant railroad company, filed separate motions for new trial and separate motions in arrest, which were overruled. An appeal was taken by both defendants to this court.
I. A question has been raised as to the proper parties defendant herein. The appellants contend that the railroad company could not be sued, because Order No. 50 of the Director General of Railroads, promulgated October 28, 1918, prohibited all suits against railroads, and required them to be brought against said Director General, for all injuries to persons arising while such railroads were under Federal control, whether such injuries occurred prior or subsequent to the date of said Order No. 50. Appellants also contend that this suit was
We regard both questions as academic since the passage by Congress of the Transportation Act of 1920, providing for the termination of Federal control and for the settlement of disputes between carriers and their employees. By
We hold that under said
The plaintiff, respondent in this case, in his brief “here and now respectfully moves the Supreme Court to make a proper order of substitution . . . ás has been repeatedly done.” such substitution was made by this court in Kersten v. Hines, 283 Mo. 623, and is not without precedent elsewhere. In Gundlach v. Railroad, 179 N. W. 985, said John Barton Payne, as such agent, was substituted, as sole defendant, instead of the railroad company and the Federal Director General, after affirming a judgment against both of them by amending the mandate. This substitution was made on motion of the defendants in that case. But, we hold that such substitution can be made on motion of either or any party to a suit of the character designated in said
II. But, if we are in error in assuming that the question of parties defendant is now immaterial and academic as to both sides of this controversy, then we hold: 1st. That Walker D. Hines was properly, if not expressly then by implication, by the body of the answer and by actually defending the case below, as the record shows he did, substituted as defendant, for William G. McAdoo, Director General. 2nd. That after Order No. 50 was promulgated on October 28, 1918, by the Director General of Railroads, the railroad company itself was no longer subject to suit for personal injuries arising during Federal control of its railroad, whether such injury happened after or before the date of said Order No. 50. This question was so fully, yet con-
We cannot concur in the reasoning of the opinions in these cases; we believe they take too narrow a view of the powers of the President and Director General of Railroads under said acts of Congress.
III. But, even if the judgment below was erroneous as to the defendant railroad company, it does not follow that it was invalid against the Director General of Railroads. The mere misjoinder of the railroad company as defendant does not call for a reversal as to said Director General. [Kersten v. Hines, 283 Mo. 623; Cravens v. Hines, 218 S. W. 912.]
IV. (a) The contention of a learned counsel of appellants that the petition fails to state a cause of action, because it charges that defendants’ negligent act “caused a piece of metal to break off of said rail, said spike, and spike maul,” which is “an impossibility,” is not substantial. We see no reason why such charge is an impossibility.
(b) Likewise, the contention that there is no charge of a specific “defect” in the petition. There is a charge of specific defects in the maul and spike, and negligence
There was, therefore, no error in overruling defendants’ objection to the introduction of testimony under the petition.
V. (a) There was no error in permitting the witness Barlow to testify as an expert. He had had eighteen months’ experience as a track-man. The matter of the qualification of experts is largely within the discretion of the trial court. It did not abuse its discretion in this case. Furthermore, Barlow simply corroborated plaintiff‘s other two experts, each of whom had from twenty-five to thirty years’ experience in such work. Therefore, if no error had been committed in permitting Barlow to testify as an expert, it would have been regarded as harmless error.
(b) No testimony of plaintiff, as an expert, is pointed out in the brief, and we must, therefore, disallow appellants’ contention that he was not qualified to testify as an expert.
VI. (a) Plaintiff‘s Instruction No. 1 is objected to, because there is no evidence that a piece of steel broke off of either the spike, the rail, or the maul, as charged in the petition. The evidence does not sustain this contention. The circumstantial evidence showing the small moon-shaped nick in the rail, and three or four nicks in the iron maul, after the injury, and that plaintiff heard a ringing sound, as if the maul had struck the rail, when James struck at the spike; the fact that the spike was against the rail when James struck at it; that concurrently with the blow struck by James, some substance hard and sharp enough to cut a gash in plaintiff‘s eye, so that the fluid therein escaped therefrom at once into his open hand—all point to but one cause of this catastrophe and that is, that a piece of the rail or the maul or both flew off when James
(b) So, there is abundant evidence that James was negligent in striking the spike, in the position it was in, from the position he was in and before the “nipper” had performed his function of prying the tie up firmly against the rail.
(c) The said Instruction No. 1 followed the allegations of the petition as to the cause of the injury, and there was abundant evidence to support it. We do not set out said instruction, because it is quite lengthy, and the only specific objections made to it are ruled against appellants in what we have said in the immediately preceding paragraphs (a) and (b).
VII. Instruction No. 2 given for plaintiff is objected to. Said instruction is as follows:
“2. On the issue of ‘assumption of risk’ the court instructs the jury that the plaintiff Ralph Adams cannot be held to have assumed the risk of defects and dangers, if any, in the method of work and the method in which William James used his spike-maul, unless the jury believe from the evidence, that, prior to his injury mentioned in evidence, the plaintiff had knowledge of such defects and dangers, if any or that such defects and dangers, if any, were plainly observable by him; and unless the said Ralph Adams did have such knowledge, or, unless such defects and dangers if any, were plainly observable to him as aforesaid then, the jury would not be warranted in finding for the defendant railroad company on the defense of assumption of risk.
“The court instructs the jury that ‘assumption of risk’ is an affirmative defense and the burden of proving the same is on the defendant railroad company—all the evidence in the case to be considered.
“In this connection, the court instructs the jury that it was not the duty of Ralph Adams to maintain extraordinary vigilance to discover defects and dangers in
(a) The appellants’ objection to this instruction is that it singles out the railroad company as the only defendant who could raise the question of assumption of risk. Assumption of risk was a matter of defense to be invoked by defendants. Neither the Director General nor the railroad company asked any instructions invoking it. Futhermore while this suit is based upon the
(b) Appellants’ learned counsel also contend that said instruction is erroneous, because there is no evidence that defendants were negligent in establishing the method of doing the work. This objection lacks in substance, because said instruction is not predicated on negligence in establishing the method of doing such work, but simply says, that plaintiff did not assume the risk of any dangerous method of work by James in using his maul, unless plaintiff knew or could have known thereof by due care prior to his injury.
(c) Nor is said instruction open to the objection that it was wrong in declaring that plaintiff was not in duty bound to maintain extraordinary vigilance to discover defects and dangers in the method of doing the work. The work here referred to is the work which defendants did through their agent and servant, James, at the time of plaintiff‘s injury, and not to their method
VIII. The motion of defendants’ learned counsel to discharge the jury at the close of the argument, was properly overruled. “Remarks of counsel” are not reversible error unless the rulings of the court thereon are excepted to at the time they are made, which defendants failed to do. [Kersten v. Hines, 283 Mo. 623.]
IX. As to the excessiveness of the verdict. We fully realize the great loss plaintiff has sustained by the destruction of his left eye and the lurking chance of the impairment of his right eye by reason of the injury he sustained. We also have fully considered the youth of plaintiff and his expectancy of life, his disfigurement, and the handicap put upon his prospects in life by his injury. No sum of money could restore his lost eye. But the rulings of this court, in such cases, admonish us that in this case the verdict is excessive under all the facts and circumstances in evidence.
If, therefore, the plaintiff will file, within ten days from the date of the filing of this opinion, in the office of the clerk of this court, a remittitur of $7,500, the judgment below will be affirmed for $12,500, with interest at six per cent per annum from the date of its original rendition in the circuit court. As to John Barton Payne, agent.
The result is, that the judgment below is reversed as to defendant railroad company, and is affirmed as to and against “John Barton Payne, agent, designated by the President under the Transportation Act of 1920,”
PER CURIAM:—The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All of the judges concur.