Lead Opinion
Action for personal injuries. Second appeal.
On the first trial a verdict was rendered in plaintiff’s favor for $25,000, which upon a review by this court was reversed and remanded. [244 Mo. 608.] Upon- a second trial a verdict was rendered in plaintiff’s favor for $50,000, which was reduced by the trial court to $25,000, and a judgment of remittitur entered in accordance therewith, from which judgment defendant appeals to this court.
For eighteen years prior to and including June 21, 1903, the date of plaintiff’s injuries, he was employed by defendant in different capacities connected with its train service and for nine years of that time was a locomotive engineer on the division of defendant’s railroad between Pleasant Hill and Jefferson City. On the night plaintiff was injured he was running an engine pulling an eastbound freight train consisting of twenty-four cars, twenty-one of which were, loaded with live stock, three with dead freight, one of which was moariatic acid, and a caboose. The accident, which resulted in plaintiff’s injuries, occurred at Cole Junctiora, four miles west of Jefferson City; at this jaoint the river route of the defeaadant’s road diverges from
At the Junction there was a telegraph station, and an operator in charge, whose duty it was to make what railroad men call a “block,” by displaying a red light on the semaphore for ten minutes after ■ the arrival and departure of trains from said station; he was also required to open the switch for all west-bound trains running from the main line over the river route, and to close the switch after the passage of all trains; at night he was required to display a red signal upon receipt of orders of an approaching train, and when a train was using the switch to block the main line.
On the night in question, after plaintiff had received his usual orders for the running of the train, and the message at Tipton, the train dispatcher permitted an extra freight train, or one not on the time card, to be run from Jefferson City to Cole Junction. No notice was given plaintiff of the running of this train at either of the telegraph stations he passed after it was ordered out from Jefferson City, and upon his arrival at the Junction no red light on the semaphore notified him of its being there. Under the rules, and as a necessary precaution, he should have been given this .notice. The night was dark and a drizzling rain was falling; the plaintiff’s engine had an oil headlight, which did not penetrate the darkness more than one hundred feet ahead. "When he came around the curve
The headlight on the engine of the extra train was not visible to one on an engine coming eastwardly on the main line, on account of the headlight of the extra train being obscured by a bluff; the same bluff at the lower end of the train hid the lights on the caboose. Plaintiff, therefore, could-see nothing of the obstructing train until it was disclosed by his headlight.
Defendant contends, regardless of the condition and office of the light on the semaphore, that plaintiff should have observed the switch lights at the east end of the yards as he approached the Junction, and have governed his train accordingly. This contention is based on defendant’s rule 98, which provides that, “Trains must approach the end of double-track junction points, railroad crossings at grade, and drawbridges, prepared to stop unless the switches and signals are right and the track is clear.” Other rules, which it is claimed plaintiff violated, are also invoked as follows:
“27. The absence of a signal at a place where a signal is tisually shown must be regarded as a stop signal.
“106. In all cases of doubt or uncertainty, • the safe course must be taken and no risks run.
“108. No freight or work train must pass any station or siding at which it is not required to stop,
The testimony of witnesses, many of them present at the time of the collision, and all practical railroad men, is probably the best test as to plaintiff’s duty in determining whether he was authorized to pass the Junction upon observing a white signal on the semaphore, regardless of the switch lights.
Norman Crawford, the -conductor of plaintiff’s train, says: “At Tipton I received a message giving my train the right of way at Cple Junction. We were required to approach the Junction under full control until we saw the. board was clear. This the engineer did. I saw the board; it showed a white light. The . engineer could have stopped the train had it been necessary, if the light had shown red. I received no orders in regard to the extra freight train with which we collided.”
G. E. Goodwin, brakeman on plaintiff’s train, was on top of the caboose when they approached the Junction; saw the semaphore; it showed white; the train was under such control it could have been stopped in time if signal had been red. Train was running twelve or fifteen miles an hour as they approached the Junction station. The engineer then increased the speed, and was running at twenty miles an hour when they passed the station.
George L. Shemwell, head brakeman on plaintiff’s train, was in the cupola of the caboose before the collision, and saw the light on the semaphore at from three hundred to five hundred feet distant; it-showed white. A mile or so before they reached the Junction the engineer began to slow down, and when they reached the curve just west of the station he was running at the rate of twelve or fifteen miles an hour, and ran at this speed for six or -seven hundred feet; he then released the air and started up, and at the time of the collision was running at the rate of eighteen or
T. G-. Morris, day operator at the Junction at the time of the collision, said: “A semaphore signal is regulated by blades by day and by lights at night. On one end of the blade there is a red lens, and when the lever is released it draws the lens up in front of the light and shows red. When the lever is pulled down the light shows white. Trains approaching the Junction from the west cannot see the signal at all until from twelve hundred to fifteen hundred feet therefrom. No trains had a right over plaintiff’s train the night of the collision, between Jefferson City and the Junction, after the two trains had arrived at the latter point, of which plaintiff had notice at Tipton. Trains having the right of way would not stop at Cole Junction to register unless the danger signal or red light was shown. By the term ‘full control’ is meant that a train should approach a station prepared to stop if a danger signal is given, and at Cole Junction the danger signal is given by displaying it on the board or semaphore above the office.”
Bob Brunt, a brakeman on a river route train, said: “Our train was headed up almost at right angles to the main line. When trains rounded the curve and saw the order board was clear, they would go ahead with increased speed because it was not neces
Fred Hamrick, employed formerly by defendant as fireman, then as engineer from 1901 to 1905, was familiar with the manner in which eastbound freight trains were run through Cole Junction at the time of the collision. A registry was provided for the conductor to throw off when he had a clearance card; it was customary for the engineer to run down until he could see the board, when, if it was red, he should have his train under such control that he could stop. It was customary to increase the speed if the' light showed white; this custom was in force and prevailed generally prior and until June 21, 1903, from his personal knowledge.
F. A. McGinn testified that he had been employed as brakeman and conductor by defendant for seventeen years, up to April, 1908, and had run over the line in question during that time; that it did not require any particular speed in passing the Junction; that a white, light on the semaphore indicated safety and clearance, giving the right to the main track, and to keep going. Clearance was given by the operator at Cole Junction to engineers. If an engineer approached the Junction and saw that the semaphore light was white, he then had the right to proceed and increase his speed; that this was the custom on and prior to June, 1903, and had been the custom during witness’s employment. The switch light at the junction point where the switch point was toward- the east would have nothing to do with the operation of eastbound trains.
Plaintiff’s own testimony in this regard was that the engineer did not have to look out for any switch lights except ruling switch lights, ruling switch lights meaning those at the end of the yard where the train is coming in; that coming into Cole Junction plaintiff looked for a switch light at the west end of the yard,
"W. W. Hoffman, a train dispatcher at Jefferson City for defendant for fifteen years, testified that plaintiff on the day of the accident was running a stock train that had been delayed; that he (witness) wired plaintiff to make good time in order to reach St. Louis for the morning market; that he also wired plaintiff at Tipton that the track was clear of any trains which had the right of way between Jefferson City and Cole Junction over plaintiff’s train. Under the custom, plaintiff was not required to stop at Cole Junction unless the order board was against him, but his conductor would throw off a register ticket. This custom had been in force ever since the river route had been in operation. Witness gave the order for the extra train at Jefferson City, the purpose being to give it the right of way between Jefferson City and the Junction over plaintiff’s train, and sent an order to this effect to the operator at Cole Junction, whose duty it was, upon receipt of same, to turn the order board red; this order was sent to the Junction thirty or thirty-five minutes before plaintiff’s train reached that point. This extra freight train had no class, and in the absence of orders received by plaintiff his train had the right of way over it.
J. F. Fletcher, a section hand, living at the section house just west of the signal board at Cole Junction, was in bed when he heard the noise of the colli- '
So much for the testimony of witnesses detailing the custom prevailing under the rules relative to trains approaching a junction such as that where' the accident occurred. Opposed to the construction placed upon the rules hv these witnesses, defendant introduced five or six of its employees who testified to the contrary that it was necessary that an engineer approaching a junction should observe the color of the switch lights, as well as the order board, before passing the station.
As a result of the collision plaintiff was rendered unconscious for probably half an hour. When he regained consciousness he was lying near the track, covered with mud and muriatic acid. ' The acid had burned him from the elbows to the finger tips; and from the breast bone to the top of his head, one ear being nearly burned off. Upon being taken to the hospital and examined, it was found that his eyes were severely burned, and that the ligaments- attaching his right pelvic bone to the spine had been torn loose. For six weeks thereafter he suffered constant pain. He was in the hospital on account of these injuries more than ten months. His disability is permanent. The character of his injuries is graphically described in the composite testimony of four or five medical experts who testified in the case after having examined him at different times. It is as follows: An X-ray examination showed a distortion or displacement of the entire pelvis. There was curvature of the spine, the right pelvic bone was shifted two and a half inches to the right; the adjacent muscles and tendons were thrown
We have set forth the material testimony to which the jury gave credence, their finding in the presence of evidence pro and con being final. We find upon comparison a marked difference between the testimony introduced at the trial of the instant case and that at the former hearing.
I. We are confronted at the threshold of defendant’s testimony with an array of rules, the alleged violation of which, it is claimed, will preclude plaintiff’s recovery. A review of same becomes, therefore, not only pertinent but necessary.
On the time card in effect at the time of the collision in which plaintiff was injured, there appeared, and had appeared on former time-cards, the following rale which we copy so far as it has reference to the Junction, to-wit: “All trains will approach Cole Junction . . . under full control.” In addition there were rules numbered respectively 27, 98, 106 and 108, which we have set out in the statement of facts, and will now discuss in connection with the rale on the time card, which had appeared thereon for more than two years before the accident in.which plaintiff was
Rule 27 can have no application here because the signal was shown at the place where same was required to be. Rule 98 was not violated because plaintiff’s train in approaching the junction point found the switches right, if.they are to be considered as well as the signal. The contention that in approaching a junction point and finding the switches .and signals right, the engineer is nevertheless not authorized to proceed unless the switch lights at the other end of the tracks, pointing away from the train, • are also right, is, to our mind, absurd, and witnesses who testified to the general application and binding force of this requirement in addition to the observation of the semaphore signal, were not believed by the jury. Rule 98 may, however, be so construed to be in harmony with the time card rule; this will limit the switches or switch lights to be observed by the engineer to those located at the approach to the junction, and not to those located beyond same. - If this is not its correct interpretation, then the words,'“Trains must approach the end of double-track junction points . . . prepared
Prom all of the foregoing we are of the opinion that plaintiff was running his train in conformity with the paramount rule supplemented by observance of the initial switch light and the' semaphore signal. This was the construction placed upon the rule by plaintiff and other train operatives, and it had prevailed uninterruptedly for such a length of time that in the absence of the express rule it could under well estab
If, therefore, the construction placed on the rule by the plaintiff and other operatives was the correct one, then he was not guilty of negligence; on the other hand, if the rule was violated as to the manner of its observance, and that manner had prevailed to such an extent and for such a length of time as to become a custom of which railroad officials and employees, had notice by reason of its notoriety, then plaintiff’s compliance with the custom did not constitute negligence. Hence we hold that in either event plaintiff was not guilty of negligence.
II. It is contended by appellant, however, that if the time card rule be construed so as to authorize the engineer to pass through the Junction without coming to a full stop, if the initial switch lights are right and the signal shows white, that plaintiff is nevertheless, not entitled to recover because it was not shown that lie approached the Junction with his train under full control.
III. Appellant insists that error was committed in permitting Hoffman, the train dispatcher who had charge of the movement of trains on the division on which Cole Junction was located, to give his opinion as to whether plaintiff handled his train in the usual and proper manner. Hoffman was an expert. To him was entrusted, as is customary in the conduct of a railway’s business, the directing of not only when trains should be run, but the manner in which they were to be run. He had before him, when on duty, a record of each train’s orders,, and its location, if moving under orders and the several operators had performed their respective duties. In the discharge, therefore, of his very responsible duty he knew-the significance of train orders, signals and switch lights. The purpose of testimony is to enable a court or jury to fully understand the facts in a given' case that the appropriate rules of law may be applied thereto. It was for this purpose that the testimony of this witness was offered; as to its practical value in enlightening the minds of the jury, take for example the evidence in reference to the message received by plaintiff at Tipton, that two certain trains had arrived at Cole Junction. In the absence of testimony given by Hoffman and other witnesses as to its meaning, viz., that it gave plaintiff’s train the right of way, it would have had no material significance to the jury. For a like reason it was proper to permit this witness, plaintiff and other experienced railroad men, to testify as to the purpose and meaning of signals, switch lights and the usual and customary manner of running trains into the Junction. The rule is well established that the usual and ordinary manner of operating machinery,
IV. The correctness of the first instruction given by the court is challenged because the term “the orders to plaintiff and signals displayed authorized him,” etc., is used therein, it being contended that no orders had been given or signals displayed, and that there was no evidence relative thereto. It was held in Carter v. Exposition Co., 124 Mo. App. l. c. 538, that the words ‘ ‘ rule ’ ’ and ‘ ‘ order ’ ’ were synonymous terms and included “commands,” “instructions” and “directions.” Plaintiff was operating his train in conformity with a rule which, being printed upon the time card, was ever with him and before- him, for we will take judicial notice of the fact, if it does not appear in evidence, that all train operatives carry' the current time card. If not acting under the requirements of this rule, and it had been abrogated .by the establishment of a usage or custom which he observed, then this rule or its substituted custom, familiar to every operative from superintendent to section hand, had the practical force and effect of an order, and it is a mere tenuous technicality to contend that the use of the term was unauthorized. There is no difference in actual
We have discussed the question as to the display of signals and observance of switch lights, and to avoid prolixity will only say that the ruling lights by which plaintiff was guided, under a wholesome and commonsense interpretation of the rules, were the switch lights at the approach of the Junction, and the semaphore light; but in short as to what were the ruling lights as applied to the operation of plaintiff’s train was a question' of fact for the jury. They have determined it, and we will not interfere with their finding. The evidence in regard to the manner in which the paramount rule was observed, whether in compliance with its terms or in such a manner as to work its abandonment or abrogation, has been fully discussed heretofore. There was evidence upon which either theory might be reasonably based. This being true-, we are inclined to regard defendant’s-criticism of the second instruction given by the court as without substantial merit. The flippant fling at the witness McGinn in this connection is not warranted by the character of his testimony.
Instruction numbered one requested by defendant was properly refused, as there was evidence sufficient for the jury’s consideration as to abandonment and abrogation of the time card rule.
Defendant’s second requested instruction was pi'operly refused, because under the testimony the telegram, which in effect told plaintiff that his train had the right of way between Cole Junction and Jefferson City, authorized him, the switch lights and signal being right, to “run the register” at the Junction, a fact disputed by the instruction.
V. The judgment in this case is not excessive. The verdict of the jury was subject to this criticism, but the trial court finding, as we do, that there was ample' evidence to sustain a substantial claim for damages, in the absence of reversible error halved the verdict and entered judgment for plaintiff in the sum of twenty-five thousand dollars. This was a just and fair disposition of the case which cannot but meet with the approval of any unbiased examiner of the facts.
Plaintiff was thirty-seven years of age when he received the injuries from the effect of which he is a permanent physical wreck, without earning capacity and compelled, on account of impaired eyesight, to grope his way through life, in daylight, as in darkness. At thirty-seven years of age one should be, and, so far as the record discloses, plaintiff was when injured, in the full flower of mature manhood; he was earning one hundred and seventy-five dollars per month in a calling which requires, at all' times, a cool head, a steady hand and a devotion to duty scarcely required in. any of the other many responsible vocations in the industrial world; for eighteen consecutive years he had been in the employ of the defendant, half of this time as a locomotive engineer, and not a single mark of delinquency or dereliction of duty marred his escutcheon of service. It may be said that this fact does not help to fix the amount of damages, because the material evidence in regard to the injury, and not plaintiff’s past record, is the matter in issue. As a general prop
However, it is but fair to defendant that the amount plaintiff is entitled to recover be measured by the usual standards. Plaintiff, as we have said, was thirty-seven years of age and earning when injured $175 per month; he might reasonably have looked forward to not less than fifteen years of active service, during which his income would not have been less than that stated; this would have enabled him to"earn during the period of his activity a gross sum of thirty thousand dollars, or more than the amount he is awarded in this judgment.
Comparisons might be invoked to determine the reasonableness of this judgment because the books are replete with cases in which judgments for like amounts have been awarded for similar injuries, but we will not further extend the opinion in this regard, because the material affirmative facts here are sufficient to sustain the judgment without the aid that might be afforded by the citation of similar cases.
Concurrence Opinion
I concur in the opinion of Walker, J., and wish to recall what was said by me when the cause was -here upon the first appeal. What I then wrote was based upon a misunderstanding of the facts of this case, and a partial misconception of the law applicable to such facts.
Before the plaintiff would be entitled to a recovery in this case the jury were required to find that the defendant was guilty of the negligence charged in the petition, and that the plaintiff was not guilty of the contributory negligence stated in the answer.
Both of those facts were sharply presented by the pleadings, and there was much evidence introduced by the respective parties tending to prove each of those issues. _ Not only that, those facts should have been established to the reasonable satisfaction of the jury, solely by the evidence introduced — unbiased by hatred and ill-will, or passion and prejudice.
When I read this record as I did the record of the previous appeal, I became satisfied that the jury here, as there, was not solely governed by the'evidence in the case, but largely by their prejudice and passion
I repeat here, that where'the facts of a case are not conceded or agreed to and where the amount of the verdict, as here, so glaringly discloses the passion and prejudice of the jury against the defendant, we must presume that the same passion and prejudice also unjustly and improperly influenced the jury in passing upon the merits of the case, as well as influ: enced them in fixing the amount of their verdict. In other words, that prejudice which caused the jury to improperly award the plaintiff three or four times as much as he was justly entitled to, if anything, did also in the very nature of man and things, improperly influence them in passing upon the merits of the case, namely, the question of the defendant’s negligence, and the contributory negligence of the plaintiff.
If counsel may be permitted to appeal to the baser elements of man, and thereby procure a verdict upon the merits of the case, as well as for an unjust amount, and then remit a portion of the latter, then by indirection the prejudice and passion of the jury and not its sense of right and justice, would be permitted to meet out right and justice to their fellow-man. And that too, with the sanction and approval of the courts of the land — the fountain-head of law and justice.
For one, I will never lend my sanction to such a monstrous proposition.
I had occasion to mention this matter in the case of Cook v. Globe Printing Co., 227 Mo. 471, l. c. 562; also in my dissenting opinion in this case when here on the former appeal, 244 Mo. 608, l. c. 662.
If counsel will persist in this unjust practice I see no other remedy but to reverse the judgment just so often as the record discloses that abuse of authority.
Of course I recognize that counsel, at times, in the heat and excitement of a trial says and does things which would not be said or done in calmer moments, yet where those things do occur to the injury to either party litigant, it then becomes the duty of the court to correct the injury by such action as may be necessary to accomplish that end; and in this particular case I believe justice will be best served by reversing the judgment and remanding the cause for another trial.
Now, I am not overly sensitive regarding large verdicts and judgments, provided they are commensurate with the injuries sustained. This is evidenced by the fact that the writer has heretofore written the opinions in three or more cases wherein the verdicts of the jury are the largest (if my memory correctly serves me) ever approved by this court.
In a court of justice, justice, right and equity should be judicially administered, not only as to the amount .involved, but also as to the merits of the case. The latter constitutes the foundation upon which the former is predicated; and if the foundation is founded upon sand then the fruits of the temple of justice must fall.
Upon the questions discussed in the previous opinions of Judge Brown (244 Mo. 643-647) and myself (244 Mo. 616-641) in this case, the record now before us has not so changed the facts as to destroy the legal conclusions there reached.. Those opinions can be read as my dissent in this case, and
PER CURIAM. — The attitude of the court on the foregoing opinion is defined by the votes of the respective judges thereto appended.
Since the opinion was written, the parties litigant have entered into and filed in this court a stipulation in the words following, to-wit:
“It is stipulated and agreed in the above case that judgment shall be rendered in the Supreme Court in favor of the plaintiff and against the defendant in the sum of ten thousand dollars, and that said judgment shall not draw interest until the first of January, 1915, and that the defendant shall have until on or before the first of January, 1915, to pay said judgment, and if the same is not paid on or before the first of January, 1915, said judgment shall draw interest at six per cent therefrom, and that none of the existing rights of the plaintiff against the sureties on the appeal bond of the defendant shall be affected by this stipulation or judgment.
“It is further understood that the defendant is to pay the costs in the trial court except the plaintiff’s witness fees, which are to be offset against the costs recovered by the defendant in this court in- the former .appeal.”
It is therefore ordered that the judgment of the trial court be affirmed and that the damages therein be assessed at the sum of ten thousand dollars on the conditions named in said stipulation.