*1 6 as giving in Instruction Error claimed take jury not to are follows: “Tbe court instructs tbe determined, tbe negligence consideration, into until tbe bas been injuries ex alleged tbe nature, character or extent of determmvmg cept yon an whether or aid to defendant an clause, (Italics ours.) such italicized negligent.” Without tbe Ryan Burrow, v. reversible error instruction was condemned as Fleming, 320 Mo. 928, Stolovey v. (2d) 33 W. 326 Mo. nature, (2d) 832. cases held 8 S. W. These character might con injuries circumstances which tbe extent of along and circumstances in determin with all tbe other facts sidered negligence be excluded and such facts should not ing tbe issue determining To jury in issue. from the consideration inserted a similar objection, italicized clause'was meet this Cohen, supra, Wolfson approved in v. instruction which meaning clarified the clause instruction that this which held' declaring an erroneous rule. Such instruction prevented it by with caution the court. There jury be used cautioning the should how dispute in this case was no proper. giving of this instruction was hold that we It is ordered. All judgment should affirmed. concur. of St. W. Terminal Railroad Association Freeman v. Burns (2d) 36. Corporation, Appellant. S. W. Louis, One, 30, 1937. Division June Opinion Term, 1936, September April 21, 1937; *NOTE: filed at motion filed; rehearing May Term, 1937, motion overruled at June 28.9 *2 Pierce, appellant. T. M. J. L. Howell and Walter N. Davis for respondent.
Wm. Allen for H. *4 Federal BRADLEY, injury under personal C. Action for seq. The Liability A., 5Í et Employers’ Section 45 U. C. Act. Pending $17,500. for jury favor of returned a verdict filed; motion trial, and the $5000 motion new was remittitur This followed. appeal was overruled. January switching on crew and Plaintiff was a member aof yards injured in CD one-fifty-five m., a. charge jury Louis, Plaintiff to the on in East Illinois. went St. switch where engineer a car over a negligence plaintiff. from working without a come ahead plaintiff was assumption risk. That general was a denial and The answer Liability Employers’ Federal properly under the is one cause disputed. Act is not evidence; assigned (1)
Error refusal of a demurrer to the on the (3) plaintiff’s Instruction verdict still (2) on No. excessive. yards December, 1922, working been Plaintiff had since night injury he tender. Other members and on the of his was switch Conklin, foreman; Rule, working pin with were of the crew Jones, engineer; track in- Schatz, fireman. The lead puller; along north south. From north south volved extended side, on switches were track, lead switches went off the west and these Plaintiff north south. at No. numbered rail which, was about feet east the east the stand extending ties. low track, lead and rested on stand “ground operated and was called a The switch was switch.stand.” by over, south, pushed according which was north or a lever lineup end, an This lever had iron ball on its which ball. desired. thirty-five weighed forty pounds, or to func- the ground, tion ball down to properly this should to wood came all upon to rest when was well. block which ball If the over from the north lever thrown or turned then coming north a car on the would take lead north, lever was from the No. 16. If the thrown south to the then engine, car continue south on the lead track. The such track, south and ivas some the lead was headed distance north of engine 16. In front of the No. three ears. The two high arid obstructed the cars next to reflection of headlight down the track. south 3-board car, placed this car to be switch track No. lined coming then that a car Switch the lead *5 would continue over the switch from north and on the south necessary track,, hence it to throw lead was the switch the lever from south, the car north to the so that coal the take switch track towards; moving cars in front the and No. 16. With south north 16’,plaintiff switch lever from the attempted to throw the what followed over,” to the but to “it wouldn’t and as plaintiff testified: see something and I had to I knew matter
“Then there the was I knew gave signal. I ... stop what and foreman a it was the pre- switch, which would something lock dropped to the down foreman) (the coming rail, He points vent the see. the back to relayed signal engineer up I then stop when looked the to the and hump light the north stopped, to from see if the cars were and the car; light right I could shanty, shining on the that was down light. I Then that cars the car there under that seen the fifteen I that and sixteen stopped. Then over there between walked up opened it there I had point switch cleaned out. When and the piled up m in the siuitch between lead and was ourá.) (Italics point. switch; the coal rim down into switch out, I of got Then I walked over the outside when cleaned point would come the lead and cleaned that coal out so the switch against open I up 16. Then throwed the lead and would be to track u¡p pressed the switch here the ball of the ball of over and just my foot with the and had raised left switch down left foot ball back off the ball few inches of the switch—a my I switch in a body and turned northern direction where going signal givé ear to down come my staggered up and I all at once ball come struck foot and in the coming direction the car of coal over—it the ball hold- ing my car point up which come and struck foot—the coming Well, . as I over the at time. . . my said, just about I raised the ball of the the time foot off body my I northwardly turned the direction where for the was to crew kicked down on lead car track) up (switch 16, suddenly ball of raised my left in the and struck foot and caused stumble north me to coming from.” direction the result fell his left off arm was cut about below the elbow. five inches On cross-examination when threw testified that “Q. facing Facing Now, west. I west. under- you got just you, your foot back stood or off of switch ball— why, ball, the lever then the front trucks that coal car I ¡going there? A. Just about the time over the switch just my I foot of the raised left off of ball had turned my way Right way, I shape foot this is the —see? (indicating). time, part Just trucks the first of the points (I) of coal hit ball up ear them raised that right way coming. stumbled into the direction car was just just at time? That was at that time. *6 points? first struck of the car when wheels first —struck struck the just the car A. When the wheels of' Q. quick. right up switch ball of the points, switch that raised the The coal car A. car? of that coal That was the south wheel way. that of trucks down pair going it the first south and push they far did Q. way. How pair down that The first of trucks just judge a way; I right that A. me over you? pushed Just way. fell that I out way. feet, Maybe six before short or seven Yes, A. sir.” 16? Six or seven feet north they signal, are to you give stop “if Plaintiff testified that signal;” did not give that he you a come ahead until stand there they signal, you stop signal. give them give “When a come ahead signal always give ahead they you them a come stop wait until anybody is they you, so tap bell for again, and then get way.” that they Plaintiff testified around, why, out of engine stopped it had after rung was started was not before the bell introduced, reads: which foreman. Rule on his to his move, engine about to is rung must when the bell “The stations; crossing, cars, or passing public or approaching while workmen are points where through approaching tunnels ’’ engaged. in rail- witness, he was Breeze, plaintiff’s testified that William H. switchman, thirty-six yardmaster; years, foreman and road work for defendant; why he that the reason last for the that he worked business;” railroading, was that “there ain’t no not still switch; roads have used ground that some familiar with the used the ground years;” that he had switch “for last foreign “with substances experience ground switch and had you they act getting points. Have ever noticed how in switch your Well, anything A. in them? if there when cars over is They tight. might why, get can’t them down points, direct, it near hind right but even if back not be is tendency up.” that bar point, throw end it would have a “Q. Now . . . whether or not On there are cross-examination: there, any if it was—if particles of coal he turned remained small go, why, far would then clear over as as it rail, they? may up against the points would be wouldn’t back, it right up end, any but if there is coal at the at the up and throw that lever back tendency press that end have a “Q. Just what kind of a task is it to again.” Then redirect: you get it all out? out of switch to be sure clean coal get back, pretty it hard to A. If back there toward it out at times.” it engineer, testified cars were Schatz,
Defendant’s evidence: foreman;” “signals from the track on down the lead cars;” kick got signals from foreman all night injured; misty” that he “a it was little far down as could where he “as night;” after the accident he examined the *7 went;” that the “It was lined for 16 where the car he worked right;” of' switch and that it “all that he never seen one fly “Q. any ground coal around switches back. Did laying might pulverized coal there? A. have been a little There any there, why, way the there. If been coal around there had pulverized it— against point car would have the come that switch crushed it.” would have standing
Rule, of pin pullér, testified that at time accident he was engine;” accident, not “on the front end of the that he did see the thereafter; shortly 16 but was at the switch switch plain- 16 the car that lined for switch track and that coal caused lengths” injury eight tiff’s car switch “about or nine the fireman, Jones, 16. and on switch track No. said the switch the foreman, away Conklin, was lined switch track the for was not a witness. superintendent, Hickman, testified that he
B. B. “Q. yardmaster. Supposing after the had been a switchman and it south up track 16 flew was turned wheels hit lever the —after hap- go up, why, it flew would so it would into track 16 and what up. how it flew pen? depend A. The car after on much it— . . go part car of it or be derailed. . would either down the lead Q. 16 Now, when that track is set 16—the switch is set go point car down track and the wheels hit the the would goes is where ear down track- down track and that the Q. is, fly A. No. when it is up? then would that lever it. fly No, A. not with car up? set for then it can’t the on Q. against bearing A. with it? car Not the the Q. down, anything. Force the the if it did would force lever Yes; the lever down? A. would' where force exerted. Q. points, then that would And when the wheels hit coming instead of it force lever down the lever down keep Q. back, Yes, Supposing it? A. sir. . . . would any particles points, of coal in would that make little the switch any particles coal wouldn’t make A. No. Small difference. Q. large only lumps difference. of coal would It would difference, Yes, it? A. sir.” make a wouldn’t supervisor, he Horner,
W. H. defendant’s track testified that morning eight-thirty plaintiff’s injury learned about 11th, January switch No. did not and then went to any points,” “probably “in find find but did point “from wheelbarrow load” scattered of the switch to Q. supposing after Now, ground. heel of the . . . along come south and train fully the switch lever down of switch point and the wheel of the car struck happen track, would against what as it flush rail lead happen to anything lever, anything? to that A. wouldn’t There Q. Noth- Q. A. No.? it; if it down? if it was down. Not No, A. fly ing it back? A. No.? Would happen to it? against the pressing sir. What would wheel be the effect rail those circumstances? and track under switch, any practically on the lever of wouldn’t have effect way down.” because lever when it is all the position is in neutral duty yardmaster, and on Edmonson, M. O. defendant’s assistant Conklin night that he and foreman plaintiff injured, testified night together time; hospital at the that he went to him, that “something hit with said that was;” past half three” it that “between two didn’t see what morning found he, witness, No. 16 o’clock went to switch *8 ‘‘ and a few of coal there lumps around the end of track.....Q. when So, your opinion, the track middle going lined 16 those circumstances and a car under same ? you here, north fly as have them lever from the south to the will that so; I saw A. I think it. You never one don’t never saw do one guess you many go it? A. And I have seen cars No, do sir. Well, A. I have a over circumstances? saw switches under those yards? many. Q. good long How there in the have been years.” 14 assignment
On based on refusal of demurrer to contentions, (1) three viz.: the evidence defendant makes ac cording injury plaintiff’s case, from which his resulted de fendant, diligence, in reasonable foreseen or antici could not have pated; kicking (2) that ear down the leadtrack “without waiting signal it, though this was plaintiff for a from to move even ’’ plaintiff’s injuries; negligence, not the cause of and proximate (3) concededly the kicked coal car went in on switch that since 16; impossible happened for the accident to “it have as by negligence upon Plaintiff plaintiff.” predicate stated did not an switch.stand, upon alleged or a defective but obstructed switch negligent plaintiff kicking completed of the coal car before his had signal a work at “without come ahead from plain and down tiff.” If the coal car the leadtrack without a come contrary plaintiff, signal ahead and to the established custom negligence. practice, constituted Plaintiff’s then such act ex perience with the switch lever the ball was the incidental thing place injured, where him he was happened intervene be negligent kicking given the coal ear before he had cause of the no it, been signal. would have situation, we come ahead as negligence, plaintiff had different, question far concerns the attempting first removing coal, been whilé was after over entirely not throw the lever would the switch and found that support first We any to the south. do not find "The the evidence. demurrer to respecting second contentions negligence depend not liability charged with person does prudence, could question whether, reasonable with the exercise of may injury complained of; ought very but he or to have foreseen the which, injury ap anything complete, after held liable for consequence probable of his act or pears to have been a natural C., Chicago 199 Mo. Co., K. L. & omission.” v. St. [Dean Railroad 386, 410; Co., 411, 97 Air l. c. W. v. Linde Products S. McLeod Light (2d) 397, 318 Mo. 1 W. Washburn v. Laclede S. Gas Co., 410, Id., 181, 284 Mo. 223 W. App. Mo. 214 S. W. 725.] employees general that switchmen and other is the rule yards engines "moving or working-in cars or and about railroad duty to look out for themselves about to be moved” are under the warning, rule, requiring "in the absence custom or assurance tracks, engines going around, or near or cars.” [Goodwin (2d) 988, 398, 72 Co., v. Mo. Pac. 335 Mo. S. W. l. c. Railroad present and cases But in the case was sub there cited.] evidence, contrary, nothing stantial to the being injured, work done when kicking cars, except
move down the lead track in an plaintiff. stronger had situation is than in a assurance that coal car would not kicked until he was this safety. [See, also, al., place v. Mo. Norton Wheelock et (2d) 142, 10); Railroad (9, S. W. l. c. 148 Kamer v. M.-K.-T. *9 Co., 792, (2d) 1075; 326 Mo. 32 Rail S. W. v. Wabash Mitchell al., 926, 286, (8).] Co. 334 Mo. 69 S. 292 (2d) road et W. l. c. cause, neg- question We think proximate the and ligence clearly jury. for the says impossible
Defendant that it for have been is to by him, because, in the manner described and this as defend stated, ant contends and as the kicked coal car went down switch 16, therefore, claimed, it No. is the switch lever and ball could ‘‘ by plaintiff. may not have risen claimed is true that a court nhysical reject is properly contrary evidence which or to to facts mistake, or, is physical known laws or which the result of evident short, itself, facts, evidence or other established discloses infirmity.” Bridge Co., inherent v. Atchison & Eastern its [Clark (2d) 1079, 1082, cited; 721, 62 W. l. c. 333 Mo. cases there Co., 1169, (2d) 70 Ill. Cent. Railroad Mo. S. W. Hardin v. Duerbeck, 556, (2d) 92 S. 1075, 338 Mo. W. l. c. Vitale v. Ry. Co., 326 691; Doyle Bridge v. St. Merchants’ Terminal Louis However, facts 425, (2d) 1010; 31 S. W. l. c. under the Mo. 1012.] plaintiff’s that present say case as a matter of law we cannot injury fall and not occur as he testified. did 1 is erroneous No. plaintiff’s It is that Instruction contended finding moving of the coal require it not that because does up, against fly and that caused lever to finding car came contact require a instruction fails that to with, authority support point. counsel no to Able cite things, assignment among instruction, other on this The instruction. required finding "towards cars that ball signal, without a "the said points” come ahead fall,” According plaintiff, causing him etc. switch struck dispute fly up, no plaintiff’s evidence switch lever did is arriving passing as to the coal car at and over the switch. We do on Instruction complaint not believe merit in the there is $17,500, Is the The verdict excessive? verdict was forty- $12,500. made, leaving $5000 remittitur of Plaintiff was years January expectancy injury, six old at 1934. His time twenty-four years. earning approximately $180 He was month, year. per per $2160 $2280 The com $190 trial 5, 1935; any March not menced and he testified earned injury thing injury. his is and he permanent, since The said pain "Well, pains keeps still suffered me and me his arm. it appellate nervous.” The "rule is courts not repeated oft should damages theory excessive, it disturb a verdict on the is un grossly apparent it from the record verdict less ex (2d) City, cessive. v. Kansas Mo. S. W. [Plater 800.] are approved trial court verdict after r&mittitur. We persuaded hold the not verdict still excessive. we should [See Ry. Co., (2d) 330 Mo. W. Radler St. L.-S. F. 51 S. v. 1011.] judgment affirmed it ordered. Ferguson should be is so (7(7., Hyde, concur. opinion C., foregoing by Bradley, PER CURIAM: The is adopted judges opinion concur, except All Douglas, J., as the court. voting member because not a of the court when cause was sub- mitted.