Pashea v. Terminal Railroad Assn. of St. Louis , 350 Mo. 132 ( 1942 )

ON MOTION FOR REHEARING AND MOTION TO TRANSFER TO BANC. On motion for rehearing, defendant contends that we have "seized fragments of respondent's evidence which are clearly contradicted by his evidence as a whole, and held that the jury might be permitted to base its verdict upon these isolated fragments of his evidence"; and that we held "that the jury had a right to disregard the solemn testimony of respondent and base its verdict upon a wholly speculative theory (of a rebound of cars in the stop) not only unsupported by any evidence, but contradicted by respondent's own evidence." This contention really amounts to a reargument of defendant's claim that it was impossible for a sudden stop to cause plaintiff to fall off the rear end of the car.

[4] We fully agree that plaintiff's testimony must be considered as a whole and that, if so viewed, it is so completely contradictory that one part destroys the other then it amounts to nothing, is not substantial evidence, and will not sustain a verdict. [Steele v. K.C. Southern Ry. Co., 265 Mo. 97, 175 S.W. 177; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644.] However, we do not think this is true of plaintiff's evidence in this case, and we have explained why we so ruled. We have also explained why we do not consider plaintiff's account of the occurrence, and its results, to be impossible. We think the jurors could understand what it means to [696] brace oneself against the operation of the law of inertia (whether standing in a farm wagon, in a bus, or on top a freight car); also that the effect of a sudden stop might unbalance one so braced (especially on slippery footing) even if his bracing has prevented him from being thrown forward; and further, that when cars are coupled together the slack in the couplings can operate both ways when there is a sudden stop. Plaintiff's account was not as perfect a description as might have been made by a professor of English, but we think it was sufficient to show that there were forces operating both ways. (In fact it is almost impossible to believe there would not be a rebound, of cars coupled together, from such a stop.) Furthermore, we think that the interpretation of plaintiff's descriptive terms "shake." "jerked," "twisted," etc., were for the jury, in the light of all facts and circumstances they believed to be true from the evidence; and that plaintiff's testimony taken as a whole provided a reasonable basis for their verdict. The motion for rehearing is overruled.

[5] On motion to transfer to Banc, defendant calls attention to the recent ruling of the United States Supreme Court in Gorman v. Washington University, 316 U.S. 98, 62 S. Ct. 962, 86 L. Ed. 895, and insists that such transfer is required. However, we have ruled in McAllister v. St. Louis Merchants' Bridge Term. R. Co.,324 Mo. 1005, 25 S.W.2d 791, that Section 4 of the Amendment of 1890 to Section 6 of our Constitution does not require transfer when "the alleged cause of action rests on the Federal Employers' Liability Act" (45 U.S.C.A., Secs. 51-59), because "neither the validity of the act nor ``authority exercised under the United States' is drawn in question." [See also Scheufler v. Manufacturing Lumbermen's Underwriters, No. 27663-64,349 Mo. 855, 163 S.W.2d 749, decided May Term, 1942, for further interpretation of the Gorman case.] We adhere to our ruling in the McAllister case.

The motion to transfer to the Court en Banc is also overruled.Bradley and Dalton, CC., concur.