Wolfe v. Payne ( 1922 )

Personal injury suit. Plaintiff's evidence tended to show that on March 14, 1918, he was a conductor on the Chicago Eastern Illinois Railroad, then in control and being operated by the Government under the Federal Control Act, and lost his left arm by being run over by a car in the freight train of which he was conductor. That while the train was at Bourbon Station, Illinois, moving slowly, he was standing on the west side of a car, with his feet in the sill-step or stirrup close to the north end of the car, and his right hand holding on to the hand-hold or grab-iron. The said sill-step was fastened to the bottom of the car within a foot or thereabouts of the north end, and directly over it, about three or four feet, was the hand-hold or grab-iron, a round iron bar about twenty inches long, bent at the ends, which were bolted into the wooden side of the car. But the wood had rotted or been worn away, so that the bolts had a play or movement of about an inch or more, which made the grab-iron loose and defective, and permitted it to move to that extent. While thus holding on to the grab-iron with his right hand and standing in this step, plaintiff signaled the fireman, with his left hand to stop the train, but instead of stopping, the train moved forward with a violent jerk at accelerated speed, and by reason of the movement of the loose grab-iron to which plaintiff was holding, he was caused to fall to the ground beside the car, and one of the wheels ran over his left arm and injured it so that it had to be amputated at the shoulder joint. Plaintiff's evidence further tended to show that it was not unusual for conductors or brakemen to stand in the step and hold on to the grab-iron to signal orders as to the movement of the train.

The defendant's evidence tended to show a contrary state of facts, and that plaintiff was injured in attempting to exchange papers with the station agent while hanging and leaning out from the ladder on the side of the car near its south end, while the same was in motion in passing said station, and slipped and fell under the car in so doing.

The car was an interstate car and was being used in interstate commerce. As to this there was no dispute. Nor was there any dispute as to the worn condition of the wood around the hand-hold and the loose condition of the bolts therein, which permitted the grab-iron or hand-hold to have a movement or play of about an inch.

The petition, which is long, in substance, alleged as to the cause of the accident, first, that the grab-iron was defective and insufficient and not securely and safely attached to the side of the said car; that the grab-iron, the bolt and other apparatus used to attach the grab-iron to the car, and the car at the point of attachment were then and there old, worn, loose, unstable, wobbly and rickety and dangerous and unsafe to work about, and had been in that condition for some time before the accident, as defendant knew or might have known by due care, in time to remedy same prior to plaintiff's injury, but negligently failed to do so or warn plaintiff with reference to same, and that by reason of defendant's negligence and "the defects and insufficiencies" which were due to defendant's negligence, plaintiff was injured.

Second, that while plaintiff was so riding upon the side of the car and holding to said grab-iron and the train was moving slowly, plaintiff gave the usual signal to the persons in charge of the engine to stop, but they negligently failed to look out and discover said signal, or if they saw it, they negligently failed to obey it, but negligently started said train forward without warning plaintiff, knowing, or by the exercise of due care might have known, that plaintiff was in a place of danger of being thrown off by such action, and thereby precipitated the plaintiff to the ground, whereby he was injured as before stated.

The third specification is in substance the same as the first, except it also alleged the car was being used in interstate commerce, and the grab-iron and attachments were not securely fastened as required by the Safety Appliance Act of the United States and the orders of the Interstate Commerce Commission, but old, worn, loose, dangerous and unsafe and in a condition in violation of the said Safety Appliance Act, etc., whereby plaintiff was thrown off and injured.

The fourth specification is substantially the same as the second, with the additional allegation that the train was started forward with a violent and extraordinary jerk at accelerated speed, and by reason of the movement of the loose grab-iron to which plaintiff was holding, he was caused to fall to the ground beside the car, and one of the wheels ran over his left arm and injured it so that it had to be amputated a few hours afterwards at the shoulder joint.

The petition then alleges that by reason of all "the aforesaid mentioned matters, singly and collectively, he was thrown from the side of the car and beneath the wheels of one of the cars in said train and one of said wheels ran over plaintiff's arm," etc.

"Wherefore plaintiff states that he has been damaged in the sum of $65,000, for which, with costs, he prays judgment."

The answer put the allegations of the petition in issue, also pleaded contributory negligence and assumption of risk. Reply was a general denial.

The court refused a demurrer to the evidence asked by defendant, gave nine instructions for defendant, four on its own motion, and one for the plaintiff. The plaintiff's instruction was as follows:

"The court instructs the jury that if you find and believe from the evidence that the plaintiff was injured on or about the 14th day of March, 1918, in Bourbon, Illinois, and if you further find and believe from the evidence that at the time he was injured he was the conductor of Freight Train Number 160, and if you further find and believe from the evidence that at such time Freight Train Number 160 was moving northwardly on the north-bound main track of the Chicago Eastern Illinois Railroad Company, and if you further find and believe from the evidence that there was a car initialed B. L.E. and numbered 80993 in Train Number 160 at the time which contained corn shipped from Arthur, Illinois, and which was at the time en route to Terre Haute, Indiana (if you so find), and if you further find and believe from the evidence that the plaintiff, Lee A. Wolfe, was at the time riding on the side of the said car initialed B. L.E. and numbered 80993, holding to a grab-iron on the west side near the north end of the aforesaid car in the aforementioned train, if you find that it was in said train, and if you further find and believe from the evidence that at the time the train was moving at a slow rate of speed, and if you further find and believe from the evidence that the plaintiff, Lee A. Wolfe, gave a stop signal in the performance of his duties as the conductor upon the train, if you so find, to those operating and in charge of the movement of the said engine, and if you further find and believe from the evidence that the fireman was in the cab of the engine on the west side of the train, and if you further find and believe from the evidence that the fireman was looking back toward the plaintiff, and if you further find and believe from the evidence that it was the duty of the fireman to exercise ordinary care to discover, transmit and pass a signal to the engineer, if a signal was given by the plaintiff, and if you further find and believe from the evidence that it was then the duty of the engineer to act upon such signal, if such signal was repeated to him by the fireman, and if you further find and believe from the evidence that the fireman knew that the plaintiff was on the side of the said train and in a position where he would be in danger of being thrown off the train by the sudden increase of the speed of the said train without warning to the plaintiff that the speed was to be increased, and if you further find and believe from the evidence that in the exercise of ordinary care it was the duty of the fireman to exercise ordinary care to look out for signals given by the plaintiff, and if you further find and believe from the evidence that just prior to the time plaintiff was injured, if you find that he was injured, plaintiff gave a stop signal and if you find and believe from the evidence that the fireman either saw the stop signal given by the plaintiff or if he did not see it that had he exercised ordinary care he could have seen the stop signal, if you find that there was a stop signal given by the plaintiff at the time, and if you further find and believe from the evidence that while plaintiff was giving the stop signal the train slackened up to a slower speed, and if you further find and believe from the evidence that the plaintiff continued to give the stop signal, and if you further find and believe from the evidence that while the said stop signal was being given by the plaintiff those in the engine and in charge thereof gave the engine steam and caused the train to start suddenly forward at an increased rate of speed, if you so find, and if you further find and believe from the evidence that in the exercise of ordinary care those in charge of and operating the engine should not have caused the train to start forward, but should have brought the train to a stop, and if you further find and believe from the evidence that no warning was given to the plaintiff that the train was about to start forward at an increased rate of speed, and if you further find and believe from the evidence that such a movement at such a place under the conditions as they existed there at the time was unusual and unnecessary in the movement then being made, and if you further find and believe from the evidence that the sudden starting forward of the train without any signal from the plaintiff so to do while the plaintiff was giving a stop signal (if you find and believe from the evidence that the train was suddenly started forward without any signal from the plaintiff and while the plaintiff was giving a stop signal) contributed to cause the plaintiff to fall from the side of said car and his left arm to be run over and cut off, if you find that the plaintiff did fall from the side of said car and his left arm was run over and cut off, and if you further find and believe from the evidence that at the time the plaintiff was exercising ordinary care for his own safety, and if you further find and believe from the evidence that at the time the grab-iron to which the plaintiff was holding, if you find that the plaintiff was holding to a grab-iron, was not securely fastened to the side of the car and that there was some play or movement in this grab-iron, and if you further find and believe from the evidence that the north end of the aforesaid grab-iron was attached to the car by means of a bolt which ran through the wooden part of the car out through the end of the grab-iron, and if you further find and believe from the evidence that the hole in the wooden part of the car through which this bolt passed had been enlarged by a wearing away of the portion of the wood around the hole, and if you further find and believe from the evidence that this permitted some play or movement in the north end of the grab-iron, and if you further find and believe from the evidence that this grab-iron had been in this condition for some time prior thereto, and if you further find and believe from the evidence that the grab-iron in this condition was dangerous and not reasonably safe for the use of the men working upon and about the said train, and if you further find and believe from the evidence that the defendant or its inspectors could by the exercise of ordinary care have discovered the condition of this grab-iron, if you find that the grab-iron was in this condition, in time by the exercise of ordinary care to have remedied it, and that they failed and neglected to exercise ordinary care to remedy it, and if you further find and believe from the evidence that the grab-iron gave or moved while the plaintiff was holding to it, if you find that plaintiff was holding to it, and that such movement in the grab-iron contributed to cause the plaintiff to fall from the side of the said car and to be run over and his left arm cut off, if you find that he did fall from the side of the said car and that he was run over and that his left arm was cut off, and if you further find and believe from the evidence that at the time he received his injuries, if you find that he did receive injuries, and prior thereto the plaintiff was in the exercise of ordinary care for his own safety, and that the plaintiff was not guilty of any negligence that contributed to cause his injuries, then your verdict should be for the plaintiff and against the defendant, and if you find for the plaintiff in this event, under all the evidence in the case, in estimating and determining the measure of his damages, if any, the jury may take into consideration in connection with all the facts and circumstances in evidence the character and extent of the plaintiff's injuries, if any you find and believe from the evidence he received and whether such injuries, if any, are permanent in their nature, and may find for him such sum as in the judgment of the jury, under all the evidence in the case, will fairly and reasonably compensate him for the injuries you find and believe from the evidence he received, if any, and the court further instructs you that if you find as above, except that you find and believe from the evidence that at the time the plaintiff was injured, if you find that he was injured, he was not in the exercise of ordinary care and that the plaintiff was at the time guilty of negligence contributing to cause his injuries, if any, then in that event your verdict should be for the plaintiff and against the defendant, but in that event the damages, if any, shall be diminished by you in proportion to the amount of negligence attributable to the plaintiff."

The jury rendered a verdict for the plaintiff for $15,000. Defendant duly appealed to this court.

I. Section 8608 (Compl. Stats. U.S. 1918) is as follows:

"8608. Grab irons or handholds — From and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car inApplication interstate commerce that is not provided with secureof Statute. grab-irons or hand-holds in the ends and sides of each car for greater security to men in coupling and uncoupling cars. [March 2, 1893, c. 196, sec. 4, 27 Stat. 531.]"

Section 8618 required all such cars "to be equipped with secure sill steps."

It is contended by learned counsel for appellant that inasmuch as said Section 8608 required said secure grab-irons or hand-holds, only "for greater security to men in coupling and uncoupling cars," and plaintiff was not so engaged when injured, he has no cause of action under said Safety Appliance Act. In support of the proposition, appellant cites St. Louis San Francisco Railroad Co. v. Conarty, 238 U.S. 248. That case is distinguished in Louisville Nashville Railroad Co. v. Layton, 243 U.S. l.c. 620, and the doctrine clearly announced there that the benefit of the statute is not restricted to employees while coupling or uncoupling cars, but extends to all employees injured while using such defective appliances in the discharge of their duties. The same rule was applied in a later case of Minn. St. Louis Railroad Co. v. Gotschall, 244 U.S. 66. [See also Director General v. Ronald, 265 F. 138.] So that we rule this point against the appellant.

II. (a) The plaintiff's case coming under the said Safety Appliance Act, it was sufficient that plaintiff prove the existence of the defective grab-iron and that it was in part the cause of plaintiff's injury. It was not necessary to prove negligence on the part of the carrier inNegligence. maintaining said grab-iron in a secure condition; its duty to do so was imperative and absolute. [St Louis Iron Mountain Railroad Co. v. Taylor, 210 U.S. 281; Great Northern Railroad Co. v. Otos, 239 U.S. l.c. 351; C., B. Q. v. United States, 220 U.S. 559; L. N. Railroad Co. v. Layton, 243 U.S. l.c. 619; Callicotte v. Railroad, 274 Mo. 689.]

(b) So also plaintiff's contributory negligence, if any there was, is not only no defense to a cause of action arising under the Safety Appliance Act, but is not even to be taken into consideration in reducing the damages he may recover. The Employer's Liability Act (Sec. 3, 35 U.S. Stat. 65-66), provides: "Provided that no such employee who may be injuredContributory or killed shall be held to have been guilty ofNegligence. contributory negligence in any case where the violation of such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee." The statute, in such cases, "abolishes the defense of contributory negligence not only as a bar to recovery, but for all purposes." [Grand Trunk Railroad Co. v. Lindsay, 233 U.S. l.c. 49-50; Callicotte v. Railroad,274 Mo. 689.]

In our opinion the petition and evidence of plaintiff were sufficient to take the case to the jury under the Federal Safety Appliance Act and Employer's Liability Act, and therefore neither defendant's negligence nor plaintiff's contributory negligence was germane to the controversy. This has been so ruled by this court. [Callicotte v. Railroad, 274 Mo. 689.]

III. The loose condition of the grab-iron and the fact that the car was being used in interstate commerce being undisputed, the only question in the case relating to defendant's liability is whether that condition was a contributory cause of the plaintiff's injury. We think plaintiff's evidence tended to show that it was, andRight to the plaintiff's instruction fairly presented thatRecover. question to the jury. There are other matters of negligence, such as "sudden jerk" caused by failure to obey plaintiff's signal to stop and negligent failure to repair the grab-iron, submitted in plaintiff's instruction, but no recovery by plaintiff is authorized on account thereof unless the jury further believe from the evidence that the grab-iron was defective and contributed to plaintiff's injury.

IV. The fact that plaintiff's instruction required the jury to find the defendant guilty of all the specifications of negligence alleged in the petition, when it was only necessary for him to prove the defective grab-iron and the consequent injury therefrom, does not involve an error of which appellant can complain. Nor does the fact, if it be a fact, whichUnnecessary we need not decide, that there was no substantialAct of evidence to sustain such superfluous and unnecessaryNegligence. matters, such as negligence in inspection and repairing the grab-iron, or in the "sudden jerk" of the train does not vitiate such instruction. This court has expressly so decided. [Callicotte v. Railroad Company,274 Mo. 689.]

V. The appellant complains vigorously of the length of the instruction given for the plaintiff. The instruction is of great length, but it embraces matters which would usually be contained in at least three instructions, one as to liability of defendant, one as to the measure of damages, and one as to the diminution of damages in case plaintiff was guilty of contributory negligence. This last section of the instruction was for theUnnecessarily defendant's benefit as it was entitled to noLong diminution of damages on account of contributoryInstruction. negligence on plaintiff's part. The length of the instruction is, no doubt, attributable to the unnecessary burdens plaintiff assumed in regard to other acts or specifications of negligence alleged in the petition besides violating the Safety Appliance Act as to the insecure grab-iron, all of which were matters of which defendant has no cause of complaint, because in its favor. While plaintiff's instruction was long it was clearly written and the attentive eye or ear would have no difficulty in following it. Its mere length, while objectionable, does not constitute reversible error. [Crowl v. American Linseed Oil Co., 255 Mo. 305; Andrew v. Linebaugh,260 Mo. 651; Weller v. Railroad, 164 Mo. 180.]

Two cases are relied on by appellant as holding the contrary, but we think those cases are distinguishable from the case before us. In Williams v. Ransom, 234 Mo. l.c. 66, this court held it was not error to refuse instructions on account of their length and verboseness, and so framed that no average jury could follow the train of thought contained therein, even though their theory was correct. But in that case the court, of its own motion, gave a correct instruction and other instructions which fairly presented the case. The court said at pages 71-72: "Upon the main issue the instruction given fairly presented the case, and it becomes unnecessary to undertake to analyze the verbose instruction asked by plaintiff." In Stid v. Railroad,236 Mo. 398, verboseness in instructions was disapproved, but the instruction there condemned also conflicted with a proper instruction given for the opposite party.

In the case before us nine instructions were given for defendant, presenting its theory very clearly. Number 3 told the jury the plaintiff could not recover if plaintiff was injured while exchanging papers with the station agent by slipping off the ladder on the rear end of the car, notwithstanding there may have been a loose grab-iron on the front end of the car. Number 6 that the jury must find for defendant unless plaintiff established by a preponderance of the evidence that he was riding on the north end of the car and that his fall "was caused by a loose grab-iron" or by negligent handling of the train. Number 7, that if the jury were unable to determine whether plaintiff's injury was the result of a loose grab-iron or a sudden jerk of the train, or due to other causes, the verdict must be for defendant.

Plaintiff's instruction was more favorable to defendant than defendant's own instructions, in that it did not authorize a recovery for plaintiff simply by reason of a sudden jerk or negligent handling of the train, as assumed in defendant's instructions, but in addition thereto, before the jury could find for plaintiff under plaintiff's instruction, the jury were also required to further believe from the evidence that the grab-iron was loose and defective and contributed to cause the plaintiff's injury.

We do not consider plaintiff's instruction, owing merely to its length — there being no error in it in other respects — in any way would mislead or confuse the jury to defendant's detriment.

VI. As to the amount of the verdict: The appellant says: "The plaintiff was guilty of contributory negligence as a matter of law; his recovery is full compensation as though he was not negligent, in violation of the act of Congress. The damages are therefore excessive." Inasmuch as plaintiff's contributory negligence, if any, was not an element or factor in the case, we must rule this point, too, against appellant.

It being stipulated by the parties that James C. Davis. Director General of Railroads, the present designated agent provided for in Section 206 of the Transportation Act of 1920 and successor of John Barton Payne in such office, may be substituted as appellant in this cause, accordingly, said James C. Davis is so substituted. The judgment of the lower court is therefore modified by substituting said James C. Davis, Director General of Railroads, as defendant therein, and as so modified, finding no error in the proceedings below, the judgment of the circuit court is affirmed. Ragland, C., concurs; Brown, C., absent.