Opinion
No. 42414.
December 10, 1951.
Walter R. Mayne, F. W. Schwarz, St. Louis (John H. Lathrop, Sam D. Parker, Kansas City, of counsel), for appellant.
Frank Mattes, Jefferson City, C. O. Inman, St. Louis, for respondent.
The Atchison, Topeka Sante Fe Railway Company, a corporation, appeals from a $60,000 judgment in favor of Homer G. Blew in an action instituted under the Federal Employers' Liability Act, § 1 et seq., 45 U.S.C.A. § 51 et seq., for personal injuries. Defendant-appellant questions plaintiff-respondent's instruction No. 1 and claims the damages are excessive.
Plaintiff was a brakeman on one of defendant's local freight trains running between Pekin and Streator, Illinois, and was injured on July 13, 1949, at Morton, Illinois. At Morton defendant's main line runs east and west, the Pennsylvania Railroad Company's main line runs north and south, and the transfer or interchange track connecting the two main lines is a long curve. When the train arrived at Morton, the crew with the engine and one car proceeded to the station and received orders to move four cars on the interchange track from said track and then return two of the cars, boxcars, to said track.
Plaintiff was injured on the return movement. After throwing the switch to put the two boxcars back on the interchange track, plaintiff walked toward the derail protecting defendant's main line and signaled the engineer to bring the cars in. The diesel locomotive, facing east, was pushing the cars. It was plaintiff's duty to set the hand brake while the cars were moving and stop them near the derail to save time. Plaintiff accordingly mounted the ladder, which was on the engineer's side, on the east car. The car was equipped with an Ajax brake, which does not have the staff projecting above the car. When plaintiff's feet reached the rung on the ladder in line with the brake platform on the east end of the car, he prepared to go on said platform. He had his left foot on the rung of the ladder, his right foot on the platform, his hands on the top grab iron of the car, and noticed that the engineer was in the act of raising his head to look at him. Plaintiff released his hold on the grab iron with his right hand to reach for the brake wheel, and just at that time there was a "terrific jerk" of the car, which tore his hold with his left hand loose. He made a grab for the brake wheel, but it spun and twisted him. He then gave himself a "tremendous shove" to get away from the car as far as possible. He estimated he fell on the ground 10 feet in front of the car. He turned on his stomach and got to his hands and knees and "scrambled" forward about 4 feet. He did not want to chance crossing the rail. He then "flipped" himself between the two rails on his face, with his arms in front of him, hoping the movement would stop or pass over him. The car caught up with him, first hitting his left heel, then the brake rigging caught his clothes, and he was dragged, twisted and turned. When the movement stopped he was at the west trucks of the car, had been dragged 22 feet or more, and had sustained serious injuries.
James J. Dulen, defendant's witness, was the engineer. He and the other crew members were present when the conductor received the orders and explained the movements to be made. He had his head out of the cab and saw plaintiff mount the ladder and go around the east end of the car, but testified his head was 5 or 6 feet below the top of the boxcar and the car prevented him seeing plaintiff after he disappeared around the end of the car. The locomotive was moving 3 or 4 miles an hour. A short time later he saw plaintiff's cap come from under the car, realized something wrong had happened to plaintiff, and applied the emergency brake and stopped, which he testified was the only application of the brakes made by him. He stopped as soon as possible, but could not say in how many feet. He and the fireman investigated. They found plaintiff between the rails just ahead of the rear trucks of the east car, and plaintiff told them he had just slipped off, did not know how, and, a few days later at the hospital, plaintiff introduced witness to the nurse, telling her he saved plaintiff's life.
Additional facts are stated later in the opinion.
Plaintiff's instruction No. 1 follows: "If you find and believe from the evidence that on July 13, 1949, while plaintiff, Homer Blew, was in the discharge of his duties as a brakeman for the defendant, it became his duty to go upon the leading end of the easternmost one of two cars being moved by defendant on the transfer track mentioned in the evidence for the purpose of setting the hand-brake on said car and that he did go upon said car for said purpose; and if you further find and believe from the evidence that while plaintiff was on said car, the engineer of defendant operating the locomotive being used to move the cars applied the brakes of the locomotive, thereby causing the car on which plaintiff was riding to suddenly and unexpectedly jerk with unusual force and violence, and that plaintiff was thereby caused to fall from said car and that he was run over and dragged by parts of said car and thereby directly caused to sustain bodily injuries; and if you further find and believe from the evidence that it was negligence on the part of the defendant's engineer to so apply the brakes, if you find he did so, and that said negligence directly in whole or in part caused plaintiff's injuries, then you are instructed that the plaintiff is entitled to recover in this case, and your verdict must be in favor of the plaintiff." The instruction is not a model and is not commended.
Plaintiff also predicated a recovery on the violation of defendant's rule requiring a stop to be made when the man giving the signals for a movement disappeared from the view of the engineer, and also on a failure to stop on the theory the engineer knew or should have known plaintiff had fallen and was in imminent danger.
Defendant first contends that the instruction was based upon alleged negligence of the engineer, but did not require a finding that the engineer acted negligently; stating: "The jury is not required to find that the engineer so applied the brakes as to cause a jerk, but only that he applied the brakes and the jerk followed." The instruction required findings that the engineer applied the brakes and that his application of the brakes ("thereby causing") caused the car to suddenly and unexpectedly jerk with unusual force and violence; that is, that the engineer's application of the brakes caused the jerk, which caused plaintiff's fall. The instruction also required a finding that "it was negligence on the part of the defendant's engineer to so apply the brakes," negligence in causing the jerk by his application of the brakes. We think a jury would construe the instruction as requiring findings "that the engineer so applied the brakes as to cause the jerk," as stated in defendant's argument, and that he was negligent in so applying the brakes.
Defendant also mentions that the possibility of mechanical vagaries of the brake equipment cannot be eliminated. Plaintiff testified that he was making no complaint about the brakes, or platform, or ladder, or equipment, and that if the equipment were all right the jerk was caused by the engineer putting on a violent application of the brakes. Plaintiff offered in evidence defendant's answer to interrogatories that the braking and sanding equipment of the locomotive were in good condition. The engineer, defendant's witness, testified that the brakes were in good order and he had had no trouble with them. One of plaintiff's expert witnesses, Mr. Gosmeyer, testified that if the track and brakes were in good condition, a stop of sufficient force to jerk a brakeman's hand loose from the handhold would be due to the engineer's action in setting his brake. The instruction did not authorize a verdict for plaintiff for any hypothesized fact other than the act of the engineer in applying the brakes so as to cause a jerk and there was no substantial evidence to establish the jerk was otherwise caused. Defendant's position is not sustained. Consult Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675, 679[1,2]; Durmeier v. St. Louis County Bus Co., Mo.Sup., 203 S.W.2d 445, 447[1]; Setzler v. Metropolitan St. R. Co., 227 Mo. 454, 467, 468, 127 S.W. 1, 4.
Defendant also claims the instruction "submitted an assignment not contained in the petition." The petition alleged, among other grounds for recovery, that "defendant's engineer negligently applied the brakes so as to cause the sudden and violent jerk aforesaid." We think, with this statement of the pleadings, that the discussion under defendant's first contention demonstrates that the instruction required more than findings that the engineer applied the brakes and caused an unexpected and violent jerk of the car, as here argued by defendant. The instruction was in the conjunctive throughout. In Beave v. St. Louis Transit Co., 212 Mo. 331, 351(I), 111 S.W. 52, 57(1), stressed by defendant, the plaintiff pleaded specific acts of negligence but the instruction authorized recovery for any negligent act of defendant's employees, whether that act was stated in the petition or not. The situations differ and error is not established.
We think the instruction does not, as argued by defendant, permit the jury to find plaintiff was run over and dragged by the car without requiring the jury to find that defendant was negligent in connection therewith. The required finding reads: "and that plaintiff was thereby caused to fall from said car and that he was run over and dragged by parts of said car and thereby directly caused to sustain bodily injuries." The instruction was in the conjunctive throughout; and plaintiff's fall, the dragging, and the sustaining of bodily injuries are all submitted in the conjunctive as the proximate result of the engineer's application of the brakes causing plaintiff to lose his hold on the grab iron. Under the facts of record, the jury could find there was an unbroken connection between the engineer's application of the brakes and plaintiff's injuries caused by being run over and dragged, as well as his fall, a continuous operation; that is, that there had been no break in the chain of causation. Carter v. Atlanta St. A. B. R. Co., 338 U.S. 430, 434 et seq., 70 S.Ct. 226, 94 L.Ed. 236; Union Pac. R. Co. v. Hadley, 246 U.S. 330, 333, 38 S.Ct. 318, 319, 62 L.Ed. 751; Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404, 409[3]. The Federal Employers' Liability Act makes interstate carriers liable in damages to any employee suffering injury "resulting in whole or in part from the negligence" of the carrier. 45 U.S.C.A. § 51.
Defendant further states the instruction failed to hypothesize facts to guide the jury in determining the issue of negligence, and argues that the instruction should have required findings that the "engineer knew, or should have known, of plaintiff's presence on the car, the danger to plaintiff in the event of a sudden jerk, and his negligent operation of the brakes in such a way that he knew or should have known a jerk was likely to take place." The engineer, who was a witness for defendant, testified that he knew what the movement was to be; that he was sitting in the cab with his head out of the window watching plaintiff, was plaintiff mount and climb the ladder and go around the end of the car; that, although he did not see plaintiff after plaintiff went around the end of the car, he knew in setting what plaintiff was doing and was going to do, set the hand brake; that he knew in setting the hand brake plaintiff had to use one hand to wind or set the brake and the other hand to hold onto the grab iron, and if there was a harsh, slack action or a rough stop without the brakeman giving a signal or expecting it, the breakman was liable to be thrown or caused to fall off the car. If defendant's position be correct, without so holding, it appears that defendant was not prejudiced for the reason that defendant's evidence established the facts which defendant states the instruction should have embraced and in such circumstances the omission is not prejudicial error. Abernathy v. St. Louis Pub. serv. Co., Mo.Sup., 240 S.W.2d 914, 919; State ex rel. Fourcade v. Shain, 342 Mo. 1190, 119 S.W.2d 788; Wenxel v. Busch, Mo.Sup., 259 S.W. 767, 771[6]; Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330, 334[11]; Christopher v. Chicago, B. Q. R.Co., Mo.Sup., 55 S.W.2d 449, 452[3]; Dickherber v. Turnbull, Mo.App., 31 S.W.2d 234, 237[5]; Wolfson v. Baltimore Bank of Kansas City, Mo.App., 157 S.W.2d 560, 566[11].
Defendant contends the $60,000 judgment is excessive.
Plaintiff was 33 years of age when injured on July 13, 1949. He had a seventh grade education and had performed hard manual labor. He was earning approximately $375 a month, $4,500 annually. His life expectancy was 35.24 years and it would take $97,833, at 3% interest, to provide a like income for said period.
Plaintiff sustained injuries to his left wrist, right elbow, left ankle and his back. They were very painful and opiates were administered. He was hospitalized until December 22, 1949, being bedfast one hundred days. Plaintiff developed eye trouble while in the hospital but this cleared up in a couple of weeks. He had four operations on his elbow and four on his ankle. Defendant paid the doctors, nurses and hospital.
The styloid process of plaintiff's left wrist, the little knob on the wrist, was fractured and displaced. It still pained plaintiff only when he put a "big strain" on it.
The upper ends of the radius and ulna at plaintiff's right elbow sustained comminuted fractures. The head of the radius was removed and bone from the ilium was grafted to the elbow. There was muscle and ulna nerve damage to the right arm. His right elbow is held at an angle of 20 degrees, with limitation of flexion and extension of about 90 per cent, and of rotation of the forearm of about 50 per cent. Plaintiff testified this elbow and arm pained him at all times and lifting things increased the pain; that he could reach upward only so far; that there was a sort of "bone lock," and he could not tie his tie or shoes or eat with that arm, etc., but he could get his hand up and around by using his shoulder; that his fourth and fifth fingers were partially numb and his grip was very weak.
Plaintiff had a badly comminuted fracture of both bones entering the left ankle joint, with the astragalus caught between, and a displacement of the foot at the ankle. Metallic pins proved unsatisfactory to hold the alignment and a 1 3/4 inch screw, which is still present, was inserted later. Considerable absorption of bone followed the removal of the pins. A walking type cast was applied in November, 1949, and plaintiff was allowed to put some weight on the ankle. There is a definite thickness of this ankle and marked limitation of movement down, up, in and out, and the left leg from the knee to the ankle is atrophied. Plaintiff walks with a limp. He testified there is a dull pain present at all times and use makes it worse; that he walks very little, and has to rest if he walks two blocks. He was walking while at the hospital without using a cane or other support and, we understand, has continued to so walk. After his release from the hospital, he saw Dr. Cooper, his orthopedic surgeon, every two weeks for two or three months and once a month thereafter. He lives at Chillicothe, Illinois, and Dr. Cooper has his office in Peoria, Illinois.
X-rays disclose a compression fracture of plaintiff's third lumbar vertebra, with fragmentation. Plaintiff, however, had no paralysis of his legs. The X-rays also show some displacement, forward, of the fifth lumbar on the sacrum, a spondylolisthesis or weak back. A spondylolisthesis is often congenital, may exist for years without giving trouble, but an injury usually aggravates it and caused discomfort. Plaintiff put on a steel back brace before he left the hospital, and has worn it whenever he takes any exercise from more than 20 or 30 minutes or goes anywhere. He has an aching pain in his back all the time, which increases when he uses his back. He testified he could sit up with the brace for two hours and then had to lie down.
The condition of plaintiff's right elbow and arm, his left ankle and leg, and his back are permanent. Four physicians testified, two for each party. Plaintiff's physician, testifying as an expert, a general surgeon but not an orthopedist, stated plaintiff could not "perform hard manual labor in the future"; and asked whether plaintiff was "permanently and industrially disabled," answered that he was, because he could not "pass the examination to get a job. And I don't believe he could handle any type of labor at all." We do not think this established total permanent disability, as stressed by plaintiff, but, considering his testimony as a whole, construe it to the effect plaintiff could not pass the physical tests for and was unfit for industrial or factory labor. Defendant's physicians, orthopedic surgeons, and plaintiff's other physician stated that plaintiff could not perform hard manual labor, was industrially disabled, but were of opinion he was not totally disabled and would be able in the future to perform light work which would not require prolonged standing, physical effort or full strength. We think the record does not show total permanent disability.
The cases cited by the parties and which appear most in point are Counts v. Thompson, 1949, 359 Mo. 485, 222 S.W.2d 487, 495[20-23]; Joice v. Missouri-K.T. R. Co., 1945, 354 Mo. 439, 189 S.W.2d 568, 576[28], 161 A.L.R. 383. We have said that "the rule of reasonable uniformity as to the amounts of verdicts has been adopted" in this jurisdiction. Cruce v. Gulf, M. O. R.Co., 1951, 361 Mo. 1138, 238 S.W.2d 674, 680.
Plaintiff stresses the Counts case, supra, where a verdict for $165,000 was reduced by the trial court to $140,000 and by this Court to $80,000. Courts sustained greater injuries than the instant plaintiff. Among his injuries, Counts lost both legs above the knees, sustained an injury to his right arm, fracture of a vertebra and damage to a disc, a sprain of the right hip and in the lumbar region of the back. His arms, shoulders and back were permanently weakened and he could not use artificial limbs. He could get around only in a wheel chair and had to have an attendant two or three days a week at $10 a day.
Plaintiff, in the Joice case, had his right leg amputated, leaving a stump of 6 1/2 inches, and some infection existed at the time of the trial. There was doubt if he could use an artificial leg. His right arm was broken at the elbow, a fracture of the ulna, with separation, and a wire was used to hold the bone together. He suffered fractures, cracks and displacements of several ribs and traumatic-arthritic changes in the spine, and was considered totally disabled for the life from performing manual labor. A verdict of $80,000 was reduced by $15,000 in the trial court, and further reduced by $15,000 in this Court. Compare also: Span v. Jackson, Walker, C. M. Co., 1929, 322 Mo. 158, 16 S.W.2d 190, 203 [33], where a $50,000 verdict was upheld. Aly v. Terminal R. Ass'n, 1938, 342 Mo. 1116, 119 S.W.2d 363, 368[14], where a verdict for $85,000 was reduced to $40,000. West v. Kurn, Mo., 1941, 148 S.W.2d 752, 756[4], where a judgment for $45,000 was reduced to $35,000.
Plaintiff has sustained permanent injuries and disabilities, but he is not totally disabled and should have some earning capacity in the future. The issue is a difficult one to rule. Giving consideration to the many factors involved, including plaintiff's pre-injury earnings, his age, the decreased purchasing power of the dollar, and a standard of uniformity in personal injury judgments, we think a judgment over $50,000 would be excessive. Accordingly, if plaintiff-respondent will enter a remittitur of $10,000 as of the date of judgment within fifteen days, the judgment will be affirmed for $50,000; otherwise, it will be reversed and the cause remanded.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.