Opinion
No. 39573.
April 8, 1946. Motion for Rehearing or to Transfer to Banc Overruled, April 30, 1946.
1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Liability of Railroad in Control of Tracks. Under Secs. 5162 and 5163 R.S. 1939 the railroad in control of the tracks is liable for injuries caused by trains of another railroad using said tracks. These sections are not inconsistent with the Federal Employers' Liability Act and may be applied to an action brought under said Act.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Employee Struck by Engine: Duty to Warn: Submissible Case. Plaintiff was guarding an open pit in railroad sheds from which a cloud of steam was escaping which partially obscured the vision of the operators of an engine which struck plaintiff. There was a jury issue on the duty to sound a warning before proceeding blindly through the escaping steam. Plaintiff's negative evidence of failure to warn was sufficient to go to the jury.
3. NEGLIGENCE: Federal Employers' Liability Act: Contributory Negligence No Defense. Contributory negligence is not a defense to an action under the Federal Employers' Liability Act, but only goes to mitigating damages.
4. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Safe Place to Work: Doctrine Applies. The doctrine of a safe place to work applies although plaintiff was trying to stop the escape of steam. Such steam was not the sole cause of the danger.
5. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Safe Place to Work: Submissible Case. There was a jury issue as to whether plaintiff's place of work was made unnecessarily dangerous by not requiring engines to stop before entering the danger zone where men were likely to be at work.
6. EVIDENCE: Sound of Bell: Conclusion of Witness Not Error. It was not error to permit plaintiff to give his conclusions as to whether other noises would have prevented him from hearing the engine bell if it had been ringing.
7. DAMAGES: Verdict Excessive. A verdict of $40,000 for a fractured arm and collar bone resulting in permanent injuries, and also involving much pain and suffering, was excessive by $15,000.
Appeal from Circuit Court of City of St. Louis. — Hon. F.E. Williams, Judge.
AFFIRMED ( subject to remittitur).
Warner Fuller and Arnot L. Sheppard for appellant.
(1) Recovery under the Federal Employers' Liability Act necessarily depends upon proof showing an employer-employee relationship between appellant and respondent, respectively, and the former's causative negligence. As the existence of that relationship is the very foundation of respondent's case, it of necessity must be determined under principles of law recognized and applied by the federal courts. Seaboard Airline R. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062, 34 S.Ct. 635; T. P.R. Co. v. Rigsby, 241 U.S. 33, 60 L.Ed. 874; Central Vermont R. Co. v. White, 238 U.S. 507, 59 L.Ed. 1433; Southern R. Co. v. Gray, 241 U.S. 333, 60 L.Ed. 1030; New Orleans N.E.R. Co. v. Harris, 247 U.S. 367, 62 L Ed. 1167. (2) Obviously, if respondent is to recover upon the alleged failure of the Wabash enginemen to ring the bell and give him a warning of the approach of the locomotive, he must prove that the relation of employee and employer existed between him and the Wabash Railroad Company, respectively, because the Federal Employers' Liability Act requires proof of negligence on the part of the employer in order to create liability. Moreover, that relationship must be a conventional one; i.e., "Formed by agreement or compact; stipulated; contractual; — opposed in law to legal and judicial." Webster's New International Dictionary. Robinson v. B. O.R. Co., 237 U.S. 84, 59 L.Ed. 849; C. A.R. Co. v. Wagner, 239 U.S. 452, 60 L.Ed. 379; Hull v. Philadelphia Reading R. Co., 252 U.S. 475, 64 L.Ed. 67. (3) Originally the lessor-lessee rule was founded upon the theory that a state franchise to a railroad company, especially because it clothed it with the right of eminent domain, was a contract which obligated the company to render railroad service to the public, and that a lease by a railroad company of all of its property disabled it from rendering the public services enjoined upon it by its charter; and was, therefore, void as against public policy. Thomas v. West Jersey R. Co., 101 U.S. 71, 25 L.Ed. 950; North Carolina R. Co. v. Zachary, 232 U.S. 248, 58 L.Ed. 591. (4) For the purpose of applying the lessor-lessee rule the latter must be considered as the agent of the former, on the theory that the lessor is engaged, through the lessee, in performing its public duty. North Carolina R. Co. v. Zachary, 232 U.S. 248, 58 L.Ed. 591; Lee v. So. P.R. Co., 116 Cal. 97, 47 P. 932; Abbott v. Johnstown, G. K.R. Co., 80 N.Y. 27; Murray v. Lehigh Valley R. Co., 66 Conn. 512, 34 A. 506. (5) But it has been established by the opinions of the Supreme Court of the United States that not only are the companies which use appellant's facilities the principals of appellant, but under pain of prosecution under the federal anti-trust statutes, appellant must act as the impartial agent of each company which uses its facilities. United States v. Terminal Railroad Assn. of St. Louis, 224 U.S. 383, 56 L.Ed. 810; United States v. Terminal Railroad Assn., 236 U.S. 194, 59 L.Ed. 535. (6) This record discloses that appellant not only was not shirking any of its franchise obligations by permitting Wabash Railroad Company to use its tracks, but was faithfully fulfilling the purpose of its incorporation and the duties cast upon it by its franchise, and the franchises of The Union Railway and Transit Company of St. Louis, The Terminal Railroad of St. Louis, and The Union Depot Company of St. Louis, Georgia Railroad Banking Co. v. Friddell, 79 Ga. 489, 7 S.E. 214, 11 Am. St. Rep. 447. (7) Moreover, as a result of the opinions of the United States Supreme Court, supra, appellant must permit any trunk line railroad which chooses so to do, to use its facilities on exactly the same terms as does every other trunkline railroad. The granting of such permission, therefore, is involuntary rather than voluntary; and, consequently, it is without the lessor-lessee rule of liability. Smith v. Philadelphia, Baltimore Washington R. Co., 46 App. Cas. 275. (8) The rights of both plaintiff and defendant under Federal Employers' Liability Act are determined exclusively by the decisions of the federal courts, without regard to any state statutes or decisions. C. O.R. Co. v. Stapleton, 279 U.S. 587, 73 L.Ed. 861. (9) These Missouri statutes are declaratory of the common law principle which as we have seen creates responsibility on the owner for the user's acts solely upon the theory that the owner will not be permitted to escape performance of its duty to the public; whereas appellant is strictly performing the only and exact public duty cast upon it by its franchises. United States v. Terminal Railroad Assn. of St. Louis, 224 U.S. 383, 56 L.Ed. 810; State ex inf. v. Terminal Railroad Assn. of St. Louis, 182 Mo. 284. (10) This court has recognized that appellant is a union station company under the provisions of Secs. 5251 et seq., R.S. 1939; and, therefore, not subject to the provisions of those sections of the statutes. State ex inf. v. Terminal Railroad Assn. of St. Louis, 182 Mo. 284. (11) Men working in railroad yards, as was respondent here, are ordinarily not entitled to warnings of switching moves, but must look out for themselves. Mayfield v. K.C. So. R. Co., 337 Mo. 79, 85 S.W.2d 116; Sumney v. So. R. Co., 89 Ed.2d 437; Connelley v. Penn. R. Co., 201 F. 54; Cain v. Fort Worth Denver City R. Co. 75 F.2d 103; Bruce v. Mo. Pac. R. Co., 271 S.W. 762; Gabal v. St. L. S.F.R. Co., 251 Mo. 257, 158 S.W. 12. (12) A duty to warn under the above circumstances arises only upon proof of violation of a rule or custom so to do. Mayfield v. K.C., So. R. Co., supra. (13) Moreover, the evidence herein is wholly insufficient to prove that the bell of the Wabash locomotive was not rung. The sufficiency of this evidence to make a jury question on the ringing of the bell must be determined by the federal decisions. Brady v. Southern R. Co., 320 U.S. 476, 88 L.Ed. 239, 64 S.Ct. 232. (14) The federal cases hold that this character of evidence is not sufficient to create a jury question in this regard. Stephenson v. Grand Trunk R. Co., 110 F.2d 401; Pere Marquette R. Co. v. Anderson, 29 F.2d 479; Lehigh Valley R. Co. v. Mangan, 278 F. 85; C. N.W.R. Co. v. Andrews, 130 F. 65. (15) Plaintiff's own evidence shows conclusively that his unintentionally stepping into a dangerous position was the sole proximate cause of his injury. Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787, 73 L.Ed. 957; Brady v. Southern R. Co., 320 U.S. 476, 88 L.Ed. 239, 64 S.Ct. 232. (16) Plaintiff and a steamfitter, Gastorf, were at the time of respondent's injury engaged in attempting to stop the escape of steam, the very steam which respondent claims made his place of work dangerous. Under these circumstances the safe place rule is not applicable, for the reason that respondent was engaged in the task of remedying the very defect which he now claims rendered his place of work unsafe. Kansas City So. R. Co. v. Billingslea, 116 F. 335, 340; Stone v. Mo. Pac. R. Co., 293 S.W. 367; Pritchard v. Thompson, 156 S.W.2d 652. (17) If the place as provided is reasonably safe, there can be no recovery under that doctrine, even though one is injured at a place which has been rendered dangerous by reason of the manner in which it was used or the way in which the work was done. Pennsylvania R. Co. v. Fishack, 123 F. 465; Union Pacific R. Co. v. Marone, 246 F. 916. (18) Respondent's Instruction 2, which predicates recovery upon failure to ring the bell, does not require the jury to find any facts creating a duty upon the enginemen so to do; but assumes the duty and requires a finding only that it was violated. It is, therefore, (1) broader than the petition, and (2) unwarrantedly assumes controverted facts. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Boland v. St. L.-S.F.R. Co., 284 S.W. 141. (19) Respondent's theory of negligence based upon failure to ring the bell is based exclusively upon paragraph VI, B, which pleads that the duty to ring the bell arose from a rule or custom so to do. But Instruction 2 fails to require the jury to find the existence of any such rule or custom. It is, therefore, erroneous because there is no legal basis for this predicate, and, therefore, the instruction is broader than the evidence. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (20) Instruction 3 is erroneous. Respondent and Gastorf were at the time of the former's injury engaged in doing the only thing, viz., cutting off the steam leak, which respondent says alone made the place dangerous. Consequently, they were making safe an unsafe place, and the safe place rule is inapplicable. See authorities under (16) supra. (21) The court erred in admitting over appellant's objections the evidence hereafter mentioned. Respondent was asked: "If that engine bell had been ringing could you have heard it?" Appellant objected on the ground that it called for the conclusion of the witness. This objection was overruled, and respondent answered in the affirmative. Johannes v. Edward G. Becht Laundry Co., 274 S.W. 377; Martin v. Kansas City, 224 S.W. 141; Barfoot v. White Star Line, 170 Mich. 349, 136 N.W. 437. (22) The verdict is so grossly excessive as to show conclusively that it was the result of prejudice against appellant.
Roberts P. Elam and Rene J. Lusser for respondent: Tautges, Rerat Welch of counsel.
(1) Under the local Missouri statute law, appellant, by permitting another railroad to use appellant's tracks and facilities, remains liable as if it had operated such engine itself. In legal effect, the persons operating the Wabash engine were the agents and servants of appellant here. Secs. 5162, 5163, R.S. 1939; Shaffer v. Chicago, R.I. P.R. Co., 300 Mo. 477, 254 S.W. 257; Swain v. Terminal Railroad Assn., 220 Mo. App. 1088, 291 S.W. 166, certiorari denied, 48 S.Ct. 18, 275 U.S. 525, 72 L.Ed. 950. (2) This court, as well as the Federal courts, has consistently ruled that a local statutory rule, such as is involved in Sections 5162 and 5163, R.S. 1939, is applicable in cases under the Federal Employers' Liability Act. Miller v. Terminal Railroad Assn., 349 Mo. 944, 163 S.W.2d 1034, certiorari denied, 317 U.S. 678, 63 S.Ct. 160, 87 L.Ed. 544, rehearing denied, 63 S.Ct. 256, 317 U.S. 710, 87 L.Ed. 566; Sheehan v. Terminal Railroad Assn., 336 Mo. 709, 81 S.W.2d 305, 344 Mo. 586, 127 S.W.2d 657, certiorari denied, 308 U.S. 581, 60 S.Ct. 102, 84 L.Ed. 487; Spaw v. Kansas City Terminal R. Co., 198 Mo. App. 552, 201 S.W. 927; Armstrong v. Chicago W.I.R. Co., 350 Ill. 426, 183 N.E. 478, certiorari denied, 289 U.S. 724, 53 S.Ct. 523, 77 L.Ed. 1475; Kansas City So. R. Co. v. Nectaux, 26 F.2d 317, certiorari denied, 278 U.S. 621, 49 S.Ct. 24, 73 L.Ed. 542; North Carolina R. Co. v. Zachary, 238 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591; Wegman v. Great Northern R. Co., 189 Minn. 325, 249 N.W. 422; Barnes v. Red River G.R. Co., 14 La. App. 188, 128 So. 724. (3) Even should the rule of law announced in the decisions of the Federal courts, rather than the statutory rule in Missouri, be deemed to apply, the result would be the same, because the Missouri statutory rule and the Federal rule are identical. Illinois Central R. Co. v. Barron, 5 Wall. 90, 18 L.Ed. 591; Illinois Central R. Co. v. Sheegog, 215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 735; Weldon Natl. Bank v. Smith, 86 F. 398; Central Trust Co. v. Denver R.G.R. Co., 97 F. 239, certiorari denied, 176 U.S. 683, 20 S.Ct. 1025, 44 L.Ed. 638; Denver R.G.R. Co. v. Roller, 100 F. 738; Northern Pac. R. Co. v. Mentzer, 214 F. 10. (4) The fact is that the defendant here is a terminal railroad company, and not a mere union station company organized under sections 5251 and 5252, R.S. 1939, and the fact that it is a terminal railroad company does not in the least affect its liability under the rule that a lessor or licensor railroad is liable for the acts of its lessees or licensees. Clark v. Atchison, T. S.F.R. Co., 319 Mo. 865, 6 S.W.2d 954; Chicago G.T.R. Co. v. Hart, 209 Ill. 414, 70 N.E. 654. (5) In point of fact, irrespective of the mode of its incorporation, the defendant was operating as an interstate common carrier by railroad so as to make the Federal Employers' Liability Act and the general rules of law relating to railroads applicable to it. Secs. 5162, 5163, R.S. 1939. (6) The purported defense that the use of defendant's tracks by the Wabash was "involuntary" on defendant's part, and that defendant is thereby relieved of liability under the general rule, respecting a lessor or licensor railroad's liability for the acts of its lessees or licensees, is not available to defendant here, because such purported defense is an affirmative defense which was not pleaded by defendant. Nulsen v. Natl. Pigment Chemical Co., 346 Mo. 1246, 145 S.W.2d 410. (7) There is no evidence in the record to support any such defense. State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532. (8) In any event, there being no express statutory authority relieving defendant of the liability east upon a lessor or licensor railroad for the acts of its lessees and licensees, the defendant remains within the general rule. Chicago G.T.R. Co. v. Hart, 209 Ill. 414, 70 N.E. 654. (9) In the determination of questions of the sufficiency of respondent's evidence, the rulings of federal courts are to be applied. Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232; Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062. (10) In ruling upon the question of the sufficiency of the evidence, the court should view the evidence from the viewpoint most favorable to plaintiff and draw all reasonable inferences from the facts shown in plaintiff's favor. Mayfield v. Kansas City So. Ry. Co., 85 S.W.2d 116, 337 Mo. 79; Hardin v. Illinois Central R. Co., 334 Mo. 1169, 70 S.W.2d 1075; Chicago, Great Western Ry. Co. v. Peeler, 140 F.2d 865. (11) Moreover, under the rules of the United States Supreme Court as well as this court, the fact that fair-minded men might reach different conclusions emphasizes the appropriateness of leaving controverted facts to the jury. Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062; Tennant v. Peoria P.V. Ry. Co., 321 U.S. 29, 64 S.Ct. 409; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444. (12) Plaintiff's evidence as to defendant's failure to ring the bell was of sufficient probative value to make it an issue of fact for the jury. Union Pac. R. Co. v. Burnham, 124 F.2d 500; Eiseman v. Penn. R. Co., 151 F.2d 222; Flannery v. New York, O. W.R. Co., 29 F.2d 18; Phillips v. Kurn, 145 F.2d 908; Roth v. Swanson, 145 F.2d 262; Ostertag v. Bethlehem Shipbuilding Corp., 151 P.2d 647. (13) The question whether noises in the immediate vicinity of plaintiff were such as to preclude him from hearing the bell of the Wabash engine was one for the jury. Brown v. Chicago, R.I. P. Ry. Co., 315 Mo. 409, 286 S.W. 45; Borrson v. Missouri-Kansas-Texas R. Co., 161 S.W.2d 227; Paisley v. Kansas City Pub. Serv. Co., 351 Mo. 468, 173 S.W.2d 33. (14) The duty to warn plaintiff rested upon appellant irrespective of rule or custom, under the circumstances presented in this case. Aleckson v. St. Louis-S.F. Ry. Co., 213 S.W. 894; Blair v. Baltimore O.R. Co., 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 446; Central R. Co. of N.J. v. Sharkey, 259 F. 144; New York. N.H. H.R. Co. v. Pascucci, 46 F.2d 969; Crecelius v. Chicago, M. St. P. Ry. Co., 284 Mo. 26, 223 S.W. 413. (15) Appellant's railroad operating rules were properly admissible and applicable to the circumstances and facts of this case. Aleckson v. St. Louis-S.F. Ry. Co., 213 S.W. 894. (16) The issue of appellant's failure to furnish plaintiff a safe place in which to work was properly submitted to the jury as a question of fact. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444; Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 S.Ct. 1062; Goucan v. Atlas Portland Cement Co., 317 Mo. 919, 298 S.W. 789; Dixon v. Frazier-Davis Const. Co., 318 Mo. 50, 298 S.W. 827. (17) The trial court properly refused defendant's instructions C, D, E, F, G, II and I because each improperly declared the law applicable to the facts herein. (18) The court did not err in admitting into evidence plaintiff's answers to the several questions, complained of by appellant. Harrison v. St. Louis-S.F. Ry. Co., 339 Mo. 821, 99 S.W.2d 841. (19) The verdict is not excessive and certainly does not show that it was the result of prejudice against the appellant. The evidence closely sustains the amount of the verdict. Noce v. St. Louis-S.F.R. Co., 337 Mo. 689, 85 S.W.2d 637; Clark v. Atchison Eastern Bridge, 333 Mo. 721, 62 S.W.2d 1079; Taylor v. Mo. Pac. R. Co., 311 Mo. 604, 279 S.W. 115; Clifton v. Kansas City So. Ry. Co., 239 Mo. 604, 135 S.W. 40.
Respondent, Francis, obtained a judgment against appellant, Terminal Railroad Association, in the sum of $40,000 in a personal injury action. The railroad company appealed. In the course of this opinion the parties will be designated as plaintiff and defendant.
Plaintiff was in the employ of the defendant as a pipefitter's helper. On October 14, 1943, Gastorf, a pipefitter also in the employ of defendant, was assigned to the task of stopping a leak in an expansion joint of a pipe carrying steam to the trains at the Union Station in St. Louis. Plaintiff was Gastorf's helper on this assignment. The defective expansion joint was in a conduit box about four feet square and five feet deep, which was located between tracks seven and eight at the southerly end of the train sheds of the Union Station. There was no sidewalk between these two tracks, but there was a space of about seven feet. The covering for this conduit consisted of two heavy metal doors or lids. Gastorf and plaintiff removed these lids and placed them to the south of the conduit. They were compelled to wait about twenty minutes before beginning their work because of the heat caused by the steam. Gastorf then attempted to tighten the expansion joint and in doing so broke a bolt thereby causing more steam to escape. Plaintiff was sent for a new bolt and when he returned it was found that the threads thereon had to be extended to enable it to be used in tightening the expansion joint. Gastorf went to a machine shop of the defendant for the purpose of cutting the threads on the bolt. He left plaintiff to guard the vacuum to prevent anyone from falling therein. The steam escaping from the pipes obscured vision. Plaintiff was standing on the northerly side of the vacuum. A train of cars was standing on track number eight extending beyond and south of the conduit. Wabash passenger cars were standing on track number seven to the north. This train of cars, however, did not extend to the conduit and the southerly end was several hundred feet to the north thereof. While plaintiff was thus guarding the conduit a Wabash engine was backed northerly upon track seven at a speed of about five miles per hour. This engine struck plaintiff resulting in serious injury.
Plaintiff bases his right of recovery upon the provisions of the Federal Employers' Liability Act. The grounds of negligence relied upon are two: First, that no warning was given of the approaching engine, and second, that defendant was negligent in failing to furnish plaintiff a reasonably safe place in which to work. Defendant urges that plaintiff is not entitled to recover in this case because the negligence, if any, was the act of the trainmen employed by the Wabash, and in this connection defendant urges that sections 5162 and 5163, Mo. Rev. St. Ann., R.S. Mo., 1939, do not apply to the Terminal Railroad Association of St. Louis. (More of this later.) Defendant also contends that plaintiff failed to introduce evidence sufficient to sustain a charge of negligence against the Wabash employees for a failure to warn; that the evidence was insufficient to sustain the charge that defendant failed to furnish plaintiff a reasonably safe place in which to work.
We will dispose of defendant's points in the order stated. All reference to sections of the Missouri statutes will refer to the Missouri Revised Statutes Annotated, Revised Statutes of Missouri, 1939. Defendant [911] in its brief stated the question as follows:
"Do Sections 5162 and 5163. R.S. Mo., 1939, affect this question? The former provides that any railroad which leases to a foreign corporation or permits it to use its railroad, shall remain liable for the acts of the other. The latter provides that whenever any railroad, street railway or other railway company shall permit any other corporation, under any running agreement, to run cars upon its road or track in this state, the owner corporation shall be liable for the acts of the user."
Defendant insists that the sections do not govern because the rights of the parties are controlled by the provisions of the Federal Employers' Liability Act without regard to any state statute or decisions. It may be conceded that the federal act controls the case over any state statute or decision which may be contrary to the provisions of the federal act. The provisions of sections 5162 and 5163, in so far as applicable to this case, in no way conflict with the federal act. Those sections authorize a person situated as plaintiff is to sue the defendant company for personal injuries sustained in connection with the operation of trains upon the defendant's tracks, whether they be defendant's trains or the trains of some other company using defendant's tracks. Defendant says that the sole theory for holding a lessor company liable in such cases is that the owner will not be permitted to escape performance of its duty to the public, and that the defendant is strictly performing its public duty and therefore the sections do not apply. The sections are not subject to the interpretation placed thereon by the defendant. The legislature has seen fit to grant a person situated as plaintiff to sue the defendant company or the Wabash. There are good reasons for the statute. In many instances it would be difficult for an injured person to determine whether the negligence causing injury was that of the lessor or lessee. Take for example the case at bar. Defendant earnestly insists that the rules of the defendant company did not require the operators of the Wabash engine to sound a warning of its approach. It was conceded that the defendant company was in control. Its rules governed train movements. Smith v. Henwood, 349 Mo. 396, 161 S.W.2d 232, l.c. 236 (3). We hold the sections do apply to the defendant company. See Clark v. Atchison, T. S.F.R. Co., 319 Mo. 865, 6 S.W.2d 954, l.c. 958, 959 (2, 4) (5) (6), where many of the points made by the defendant are discussed and decided adversely to its contention. Defendant, however, says that it is bound under the law to permit the Wabash to use its facilities and therefore has no choice and should not be held liable. We do not see how that could change the situation. All public utilities must serve the public indiscriminately. So the defendant must serve all railroads coming into the city indiscriminately. Merely because the defendant company must permit the use of its facilities to the various railroads does not take from the defendant control over operations. The point must be ruled against defendant.
The next point relied upon by the defendant is that the evidence failed to show any duty on part of the enginemen to give a warning. It is insisted that no proof of a custom was made, nor was it shown that the rules of the defendant company required a warning to be given. This, on the theory that plaintiff was an employee working in the yards and therefore it was his duty to be on the lookout. We will not discuss the question of whether a custom was proven, or whether the rules of the defendant company required a warning, for the reason that plaintiff's petition is sufficient to base a recovery upon the theory of a common law duty to warn. The case was submitted to a jury on such a theory and we are of the opinion that the evidence was ample to submit such a question to a jury. Both the engineer of the Wabash and the fireman operating the engine in question testified that they did not see plaintiff; that there was a cloud of steam or vapor which obscured their vision. The engineer testified that he could see the rails or track, but the fireman, who was on the side where plaintiff was, said he could not see the east rail near which plaintiff was standing and that he knew something was wrong because of so much steam. In such circumstances it was a question for a jury to decide whether ordinary care required a warning to be given before proceeding blindly through the cloud of vapor where men were expected to be at work and where plaintiff had been assigned to work. Men were expected to be in that locality because plaintiff's duty was to guard against anyone falling into the open conduit. Defendant, however, says a warning was given; that a number of witnesses so testified. Plaintiff testified he heard bells ringing on engines on other tracks to the east, but did not hear a [912] bell ring on the Wabash engine on track seven; that he heard no warning of any kind; that he did not know the engine was on track seven and did not know what struck him until some time afterward. Plaintiff's evidence was sufficient to authorize submitting the question to the jury. In Borrson v. Missouri-Kansas-Texas R. Co., 161 S.W.2d 227, l.c. 231 (11) (12, 13), this court said:
"It necessarily follows that if negative evidence is admissible its weight is for the jury and the appellant's instruction that positive evidence was entitled to more weight than negative evidence was properly refused. Johnson v. Springfield Traction Co., 176 Mo. App. 174, 161 S.W. 1193."
As to what plaintiff was doing at the time he was struck he testified on cross-examination as follows:
"You intended to stay in the clear of track No. 7, didn't you? A. Yes, sir.
"Q. Because the train on track 8 wasn't moving you didn't have to worry about that? A. No, sir.
"Q. The only track you had to worry about was track 7, wasn't it, at that time? A. Yes.
"Q. So if anything came along you wouldn't get hurt? That is what you intended to do, wasn't it? A. Yes, sir.
"Q. But instead of doing that you got over within twelve or eighteen inches of that track without realizing where you were, didn't you? A. Probably did."
. . .
"I was looking towards track 8, looking south in a stooped position like that (indicating), so I could see through there. There was a little wind blowing, so I could see over there if anybody came around there."
. . .
"I had my back towards track 7."
. . .
"Stooped over a little bit, so if anybody was coming around, coming off that platform and coming around, so they wouldn't fall in the hole."
Plaintiff may have been guilty of negligence in inadvertently stepping close to track number seven, however, his negligence would not defeat recovery but only go to mitigating damages. An instruction covering this point was given at defendant's request. Also submitted to the jury was the question of whether plaintiff's negligence was the proximate cause of his injuries and not any negligence of the defendant.
Another question briefed was that the trial court erred in submitting the case to the jury on the theory that the defendant failed to provide plaintiff a reasonably safe place to work. Defendant says the safe place rule is not applicable because at the time plaintiff was injured he and Gastorf were attempting to stop the escape of steam, the very thing which plaintiff claims made his place of work dangerous; that plaintiff was engaged in the task of rendering safe the very defect which he now claims made his place of work unsafe. The following cases were cited; Kansas City S. Ry. Co. v. Billingslea, 116 F. 335; Stone v. Mo. Pac. R. Co., 293 S.W. 367; Pritchard v. Thompson, 348 Mo. 832, 156 S.W.2d 652. We believe the defendant to be in error. Plaintiff was not injured through any incident connected with his work. Therein lies the distinction in the cases cited and the case at bar. The escaping steam was not the sole cause of the danger. Plaintiff was not injured by the steam. The place was dangerous because of a combination of elements. The escaping steam causing invisibility and the location of the conduit in close proximity to the tracks over which cars and engines were permitted to move at any time without being required to stop before entering the danger zone, all combined to render plaintiff's position unsafe. We hold that the safe place rule was applicable. Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 Sup. Ct. 1062, l.c. 1064 (5, 6).
The next question is: Did the evidence justify submitting the case to the jury on the theory that defendant was negligent in not providing plaintiff a reasonably safe place in which to work? Plaintiff's case depended upon negligence. Without negligence the defendant would not be liable. The case was so submitted to the jury by the trial court. The jury was authorized to find for plaintiff if plaintiff's injuries were caused through negligence in not providing a reasonably safe place to work. The trial court correctly interpreted the law. See Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 Sup. Ct. 444 and Bailey v. Central Vermont Ry. Co., supra. In those cases the United States Supreme Court passed on and interpreted the meaning of the 1939 amendment by congress of the Federal Employers' Liability Act. A study of those opinions, both the majority and minority, will reveal the [913] court held that by the amendment Congress obliterated the assumption of risk as a defense in any case where an injury to a person covered by the act resulted in whole or in part through negligence of the defendant. In the circumstances and under the evidence we hold that the question of whether defendant in this case was negligent was for a jury to decide. Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W.2d 568, l.c. 573 (9). In connection with the question of a safe place in which to work the defendant contends in this court that under defendant's rules no duty devolved upon the enginemen to warn plaintiff of the oncoming engine. If that be true, then certainly that was just another element adding to the dangerous condition. A jury could well find that plaintiff's position was unnecessarily dangerous because the enginemen could have been required to stop before entering the danger zone where men where likely to be at work. Bailey v. Central Vermont Ry. Co., supra.
Appellant assigned error to the ruling of the trial court in permitting plaintiff to answer the following questions: "If that engine bell had been ringing could you have heard it?" Plaintiff answered that he could. Plaintiff was also asked:
"Was there anything about the noise in the manhole that would prevent you from hearing an engine bell ringing, if it was ringing any time while it was within fifty or a hundred feet of where you were standing? A. No, sir: I could have heard it from that distance."
Defendant urges that the questions called for conclusions on part of the witness and that the answers were such. The questions did call for an opinion on the part of the witness, however, plaintiff had been examined with reference to noises interfering with his hearing. Note on cross-examination he was asked:
"So you had two noises there: The noise of the locomotive or the Diesel on track 8 and the hissing steam coming out of that leaky line, didn't you? A. Yes.
"Q. Of course, that interfered with your hearing, didn't it? A. Well, I heard bells from the other side."
The distance to where other bells were ringing was not shown, but they must have been beyond track number eight and therefore some distance away. It would have been difficult to present all the circumstances so a jury could pass intelligently on the question of whether plaintiff could have heard the bell of the engine on track seven. Defendant cross-examined plaintiff on his ability to hear bells and insisted that the noises prevented him from hearing the warning given him by the enginemen of the Wabash engine. We are of the opinion that in the circumstances it was not error for the trial court to permit the witness to answer the questions. In Harrison v. St. Louis-San Francisco R. Co., 339 Mo. 821, 99 S.W.2d 841, l.c. 844 (4), this court quoted with approval the following:
"`One test of whether opinions of experts should be received "is whether the court or jury will be aided by receiving such evidence."'"
Plaintiff, while not an expert, was familiar with the surroundings. In 22 C.J., page 528, sec. 611, we find the following:
"The modern tendency is to regard it as more important to get to the truth of the matter than to quibble over distinctions which are in many cases impracticable, and a witness is permitted to state a fact known to or observed by him, even though his statement involves a certain element of inference."
The manner in which plaintiff was questioned, when considered in the light of defendant's contentions and cross-examination, was not error.
Finally defendant says that the verdict of $40,000 is grossly excessive. Plaintiff was thirty-eight years of age, earning about $40.00 to $45.00 per week. He had earned a livelihood by hard manual labor. His principal injuries consisted of a fracture of the left humerus, where after healing it was discovered that there was a variation in the alignment; a fractured right clavicle, resulting in a shortening; a separation at the acromio-clavicular joint and also an injury to the left radial nerve. The medical evidence was that plaintiff had been permanently incapacitated for hard manual labor, but that he would in all probability be able to do some light work. In his petition he asks for compensation for such pain and suffering as he has endured in the past and for such as he will likely endure in the future. The evidence was that plaintiff had suffered much pain and would continue to do so. Without reviewing this question at length we will state that we have read and considered the following and other cases on the question of excessiveness of verdicts. O'Brien v. Rindskopf, 334 Mo. [914] 1233, 70 S.W.2d 1085. l.c. 1093 (10); Noce v. St. Louis-San Francisco R. Co., 337 Mo. 689, 85 S.W.2d 637, l.c. 643 (9, 10); Westenhaver v. St. Louis-San Francisco R. Co., 340 Mo. 511, 102 S.W.2d 661. l.c. 665 (6, 7); Cason v. Kansas City Terminal R. Co., 123 S.W.2d 133, l.c. 141 (12, 13); Jones v. Pennsylvania R. Co., 353 Mo. 163. 182 S.W.2d 157, l.c. 158, 159 (2, 6), also page 161 (8); Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W.2d 568. l.c. 577 (30, 31). The latter two cases mentioned that economic conditions were also to be considered. Giving due consideration to the plaintiff's injuries and the cases above cited it is our conclusion that $25.000 to the plaintiff as damages, including the element of his pain and suffering, will be in harmony with the amounts allowed in cases heretofore decided If, therefore, plaintiff will within fifteen days file in this court a remittitur in the sum of $15,000, the judgment of the trial court will be affirmed for $25,000 as of the date of the original judgment entered in the trial court, otherwise to be reversed and remanded. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.