Hayes v. Wabash Railroad Co.

Full title: JAMES D. HAYES, Respondent, v. WABASH RAILROAD COMPANY, a Corporation…

Court: Supreme Court of Missouri, Division Two

Date published: Oct 9, 1950

360 Mo. 1223 (Mo. 1950)

233 S.W.2d 12

Opinion

No. 41517.

September 11, 1950. Rehearing Denied, October 9, 1950.

SUMMARY OF DECISION

Plaintiff brakeman was injured when twice thrown to the floor of a caboose, striking his back in the same place. There was a submissible issue of violent coupling in a switch yard. Submitting in the conjunctive the duty to warn was not prejudicial even if the issue was not supported by evidence. A conflict with defendant's erroneous instruction was self-invited error. The jury did not award double damages, but had the right to apportion the damages between the two casualties. The verdict was excessive. The judgment is affirmed, subject to a remittitur.

HEADNOTES

1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Violent Coupling of Caboose: Submissible Case. There was a submissible case for the jury that defendant railroad company had been negligent in causing such a violent coupling of the caboose in which plaintiff was working as to cause plaintiff to be thrown to the floor of the caboose.

2. NEGLIGENCE: Trial: Instruction in Conjunctive: Additional Issue Immaterial. Where an instruction was given in the conjunctive it is immaterial whether an issue of the duty to warn was supported by evidence.

3. NEGLIGENCE: Railroads: Trial: Conflicting Erroneous Instruction: Self-Invited Error. Defendant may not complain that plaintiff's instruction conflicts with an erroneous instruction offered by defendant, as any conflict resulted from self-invited error.

4. DAMAGES: Trial: Prejudice Not Established by Excessive Verdict. An excessive verdict does not in itself establish that the verdict was the result of passion and prejudice.

5. DAMAGES: Two Accidents: Double Damages Not Awarded. Plaintiff's permanent injuries could have occurred from either of the two accidents when he was thrown to the floor of the caboose and struck his back in the same place. The jury did not award double damages and had the right to apportion the damages as between the two casualties.

6. DAMAGES: Excessive Judgment: Remittitur Ordered. A verdict of $55,000 for a ruptured disc resulting in permanent disability, reduced by the trial court to $45,000, was still excessive by $7500.

Appeal from Circuit Court of City of St. Louis; Hon. William B. Flynn, Judge.

AFFIRMED ( subject to remittitur).

Joseph A. McClain, Jr., Lashly, Lashly, Miller Clifford and Oliver J. Miller for appellant.

(1) The verdict covering the alleged accident of September 5th is obviously, under the evidence, so large as to show that the jury were prejudiced. Such a verdict should be completely set aside and a new trial awarded. Kimmie v. Terminal R. Co., 334 Mo. 596, 66 S.W.2d 561; Burdick v. Mo. Pac. R. Co., 123 Mo. 221, 27 S.W. 453; Also authorities cited under Point (7). (2) Instruction 2 given on behalf of plaintiff was improper and prejudicial because: It was in conflict with Instruction 9 and therefore furnished an improper guide to the jury. Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 439, 18 S.W. 1103; Rosanbalm v. Thompson, 148 S.W.2d 830; Crews v. Wilson, 312 Mo. 643, 281 S.W. 44; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W.2d 1. (3) It was not supported by sufficient substantial evidence, since the statement of plaintiff himself that a coupling was unusual and extraordinary, not corroborated, was biased opinion of no evidentiary value. Gulf, Mobile Ohio R. Co. v. Wells, 72 L.Ed. 370; Lee Trust Co. v. Erie Ry. Co., 165 F.2d l.c. 809; Lumnay v. Southern Ry. Co., 89 F.2d l.c. 437; Wheelock v. Freiwald, 66 F.2d 694; Hedricks v. Mo. Pac. Ry. Co., 195 Mo. 104, 93 S.W. 268; Tickell v. St. L., I.M. So., 149 Mo. App. 648, 129 S.W. 727; Thomasson Estate, 347 Mo. 748, 148 S.W.2d 754; Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 8. (4) It misdirected the jury as to the law because it was not part of defendant's duty to warn plaintiff of a coupling which he knew was impending. Ackfeltz v. Humphrey, 145 U.S. 418, 36 L.Ed. 758; Atlantic Coast Lines v. Tiller, 142 F.2d 718; Lehigh R. Co. v. Scanlan, 259 F. 137; Ches. Ohio Ry. Co. v. Mihas, 280 U.S. 102, 74 L.Ed. 207. (5) And also in permitting the jury to determine whether other and additional rules were needed to be put into effect in yard operations, they having no experience from which to draw and such is a question of law for the courts. McGivern v. Northern Pac. Ry. Co., 132 F.2d 213; Moore v. Alwell, 178 F. 542; Toledo, etc. Ry. Co. v. Allen, 72 L.Ed. 516; Rosney v. Erie R. Co., 135 F. 311; L.R. C.M. Ry. Co. v. Barry, 84 F. 948; Atlantic Coast Lines v. Tiller, 142 F.2d 718; Gardner v. Milltop, 223 Mo. 389, 122 S.W. 1066. (6) The court erred in giving the damage instruction, i.e., No. 11, because it permitted an allowance for permanent injuries resulting from the occurrence of September 5th when there was no substantial evidence of any such injury. The opinion of Dr. Pernoud being wholly insufficient. Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Kimmie v. Terminal R. Co., 334 Mo. 596, 66 S.W.2d 561; Derschow v. Pub. Serv. Co., 339 Mo. 63, 95 S.W.2d 1173; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Cox v. M.K. T. Ry. Co., 335 Mo. 1226, 76 S.W.2d 411; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55. (7) The court erred in overruling the defendant's motion for new trial because obviously the jury disregarded the direction of the court and allowed double damages. (8) The court erred in overruling defendant's motion for judgment for defendant in connection with the alleged occurrence of September 26-27 because there was insufficient substantial evidence of negligence produced by plaintiff. Hedrick v. Mo. Pac. Ry. Co., 195 Mo. 104, 93 S.W. 268; Tickell v. St. L., I.M. So. Ry. Co., 149 Mo. App. 648, 129 S.W. 727; McGivern v. Mo. Pac. Ry. Co., 132 F.2d 213; Howell v. Wabash, 149 Mo. App. 621, 129 S.W. 725; St. L.K.C. Ry. Co. v. Conway, 156 F. 234. (9) That the verdict of September 25-26-27 indicates upon its face and by its amount that it was founded upon misguided passion and prejudice and should be set aside for that reason. Burdick v. Mo. Pac. Ry. Co., 123 Mo. 221, 27 S.W. 453; King v. Kansas City Life I. Co., 350 Mo. 75, 164 S.W.2d 458; Bente v. Finley, 83 S.W.2d 155; State ex rel. v. Liddle, 193 S.W.2d 625; Mack v. Acasia Mutual, 228 Mo. App. 212, 65 S.W.2d 1045; Clutty v. St. L., I.M. Ry. Co., 148 Mo. 64, 49 S.W. 868; Jones v. Penn. Ry. Co., 353 Mo. 165, 182 S.W.2d 157. (10) The verdict in any case when compared to similar cases is far out of line. Smiley v. St. L.S.F. Ry. Co., 222 S.W.2d 481.

Raymond L. Falzone and Everett Hullverson for respondent; Forrest Boecker of counsel.

(1) The verdict as to damages sustained as a result of the tort of September 5th is amply supported by the evidence and should not be set aside because of the amount thereof. As to such damages, the trial court has exercised its discretion by cutting the amount awarded by the jury in half; and there being no abuse by the trial court of its discretionary power, the trial court's action should not be modified or set aside by this court. Cook v. Kansas City, 214 S.W.2d 430; Walsh v. Terminal R. Assn. of St. Louis, 355 Mo. 377, 196 S.W.2d 192; Orr v. Shell Co., 352 Mo. 288, 177 S.W.2d 608; Gieseking v. Litchfield Madison Ry. Co., 344 Mo. 672, 127 S.W.2d 700; Schaefer v. Transamerican, 173 S.W.2d 20. (2) Defendant is arguing here in effect that this verdict is contrary to the weight of the evidence; trial court's ruling on that point is not subject to review. Stokes v. Wabash Railroad Co., 355 Mo. 602, 197 S.W.2d 304; Coates v. News Corp., 355 Mo. 778, 197 S.W.2d 958. (3) Instruction 2, given by the trial court at plaintiff's request, is a correct guide for the jury as to the law applicable to the evidence. The Supreme Court of the United States, in interpreting the Federal Employers' Liability Act, has indicated its strong disapproval of finely drawn judge-made distinctions which operate to deny recovery for a railroad employee's injuries. Wilkerson v. McCarthy, 336 U.S. 53, 93 L.Ed. 402; Coray v. Southern Pacific Ry., 93 L.Ed. 243, 69 S.Ct. 271. (4) Instruction 2 does not conflict with Instruction 9. Kamer v. Missouri-Kansas-Texas, 32 S.W.2d 1075. (5) If Instruction 2 does conflict with No. 9, the error was introduced by defendant in submitting erroneous Instruction 9, and defendant cannot complain of this error. Phegley v. Graham, 215 S.W.2d 499; Harbaugh v. Ford Roofing Co., 281 S.W. 686; Bond v. St. Louis-S.F. Ry. Co., 315 Mo. 987, 288 S.W. 777; Chapman v. Bimel-Ashcroft Mfg. Co., 263 S.W. 993; State ex rel. Agricultural Ins. Co. of Watertown. N.Y., v. Allen, 254 S.W. 194; Cook v. Globe Printing Co. of St. Louis, 227 Mo. 471, 127 S.W. 332; Hall v. Missouri Pac. Ry. Co., 219 Mo. 553, 118 S.W. 56; Fehlhauer v. St. Louis, 178 Mo. 635, 77 S.W. 843; Roe v. Bank of Versailles, 167 Mo. 406, 67 S.W. 303; Christian v. Connecticut Mut Life Ins. Co., 143 Mo. 460, 45 S.W. 268; Beardon v. Mo. Pac. Ry. Co., 114 Mo. 384, 21 S.W. 731; Alexander v. Clark, 83 Mo. 481. (6) Defendant's Instruction 9 is erroneous for assuming a fact not proved, to wit: that plaintiff was a member of the switching crew; for ignoring plaintiff's theory that defendant was negligent in the manner of making the coupling, and also in failing to make an operating rule covering the situation; and for giving the jury an indefinite, argumentative direction in the use of the term "within a short time," thereby permitting conjecture. Clark v. Atchison Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Hold v. Terminal R. Assn. of St. Louis, 356 Mo. 412, 201 S.W.2d 958; Streicher v. Mercantile Tr. Co., 31 S.W.2d 1065; Tash v. St. Louis-S.F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 690; Scudder v. St. Jos. Belt Ry., 338 Mo. 492, 92 S.W.2d 138; Kelso v. W.A. Ross Constr. Co., 337 Mo. 202, 85 S.W.2d 527; Hensley v. Dorr, 191 S.W.2d 663; Tyson v. Bernhard, 322 Mo. 633, 17 S.W.2d 270; Thompson v. Q.O. K.C., 18 S.W.2d 401; Gettys v. Amer. Car Foundry Co., 322 Mo. 787, 16 S.W.2d 85; Harting v. E. St. Louis Ry. Co., 84 S.W.2d 914; De Valpine v. New York Life, 105 S.W.2d 977; Dohring v. Kansas City, 81 S.W.2d 943; Luft v. Strobel, 322 Mo. 955, 19 S.W.2d 721; Hough v. Chicago, R.I. P., 339 Mo. 1169, 100 S.W.2d 499; Evans, v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593. (7) Plaintiff's own statement and other evidence in the case constitute substantial evidence so as to make a jury issue on the unusual and extraordinary character of the coupling. Copeland v. Terminal R. Assn. of St. Louis, 182 S.W.2d 600; Kinzell v. Chicago, Milwaukee St. P. Ry., 31 Idaho 365, 171 P. 1136, 250 U.S. 130, 63 L.Ed. 895, 33 id. 1, 190 P. 255; Elliott v. Chicago, Milwaukee St. P. Ry., 236 S.W. 17; Kamer v. Missouri-Kansas-Texas, 322 Mo. 1050, 32 S.W.2d 1075; Traynor v. Wells, 273 S.W. 1100; Meyer v. Wells, 273 S.W. 110; Rhodes v. Mo. Pac. R. Co., 213 Mo. App. 515, 255 S.W. 1084; Ayres v. Union Pacific Ry., 176 P.2d 161; Western Atlantic Ry. v. Gardner, 74 Ga. App. 599, 40 S.E.2d 672. (8) On the question whether a jury question is made, the evidence is to be viewed in the light most favorable to the plaintiff, giving the plaintiff the benefit of every inference favorable to him that may reasonably be drawn from the evidence. It is the province of the jury to resolve all conflicts in evidence and to pass upon the credibility of witnesses and the weight to be given their testimony. And if, on any determinative issue in the case, reasonable and fair-minded men may honestly draw different inferences or conclusions from the evidence, such issue is one for the jury. Pickett v. Cooper, 354 Mo. 910, 192 S.W.2d 412; Pioneer Const. Co. v. Schmidt, 192 S.W.2d 859; Dell v. J.A. Schaefer Const. Co., 29 S.W.2d 76; Tribout v. Kroger Gro. Bak. Co., 191 S.W.2d 261; Tennant v. Peoria Pekin Union, 88 L.Ed. 520, 321 U.S. 29; Tiller v. Atlantic Coast Line Ry., 318 U.S. 54, 87 L.Ed. 610; New York Central R. Co. v. Marcone, 281 U.S. 345, 74 L.Ed. 892; Gunning v. Cooley, 281 U.S. 90, 74 L.Ed. 720; Best v. D. of C., 281 U.S. 411, 78 L.Ed. 882; Myers v. Pittsburgh Coal Co., 233 U.S. 184, 58 L.Ed. 906; Western Atlantic Ry. v. Hughes, 278 U.S. 496, 73 L.Ed. 473. (9) The failure to promulgate a rule which was submitted to the jury in the conjunctive, together with the failure to warn, was not essential to plaintiff's recovery and the submission would not be error, even if there were no evidence to justify it or if there were no causal connection between such negligence and the injury. Rinderknecht v. Thompson, 220 S.W.2d 69; Griffith v. Gardner, 217 S.W.2d 519; Wright v. McPike, 70 Mo. 175; Tash v. St. Louis-S.F. Ry., 335 Mo. 1148, 76 S.W.2d 690; Wright v. Spieldoch, 354 Mo. 1076, 193 S.W.2d 42; Corley v. Kroger, 355 Mo. 4, 193 S.W.2d 897; Guthrie v. City, 347 Mo. 1175, 152 S.W.2d 91; Berry v. Baltimore Ohio, 43 S.W.2d 782; Farr v. Thompson, 212 S.W.2d 923. (10) The damage instruction properly instructed the jury on the manner of awarding damages. There was substantial evidence of permanent injury resulting from the tort committed on September 5th, but in any event the instruction did not contain the error alleged by defendant. Quadlander v. K.C. Pub. Serv. Co., 224 S.W.2d 396. (11) If there was any ambiguity in the instruction as to what elements of damage were applicable as to each tort and if defendant felt there was insufficient evidence of permanent injury resulting from the first tort, it was defendant's responsibility to submit a clarifying instruction. Browne v. Creek, 357 Mo. 576, 209 S.W.2d 900; Van Campen v. St. Louis-S.F. Ry., 216 S.W.2d 443; Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 851; Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 866; Keyes v. Chicago, B. Q.R. Co., 326 Mo. 236, 31 S.W.2d 50; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Hancock v. Kansas City Term. Ry., 339 Mo. 1237, 100 S.W.2d 570; Hertz v. McDowell, 214 S.W.2d 546. (12) The award of damages, as apportioned between the two torts, shows plainly that the jury was properly instructed and that it acted correctly in apportioning the amount of damages. (13) Defendant should not be allowed to use the circumstance of two wrongs to confuse and impede the adjudication of plaintiff's rights. Kansas City So. Ry. v. Chandler, 192 S.W.2d 304. (14) Any error in this regard was cured by the trial court's action in drastically reducing the amount. Cook v. Kansas City, 214 S.W.2d 430; Walsh v. Terminal R. Assn. of St. Louis, 355 Mo. 377, 196 S.W.2d 152; Orr v. Shell Co., 352 Mo. 288, 177 S.W.2d 608; Gieseking v. Litchfield Madison R. Co., 344 Mo. 672, 127 S.W.2d 700. (15) There is no support for defendant's argument that the jury allowed double damages. The instruction specifically forbade them to do so. (16) There was ample evidence of defendant's negligence as to the tort of September 26. The final test is whether reasonable minds would differ or could fairly draw but one conclusion. Only where there is a complete absence of probative facts to support the conclusion does error appear. Hardin v. Illinois Central Ry., 334 Mo. 1169, 70 S.W.2d 1075; Lavender v. Kurn, 327 U.S. 645, 90 L.Ed. 421. (17) Plaintiff is entitled to his verdict if defendant's negligence contributes to cause his injury in whole or in part, contributory negligence, the fellow-servant doctrine and assumption of risk being entirely excluded as matters of defense. Tiller v. Atlantic Coast Line Ry., 318 U.S. 54, 87 L.Ed. 610; Walaite v. Chicago, R.I. P. Ry., 376 Ill. 59, 33 N.E.2d 119; McGivern v. Northern Pacific Ry., 132 F.2d 213; Underwood v. Louisville N.R. Co., 131 F.2d 306, certiorari denied 318 U.S. 761, 87 L.Ed. 1133. (18) The verdict as to damages awarded because of the tort of September 26 is in line with other verdicts on comparable cases approved by this court and other courts. Counts v. Thompson, 222 S.W.2d 487; Aly v. Terminal R. Assn. of St. Louis, 342 Mo. 1116, 119 S.W.2d 363; Tatum v. Gulf, M. O.R. Co., 223 S.W.2d 418; Rose v. Missouri Dist. Tel. Co., 328 Mo. 1009, 43 S.W.2d 562; Kelley v. Illinois Central Ry. Co., 352 Mo. 301, 177 S.W.2d 435; Span v. Jackson etc., 322 Mo. 158, 16 S.W.2d 190; West v. Kurn, 148 S.W.2d 752; Margulis v. National Enamel, 324 Mo. 420, 23 S.W.2d 1049; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512; Schleappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Joice v. Missouri-Kansas-Texas, 354 Mo. 439, 189 S.W.2d 568; Badalamenti v. U.S., 160 F.2d 422.

[13] LEEDY, J.

Action under the Federal Employers' Liability Act, 45 U.S.C.A., § 51 et seq., for personal injuries growing out of two separate and distinct casualties which were alleged (in one count) to have occurred on different days in September, 1947. The date of the first is certain, September 5. There is much uncertainty and confusion in the record as to the precise date of the second (whether the 26th or 27th), but as no point is made in this connection, we will, for convenience and brevity, refer to it as having occurred September 27. The jury found for plaintiff, and awarded $10,000 damages with reference to the September 5 occurrence, and $45,000 with reference to the September 27 occurrence. The trial court ordered a remittitur of $5,000 as to each award, with which plaintiff complied, and judgment was accordingly rendered for $5,000 and $40,000, aggregating $45,000, from which defendant railroad appeals.

Viewing the evidence in the light most favorable to plaintiff, and according him the benefit of all reasonable inferences to be drawn therefrom, as is our duty in determining defendant's challenge of the sufficiency of the evidence on the issue of negligence, the facts may be thus stated: Plaintiff worked for the railroad in employment protected by the Federal Act. The first accident (September 5) involved a through freight train from Stanberry to Moberly, on which he was acting as rear brakeman. He was riding in the caboose. As the train approached Bedford, it was traveling at approximately 40 miles per hour. At that time plaintiff had started toward the rear platform, when, according to his testimony, he was suddenly and violently thrown to the floor and against the corner of the caboose, with his head down. He remembers his feet were in the air, it picked him up so heavily. The assistant trainmaster and conductor, who had been riding in the cupola, helped him up from the floor and asked him if there was anything wrong, but he couldn't talk because the breath had been knocked out of him. He said he knew he was bruised and hurt but assumed it wouldn't amount to a whole lot, and so proceeded with his work. That night he went to the hotel and noticed a discoloration in the lower part of his back. He sat in a tub of hot water trying to get a little heat on it, and rubbed Minit-Rub on it. While he testified it bothered him constantly, he did not go to a doctor, although he continued to work every day until the occurrence of September 27. Certain cars just ahead of the caboose had become derailed. Defendant's evidence tended to show such derailment was caused from the track having "kicked out from underneath the train" on account of a sun-kink. Plaintiff's submission as to this occurrence was under the res ipsa loquitur doctrine, and on the appeal from the portion of the judgment rendered thereunder defendant raises only the question as to whether, as a predicate of a portion of plaintiff's instruction on the measure of damages, there was any substantial evidence of permanent injuries resulting from the occurrence, and complains that the verdict was "obviously so large as to show the jury was prejudiced." These questions will be noticed in connection with our discussion of closely allied questions raised by defendant concerning the amount of the other and larger award.

[14] The casualty of September 27 occurred in the afternoon, and involved a switching movement in defendant's yard at Moberly. Plaintiff had reported there in response to a call for him to go on his run to Stanberry. His duties as a brakeman included that of looking up the caboose in the yard, and making preparations for the trip, such as sweeping it out, putting ice in the ice box, supplying drinking water, and filling the signal lanterns carried on the rear of the train. All of the cabooses are kept on a single track, which is referred to as the caboose track, and it may contain as many as 20 or 30 cabooses in line. On this occasion, according to plaintiff's testimony, there were two or three cabooses behind his, and several ahead of it, and cars on the adjoining tracks. He further testified that while he was in the middle of the aisle of the caboose, and "in a bent over position" filling a small coal oil can out of a two-gallon coal oil can, "there was just a violent, unusual movement of the cars; in fact, the engine coupled into them so strong that it threw me backwards over to the extent of 5 or 6 feet, and I hit the lower part of my back in almost the identical spot I had been injured before [September 5];" that he hit against the corner of the metal coal box; that it made him "deathly sick" at the time, and he fell on the floor and finally crawled up on the caboose pad, and laid there 20 or 30 minutes, and got up and "cleaned up the mess [he had vomited] the best I could." He also testified he stayed in the caboose until it was put into the train, and by that time he had gotten to feeling better, and went to the yard office and told his immediate superior, the conductor, that he had gotten knocked down in the caboose and that it had made him a little sick. He knew, of course, that the caboose was to be made up into his train, but he did not know at what time that would be done. He stated that he was accustomed to the ordinary and usual jerks incident to coupling movements — "they have coupled into cabooses a thousand times that I have been in just as smoothly as it could be; it would hardly move your feet * * * I never had any trouble before." He referred to the jerk as "very unusual — just extremely hard * * * no person could have possibly stood up in this caboose and been on his feet after this coupling was made." The switchman had to go by the caboose, but neither he nor anyone else gave any warning as to the fact that there was going to be a coupling. Plaintiff did not know whether this violent movement was incidental to switching his own caboose or some other caboose on that track. Because of its location — "the caboose being three or four deep back in the track, and cars on either track, on either side" — he had no way of knowing the coupling was to be made.

Notwithstanding the mishap, plaintiff continued his work, and made the run to Stanberry, as scheduled. He testified he could not go to bed that night (at Stanberry where he had an eight-hour layover) because of his pain, and that he didn't "get a bit of rest at all." He made his run back to Moberly the next day feeling "terrible — awfully sore;" he could hardly get around; and, in fact, informed the head brakeman they would have to stop the train to let him climb on after he closed the switch. He arrived in Moberly late in the afternoon, and went to his hotel, where he required assistance to get upstairs and to bed. He was too sore to take a bath, did not sleep, and "suffered it out" that night, and the next morning entered Wabash Employees' Hospital at Moberly. Other facts in reference to the nature and extent of his injuries will be stated in connection with our discussion of the assignments questioning the amount of the awards.

The members of the switch crew were called by defendant, and none of them recalled any rough handling of a caboose at the time plaintiff claimed to have been injured. The effect of their testimony was that in such operations cabooses are handled as though someone were in them, and that all equipment is switched as easily as possible. None of the conductor's wheel reports (for the freight on which plaintiff was a member of the crew) for any of the days that might have been involved showed any complaint by plaintiff of being injured, or of rough handling. The conductor testified that he had no personal recollection [15] of plaintiff complaining, and that if anybody had been injured or had complained, it would have been noted on his wheel report; that plaintiff said nothing about any injury and he (witness) therefore made no note. However, this witness did state that one evening in the yard office, when they were going out on a run, plaintiff said "that he wasn't going in the caboose any more until we got ready to leave town because they rough-handled him up there * * * says he was slammed around in the caboose."

Defendant's assignments raise these questions as to the submission concerning the September 27th occurrence: (1) The propriety of plaintiff's instruction No. 2; (2) the sufficiency of the evidence to justify the submission of the issue of defendant's negligence; and (3) the excessiveness of the verdict. Part of the attack upon plaintiff's instruction No. 2 presents the same question raised under defendant's further point that judgment should have been entered for it "because there was insufficient substantial evidence of negligence produced by plaintiff," and so both will be treated together. Plaintiff's instruction No. 2 told the jury that if the caboose was suddenly bumped and jarred with unusual and unnecessary force and violence, and that defendant, by the exercise of ordinary care, could have known of plaintiff's presence in the caboose, but failed to look for and discover his presence therein, and failed to devise and put into effect rules regulating the warning of its employees in cabooses during coupling movements, and if the jury further found that under the aforesaid circumstances, the defendant failed to exercise ordinary care in making the coupling movement, and failed to exercise ordinary care to furnish and maintain a reasonably safe place for plaintiff to do the work in which he was then engaged on behalf of the defendant, "then you are instructed that defendant was negligent, and if you find that such negligence, either in whole or in part, caused injuries to the plaintiff, then your verdict must be in favor of plaintiff and against the defendant" as to that occurrence.

It is urged that the instruction "was not supported by sufficient substantial evidence since the statement of plaintiff himself that the coupling was unusual and extraordinary, not corroborated, was biased opinion of no evidentiary value;" and that "it misdirected the jury because it was not part of defendant's duty to warn plaintiff of a coupling which he knew was impending."

What constitutes negligence making a railroad liable in damages under the Federal Employers' Liability Act is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes, and is governed by federal decisional law formulating and applying the concept. Urie v. Thompson, 337 U.S. 163, 174. It was said in Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497, 504-505, that "the issue of negligence is one for juries to determine according to their finding of whether an employer's conduct measures up to what a reasonable and prudent person would have done under the same circumstances. And a jury should hold a master `liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances,' bearing in mind that `the standard of care must be commensurate to the dangers of the business.' Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 87 L.Ed. 610, 617, 63 S.Ct. 444, 143 A.L.R. 967. * * * And peremptory instructions should not be given in negligence cases `where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences.'"

The case of Gulf, Mobile Northern Railroad Co. v. Wells, 275 U.S. 455, 72 L.Ed. 370, is heavily relied on in support of the contention that plaintiff's testimony concerning the violent nature of the coupling was of no evidentiary value, and hence insufficient to support the instruction. The same point was made, upon the reasoning and authority of that case, in the comparatively recent case [16] of Pashea v. Terminal R. Assn., 350 Mo. 132, 165 S.W.2d 691, which was also an action under the Federal Employers' Liability Act. There the plaintiff, a brakeman, fell from the top of a freight car when the train allegedly stopped with an unusual and sudden stop. Plaintiff related what he claimed occurred ("The train was stopped all of a sudden with a terrific stop, or unusual stop. It stopped unusual, and buckled and twisted in every shape * * * It jerked and swung around and wrastled around," etc.) and that this caused him to be thrown off the end of the car. Defendant's evidence denied any such stop occurred. The contention now urged was fully discussed and disallowed, the court holding that it was for the jury to say whether it believed plaintiff's testimony as to what occurred, and its effect, including the interpretation to be given plaintiff's descriptive terms — "shake," "jerked," "twisted," etc. In that connection numerous cases were cited in which the evidence was held to be sufficient to show a negligent stop or jerk. Under that decision it follows that such cases as Hedrick v. Mo. Pac. Ry. Co., 195 Mo. 104, 93 S.W. 268, and Tickell v. St. L., l. M. S. Ry. Co., 149 Mo. App. 648, 129 S.W. 727, (both involving injuries to passengers riding in cabooses) are not apposite; and that the question of whether the coupling was made with unusual and unnecessary force and violence, as alleged in the petition and submitted in the instruction, was clearly one for the jury under plaintiff's own testimony and the other surrounding facts and circumstances. The evidence as to the manner of making the coupling is sharply conflicting, as between plaintiff's version and that of defendant, so that on the question of whether it was any part of defendant's duty to warn, the facts are such that fair-minded men may draw different conclusions. That issue was, therefore, one for the jury.

Defendant makes the further point that that feature of the instruction was erroneous which submitted negligence based on failure to devise and put into effect rules regulating the warning of employees because there was no evidence to support it and because the jury had "no experience from which to draw, and such is a question of law for the courts." We need not pause to determine the merits of this contention for the reason it will be noted that the instruction submits the several grounds of negligence in the conjunctive, and so under the settled practice, there having been sufficient evidence to support the other charges, there could have been no prejudice to the defendant in requiring the finding of an unnecessary matter, if such it was, in the conjunctive with other and proper submissions. Rinderknecht v. Thompson, 359 Mo. 21, 220 S.W.2d 69; Griffith v. Gardner, 358 Mo. 859, 217 S.W.2d 519.

The other objection urged against the instruction is that it conflicted with defendant's instruction No. 9, and therefore furnished an improper guide to the jury. No. 9 told the jury that if "at the time plaintiff entered the caboose on the occasion mentioned in evidence, he knew that the switching crew, of which he was a member, would within a short time move said caboose into another part of the yard and attach it to a train about to leave, and with which train plaintiff was to depart as part of its crew, then and in that case defendant's failure to give a signal or warning that the caboose was to be moved or to inspect the caboose to discover the presence of plaintiff, if you find defendant failed to do so is immaterial and does not constitute negligence and plaintiff is not entitled to recover on those grounds." Plaintiff asserts that if there was conflict between these instructions, it was introduced by the defendant in submitting No. 9, which was erroneous and should never have been given, and hence defendant cannot complain. This contention must be sustained. No. 9 should not have been given. One of its required findings was that plaintiff was a member of the switching crew, whereas, the undisputed evidence was that he was a member of the train crew. We agree with plaintiff that this would tend to mislead and confuse the jury if for no other reason than that, as a member of the switching crew, he would naturally be regarded as in a position to know all about the [17] switching movements of the crew with which he was working. Moreover, the instruction excuses failure to give a signal or warning or to inspect the caboose to discover plaintiff's presence therein if, at the time he entered the caboose, he knew that within a short time it would be moved, and this regardless of the nature of the coupling — whether ordinary, as defendant's evidence tended to show, or unusual and with unnecessary force and violence, as plaintiff's evidence tended to show. Whatever conflict there was resulted from this self-invited error on defendant's part, and it may not complain. Baker v. Railroad, 122 Mo. 533, 26 S.W. 20 [overruling Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 439, 18 S.W. 1103]; Christian v. Connecticut Mut. Life Ins. Co., 143 Mo. 460, 45 S.W. 268, and Thompson v. Moon Buggy Co., 155 Mo. App. 597, 134 S.W. 1088.

This brings us to a consideration of the amount of the judgment. Here, also, is the evidence to be viewed in the light most favorable to plaintiff. The trial was held in January, 1949, some 15 or 16 months after the accidents. Plaintiff, 40 years of age at the time of the trial, has a wife and child, a boy. His life expectancy, under the United States Life Tables, was shown to be 30.3 years. He had returned to work as a brakeman for the defendant in August, 1945. He admitted his actual earnings averaged approximately $2000 for the year 1946, and $1800 for $1947. He claimed his job would have averaged $350 or $400 a month if he could have worked all the time, but that illness of other members of his family, and other outside interests, made it impossible for him to work more than he did. He testified he spent 19 days in the Wabash Hospital on his first trip there, 17 or 19 days on the second, and 3 weeks on the third; that ever since the occurrence of September 27 he has had to sleep on a board in his bed, is in constant pain, and has to take sedatives and pain killers; that except for a "nervous stomach," he had previously been strong and healthy; that he had had no trouble with his back; that he cannot bathe or dress himself, and that he had not earned a dime since the accident. On cross-examination, he admitted that, as a member of the Wabash Hospital Association, he was entitled to free medical, surgical, dental and hospital service.

His wife thus summarized his condition:

"Q. Now, what, if anything, did you do for Mr. Hayes in connection with his treatment or his care? A. Well, he practically has to have constant attention, too. He isn't able to pick anything up off the floor; if he happens to drop it, he has to push it over to me, regardless of where I am, and I will go get it for him; or he pushes it over to me with his foot, and he has not put his shoes and socks on since the accident. He has not been able to bathe himself or dress himself, and he requires attention. At night he doesn't sleep; he doesn't rest at all, and he has to sleep on a board, and he has to have my constant attention; I have to sleep in there on the same bed and take care of him, and we give him alcohol rubs and apply heat and sedatives, and just everything that we think he can get a little rest.

"Q. How does he sleep at night? A. He doesn't —

"Q. Does he need any attention during the night? A. Why, absolutely. He doesn't sleep more than an hour any night at one time.

"Q. Does he take these pills? A. Yes, he takes pills, the sedatives the doctor prescribes. * * *

"Q. Do you massage him? A. Sure."

Plaintiff's medical evidence shows that he suffered a herniated nucleus pulposis, or ruptured disc, between the fifth lumbar vertebra and the sacrum, with resulting nerve irritation — "that is what gives him this severe difficulty, the pressure against these nerve roots. * * * The disc has been compressed downward, allowing the vertebral to be depressed down against the sacrum, and this is what is called the coupling joint, the one that couples the spine onto the pelvis." The disc is the soft, spongy material that is in the pad between every one of the vertebrae and serves as a shock absorber, as in an automobile, making [18] it easy to sit down, jump, etc. As the result of a myelogram performed in St. Louis in December, 1947, he developed what the hospital records at Moberly described as "meningitis, sterile, post-mylographic, severe." Such condition can be caused by the opaque substance injected into the spinal canal as a part of the normal myelogram procedure. He walks with a rigid, awkward gait, and wears a steel brace extending over the upper part of the body from the hips up. He has lost the normal lumbar lordships (which means that his back is "pretty straight"), with "almost complete limitation of his lower thoracic [part on which the chest is supported] and lumbar [lower part close to the pelvis] spine."

The condition is "extremely painful and disabling." In reference to its permanency, Dr. Pernoud testified thus: "Q. In your opinion, Doctor, can this man ever perform any manual labor? A. He cannot. Q. What is your opinion with regard to the permanency of any of these conditions? A. I think the condition, as we see it, is a permanent condition."

Defendant argues that "the injury is a condition which can be corrected by an operation under local anesthesia in 45 minutes to one hour, with practically no danger to life and with almost certain return to his normal occupation in a few weeks." The evidence upon which this contention is based came from defendant's medical experts. The jury was at liberty to, and apparently did, disregard it. Testimony on behalf of plaintiff touching the question was this (Dr. Pernoud testifying): "Q. What have you to say as to a possible operation? A. In the first place, an operation, even if it was done on a normal spine * * * would cause an extreme amount of disability. * * * There is no case of this kind you can operate on and cure, because the very act of taking out this disc means much pain and much disability in the future, permanent in the future. * * * In approximately 25 per cent of them, their symptoms are somewhat relieved; some of them are not benefitted at all, and many of them will get worse, so that it is an operation that, on the whole, promises very little."

Dr. West, the family physician, advised plaintiff not to be operated on for a while. He expressed the view that "the operation is not always a success, and it leaves them in a worse condition than it was before." He further testified: "Q. Is or is not this condition a permanent condition? A. It is a permanent condition unless he is operated on and relieved by the operation. Q. Doctor, in your opinion, will this man be able to do any manual labor of any kind? A. No, sir."

Dr. Jostes (also plaintiff's witness) testified that it was his belief that there were very few such operations resulting in complete relief of pain and no disability. Asked if, in his opinion, the plaintiff's condition was permanent, he answered: "While we know an operative procedure will remove, or can possibly remove such pressure, we, in all honesty, cannot say that it is a prudent thing. It is permanent if we don't do anything further about it.

"Q. It is permanent if you don't operate? A. That's right.

"Q. Then if you do operate, can you tell whether it is going to relieve it? A. No, I don't think anybody can promise at all.

"Q. You just do your best? A. I am saying this in all honesty; we do it every day and we have to do it because of severe pain, but I think in all honesty you cannot say too much about it."

As to the amount of the award growing out of the September 27 occurrence, defendant's point is that the verdict "indicates upon its face and by its amount that it was founded upon misguided passion and prejudice." This court in the very recent case of O'Brien v. L. N.R.R. Co., 360 Mo. 229, 227 S.W.2d 690, 693, reiterated its previous holdings concerning that question, saying: "After an examination of many cases we conclude the rule in this state to be that an excessive verdict in and of itself does not establish that the verdict was the result of passion and prejudice." It is also charged that such award (September 27) is excessive when compared with similar [19] cases, and that the September 5 verdict "should be reduced further to a sum commensurate with the evidence."

We find nothing to support the contention that the jury disobeyed the instructions and awarded double damages. One medical expert for defendant and one for plaintiff agreed that the herniated disc could have occurred as the result of either accident, or both of them: and under all the evidence, the jury would have been warranted in finding that the combination of the two injuries resulted in the condition we have described, and so it was within the province of the jury to apportion the damages as between the two casualties.

"There is no accurate scale for measuring the money value of the damages sustained. Each case must be considered upon its own peculiar facts, giving some consideration to economic conditions (the decline in the purchasing power of the dollar) and having regard to a reasonable uniformity of awards." Van Campen v. St. Louis-San Francisco Ry. Co., 358 Mo. 655, 216 S.W.2d 443, 449. See, also, Joice v. M.-K.-T.R. Co., 354 Mo. 439, 189 S.W.2d 568, 577, 161 A.L.R. 383; Young v. Terminal R.R. Assn., (Mo.), 192 S.W.2d 402; Tatum v. Gulf, M. O.R. Co., 359 Mo. 709, 223 S.W.2d 418.

The trial court regarded the verdict as excessive by $10,000, and plaintiff entered a remittitur in that amount as a condition to the overruling of defendant's motion for judgment or for a new trial. Upon a consideration of the facts outlined above, we are constrained to hold that the judgment, as reduced by the trial court, is still excessive to the extent of $7,500 when compared with the cases just cited, and other recent ones such as Smiley v. St. Louis-San Francisco Ry. Co., 359 Mo. 474, 222 S.W.2d 481; Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675; O'Brien v. L. N.R. Co., 360 Mo. 229, 227 S.W.2d 690; Prince v. K.C. Southern Ry. Co., 360 Mo. 580, 229 S.W.2d 569; Osburn v. K.C. Southern Ry. Co., 360 Mo. 813, 230 S.W.2d 856, 861. Of course, bodily injuries and other elements affecting the award of damages, such as permanency, loss of earnings, pain and suffering, medical expenses, etc., are never alike in any of the adjudicated cases, and so comparisons will not reveal anything approaching exactness, nor was such intended by reference to the foregoing cases. If plaintiff will remit $7,500 within 15 days, the judgment will be affirmed as of the date of its rendition for $37,500; otherwise, it will be reversed, and the cause remanded. All concur.