Opinion
No. 40768.
March 14, 1949. Motion for Rehearing or to Transfer to Banc Overruled, April 11, 1949.
1. APPEAL AND ERROR: Second Appeal: First Appeal as Law of the Case. Where there is a second appeal the opinion on the first appeal will control unless the opinion on the first appeal was based on a mistake of fact or where it resulted in manifest injustice to the parties.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Repairing Cars: Duties in Furtherance of Interstate Commerce. Plaintiff's duties in repairing cars were in furtherance of and closely affected interstate commerce so that the 1939 amendment of the Federal Employers' Liability Act applies.
3. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Fall of Car Doors: Res Ipsa Loquitur Doctrine Applies. Evidence that railroad freight car doors in defendant's car shop fell upon plaintiff was sufficient to make a submissible case under the res ipsa loquitur doctrine. Plaintiff's testimony, when read as a whole, does not show that the doors fell because plaintiff bumped into them.
Appeal from Circuit Court of City of St. Louis. — Hon. William L. Mason, Judge.
AFFIRMED.
Wayne Ely and Robert C. Ely for appellant; D.S. Wright of counsel.
(1) Plaintiff alleged that his case was governed by the Federal Employers' Liability Act and his case was tried on that theory. Therefore, his case is not complete unless he proves that he was engaged in interstate commerce. Martin v. St. Louis-S.F. Ry. Co., 250 S.W. 1023; Avance v. Thompson, 55 N.E.2d 57, certiorari denied 323 U.S. 753, 89 L.Ed. 603; Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq. (2) The opinion of this court on the first appeal of this case should not be adhered to, because the court erred in the principles of law declared and inadvertently overlooked material testimony of plaintiff in the nature of admissions that he may have bumped into the doors and caused them to fall. Maxie v. G.M. O. Rd. Co., 202 S.W.2d 904; Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.; Dunn v. Alton R. Co., 104 S.W.2d 311; Hogan v. Kansas City Pub. Serv. Co., 19 S.W.2d 707; Bird v. Sellers, 26 S.W. 667; McNatt v. Wabash Ry. Co., 108 S.W.2d 33; Davidson v. St. Louis-S.F. Ry. Co., 256 S.W. 169; Mangold v. Bacon, 141 S.W. 650. (3) On the first appeal of this case the court inadvertently misinterpreted the 1939 amendment to the Employers' Liability Act. The amendment was added to cover employees who constantly shift from interstate service to intrastate service. Shoenfelt v. Pennsylvania R. Co., 69 F. Supp. 728; Taylor v. Lumaghi Coal Co., 181 S.W.2d 536; Report of the Senate Committee on the Judiciary on 1939 amendment to Employers' Liability Act. (4) It is the law that when cars are placed in repair shops for substantial repairs, they are removed from interstate commerce and employees working on them are not engaged in interstate commerce. Industrial Accident Comm. of the State of California v. Davis, 66 L.Ed. 888; Minneapolis St. Louis Rd. Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358, 359, Ann Cas. 1918B 54; Toussaint v. Cleveland, C.C. St. L. Ry. Co., 104 S.W.2d 263; Oglesby v. St. Louis-S.F. Ry. Co., 1 S.W.2d 172; Shanks v. Delaware, Lackawanna Western Rd. Co., 60 L.Ed. 436; Chicago Northwestern Ry. Co. v. Bolle, 284 U.S. 74, 76 L.Ed. 173; Sullivan v. New York, N.H. H.R. Co., 74 F.2d 725; New York, N.H. H.R. Co. v. Bezue, 284 U.S. 415, 76 L.Ed. 370. (5) Plaintiff's evidence shows that all cars on which he worked had been removed from interstate commerce and were dead in the yards. Industrial Accident Commission of the State of California v. Davis, 66 L.Ed. 888; Minneapolis St. Louis Rd. Co. v. Winters, 61 L.Ed. 358; Toussaint v. Cleveland, C.C. St. L. Ry. Co., 104 S.W.2d 263; P.F. Collier Son Co. v. Hartfiel, 72 F.2d 625; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819. (6) By the acceptance of Instruction 1 and refusal of Instruction C, the court held that as a matter of law plaintiff was engaged in interstate commerce. By so ruling the court completely ignored the evidence adduced on behalf of defendant which, if accepted as true, would have required a finding that plaintiff was not engaged in interstate commerce. Such error can be cured only by remanding for a new trial. Industrial Accident Comm. of the State of California v. Davis, supra; Minneapolis St. Louis Railroad Co. v. Winters, supra; Toussaint v. Cleveland, C.C. St. L. Ry. Co., supra; Oglesby v. St. Louis-San F. Ry. Co., supra; Shanks v. Delaware, Lackawanna Western Railroad Co., supra; Chicago Northwestern Ry. Co. v. Bolle, supra; Sullivan v. New York, N.H. H.R. Co., supra; New York, N.H. H.R. Co. v. Bezue, supra. (7) Plaintiff's testimony gives rise to a reasonable inference that the doors may have been caused to fall by being bumped by him. Therefore, plaintiff has not ruled out all hypotheses of negligence other than defendant's negligence, and he cannot take advantage of the doctrine of res ipsa loquitur. Maxie v. Gulf, Mobile Ohio R.R. Co., 202 S.W.2d 904; Grindstaff v. J. Goldberg Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Removich v. Bambrick Brothers Construction Co., 173 S.W. 686; Cothron v. Cudahy Packing Co., 73 S.W. 279; McGrath v. St. Louis Transit Co., 94 S.W. 872; Dunn v. Alton R. Co., 104 S.W.2d 311; Hogan v. Kansas City Pub. Serv. Co., 19 S.W.2d 707; Bird v. Sellers, 26 S.W. 667; McNatt v. Wabash Ry. Co., 108 S.W.2d 33; McNatt v. St. Louis-S.F. Ry. Co., 256 S.W. 169; Mangold v. Bacon, 141 S.W. 650. (8) Plaintiff did no more than prove the happening of the accident and his resultant injury. Without additional evidence of the attendant facts and circumstances, plaintiff cannot rely upon an inference of negligence under the doctrine of res ipsa loquitur. Charlton v. Lovelace, 173 S.W.2d 13; Kramer v. Mills Lumber Co., 24 F.2d 313; Patton v. Texas Pacific Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 277, 45 L.Ed. 361.
Sol Andrews, Wm. E. Gallagher and William H. Allen for respondent.
(1) On the former appeal of this case this court held that, as a matter of law plaintiff was engaged in interstate commerce within the meaning of the Employers' Liability Act as amended in 1939, and that the evidence adduced made a case under the res ipsa loquitur rule. Maxie v. Gulf, Mobile Ohio R. Co., 354 Mo. 633, 202 S.W.2d 904. On both of those matters the evidence on this appeal is the same in all material respects as that before this court on the former appeal. Nor is there any ground to claim that with respect to such former rulings this court acted under any mistake of fact or did not do justice to the parties. Consequently, such former rulings constitute the settled law of this case as to said matters. Yakubinis v. Missouri-K.-T.R. Co., 345 Mo. 943, 137 S.W.2d 504; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; Crossno v. Terminal Rd. Assn., 333 Mo. 733, 62 S.W.2d 1092; Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105. (2) The evidence adduced on the second appeal conclusively showed, as it did on the former appeal, that plaintiff's work as defendant's employee consisted of the making of repairs to freight cars, many of which were used in interstate commerce, and that at the time of his injury he was engaged in helping repair car 4656, which came to these yards after an interstate journey and went out from the yards on an interstate trip. Consequently a part of plaintiff's duties were the furtherance of interstate commerce and directly affected such commerce, and hence, by the express terms of the Act as amended in 1939, plaintiff must be considered as having been employed in such commerce and entitled to the benefits of the Act Federal Employers' Liability Act of April 22, 1908, c. 149, Sec. 1, 35 Stat. 65, 45 U.S.C.A., Sec. 51, as amended in 1939, Act of August 11, 1939, c. 685, Sec. 1, 53 Stat. 1404, 45 U.S.C.A., Sec. 51; Maxie v. Gulf, Mobile Ohio R. Co., 356 Mo. 633, 202 S.W.2d 904; Shelton v. Thomson, 148 F.2d 1; Edwards v. B. O.R. Co., 131 F.2d 366; Ermin v. Pennsylvania Ry. Co., 36 F. Supp. 936; Great Northern R. Co. v. Industrial Commission, 14 N.W.2d 152; Ford v. L. N.R. Co., 196 S.W.2d 163; Taylor v. Lumaghi Coal Co., 352 Mo. 212, 181 S.W.2d 536; Prader v. Pennsylvania R. Co., 49 N.E.2d 387; Lewis v. Industrial Accident Commission, 19 Cal.2d 284, 120 P.2d 886. (3) Under the Federal Employers' Liability Act as amended on August 11, 1939, it mattered not in the least how long car 4656, in the repairing of which plaintiff was engaged at the time of his injury, was in the repair shop on that occasion, or whether the repairs thereto or to any other car in this yard were "light repairs" or "heavy repairs." Since it appeared without dispute that car 4656 had been used in interstate commerce immediately prior to being put into the shop for repairs and was at once sent out in interstate commerce when repaired, and that a great many other cars repaired in these yards by plaintiff and his fellow workmen were interstate cars, that is, cars that came in from interstate trips and went out on interstate trips, obviously a part of plaintiff's duties as defendant's employee was the furtherance of interstate commerce which, under the Act as amended, entitled him to the benefits thereof. Maxie v. Gulf, Mobile Ohio R. Co., 356 Mo. 633, 202 S.W.2d 904; Shelton v. Thomson, 148 F.2d 1; Edwards v. B. O.R. Co., 131 F.2d 366; Prader v. Pennsylvania R. Co., 59 N.E.2d 387; And other cases cited under Point (2), supra. (4) The evidence showed as a matter of law that a part of plaintiff's duties were in the furtherance of interstate commerce, as this court held on the former appeal. Maxie v. Gulf, Mobile Ohio R. Co., 356 Mo. 633, 205 S.W.2d 904; Antonio v. Pennsylvania R. Co., 155 Pa. Sup. 277, 38 A.2d 705; Avance v. Thompson, 387 Ill. 77, 55 N.E.2d 57; Wolff, Admx., v. Campbell, 110 Mo. 114, 119 S.W. 622; Central States Savings Loan Assn. v. U.S. Fidelity Guaranty Co., 334 Mo. 580, 66 S.W.2d 550. (5) At the first trial defendant's counsel admitted that car 4656 was the car on which plaintiff was working at the time of his injury. At this second trial defendant's counsel said he couldn't admit that, but that he was not disputing it, and that there was no question about it. It matters not what may be the effect of this, for the reason that the admission of defendant's counsel in open court, at the first trial, constituting a judicial admission, was not limited to that trial but remains binding upon the defendant throughout the entire litigation. Pennington v. K.C. Rys. Co., 284 Mo. 1, 223 S.W. 428; York v. City of Everton, 135 Mo. App. 607, 116 S.W. 490; Silverman v. Bermuda West Indies S.S. Co., 12 F. Supp. 164; 31 C.J.S., pp. 1067, 1068, sec. 299. (6) The evidence as to the falling of the box car doors upon plaintiff and the attendant circumstances plainly made a case under the res ipsa loquitur rule, in that it warranted an inference of negligence on the part of the defendant. Maxie v. Gulf, Mobile Ohio R. Co., 354 Mo. 633, 202 S.W.2d 904; Jesionowski v. Boston Maine R. Co., 329 U.S. 452, 91 L.Ed. 416, 67 Sup. Ct. 401; Sweeney v. Erving, 228 U.S. 233, 58 L.Ed. 815; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557. (7) Under the evidence adduced as to the circumstances under which plaintiff came to his injury and the instructions given by the court, defendant's contention in its brief that plaintiff cannot rely upon the res ipsa loquitur rule because he "has not ruled out all hypotheses of negligence other than defendant's negligence," is directly contrary to the Federal law as declared by the Supreme Court of the United States, which is here controlling. Jesionowski v. Boston Maine R. Co., 329 U.S. 452, 91 L.Ed. 416, 67 Sup. Ct. 401.
This is a second appeal by the railroad in a suit for personal injuries under the Federal Employers' Liability Act. At the first trial the case was submitted to the jury under the res ipsa loquitur doctrine, and the jury gave plaintiff judgment for $17,000. Upon appeal, we reversed and remanded on the ground submission under the res ipsa loquitur doctrine was error since the petition had pleaded acts of specific negligence on the part of the railroad. Our opinion is reported in 356 Mo. 633, 202 S.W.2d 904.
After remand plaintiff amended his petition to plead general negligence only, went to trial the second time, again submitted his case under the res ipsa loquitur doctrine, and again recovered a judgment. The judgment was reduced by remittitur from $32,000 to $16,000, and the railroad has appealed from the reduced judgment.
The facts are not disputed. At the second trial they were the same as those adduced at the first trial. The railroad put on no testimony at the first trial. At the second the testimony it adduced was to a large extent merely cumulative of plaintiff's testimony.
Plaintiff was employed by the railroad as a car repairer in its shops and yards at Mobile, Alabama. There, car repairs are separated into two general classes. Light and "running" repairs to cars are both made on certain tracks assigned for that purpose. Repairs which require more than one day and up to three days are classified as light repairs. Running repairs were those which can be done the same day. These may be performed on loaded cars as well as on empty ones. Heavy repairs to cars are made on other tracks designated for that purpose. These include even rebuilding a car. Sometimes so-called heavy repairs can be done in three days at the minimum — generally more time is required. Cars on the heavy repair tracks usually remain there for a week. Plaintiff was assigned to work at heavy repairs. He was working on the repairs of a GMO box car when he was injured. The railroad's records introduced by plaintiff described the work done on this car as "heavy repairs and painted red." The car came empty to the yards at Mobile from an interstate trip, remained on the heavy repair tracks there for a week, and then went out from the yards for loading and movement in interstate commerce.
At the time plaintiff was injured he was pulling nails from some used lumber preparatory to utilizing the lumber for repairing the roof of the car. The used lumber was stacked in a pile. Plaintiff would stoop over and pick up a board from the pile, hold the board in front of him while pulling out nails, and then throw the board to the side but also to the front. Plaintiff did his work facing the pile of used lumber. Some three and a half or four feet behind where plaintiff was working, four box car doors had been leaned in a stack against a post. The doors were approximately eight by nine feet, and weighed from 250 to 300 pounds each. Without warning the doors fell over on plaintiff, knocked him down and injured him. Plaintiff testified he did not touch or bump the doors and did not know what caused them to fall. Another car repairer was doing the same work on the other side of the pile of lumber. He was facing toward plaintiff and the doors. He saw the doors fall on plaintiff. The witness did not know what caused the doors to fall. No other witnesses saw the accident. Two other employees heard a cry for help and assisted in taking the doors off of plaintiff.
Since this is a second appeal, the questions for decision are collateral to determining the controlling question whether our opinion on the first appeal has properly declared the law of the case.
When the issues and the evidence are substantially the same on both appeals, matters decided on the original appeal will not ordinarily be open to dispute but will be considered as settled on the second appeal. We have recognized as proper exceptions [324] to this rule such instances as where the decision on the first appeal was based on a mistake of fact or where it resulted in manifest injustice to the parties. Yakubinis v. M.-K.-T.R. Co., 345 Mo. 943, 137 S.W.2d 504; Swain v. Anders, 349 Mo. 963, 153 S.W.2d 1045.
The railroad makes two main contentions on this appeal. First it asserts the facts are different so the res ipsa loquitur doctrine was not applicable on the second trial. Second it says our decision on the first appeal plainly misinterpreted and misapplied the 1939 Amendment of the Federal Employers' Liability Act. 45 USCA, § 51 et seq.
On the latter contention the railroad argues we held the 1939 Amendment has the effect of putting the box car into interstate commerce at the time plaintiff was repairing it when in fact it was withdrawn from such commerce while under heavy repair. The railroad draws that conclusion because we held that plaintiff who was engaged in performing heavy repairs on the box car was included under the act as amended. But, the railroad insists, cars undergoing heavy repairs are considered withdrawn from interstate commerce. It relies on those cases decided before the act was amended which generally used as the test of the application of the act: "Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?" Shanks v. D.L. W. Ry. Co., 239 U.S. 556. Under that test it was held when equipment was withdrawn from service for general repairs its use in interstate commerce was interrupted, so that an employee making general repairs would not be under the act. The length of time the actual movement of such equipment in interstate commerce was interrupted seemed to be the controlling consideration. For this reason running repairs were distinguished from general repairs. The courts drew very fine distinctions. A car withdrawn from actual movement for twenty-four hours or less for running repairs was held to remain in interstate commerce, so the act applied; but a car withdrawn for a few hours longer might be held to be out of interstate commerce, so the act would not apply. See Industrial Accident Comm. v. Davis, 259 U.S. 183; Minneapolis St. L.R. Co. v. Winters, 242 U.S. 353; Toussaint v. C.C.C. St. L.R. Co., 340 Mo. 578, 104 S.W.2d 263; Oglesby v. St. L.-S.F.R. Co., 318 Mo. 79, 1 S.W.2d 172.
But we do not find our opinion interprets the amendment as the railroad contends. We did not hold the box car itself was being used in interstate commerce while it was in the yards under repair. Such a finding is no longer necessary to the application of the act. All that is now required for its application is that an employee's duties or any part of them must be in furtherance of or must closely affect interstate commerce. We held that plaintiff's duties were of such a character. We first pointed the act as amended now covers "any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purpose of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter." Next we found from the undisputed facts plaintiff was regularly employed in repairing and rebuilding freight cars which came into the yards from interstate use and, after repair, went out of the yards into interstate use. So we ruled plaintiff's duties brought him under the act as extended by the amendment because they were in furtherance of and closely affected interstate commerce.
Since the undisputed facts on this appeal are the same as on that one, we reach the same conclusion, and again rule plaintiff's duties brought him under the act as amended.
Our ruling accords with decisions of other jurisdictions. Since the amendment of 1939 it has been generally held that employees engaged in duties connected [325] with repairing cars and engines are under the act. The time element required for the repairs is apparently no longer the criterion. Shelton v. Thomson, 148 F.2d 1; Edwards v. B. O.R. Co., 131 F.2d 366; Ermin v. Pennsylvania R. Co., 36 F. Supp. 936; Wright v. N.Y.C.R. Co., 43 N.E.2d 97; Trucco v. Erie R. Co., 353 Pa. 320, 45 A.2d 20; Southern Pac. Co. v. Industrial Accident Comm. 19 Cal.2d 271, 120 P.2d 880; Same v. Same, 19 Cal.2d 283, 120 P.2d 888; Same v. Same, 199 P.2d 364. For a case in this state see Wheeler v. M.-K.-T.R. Co. (Mo. App.) 205 S.W.2d 906. And for discussions of the purpose of the amendment, and its effect in extending the coverage of the act see; Scarborough v. Pennsylvania R. Co., 154 Pa. Super. 129, 35 A.2d 603; Lewis v. Industrial Accident Comm. 19 Cal.2d 284, 120 P.2d 886; Prader v. Pennsylvania R. Co. 49 N.E.2d 387; Great Northern R. Co. v. Industrial Comm. 245 Wis. 375, 14 N.W.2d 152.
The railroad contends under the evidence adduced at the second trial the res ipsa loquitur doctrine is not applicable because the inference may be reasonably drawn that the doors were caused to fall by plaintiff's touching or bumping into them. But such is not a fact. It is true that plaintiff, an ignorant man and apparently confused by a grilling cross examination, did give these answers on cross examination by railroad's counsel.
"Q. Yes, sir, and when you say, "I don't know,' you mean you don't know whether you bumped into the doors? A. (No Response.)
Q. That is true isn't it? A. (No Response.)
Q. Is that true? A. I don't remember.
Q. Don't remember what? A. Whether I touched them or not.
Q. Don't remember whether you touched them or not. A. No.
Q. You don't remember whether you touched them or not? A. No, I don't.
Q. That is, you may have and you may not; you just don't remember? A. I don't know.
Q. Don't know? A. No."
The railroad relies on this testimony alone to support its contention that plaintiff himself caused the doors to fall. But this testimony does not legitimately support such inference. Furthermore, it should be read in its complete context, that is with plaintiff's testimony on his direct examination where he testified positively that he had no contact of any kind with the doors, and he did not know what caused them to fall. From a reading of his entire testimony we find no basis for a legitimate inference that plaintiff's own actions caused the doors to fall.
The evidence shows that it was part of the duties of the railroad's labor gang to pick up the doors after they were removed from the cars brought in for repair, and to place them at convenient spots about the yards where they were stood in groups here and there against posts and walls by such gang. The doors which fell on plaintiff were stood up on end alongside a post. We find that all the evidence concerning the accident and the attendant circumstances reasonably warrants a legitimate inference that the proximate cause of plaintiff's injury was the railroad's negligence in the placing of the doors which fell on plaintiff. Hence, the res ipsa loquitur doctrine was properly applicable.
Even had the evidence of the injury and the attendant circumstances supported other reasonable inferences the doctrine could still apply. A plaintiff to come within the doctrine need not show such a state of facts surrounding the accident as excludes every reasonable hypothesis except defendant's negligence. The attendant facts must raise a reasonable inference of defendant's negligence but they need not also exclude every other inference. Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Cruce v. G.M. O.R. Co., 358 Mo. 589, 216 S.W.2d 78; Terminal R. Assn. v. Staengel, 122 F.2d 271.
These two contentions raised on this appeal by the railroad must be ruled against it. Other matters presented have been correctly disposed of by our previous opinion so are not now appropriately before us for reconsideration.
The judgment is affirmed. All concur.