July 13, 1953. Motion for Rehearing or to Transfer to Court en Banc Denied September 14, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DIVISION NO. 9.
Wayne Ely, Robert C. Ely, St. Louis, for appellant Ely Ely, St. Louis, for counsel.
William C. Barnett, St. Louis, for respondent.
This is an action by an engineer to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained in a switching movement. Upon the trial of the cause there was a jury verdict for the defendant. The trial court sustained the plaintiff's motion for a new trial upon the specification that the court had erred in instructing the jury, and the railroad appeals from that order.
The circumstances of the injuries were that the engineer, Mr. Jones, went to work in the McKinley Junction yards about midnight on May 21, 1950, and operated the Diesel locomotive in "the cleaning up work" until 1:30 when the fireman, Helton, "took it over." The next switching movement was that two cabooses from the north end of the yards were to be attached to a ninety-car freight train. As the engine, with the cabooses, approached the train at a speed of two to three miles an hour, to make the coupling, Mr. Jones was standing up near the water cooler, about to take a drink of water. He turned to say something to the fireman, and as the coupling was completed, he said, "* * * I lost my balance and fell on that seat, on my hip." While the engine was traveling two to three miles an hour Helton received an "easy" signal and immediately a "stop" signal for the coupling. He had reduced the speed of the locomotive to one mile per hour upon the impact of the coupling. Mr. Jones described the impact as "pretty rough. I have seen them rougher" and, he said, "it wasn't very proper, I don't believe. I think he (the brakeman) should have stopped him sooner." The fireman, in describing the coupling, said, "Well, it was a little rough, a little rougher than the regular, ordinary coupling." The engineer's right to recover and the defendant's liability were submitted upon the hypothesis "that the engine was pushing a cut of cars preparatory to making a coupling of the caboose at the leading end of the cut with the rear end of a freight train standing in the yards; that defendant's switchman, Charles Gott, was riding the leading end of the caboose and it was his duty to give a proper easy signal to said fireman as an indication to reduce speed at a distance of 30 to 40 feet from the end of said train; that he failed to give a proper easy signal at such distance and that as a result of such failure to give a proper easy signal, a rough impact occurred, then you may find defendant guilty of negligence, and if you further find and believe from the evidence that as a result of such negligence, if any, plaintiff was injured, then your verdict should be for plaintiff and against defendant."
The order granting the new trial did not specify a discretionary ground. Supreme Court Rule 1.10. It was sustained upon the sole ground that "Instruction No. 5 is erroneous," and that is a finding that the instruction was erroneous as a matter of law. Warren v. Kansas City, 258 S.W.2d 681. And, the sole question briefed and argued by the parties is whether or not instructions three and five are erroneous as a matter of law, and, we might add, prejudicial to the substantial rights of the parties. Atlantic Coast Line R. Co. v. Burkett, 5 Cir., 192 F.2d 941, 944. It is not claimed by the appellant that Mr. Jones does not have a submissible case, Byler v. Wabash R. Co., 8 Cir., 196 F.2d 9, and it is not claimed by the respondent that there is no evidentiary basis for instruction five or that it fails to hypothesize facts. Hough v. Chicago, R. I. P. Ry. Co., 339 Mo. 1169, 1180, 100 S.W.2d 499, 504. The respondent's sole contention is that these two instructions injected into the case and submitted as defenses to the action assumption of risk and contributory negligence and were therefore erroneous and prejudicial. If the instructions in fact submit either assumption of risk of contributory negligence as a defense to the action it now follows, as of course, that they are erroneous. 45 U.S.C.A. §§ 53, 54; Young v. Terminal R. R. Ass'n Mo. Sup., 192 S.W.2d 402, 405; Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 447, 189 S.W.2d 568, 574, 161 A.L.R. 383.
The respondent does not point out or seek to demonstrate wherein the instructions in fact submit either of these matters as a defense, he simply asserts that they do. Instruction three is as follows:
"The Court instructs the jury that the law recognizes that the switching and coupling of railroad cars necessarily involves a certain amount of danger to those engaged in such operations, and the law does not make the defendant railroad company an insurer for the safety of its employees engaged in such operations. All that the law requires of a railroad company in that respect is the exercise of ordinary care to see that such operations are performed with reasonable care, and in such manner as similar operations are or would be usually and customarily performed by an ordinarily careful and prudent person.
"If you find and believe from the evidence that the defendant in this case exercised the degree of care outlined in this instruction, then you should not find that defendant was negligent."
The court gave this instruction immediately following instruction two, offered by the plaintiff, which defined "negligence" as "the want of ordinary care" and "ordinary care" as "that degree of caution which a person of ordinary prudence would use in the same or similar circumstances." Instruction three is explanatory of the definition of negligence, it is cautionary in tenor. It deals with the railroad's duty and in that respect is not an incorrect statement of the law. Kenefick v. Terminal R. Ass'n Mo.Sup., 207 S.W.2d 294, 299. Unless the first clause is interpreted as applying to the plaintiff and his duty, there is no language in the instruction applicable to him. But so interpreted, the clause does not state, even indirectly, that assumption of risk is a defense. In Young v. Terminal R. R. Ass'n, supra, the defendant's properly refused instruction directed a verdict and advised the jury "that plaintiff, working in defendant's yard, took upon himself the assumption of all hazards in connection with such work which did not result from defendant's negligence" [192 S.W.2d 405] and thus might have misled the jury by injecting assumption of risk as a defense. It is not necessary to say that instruction three is properly given in any and all events, it is sufficient to say that it does not so plainly inject assumption of risk as a defense that it can be said to be erroneous as a matter of law, or that it is so prejudicial to the rights of the plaintiff as to demand the granting of a new trial. Atlantic Coast Line R. Co. v. Burkett, supra.
The meritorious question is whether instruction five improperly injects contributory negligence as a defense and is therefore erroneous. The instruction is as follows:
"The Court instructs the jury that the law requires that every person exercise reasonable care to make use of his natural senses to discover and know the conditions around him, and to know whether or not he is confronted with peril or danger of being injured, and that failure on the part of any person to use such care, and to make such use of his senses, would be negligence.
"You are further instructed the degree of care which the law expects of any person is determined by what that person is doing at the time, and the circumstances and conditions surrounding him, or with which he is confronted at the time, and the law requires that every person use such care to avoid being injured as a reasonably careful and prudent person would exercise under the same or similar circumstances.
"And you are instructed that if you find and believe from the evidence that at the time the coupling movements referred to in evidence were being made, the engine and the cabooses attached to it were being moved in the usual and customary manner in which locomotives and cars are ordinarily and customarily moved for the purpose of coupling, and that the locomotive and cabooses were not being moved in a negligent or careless manner, and if you further find that plaintiff moved or turned, or assumed an unsteady position, and that by reason thereof he was caught off balance when the cars came together for coupling, and that in so doing plaintiff was negligent, and if you find that plaintiff's injuries resulted solely from such negligence, if any, on his part, and that defendant was not negligent in any of the respects mentioned in the instructions herewith given you, then your verdict should be against plaintiff and in favor of the defendant."
As indicated, contributory negligence on the part of an injured employee is no longer a defense under the act and an instruction which injects that issue as a defense is erroneous and prejudicial. Carter v. Atlanta St. A. B. R. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236; Malone v. Gardner, 362 Mo. 569, 242 S.W.2d 516. In the Carter case the instruction was objectionable and prejudicially erroneous because, 338 U.S. loc. cit. 435-436, 70 S.Ct. loc. cit. 230, "The charge is replete with phrases such as, `if you should find his (the petitioner's) own negligence was the proximate cause of whatever injury followed, the verdict must be for the respondent. With proper explanations, the court could have advised the jury that if petitioner's own negligence was the sole proximate cause of his injury, the verdict must be for respondent; but here the court again and again used such phrases as `if you should find his injury was directly or proximately caused by his own negligence,' verdict must be for the railroad; and `if you find that his own negligence in no manner contributed to his injury'; `if you find * * * he was not negligent in any manner,' the verdict must be for the plaintiff." Unlike the instruction involved here, the refused instruction in Malone v. Gardner, supra [362 Mo. 569, 242 S.W.2d 523] "in no way negatived defendant's negligence and so would have authorized a verdict for defendant had the jury considered the plaintiff guilty of contributory negligence * * *." Instruction five excludes the defendant's negligence in this language, "and that defendant was not negligent in any of the respects mentioned in the instructions herewith given you."
While contributory negligence is not a defense under the act, and it is improper for the court in its instructions to inject the subject as a defense, there can be no recovery under the act when the employee's negligence is shown to have been the sole proximate cause of his injury and the defendant's act is no part of the causation, and it is proper for the court to so instruct the jury. 35 Am.Jur., Sec. 406, p. 827; Ottley v. St. Louis-San Francisco Ry. Co., 360 Mo. 1189, 232 S.W.2d 966, 972; Louisville N. R. Co. v. Davis, 6 Cir., 75 F.2d 849; Henwood v. Coburn, 8 Cir., 165 F.2d 418, 423. "With proper explanations, the court could have advised the jury that if petitioner's own negligence was the sole proximate cause of his injury, the verdict must be for respondent; * * *." Carter v. Atlanta St. A. B. R. Co., supra. The defense is available and may be instructed upon even though contributory negligence is not a defense. Hough v. Chicago, R. I. P. Ry. Co., 339 Mo. 1169, 100 S.W.2d 499. It will be observed that the third paragraph of instruction five submits conversely the facts relied upon as constituting negligence and in addition, it hypothesizes the facts relied upon as exonerating the railroad of negligence. Kenefick v. Terminal R. Ass'n, supra. And, while the instruction employs the language "that in so doing plaintiff was negligent," it does not in fact or inferentially submit contributory negligence as a defense because the instruction continues "and if you find that plaintiff's injuries resulted solely from such negligence, if any, on his part, and that defendant was not negligent in any of the respects mentioned in the instructions herewith given you, then your verdict should be against plaintiff and in favor of the defendant." The plaintiff did not offer a counter or converse instruction upon this subject as he had a right to do and he did not offer an instruction advising the jury that his contributory negligence was not a defense to the action and could only be considered, if found, in diminution of the damages. Hampton v. Wabash R. Co., 356 Mo. 999, 204 S.W.2d 708; Byler v. Wabash R. Co., supra. As we have said, the respondent does not contend that there is no evidentiary support for this instruction or that it does not sufficiently hypothesize facts. Therefore, under the evidence, whether Mr. Jones' injuries resulted wholly or in part from the negligence of the railroad or its employees, or solely from his own inattentive conduct was clearly for the jury. Chicago, St. P., M. O. R. Co. v. Arnold, 8 Cir., 160 F.2d 1002, 1005. The instruction is not subject to the objection of repetitious overemphasis found in the Carter case, and it does not impliedly authorize a verdict for the defendant upon a finding of contributory negligence as did the refused instruction in Malone v. Gardner, supra.
In Henwood v. Coburn, 8 Cir., 165 F.2d 418, 424, the trial court refused to give this instruction: "And you are also instructed that even if you should find and believe from the evidence that the flagman left the caboose in time to flag the passenger train, still if you further find that he returned to the caboose at a time when there was danger of a collision between the passenger train and freight train number 681, and if you find that conductor Coburn permitted him to return to the caboose and to remain in the caboose under such circumstances, and if you find that conductor Coburn was negligent in so permitting the flagman to return to the caboose and to remain in it, and that such negligence was the sole cause of the collision between the two trains, then you are instructed that the plaintiff is not entitled to recover and your verdict must be for the defendant." The Circuit Court of Appeals discussed the subject of sole cause at length and held that the trial court should have given this instruction or a restatement of it. Instruction five is not erroneous as a matter of law in the particular respects briefed and argued here and the trial court erred in granting the plaintiff a new trial upon the specification of error in the instruction. Accordingly the judgment is reversed and the cause remanded with directions to reinstate the verdict.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.