Opinion
NOTE: Opinion filed at September Term, 1935, April 23, 1936; motion for rehearing filed; motion overruled at September Term, 1936, November 12, 1936.
1. NEGLIGENCE: Submissible Case. Where plaintiff, an electrician, while repairing an electrical appliance for the receivers of a railway company in the yards of a terminal association, stepped from the vestibule step of a car, stumbled over a brake shoe in the pathway between the tracks, fell forward with his arms extended over an adjacent track and was injured by a passing train, whether the defendant terminal association negligently placed the brake shoe in the pathway, was for the jury.
The point that a trespasser or an employee of another railway company might have placed the brake shoe in the pathway was speculative, the brake shoe weighing twenty-five pounds.
2. NEGLIGENCE: Interstate Commerce. In an action by an electrician, serving the receivers of a railway company, for injuries received by the negligence of defendant terminal company, the Federal Employers' Liability Act did not apply.
An employee of a carrier, who is injured while on the premises of another carrier through the latter's negligence, even though engaged in interstate commerce, cannot recover against the latter company under the Federal Employers' Liability Act.
3. NEGLIGENCE: Evidence. In an action for injuries to plaintiff, an electrician, while serving the receivers of a railway company by stumbling over a brake shoe in a pathway between the tracks of the defendant terminal company, evidence offered by plaintiff to show that defendant's car cleaner placed the brake shoe in the pathway, was admissible where defendant had examined a prior witness with reference to the same matter.
4. TRIALS: Argument of Counsel. In an action for damages where the record indicates that the trial was a spirited contest over the facts, the plaintiff's counsel was not guilty of misconduct in his argument of the case.
5. EXCESSIVE VERDICT. Where both of plaintiff's arms were crushed below the elbow and he was thereafter helpless to earn a living, and suffered great pain, a verdict for $84,000 damages was excessive by $50,000.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.
AFFIRMED ( upon condition).
T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.
(1) The record contains no evidence that defendant, or its agents or servants, before the accident, placed the brake shoe in the pathway, or that defendant, or its agents or servants, knew it was there, or that it had been there for a sufficient length of time before the accident to charge defendant with notice and knowledge. Haggard v. McGrew Coal Co., 200 S.W. 1072; Manche v. St. Louis B. B. Co., 262 S.W. 1021; Bello v. Stuever, 44 S.W.2d 619; Blankenship v. St. L. Pub. Serv. Co., 71 S.W.2d 723; M.K. T. Ry. Co. v. Jones, 103 Tex. 187, 125 S.W. 309; Hawthorne v. Railroad Co., 84 S.W.2d 1015. (a) Plaintiff of his free will and accord, alighted from the steps of a car thirty-one inches above the ground, with his hands full of tools, and without gripping the handholds, when he knew a train was moving on the next adjacent track four or five feet distant and when he could have remained on the platform a few seconds until the train on track 6 had moved away; or plaintiff could have taken the pathway between the tracks around the cars to his place of work. Plaintiff assumed and placed himself in a position of extreme danger, which was neither furnished for the performance of his work nor well adapted thereto, resulting that his negligence was the sole and direct cause of his injuries, and knowing the above conditions, he assumed the risk. Atlantic C.L. Railroad Co. v. Davis, 279 U.S. 34, 49 Sup. Ct. 210, 73 L.Ed. 601; Holm v. Cities Serv. Trans. Co., 60 F.2d 721; Macchia v. Railroad Co., 156 A. 337; Papandrianos v. Railroad Co., 138 N.E. 547. (2) Employees, engaged in preparing or repairing an engine or car for a trip within the State to be presently used for carrying interstate packages or engaged in interstate transportation or work so closely related to it as to be practically a part of it. Cox v. Ry. Co., 76 S.W.2d 411; Central Railroad Co. of N.J. v. Sharkey, 259 F. 144; 2 Roberts, etc., p. 1468, sec. 764; Hines v. Logan, 269 F. 105; King v. Railroad Co., 176 N.C. 301, 97 S.E. 29, certiorari denied 249 U.S. 599, 39 Sup. Ct. 257, 63 L.Ed. 795; Libertucci v. Railroad Co., 252 N.Y. 182, 169 N.E. 132, affirming order 234 N.Y.S. 832, 226 A.D. 829; Moran v. Railroad Co., 109 Conn. 94, 145 A. 567; North Car Railroad Co. v. Zachery, 232 U.S. 248, 34 Sup. Ct. 305, 58 L.Ed. 591. (a) If the undisputed evidence, even though it is that of defendant, shows that both plaintiff and defendant were engaged in interstate transportation, at the time of plaintiff's injuries, the court must so find. B. O.S.W. Railroad Co. v. Burtch, 263 U.S. 540, 44 Sup. Ct. 165, 68 L.Ed. 433; Cox v. Ry. Co., 76 S.W.2d 414. (3) Plaintiff's counsel argued to the jury and asked them to put their condemnation upon the way this case has been defended by the defendant, and further saying, "I want to say that Mr. Davis can smile" — Defendant asked that he be reprimanded and that the jury be discharged, which the trial court refused to do. In this the court erred. Smith v. St. Louis Pub. Serv. Co., 84 S.W.2d 161; New York C. Railroad Co. v. Johnson, 279 U.S. 310, 49 Sup. Ct. 300, 73 L.Ed. 706. (4) The verdict is and was excessive. Moore v. Railroad Co., 268 Mo. 31, 186 S.W. 1035; Waldhier v. Railroad Co., 87 Mo. 37; Markey v. Railroad Co., 185 Mo. 348, 84 S.W. 61; Turnbow v. Rys. Co., 277 Mo. 644, 211 S.W. 41; Babin v. Sewerage Water Board, 2 La. App. 517.
Charles P. Noell for respondent; Wm. H. Allen of counsel.
(1) Since the railway yards in question were under the complete dominion and control of defendant, and defendant was furnishing terminal facilities to the receivers of the Wabash Railway Company and making repairs, such as the changing of brake shoes, upon the passenger cars of said receivers while they were in said yards, under contract with said receivers, and it was necessary for plaintiff, in the performance of his duties as an electrician in the employ of said receivers, to go on defendant's said premises and work thereupon, as a necessary incident to the carrying out of the contract between defendant and said receivers, as defendant well knew, defendant owed to plaintiff the same duty respecting the safety of said premises that it owed to its own employees working thereon, namely, the duty to exercise ordinary care — such care as was commensurate with the dangers reasonably to be anticipated and avoided — to constantly maintain such premises in reasonably safe condition for the performance of the said duties that plaintiff was so required to there perform. Burch v. Ry. Co., 328 Mo. 59; Rose v. Mo. Dist. Tel. Co., 328 Mo. 1009; Clark v. Ry. Co., 234 Mo. 420; Clark v. Union Iron Foundry Co., 234 Mo. 454; Ford v. Dickinson, 280 Mo. 206 Hutchinson v. Safety Gate Co., 247 Mo. 99; Ryan v. St. L. Transit Co., 190 Mo. 633; Jewell v. K.C. Bolt Nut Co., 245 Mo. 737; Kiehling v. Humes-Deal Co., 16 S.W.2d 641; Jetter v. St. J. Term. Ry. Co., 193 S.W. 956; Dunn v. Ry. Co., 192 Mo. App. 270; Ridenour v. Harvester Co., 205 S.W. 883; Tinkle v. Railroad Co., 212 Mo. 445; Northern v. Chesapeake Gulf Fisheries Co., 8 S.W.2d 982; Crawford v. Stock Yards Co., 215 Mo. 394; Von Treba v. Gas Light Co., 209 Mo. 648; Chandler v. Railroad Co., 251 Mo. 992; Young v. Waters-Pierce Oil Co., 185 Mo. 634; 45 C.J., pp. 819, 820, sec. 227. (a) Whenever a servant is engaged in work upon premises owned by and under the control of another, under a working arrangement between the latter and the servant's master, and the servant is injured by reason of an unsafe condition negligently suffered to exist upon said premises, such owner in control of said premises is liable to the servant to the same extent as though the latter were his own employee. Burch v. Ry. Co., 328 Mo. 59; Rose v. Mo. Dist. Tel. Co., 328 Mo. 1009; Clark v. Ry. Co., 234 Mo. 420; Clark v. Union Iron Foundry Co., 234 Mo. 454; Ford v. Dickinson, 280 Mo. 206; Hutchinson v. Safety Gate Co., 247 Mo. 99; Ryan v. St. L. Transit Co., 190 Mo. 633; Jewell v. K.C. Bolt Nut Co., 245 Mo. 737; Kiehling v. Humes-Deal Co., 16 S.W.2d 641. (b) It is the nondelegable duty of a master — or of one who is required to exercise the same degree of care for the protection of the servants of others upon his premises as though they were his own servants — to exercise ordinary care to furnish the servant a reasonably safe place to work and to keep such working place safe. Such duty is an affirmative, continuing one, which must be constantly fulfilled and positively performed, and involves the continuing duty to exercise such supervision over said premises and to make such inspection thereof as will be effectual to protect the servant against dangers that may arise in such working place. What will constitute ordinary care in this regard is dependent upon the character of the working place, and is commensurate with the dangers reasonably to be anticipated and avoided. Hayes v. Sheffield Ice Co., 282 Mo. 446; Kemper v. Gluck, 327 Mo. 746; Burch v. Ry. Co., 328 Mo. 59; Vordermark v. Hill-Behan Lbr. Co., 12 S.W.2d 502; Doyle v. Ry. Co., 326 Mo. 425; Laughlin v. Ry. Co., 275 Mo. 466; Hicks v. Railroad Co., 226 Mo. App. 364; Jablonowski v. Modern Cap Co., 312 Mo. 173; Lock v. Railroad Co., 281 Mo. 540; Bodenmueller v. Columbia Box Co., 237 Mo. 881; White v. Montgomery-Ward Co., 191 Mo. App. 271; Van Verth v. Loose-Wiles Co., 155 Mo. App. 299; Johnson v. Bolt Nut. Co., 172 Mo. App. 214; Smith v. So. Ill. Mo. Bridge Co., 326 Mo. 116; Northern v. Chesapeake Gulf Fisheries Co., 8 S.W.2d 991; Bone v. Fruin-Colnon Contr. Co., 191 S.W. 1062; Brown v. Ry. Co., 227 S.W. 1069; Tash v. Ry. Co., 76 S.W.2d 697. (c) Not only was this brake shoe, over which plaintiff stumbled and fell, lying in the pathway between tracks 6 and 7, immediately in front of the car steps that plaintiff descended, but under all the evidence, including that warranting the inference that the brake shoe had lain at that place long enough to make a distinct imprint in the hard cinder pathway between the tracks, the jury was warranted in inferring that the brake shoe had been in that very position for ample time to have enabled the defendant, by the exercise of due care on its part, to have discovered its presence and removed it. In view of the dangers to workmen to be apprehended from the presence of obstructions of this character at such a place, the law required the defendant to exercise the utmost vigilance to keep the place free therefrom, and the utmost promptness in removing any that might be left there. Vordermark v. Hill-Behan Lbr. Co., 12 S.W.2d 503; Laughlin v. Ry. Co., 275 Mo. 466; Van Verth v. Cracker Candy Co., 155 Mo. App. 299; Reese v. Biscuit Co., 224 S.W. 63; Burch v. Ry. Co., 328 Mo. 59; Jablonowski v. Modern Cap Co., 312 Mo. 173; Bone v. Fruin-Colnon Contr. Co., 191 S.W. 1062; Johnson v. Bolt Nut Co., 172 Mo. App. 218; Tash v. Ry. Co., 76 S.W.2d 697. (2) Nor was there any error committed in connection with the testimony of plaintiff's witness Hammerschmidt in regard to what he saw the colored cleaner, Harvey, do with the brake shoe. Hammerschmidt was not permitted to state anything that Harvey said, as to where the latter found the shoe or otherwise. There could have been no error in merely permitting Hammerschmidt to testify that he observed Harvey place the brake shoe on the ground a short distance in front of the step of car 591, and it is certain that defendant cannot complain thereof, for defendant invited it, by previously bringing out from the witness Hummell on cross-examination the fact that Harvey was seen to move this shoe out and place it where both Hummell and Hammerschmidt saw it. Clark v. Crandall, 319 Mo. 96; Reed v. Koch, 220 Mo. App. 186; Terry v. Woodmen Acc. Co., 225 Mo. App. 1228; Snyder v. Am. Car Fdry. Co., 14 S.W.2d 603; Keyes v. Railroad Co., 326 Mo. 263; Siberell v. Ry. Co., 9 S.W.2d 912; Peterman v. Crowley, 226 S.W. 944; Kirby v. Coal Coke Co., 127 Mo. App. 588. (3) The remarks of plaintiff's counsel complained of were obviously not of such character as to require serious consideration. But, in any event, a reading of the record readily discloses that such remarks were invited and brought on by the manner in which the case was tried throughout by defendant's learned counsel, including the making of opprobrious remarks concerning plaintiff's counsel for which there was no justification. There was nothing in the argument of plaintiff's counsel of which defendant may justly complain. Turnbow v. Rys. Co., 277 Mo. 644; Sullivan v. Ry. Co., 12 S.W.2d 735; Hutchcraft v. Laclede Gas Light Co., 282 S.W. 38. (4) Nor can we agree with appellant's contentions as to the amount of damages properly recoverable in this case. Appellant says that the verdict is a most extraordinary one in amount, but in view of the fact that plaintiff, a young man 30 years of age when injured, was a skilled electrician, earning $200 a month, and had doubtless not reached the zenith of his earning power, suffered the loss of both of his arms immediately below the elbows, so as to make it impossible to use artificial arms, not only depriving him wholly of earning power, but rendering him pitifully maimed and utterly helpless, unable to feed or dress himself or care for his personal needs in any way, the case is one calling for a most extraordinary award of damages. No amount of money can compensate plaintiff for what he has lost by reason of his injuries. He is entitled to a much greater award than one who has lost both legs. Span v. Coal Mining Co., 322 Mo. 188; Toledo C. O. Railroad Co. v. Miller, 108 Ohio St. 388, 140 N.E. 617; McKeon v. Railroad Co., 100 N.J.L. 258, 127 A. 34.
Action for personal injuries. Plaintiff was injured at eight-forty P.M. while serving the receivers of the Wabash Railway Company as an electrician in the yard of defendant Terminal Railroad Association at St. Louis. It was his duty to repair the electrical appliances of the receiver's passenger cars in said yard. In the performance of said duty he stepped from the vestibule step of a car and stumbled forward to the ground with his arms extended over the rail of an adjacent track. The train moving on said track crushed his arms. Judgment for $84,000.
The petition alleged: (1) That defendant negligently placed in the pathway between the tracks a metal brake shoe on which plaintiff stepped, stumbled and fell; (2) that it negligently permitted said shoe to remain in the pathway when it knew, or, by the exercise of ordinary care could have known, that it was in the pathway in time to have removed same and thereby avoided the injury; (3) that it knew, or, by the exercise of ordinary care, could have known that the shoe was in the pathway in time to have warned plaintiff and thereby avoided the injury.
The answer was a general denial with pleas of contributory negligence and assumption of risk. The reply was a general denial.
The third assignment of negligence was abandoned and the jury was instructed that if defendant placed and permitted the shoe in the pathway, the verdict should be for plaintiff. However, during the argument by defendant's attorney he said:
"It is his duty under his own instruction or the instruction of the Court to prove that the Terminal Railroad Association, or some of its agents or employees, put that there, and it is his duty to prove it was there a sufficient length of time for us to have discovered it. Now, has he done that? Won't you have to resort to speculation, guess and conjecture, or won't you have to do so to resolve either one of these facts in his favor. Won't you have to do so? What are you going to say when you get up to your jury room? Well, how long was that there?
"BY MR. NOELL (attorney for plaintiff): Now, if Your Honor please, I have refrained from interrupting, but that is not in the case — how long was it there. I ask you to caution the jury to disregard it, because under the instructions that is not in issue — how long it was there.
"BY MR. DAVIS (attorney for defendant): Now then, gentlemen, the only thing you have to determine is whether or not we negligently placed it there or not."
Thus it appears that during said argument the plaintiff abandoned the assignment of negligence that defendant permitted the shoe to remain in the pathway. Thereafter the arguments were directed solely to whether or not defendant placed the shoe in the pathway, and the case was submitted to the jury on that theory.
I. It is contended that there was no evidence tending to support this theory, and for that reason the court should have directed a verdict for defendant.
There was evidence tending to show the following: In stepping from the lower step of the car he was repairing, plaintiff stepped on a brake shoe in the pathway between the tracks, which caused him to fall forward and to the ground with his arms extended over the rail of an adjacent track. As stated, the train moving on said track crushed his arms. There is no direct evidence tending to show that defendant placed the shoe in the pathway. From this it is argued that the court should have directed a verdict for defendant. But defendant had control of the brake shoes in the yard. It serviced the cars by removing old brake shoes and replacing them with new shoes. In performing this work new shoes were placed next to the rail and out of the pathway that they might be accessible for use. Furthermore, the old shoes when removed were placed next to the rail and out of the pathway. Each afternoon defendant's employees removed the old shoes and deposited them in a receptacle kept in the yard for that purpose. Plaintiff stepped on an old brake shoe. We think it might reasonably be inferred that on this occasion defendant's employee or employees neglected to place this shoe next to the rail and out of the pathway. It is argued that the shoe might have been placed in the pathway by a trespasser or an employee of another railroad. We think this is mere speculation. It is not suggested why a trespasser or an employee of another railroad in going about the yard would have in his possession a twenty-five pound brake shoe. Furthermore, it is not probable that a trespasser or an employee of another railroad would, in passing through the yard, remove or kick a twenty-five pound brake shoe from next to the rail and into the pathway. It is not as if plaintiff stepped on a small bolt or stick that might have been carried about in the yard by a trespasser or employee of another railroad and dropped in the pathway. [Defendant cites Bello v. Stuever, 44 S.W.2d 619, and Carnahan v. M.K. T. Railroad Co., 338 Mo. 23, 88 S.W.2d 1027.] Those cases are distinguishable on the facts.
In this connection defendant contends that the court erroneously instructed the jury to return a verdict for plaintiff if an employee of defendant placed and permitted the brake shoe in the pathway. It argues that there was no evidence tending to support such issues. As stated, plaintiff abandoned the issue of permitting the shoe in the pathway, and on reviewing the ruling of the trial court on the demurrer we have ruled that there was substantial evidence tending to show that an employee of defendant placed the shoe in the pathway.
It also argues that the instruction should have required a finding that an employee, acting within the scope of his employment, placed the shoe in the pathway. The jury could not have understood the instruction to authorize a recovery if the shoe was placed in the pathway by an employee acting beyond the scope of his authority. If so, the error, if any, was not prejudicial.
II. Defendant also contends that the court erred in refusing testimony tending to show that Wabash passenger train No. 3, which left St. Louis for Kansas City at nine three A.M. the next day, carried interstate mail and express.
The testimony was offered upon the theory that if plaintiff was repairing a car that was about to be used in interstate commerce, he could not recover under the common law. Absent the relation of employer and employee, there can be no recovery under the Federal Employers' Liability Act. An employee of a carrier who is injured while on the premises of another carrier, through the latter's negligence, even though he be employed in interstate commerce, cannot maintain an action against the latter carrier under the Federal Employers' Liability Act for the reason that he is not an employee of such carrier. [Hull v. Philadelphia R. Ry. Co., 252 U.S. 475; Chicago Alton Ry. Co. v. Wagner, 239 U.S. 452.] Even so, it is argued that the Wabash, in using the yard, is defendant's lessee within the meaning of Section 4690, Revised Statutes 1929, and that defendant under said section is liable to the Wabash employees for negligence, and for that reason the action should have been brought under the Federal Employers' Liability Act. Under said section defendant might be liable for the negligence of the Wabash. But in this case the negligence of the Wabash is not an issue. [Defendant cites North Carolina Railroad Co. v. Zachary, 232 U.S. 248.] In that case the lessor was charged with the negligence of the lessee. It was ruled that under the local law the lessee was an agent of the lessor, and the lessee and its injured employee having been at the time engaged in interstate commerce, an action under the Federal Employers' Liability Act could be maintained against the lessor. The case is without application.
III. Defendant also contends that the court erred in the admission of certain testimony. At the trial it was the theory of plaintiff that defendant's car cleaner was the first person at the scene of the casualty and that he removed the brake shoe from the pathway and placed it underneath the car steps. Thereafter some of plaintiff's witnesses arrived at the scene. Thereupon the car cleaner removed the brake shoe from underneath the car step and placed it in the pathway where he claimed to have found it immediately after the casualty. The court permitted plaintiff's witness to testify that when he arrived at the scene he saw the car cleaner take the shoe from underneath the step of the car and place it in the pathway where he claimed to have found it. Defendant is in no position to complain of this testimony, for it examined a prior witness with reference to the identical matter.
IV. Defendant also contends that plaintiff's counsel was guilty of misconduct in the argument of the case, and for that reason the court should have ordered a mistrial. The record indicates that the trial was a spirited contest. However, we do not think that the rights of defendant were prejudiced by the argument.
V. Defendant also contends that the verdict is excessive. At the time plaintiff was thirty years of age, with an expectancy of thirty-three years, and earning $200 a month. He is unable to use artificial arms, for his arms were crushed just below the elbow. He must have experienced great pain. Furthermore, he is helpless and his earning ability is destroyed. In a similar case we sustained a judgment for $25,000. [Moore v. Railroad, 268 Mo. 31, 186 S.W. 1035.] In that case plaintiff "lost both hands, and one of his legs was broken and so injured that it is two and one-half inches shorter than the other, and its use is much impaired otherwise." Of course, no sum of money would compensate plaintiff. In this situation the question must be determined by precedent. In view of decisions of this court in cases where the injury rendered the person helpless, we think that the judgment is excessive by $50,000. If, therefore, plaintiff will within ten days remit the sum of $50,000 of this judgment as of the date thereof, the judgment will be affirmed for $34,000 as of the date of the original judgment; otherwise the judgment is reversed and the cause remanded. All concur.