Opinion · Molaw Missouri
SIMON v. TERMINAL R. ASS'N OF ST. LOUIS, 237 S.W.2d 244 (Mo.App.St.L. 1951)
237 S.W.2d 244
- Type
- Opinion
- Court
- Molaw Missouri
- Jurisdiction
- Molaw
- Date
- 1951-02-20
- Topic
- general
SIMON v. TERMINAL R. ASS'N OF ST. LOUIS, 237 S.W.2d 244 (Mo.App.St.L. 1951) SIMON v. TERMINAL R.
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SIMON v. TERMINAL R. ASS'N OF ST. LOUIS,237 S.W.2d 244(Mo.App.St.L. 1951)
SIMON v. TERMINAL R. ASS'N OF ST. LOUIS.
No. 28037.
St. Louis Court of Appeals,
Missouri.
February 20, 1951.
William C. Barnett, St. Louis, for respondent.
[2] At the time of the injury the gang was lifting a railroad rail. Plaintiff claims that the other members of the gang permitted the weight of the rail to be shifted and thrown on him, causing back injuries, and charged defendant with negligence "in that it was defendant's duty to have its foreman or some other person designated to give the orders so that the gang might work in unison and lift, carry and lower the rail properly and thus prevent undue amount of weight being thrown on plaintiff. Defendant failed to have its foreman or other person give such orders, and because of such failure the weight of the rail was caused to be thrown on plaintiff."
[3] Plaintiff's theory of the case is clearly indicated in his Instruction No. 1 which was given to the jury in the following form: "You are instructed that if you find and believe from the evidence that on September 9, 1948, while plaintiff and defendant were engaged in interstate commerce in defendant's railroad yards known as Wiggins No. 2 in East St. Louis, Illinois, plaintiff in the course and scope of his employment by defendant was working with the other members of defendant's extra gang lifting a rail with tie tongs or `dogs', that said rail was lying on the end of the ties on the east side of a track under the overhang of freight cars standing on said track, that said rail was being handled by twelve men working in pairs with six men on each side thereof, that plaintiff was working on the west side of said rail and it was necessary for him to work under the overhang of one of said freight cars and to lift in a stooped and crouched position, that it was the duty of defendant to have a foreman or designate someone to call the orders so that the gang might lift and work in unison, and that defendant failed to have a foreman or designate any one to call such orders, then you may find defendant guilty of negligence, and if you further find and believe from the evidence that such negligence, if any, either in whole or in part, caused some or all of the other men in said gang to raise said rail in such a manner that an undue amount of weight was thrown on plaintiff, and that as a direct result thereof, if you so find, plaintiff was injured, then your verdict must be for plaintiff and against defendant."
[4] Following a verdict for plaintiff for $3,000 and the overruling of defendant's motion to set aside the verdict and judgment and enter judgment in accordance with its motion for a directed verdict and for judgment notwithstanding the verdict, this appeal followed.
[5] The sole question is whether plaintiff made a submissible case. In determiningPage 246this question plaintiff is entitled to have the record facts and every reasonable inference to be drawn therefrom considered in the light most favorable to plaintiff, Kirkpatrick v. Wabash R. Co., 357 Mo. 1246,212 S.W.2d 764; Dixon v. Wabash R. Co., Mo.App., 198 S.W.2d 395, and we will not interfere with the verdict of the jury if there was substantial evidence to support the verdict or if reasonable inferences in support of the verdict may be drawn from substantial evidence to be found in the record.
[6] The facts, stated in the light most favorable to the plaintiff, are that the labor gang of which plaintiff was a member was lifting and carrying rails which were 39 feet long and which weighed 110 pounds to the yard, or a total of 1430 pounds. On September 9th the gang worked all morning, handling rails. "Straw boss" Eddie McGlown, who was assistant foreman on the job, was present. The foreman, John Bova, was "up at the north end of the track," apparently away from the immediate scene of the operations.
[7] In the afternoon shortly after 12:30 the gang went back to work and was engaged in lifting and carrying rails from one track to another, a distance of 6 or 8 feet. The modus operandi was as follows: The gang worked in pairs, with 6 men on each side of a rail, spaced 1 1/2 to 2 feet apart. Each pair of men was equipped with an appliance called "tongs" or "dogs" weighing 10 or 12 pounds. They have inch-thick solid iron handles and are designed to grab a rail. A grab iron on the dog hook over the ball of the rail. When the dogs are opened their grab irons hook over the ball of the rail, when closed the grab irons take hold of the rail, and by effort of the workers the rail is thereby lifted and carried to its position, where it is laid down and the dogs detached.
[8] When the straw boss was present he would give the men certain signals in order to co-ordinate their work. He would tell the men "Get your dogs ready" or "All right boys, get ready, I am going to call it"; then he would say, "Bow down" and they would bow down, stooping over; then he would say, "Put your dogs under" or "Hook on". After he saw that all of the men had the dogs "under" he would say "Raise", or "Up", whereupon the men would lift in unison. When they reached the new resting place for the rail the straw boss would give the signal "Sit down".
[9] After lunch the crew moved a couple of rails with Eddie McGlown, the straw boss, in charge and giving the signals. Then McGlown left, presumably to get a barrel stave, which is used to space the expansion joints between the rail ends. Bova was not present. Before McGlown left, he did not designate anyone in the gang to call the signals while he was gone, nor was there a "lead man", who calls when the straw boss is not present.
[10] Plaintiff was working on the west side of the rail, he and his immediate co-worker, Andrew Mike, constituting the third pair from the south end and the fourth pair from the north end. The rail which was being lifted at the time of the alleged casualty was lying on the east end of the cross ties, parallel to the track, even with the end of the ties, and under the overhang of a boxcar which was at rest on the tracks. The rail was east of the boxcar and east of the east rail of the tracks. The ties extended 1 1/2 feet beyond the rails and the boxcar hung over the rails the same distance. The floor of the boxcar was approximately 3 feet above the level of the track. This made it necessary for the six men on the west side of the rail to stoop or crouch down under the bottom of the floor of the boxcar, whereas the men on the east side of the rail were able to stand up straight. As plaintiff started to handle the rail he was "in a crouch", bent over, with his back against or near the bottom of the boxcar. The grab irons were hooked and all was ready for the lifting operation on the next rail.
[11] While both McGlown, the straw boss, and Bova, the foreman, were gone and immediately before the rail was picked up, some member of the crew whose identity was unknown to plaintiff hollered "pick up" and in obedience to those words all of the men on both sides, six on the east andPage 247six on the west side of the rail, started to pick it up. The men on the east side raised up with the rail, which threw some but not all of the weight on plaintiff, who went down in a crouch with his hands or elbows on his knees. His back "popped" when they picked up the rail. He felt it "pop" when he started to pick it up. When one's back is injured by the movement of the rail without being notified, he is said to have "snatched his back." The rail was lifted about 6 inches off the ground, the men on the east side had stepped back, the rail was moved about 6 inches toward the east, plaintiff hadn't started to walk, and thereupon plaintiff said "Set it down men, I hurt my back" and the rail was then let down onto the ground.
[12] Neither plaintiff nor any of his fellow workers slipped, stumbled, fell or turned loose of the rail. Plaintiff didn't turn loose of the handle completely. Plaintiff's tongs remained attached to the rail. Between the time the rail was picked up and set down the fellow on the other side "jerked up the rail."
[13] According to plaintiff's witness William Gray, there were only six men lifting the rail, three on each side. Gray further testified that if a person is going to do the calling, it is necessary that he "call everything".
[14] Defendant argues that there was no evidence that the proximate cause of plaintiff's injury was defendant's failure to have a foreman or some other specially designated person to call the signals; that since the signals were actually given by some member of the crew, and since the men timely co-ordinated their efforts as a result of this signal, the purpose of having someone designated to give the signals (co-ordination of effort) was accomplished, and it makes no difference that the person who gave them was not specially designated by defendant.
[15] Defendant further claims that there is no evidence which tends to establish that the injury would have been averted if someone had been designated to give the signals.
[16] The facts developed give rise to a legal duty owed by defendant to plaintiff and other workers to specially designate a certain person to call signals in order that the gang might lift and work in unison, the violation of which duty would constitute negligence. Defendant should be held to anticipate and foresee that such a violation might result in the giving of the signals by an unauthorized person in such a manner as to cause confusion, or to prevent co-ordination of lifting efforts, or to be given at a time when the workmen, or some of them, are not ready to respond, as a result of which some of the employees might be prostrated with unbearable loads, resulting in injuries.
[17] There is no allegation in the petition, however, nor is there any evidence in the case, direct or inferential, to support the idea that the giving of the order by an unauthorized person resulted in a state of confusion, viz., that plaintiff or any of his co-workers was notpreparedfor the signal or was taken by surprise or caught "napping" when the unauthorized order was given, or was either earlier or later than usual in applying his part of the uplift, or did not have time to adjust himself to a position to assume his proportion of the burden of the weight of the rail, or failed to hear or to respond timely to the order issued by the unidentified employee.
[18] While we do find proof of negligence in the record, namely, that the defendant's supervisory agents failed to designate anyone specially to call the signals during the absence of the straw boss, we do not find that the negligence alleged and proved bears any causal relation to the injury alleged to have been sustained. In the absence of such proof, the action of the plaintiff must necessarily fail.
[19] As stated by Justice Stone in Atchison, Topeka Santa Fe R. Co. v. Toops,281 U.S. 351at page 354, 50 S.Ct. 281 at page 282, 74 L.Ed. 896: "But proof of negligence alone does not entitle the plaintiff to recover under the Federal Employers' Liability Act [45 U.S.C.A. § 51 et seq.] The negligence complained of must be the cause of the injury. The jury may not be permitted to speculate as to its cause, and the case must be withdrawn from itsPage 248consideration, unless there is evidence from which the inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer."
[20] See St. Louis-San Francisco R. Co. v. Mills,271 U.S. 344, 46 S.Ct. 520, 70 L.Ed. 979; Deere v. Southern Pac. Co., 9 Cir.,123 F.2d 438; Tishar v. Nicodemus, D.C., 49 F.Supp. 145; Fitzgerald v. Pennsylvania Railroad, 121 Pa.Super. 461, 184 A. 299.
[21] From the record it appears that there was nothing irregular or improper in the manner in which the signal was called. The signal was given in the normal, customary and conventional method; the response of the employees was the normal and customary reaction; all of the men started to pick up the rail. Plaintiff testified as follows in this connection:
[22] "Q. In obedience to him saying `Pick it up' all of you men started to pick it up with the dogs? A. Yes, sir.
[23] "Q. That's right? A. Yes, sir.
[24] "Q. That is the six men on your side and the six men on the opposite side of the rail? A. Yes, sir."
[25] Plaintiff failed to show that there was anything unusual or out of the ordinary either in the giving of the signal itself, or in the lifting process, until the men on the opposite side of the plaintiff "goes up with the rail" — "raised up" — "jerked up the rail."
[26] If the jerking or raising of the rail on the east side higher or faster than it was being raised on the west touches the quick of the matter of causation, and if we properly can infer that plaintiff was injured thereby without engaging in speculation, guess and conjecture (for there is no evidence to show why or how onlyoneman out of six on the west side received an undue amount of the weight), we nevertheless cannot say that the jerking movement is causally connected with the fact that X, rather than McGlown, issued the order to "Pick up." There is nothing in the evidence to show that the same thing would not have happened if McGlown had said the words. There is nothing in the evidence to show that "but for" the failure to designate a signal giver the jerking motion would not have happened. As stated in appellant's brief "* * * it would have occurred exactly as it did, even though the person who gave the signal had been specially designated so to do by defendant. The special designation vel non had nothing whatever to do with producing the injury. In fact, as the evidence discloses, it would not have made any difference who gave the signals, whether A, B or C. Absent negligence in the manner of giving the signal, as here, it could not possibly make any difference whether one individual gave the signal or whether another gave it. If A says `lift' it will have the same effect upon C as if B says `lift'. Moreover, if C does the same thing when A says `lift' that he does when B says `lift', it cannot possibly make any difference who says `lift'."
[27] Applying the test, whether the facts show that the injury would not have occurred in the absence of the negligent act, Dixon v. Wabash R. Co., supra; Rose v. Thompson, 346 Mo. 395,141 S.W.2d 824; Giles v. Moundridge Milling Co., 351 Mo. 568,173 S.W.2d 745, we think it is obvious that there is a failure to prove any causal connection between the alleged negligent act and the eventuality.
[28] The case on which plaintiff relies on the question of proximate cause, O'Connell v. Missouri Pac. R. Co., 149 Mo.App. 501, 131 S.W. 117, is not comparable on the facts. In that case a train under the supervision of a yard crew was backing in the defendant's yards. It became necessary to stop the train because of mechanical trouble. The pilot of the train, who had been located on the rear car as it proceeded backwards, left his post of duty and walked to the engine when the train was stopped. The engineer and fireman were underneath the cars attempting to repair the trouble. While the pilot was walking back to his post of duty another train ran into the rear end of the train, causing the death of one of the employees and injuries to another. Defendant contended that the negligence of the pilot was not the proximate cause of the collision; that it would have occurred even though the pilot had remained at his post and signaled the other train to stop.Page 249The evidence, however, did not bear out this contention but rather showed that the pilot could have attracted the attention of the brakeman or of the man in the watch tower either by using his lantern or hallooing, and that if the engineer had begun his effort to stop earlier than he did, the collision would not have occurred.
[29] A case much more in point is that of Coble v. St. Louis-San Francisco Ry. Co., Mo.Sup., 38 S.W.2d 1031. In that case a section hand was engaged in unloading railroad ties. A fellow servant leaned against a stack of ties and another lifted his end of the tie before the plaintiff was ready to lift; other ties rolled from the stack and plaintiff was injured when suddenly and unexpectedly precipitated backward and compelled to support the weight of the heavy tie. The evidence did not indicate how or why raising one end of the tie before or higher than the other end could cause the ties to commence to roll and fall, nor was there any evidence that the other employee leaned against the stack with such force as to cause the ties to roll down. The court held that the plaintiff failed to make a case and pointed out that the test of whether there is a causal connection between the negligent act and the injury is that the facts show that, absent the negligent act, the injury would not have occurred.
[30] Plaintiff did not make a submissible case because he failed to adduce substantial evidence proving, or from which it can reasonably be inferred, that the negligence alleged was the proximate cause of the injury sustained, and the circuit court should have sustained defendant's motion for a directed verdict at the close of the evidence. The judgment of the circuit court therefore should be reversed, and the Commissioner so recommends.
[33] The judgment of the circuit court is, accordingly, reversed.
[34] ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.Page 491