Opinion
No. 28552.
April 21, 1953. Rehearing Denied May 15, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Warner Fuller and Arnot L. Sheppard, both of St. Louis, for appellant.
Mark D. Eagleton and Carl R. Gaertner, both of St. Louis, John H. Martin, St. Louis, of counsel, for respondent.
Action for damages under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. Section 51 et seq., to recover for personal injuries sustained by plaintiff (respondent) while employed by defendant (appellant). A jury trial resulted in a verdict for plaintiff in the sum of $5,500. From the ensuing judgment defendant has duly appealed.
At the time of his injury on May 19, 1945, plaintiff was 17 years of age and had been working for defendant about four days as a mail and baggage handler in the St. Louis Union Station. His duties were to assist in transferring mail from one train to another and to unload mail to be taken to the St. Louis Post Office and to load St. Louis mail upon outgoing trains. In doing this work he and his associates transported the mail on "bull wagons". These wagons are three or four feet wide and about 16 feet long. They have a tongue in front and a coupling device on the rear so that more than one wagon can be coupled together and pulled by a tractor. The platform of the bull wagon is three feet from the ground and there is a metal framework enclosing this platform which is three feet high. The coupler consists of two prongs, the top one being 23 inches and the lower 18 inches from the ground.
A subway was maintained under the train shed which was frequently used by plaintiff and his associates in transporting the mail. Access to and from this subway was by means of elevators. The elevator platforms are 18 feet, six inches long, and five feet wide. As the elevator descends from the station platform into the subway a guard rail automatically arises around the outside of the elevator shaft. The usual method of starting the elevator to descend is to pull a chain located on the west side of the elevator platform. It is against the rules of the defendant for a person in the subway to open the valve and cause the elevator to descend from the platform level. It appears, however, that this rule is frequently violated.
Plaintiff testified that on the day of his injury he had transferred registered mail from a train to a bull wagon and was instructed to take this wagon to another train and load the mail thereon. He was accompanied by a postal clerk who pushed the bull wagon while plaintiff pulled it. Plaintiff stated that no other employee of defendant was with them, although the defendant presented evidence that William Probst, who died prior to the date of the trial, was assisting with this transfer. The wagon was placed on an elevator and while plaintiff and the postal clerk were attempting to get it straight so that it would not catch on the side of the shaft as it went down, the elevator started to descend. Plaintiff stated that at this time the postal clerk was at the southwest corner of the wagon about eight feet from the chain, the pulling of which would have caused the elevator to go down; that no one was near that chain; that when the elevator started down plaintiff was on the southeast corner of it with his left foot on the elevator platform and his right foot on the passenger platform. Plaintiff's version of the occurrence was that, "the elevator just suddenly started down * * * seemed to be going fairly fast, or faster than usual. I was off balance and fell over toward the elevator and I grabbed hold of the back gate of this bull wagon and jerked myself up to clear the fence with my right foot. * * * After I cleared the fence and started to come down to the floor of the elevator my leg struck the coupler upon the back of the bull wagon." This contact with the coupler caused an injury to the inner aspect of his upper left leg just below the knee. He sustained a deep ragged laceration about six inches long. An operation was performed at the Missouri Pacific Hospital and the leg was placed in a cast extending from the hip to the ankle. Three weeks later he was discharged from the hospital, but used crutches for two weeks and a cane for some time thereafter. He returned to the hospital for examination and treatment until July and at the end of September his leg was strong enough for him to attempt to work.
Defendant presented the testimony of a mail clerk on the nearby train from which this load had been taken. He related that he had seen a hand pull the chain on the elevator causing it to descend. He could not see the remainder of the body of the person who did it; that after the elevator platform had gone down about four feet one of the men "jumped from someplace on to the elevator over the gate that was rising"; that within 10 minutes thereafter he learned that there had been an accident on that particular elevator. The foreman of the mail and baggage department also testified for defendant to the effect that plaintiff told him shortly after the accident that he had pulled the chain and jumped on the elevator after it had started down.
Plaintiff was called into the army in January, 1946, where he served, principally as a truck driver, for about 34 months. He was recalled in October, 1950, and served in the same capacity for an additional 10 months.
Plaintiff pleaded general negligence alleging that an elevator in the exclusive control, possession and management of the defendant suddenly and in an unusual manner began to descend, causing plaintiff to fall and injure himself.
Defendant's answer denied all negligence and pleaded that plaintiff was guilty of contributory negligence in jumping over the ascending elevator gate or guard and striking the coupling device at the rear of the bull wagon.
At the outset defendant contends that the res ipsa loquitur doctrine has no application in this case and that it was error to submit the case to the jury upon that theory. To support this contention it is urged that there is no evidence that the descent of the elevator was unusual or abnormal; that it is never unusual for an elevator to merely ascend or descend.
We are unable to agree with the defendant upon this point. While plaintiff's testimony was somewhat weakened upon cross-examination, we believe his evidence was sufficient to authorize the jury in finding that the descent was faster than usual. It appears further from plaintiff's testimony that the elevator started without any warning being given and that no one in the area engaged the mechanism that would have started it. The fact that the movement was unexpected would have caused it to be unusual insofar as plaintiff was concerned. The rule has been held applicable in cases where machinery has started unexpectedly and to the unexplained fall of an elevator. Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Ash v. Woodward Tiernan Printing Co., Mo.Sup., 199 S.W. 994; Meade v. Mo. Water Steam Supply Co., 318 Mo. 350, 300 S.W. 515.
The essential requirements of the res ipsa loquitur doctrine are that, "(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence." McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641. The Terminal next asserts that there is no evidence that defendant's knowledge or ability to acquire knowledge of the facts relating to the descent of the elevator at this particular moment was superior to that of plaintiff. In this connection defendant cites Klebe v. Parker Distilling Co., 207 Mo. 480, 105 S.W. 1057, 13 L.R.A., N.S., 140, and Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 425. The facts in these cases clearly distinguish them from the instant case and they are not applicable here. It should be noted that in this case the plaintiff was only 17 years of age and had worked on this job but four days. He had no duty in connection with the elevators except to use them. It was shown that defendant maintained a crew of skilled employees to repair and service these elevators, which included an inspection every two hours. Certainly under these circumstances we must conclude that defendant possessed superior knowledge or means of information as to the cause of the occurrence. Jones v. Terminal Railroad Ass'n, Mo.Sup., 242 S.W.2d 473.
It is further argued by defendant that the plaintiff was not entitled to a res ipsa loquitur submission because he failed to prove that the descent of the elevator did not result from the intentional act of someone. This same contention was made by the defendant in the case of Jones v. Terminal Railroad Ass'n, supra, which involved similar facts. The same cases were relied upon there as are cited in defendant's brief in this case. The Supreme Court ruled adversely to the defendant upon this point and we consider that decision as determinative of the issue here. In this connection it would seem appropriate to mention that it is now well settled in this state that under the proper circumstances the res ipsa loquitur doctrine will be applied in master and servant cases. See Gordon v. Muehling Packing Co., supra, and cases reviewed therein.
The defendant vigorously contends that the enactment of the "Civil Code of Missouri" had the effect of practically destroying the res ipsa loquitur rule. Section 506.010 et seq. RSMo 1949, V.A.M.S. It is urged that the sole reason for the existence of the doctrine is that in certain cases it was impractical for plaintiff to know or ascertain sufficient facts in order to plead and prove the specific negligence of the defendant; that under the provisions of the new code a plaintiff may file interrogatories and require a defendant to divulge the names of witnesses and practically all other data pertinent to the issues and may further compel the production of records in the taking of depositions as well as exercising the right to visit the scene of the casualty and take measurements, photographs and do most anything he desires in order to get information for the preparation of his case. In this way, defendant submits, a plaintiff's knowledge becomes equal if not superior to that of a defendant. Therefore, since the reason and necessity for the doctrine has ceased to exist it should no longer be applied and a plaintiff should be required to plead and prove specific negligence in every case.
This is the first case in which we have known of this argument being specifically advanced. It presents an interesting question, but we have decided that we cannot give serious consideration to the same. It is our view that if we should adopt this contention of the defendant, such a decision would, inferentially at least, be contrary to most of the decisions of the Supreme Court in which it has held the doctrine applicable since the effective date of the Act in question. Under Article V, § 2 of the Constitution, V.A.M.S., we are required to follow the controlling decisions of that court.
We have concluded that the evidence presented by plaintiff in this case discloses a factual situation which is sufficient to comply with all of the essential requirements for the application of the res ipsa loquitur doctrine and the cause was properly submitted to the jury upon that theory.
At plaintiff's request, the court gave instruction No. 2, which told the jury, in part, that its verdict could be for the plaintiff if it found that the elevator "suddenly began to descend in an unusual manner * * * and that as a direct result of the said sudden and unusual movement" plaintiff was hurt. Defendant urges that this instruction was erroneous because there was no evidence that the descent of the elevator was either sudden or unusual. With this we cannot agree. There is evidence that the descent was faster than usual and that it was unexpected in that it began without any warning and at a time when no one on or near the elevator pulled the chain to start the downward movement. This evidence would permit a finding that the descent was both sudden and unusual.
It is also argued that the instruction was defective because it was too general. Defendant urges that it should have hypothesized the manner in which the descent was unusual, such as too fast, too slow, too rough, or that it was without anyone setting it in motion. As authority for this assertion defendant cites Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Green v. Guynes, 361 Mo. 606, 235 S.W.2d 298; Dahlen v. Wright, 361 Mo. 524, 235 S.W.2d 366; Allen v. Missouri Pacific Railway Co., Mo.Sup., 294 S.W. 80, and Munoz v. American Car Foundry Co., 220 Mo.App. 902, 296 S.W. 228. It should be noted that in each of the cases cited the plaintiff alleged and proved specific negligence. Can it be said that these authorities are applicable in a case where general negligence is alleged and the cause is submitted on the res ipsa loquitur theory? We think not. We have observed that the instruction follows the same wording as is in the petition. Of course, it was required that plaintiff present evidence of the nature of the accident and the unusual circumstances surrounding it in order to entitle him to a res ipsa loquitur submission. We do not believe, however, that such facts and circumstances are required to be hypothesized in detail in the instruction in order to authorize the jury to infer negligence from such circumstantial evidence. It appears clear to us that when considered in the light of the pleadings and the evidence in this case the instruction was not misleading and did not give the jury a roving commission to determine the facts it considered sufficient to authorize a finding of negligence. In this connection it should be observed that inherently the res ipsa loquitur doctrine permits the jury to indulge an inference of negligence from the circumstances detailed in evidence and that this is an exception to the usual rule which requires that the specific negligence causing the casualty must be alleged, proved and hypothesized in the instructions.
Defendant complains of the refusal of the court to give instructions F, I and J offered by it. Each of these instructions would have told the jury that if the elevator was caused to descend by the intentional act of someone who set it in motion the plaintiff was not entitled to recover. If there had been evidence that the elevator was started by a third party, who was not an employee of defendant, we believe such fact could have been submitted to the jury as authority for a defendant's verdict. It cannot be said, however, that if the elevator was started by the intentional negligent act of a fellow employee that plaintiff cannot recover. The instructions under consideration were general and directed a verdict for defendant if the jury found that anyone intentionally started the elevator. Such is not the law of this state and the instructions were therefore properly refused. Jones v. Terminal Railroad Ass'n, supra.
Defendant also contends that it was reversible error for the court to refuse to give instruction G requested by it. This instruction told the jury "that if you believe from the evidence that plaintiff McClintock was injured as a direct result of jumping on the floor of the elevator at or about the time it commenced to go down, then you cannot render a verdict in favor of the plaintiff McClintock, but your verdict should be in favor of the railroad company defendant." It should be noted that this is not an instruction on contributory negligence. That defense was fully submitted, as a basis for diminution of damages, in other instructions and was predicated upon a finding of the negligence of plaintiff in jumping upon the elevator platform. Instruction G would have exonerated defendant completely upon a finding that plaintiff jumped upon the elevator at or about the time it commenced to go down. the instruction could hardly be denominated a sole cause instruction because it does not require a finding that defendant was not guilty of negligence nor does it hypothesize a factual situation which would necessarily have excluded any finding of negligence on the part of the defendant. As authority for this assignment defendant cites Brinkmann Realty Co. v. Deidesheimer, Mo.App., 201 S.W.2d 503; Quigley v. St. Louis Public Service Co., Mo.Sup., 201 S.W.2d 169, and Broderick v. Brennan, Mo.App., 170 S.W.2d 686. In varying language these cases all state, the rule that it is a defendant's right to have an affirmative submission of facts which are supported by the evidence, and which, if shown to be true, would defeat the plaintiff's case and require a verdict for defendant. We are in complete accord with the holding in those cases, but we do not believe that instruction G would come within that rule. It lacked essential elements and in the form submitted would likely have misled the jury. The defendant presented evidence to the effect that plaintiff stood on the station platform and pulled the chain on the elevator platform, causing it to descend and when it had gone down about four feet that plaintiff then jumped upon the elevator and injured himself. Had all these facts been hypothesized in the instruction it would appear to have been a correct submission, as such would have excluded any finding of negligence on the part of the defendant and it would have been entitled to a verdict. Defendant was not entitled to a verdict, however, upon a mere finding that plaintiff jumped upon the floor of the elevator at or about the time it commenced to go down. It will be recalled that plaintiff testified that when the elevator started down he lost his balance and grabbed the bull wagon, jerked himself up to clear the rising gate and then his feet descended to the floor of the elevator. The facts stated in instruction G are so meager that the jury could have considered the aforementioned testimony of plaintiff as being sufficient to authorize a defendant's verdict thereunder. We rule this assignment against the defendant.
Defendant next complains of the refusal of the court to give instruction N, which would have informed the jury that it had no legal right to base its verdict upon any theory of negligence not supported by the evidence and submitted in the instructions. We have considerable doubt as to the propriety of giving this instruction in a case submitted on the res ipsa loquitur theory, but we need not decide that point as it was obviously a cautionary instruction and the trial court had the right to exercise its discretion in the giving or refusal of same. Wolfson v. Cohen, Mo.Sup., 55 S.W.2d 677.
Error is assigned because of the refusal of the court to give instruction O, which related to the method of ascertaining the amount of damages plaintiff should recover in the event defendant was found guilty of negligence and plaintiff was also found to have been contributorily negligent. The subject matter of this instruction was adequately covered by another instruction given by the court at the request of the defendant. The defendant was not entitled to two separate instructions on the same phase of the case and having given one, the trial court should not be convicted of error for having refused to unnecessarily duplicate this theory of defense in another instruction. Bean v. City of Moberly, 350 Mo. 975, 169 S.W.2d 393.
The defendant's witness, Ralph Frownfelter, testified that he watched the transfer of mail in question and saw someone pull the chain and that after the elevator platform had descended about four feet he saw a man jump from some place on to the elevator over the gate that was rising. In an effort to connect this incident with the injury to plaintiff, counsel for defendant asked the witness if he had learned a little later that there had been an accident. Plaintiff objected that the answer would be based on hearsay. After some discussion of counsel in which defendant's attorney stated that he did not want to go into the conversation, but only sought to connect the aforementioned incident with the injury, the witness was permitted to testify that within 10 minutes after the incident he learned that there had been an accident on that particular elevator. Thereafter the following occurred:
"Q. And did that accident involve a bull wagon?
"Mr. Gaertner: I will object to that, your Honor, it is getting into what he was told.
"The Court: Objection sustained." Defendant argues that the exclusion of this answer was error.
It is true that under certain circumstances extrajudicial statements may be admitted in evidence when offered not for the purpose of proving the truth of the fact therein asserted, but because the statement itself may be a necessary link in a chain of circumstantial evidence. In re Thomasson's Estate, 347 Mo. 748, 148 S.W.2d 757. In the instant case we think there is considerable doubt as to the admissibility of this evidence, as the truth of what the witness had heard would have a very decided bearing on the question as to whether plaintiff was the person the witness had seen jumping upon the elevator. However, we have decided that we need not determine this issue as the error, if any, in the exclusion of this evidence could not have been prejudicial to the defendant. The evidence admitted by the court clearly connected the incident in regard to the person jumping upon the elevator with the accident resulting in the injury to plaintiff. The admission of further details as to what the witness had heard was not necessary to accomplish that purpose.
Defendant next contends that the closing argument of plaintiff's counsel was viciously unfair, highly prejudicial and unsupported by the evidence. Objection was made to three portions of the argument. In two instances the court sustained the objection and instructed the jury to disregard the remarks. The other objection was disposed of by a statement of the court to the effect that the jury would remember the evidence. The statements complained of did go beyond the inferences which might reasonably have been permitted by the evidence. The trial court, however, did substantially all that could have been done, short of declaring a mistrial, in order to cure any prejudice that might have resulted from the argument. A motion for a mistrial was made during the argument and again at the conclusion of the same. The trial court is allowed considerable discretion in controlling the argument and in determining the action required to remove any prejudice that might result from improper argument. Sparks v. Auslander, 353 Mo. 177, 182 S.W.2d 167; Rouchene v. Gamble Construction Co., 338 Mo. 123, 89 S.W.2d 58. We have read all of the closing argument of plaintiff's attorney and we do not feel warranted in finding that the court abused its discretion in refusing to declare a mistrial. The case of Walsh v. Terminal Railroad Ass'n, 353 Mo. 458, 182 S.W.2d 607, cited by defendant, is not adequate authority for a reversal, as the argument in that case was highly improper and much more likely to have resulted in prejudice than the argument in the instant case.
Finally, defendant claims that the verdict was so grossly excessive as to indicate that it could only have resulted from passion and prejudice against the defendant. No case has been cited wherein a plaintiff sustained substantially similar injuries and we have found none. A consideration of all the evidence, however, has led us to the conclusion that the verdict was not excessive. The evidence shows that plaintiff sustained a six inch laceration as deep as the bone on the left leg between the ankle and knee. It was jagged and required an operation to cut away the soft issue before it could be sutured. The injury was severe enough to warrant the application of a plaster cast upon the entire leg. Plaintiff was totally disabled for four months and his ability to perform hard manual labor has been impaired. He testified that if he stayed on his feet too long or engaged in strenuous exercise he would have sharp pains in his leg and that it would be necessary to massage the leg and apply a heating pad in order to obtain relief. He also has an area of partial numbness around the scar. A specialist in orthopedic surgery expressed the opinion that the condition which caused this pain and numbness was permanent. When we consider that plaintiff is a young man and will be somewhat handicapped in performing manual labor, as well as suffering pain, at least periodically, throughout the remainder of his life, it can hardly be said that $5500 is an excessive amount of compensation.
Finding no reversible error, it follows that the judgment herein should be affirmed. It is so ordered.
BENNICK, P. J., and ANDERSON, J., concur.