Opinion
NOTE: Opinion filed at September Term, 1938, April 4, 1939; motion for rehearing filed; motion overruled at May Term, 1939, May 2, 1939.
1. FEDERAL EMPLOYERS' LIABILITY ACT: The Law of the Case. Where on appeal in a death claim the Supreme Court held that the employee at the time of the injury resulting in death was engaged in interstate transportation and that a submissible case was made, on a retrial of the case, without amendment of the pleading, the proof being substantially the same, the ruling on the former appeal was "the law of the case" and binding upon the trial court.
2. NEGLIGENCE: Federal Employers' Liability Act. In an action under the Federal Employers' Liability Act contributory negligence is not a complete defense and operates only for diminution of damages.
But it is an affirmative defense and not available unless pleaded or conclusively shown by plaintiff's own evidence.
Where the defendant's answer alleged that the injuries to the employee resulting in death "were solely the result of his own carelessness" and defendant proceeded on that theory, asking no instruction on the measure of damages nor that the damages be diminished by reason of any negligence on the part of the deceased, contributory negligence was not an issue under the pleadings, and the giving of plaintiff's instruction on the measure of damages in not providing for a diminution on account of the negligence of the deceased was not error.
3. DAMAGES: Death Claim: Excessive Verdict. Where an employee was fatally injured when forty-nine years of age, leaving a wife and infant daughter, having a life expectancy of 21.63 years, earning $44.80 a week, a verdict for $49,352.10 was excessive by $10,352.10 and on remittitur would be affirmed for $34,000.
Appeal from Circuit Court of City of St. Louis. — Hon. Eugene L. Padberg, Judge.
AFFIRMED ON REMITTITUR OF $10,352.10.
T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.
(1) The record is without positive and substantial evidence that the employees of the Frisco train in question failed to blow the whistle on the train as it backed in. The evidence in that regard is wholly negative. Crossno v. Term. Railroad, 41 S.W.2d 796; Holmes v. Penn. Ry. Co., 74 N.J.L. 469, 66 A. 412, 12 Ann. Cas. 1031; Patterson v. Gaines, 6 How. 589; White v. So. Ry. Co., 151 Va. 302, 144 S.E. 424; Elias v. Collins, 237 Mich. 175, 211 N.W. 88, 52 A.L.R. 1118; Johnson v. Richmond, etc., Ry. Co., 160 Va. 766, 169 S.E. 603; M. O. Railroad Co. v. Johnson, 157 Miss. 266, 126 So. 827; Hughes v. Atchison, etc., Ry. Co., 8 P.2d 853; Gulf, etc., Railroad Co. v. Nail, 156 Okla. 294, 10 P.2d 668. (a) The evidence shows that Luna, plaintiff's only witness as to the accident, was paying no attention to the Frisco train as it backed in, until it reached a point twenty to twenty-five feet south of the elevator in question, and that there was other noise around. In the face of positive evidence to the contrary, the fact that he did not hear the whistle blow, an inference at most, became dissipated. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 503; So. Ry. Co. v. Walters, 284 U.S. 190, 52 Sup. Ct. 58, 76 L.Ed. 239; George v. Mo. Pac. Ry. Co., 213 Mo. App. 668, 251 S.W. 729. (b) Where the evidence is so overwhelming on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury. Penn. Railroad Co. v. Chamberlain, 288 U.S. 233, 77 L.Ed. 503; Gunning v. Cooley, 281 U.S. 90, 50 Sup. Ct. 231, 74 L.Ed. 720; Patton v. Ry. Co., 179 U.S. 658, 21 Sup. Ct. 275, 45 L.Ed. 361; Small v. Lamborn Co., 267 U.S. 248, 45 Sup. Ct. 300, 69 L.Ed. 597. (c) Under the evidence, the fact that Luna did not hear the whistle blow was nothing but surmise and conjecture. Gulf, etc., Railroad Co. v. Wells, 275 U.S. 455, 48 Sup. Ct. 151, 72 L.Ed. 370. (d) The fact that witnesses are in the employ of defendant does not impair their credibility. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333, 77 Ed. 503; C. O. Railroad Co. v. Martin, 283 U.S. 209, 51 Sup. Ct. 453, 75 L.Ed. 983. (e) Insubstantial and insufficient testimony does not require the submission of an issue to the jury. So. Ry. Co. v. Walters, 284 U.S. 190, 52 Sup. Ct. 58, 76 L.Ed. 239; A.T. S.F. Ry. Co. v. Toops, 281 U.S. 351. (f) Under the Federal Employers' Liability Act, the kind and amount of evidence required to establish negligence is not subject to the control of the states. C. O. Railroad Co. v. Stapleton, 279 U.S. 587, 49 Sup. Ct. 422, 73 L.Ed. 861; Chicago, etc., Ry. Co. v. Coogan, 271 U.S. 472, 46 Sup. Ct. 564, 70 L.Ed. 1041. (2) The opinion of the former appeal is the law of the case on subsequent appeals, unless the pleadings have been amended so as to introduce new issues; or, unless the evidence on the retrial is substantially different; or, unless the opinion of the former appeal was manifestly erroneous because of a mistake as to the law or the evidence; or, because an injustice has been done. Davidson v. Railroad, 301 Mo. 85, 256 S.W. 169; Mangold v. Bacon, 237 Mo. 525, 141 S.W. 650; Monroe v. Railroad, 297 Mo. 654, Bagnell v. Railroad, 242 Mo. 21, 249 S.W. 644, 257 S.W. 469; Seibert v. Harden, 319 Mo. 1112, 8 S.W.2d 905; Nothstine v. Feldman, 320 Mo. 512, 8 S.W.2d 912. (3) At the time of his injuries, plaintiff's decedent, William Sheehan, was engaged in oiling an elevator in the City of St. Louis Union Station. Said elevator operated from the station platform to the subway below. The oil of said elevator, a portion of said depot, even though it was used indiscriminately in carrying interstate and intrastate freight to and from the platform and subway, was not interstate transportation or work so closely related to it as to be a part of it. Stogsdill v. Railroad, 85 S.W.2d 447; Boles v. Hines, 226 S.W. 272; 1 Roberts, Federal Liabilities of Carriers (1 Ed.), sec. 483; Pennsylvania Railroad Co. v. Manning, 62 F.2d 294; Industrial Acc. Comm. v. Davis, 259 U.S. 182, 66 L.Ed. 888, 42 Sup. Ct. 489; C.M. St. P. Ry. Co. v. Chinn, 137 N.E. 885, certiorari denied, 263 U.S. 716, 68 L.Ed. 521, 44 Sup. Ct. 137; Minn. St. L. Ry. Co. v. Nash., 242 U.S. 619, 61 L.Ed. 539, 37 Sup. Ct. 239; reversing Nash v. M. St. L. Ry. Co., 131 Minn. 166, 154 N.W. 957; Tepper v. Railroad, 238 N.Y. 423, 144 N.E. 668; Capps v. Atl. C.L. Ry. Co., 178 N.C. 558, 101 S.E. 216, certiorari denied, 252 U.S. 580, 64 L.Ed. 726, 40 Sup. Ct. 345; C. E.I. Railroad Co. v. Industrial Comm., 284 U.S. 296, 76 L.Ed. 304, 52 Sup. Ct. 151, 77 A.L.R. 1367; C. N.W. Railroad Co. v. Bolle, 284 U.S. 74, 76 L.Ed. 173, 52 Sup. Ct. 59; Sullivan v. Railroad, 105 Conn. 122, 134 A. 795; D.L. W. Ry. Co. v. Yurkonis, 238 U.S. 439, 59 L.Ed. 1397, 35 Sup. Ct. 902; Shanks v. D.L. W. Ry Co., 239 U.S. 556, 60 L.Ed. 436, 36 Sup. Ct. 188; C.B. Q. Railroad Co. v. Harrington, 241 U.S. 177, 60 L.Ed. 941, 36 Sup. Ct. 517, 11 N.C.C.A. 992; Illinois Cent. Railroad Co. v. Cousins, 241 U.S. 641, 60 L.Ed. 1216, 36 Sup. Ct. 446, reversing 126 Minn. 172, 148 N.W. 58; Vollmers v. N.Y.C. Ry. Co., 223 N.Y. 571, 119 N.E. 1084, reversing 167 N.Y.S. 426, 180 N.Y. 60; G.H. S.A. Ry. Co. v. Chojnacky, 163 S.W. 1011; G.N. Railroad Co. v. King, 165 Wis. 159, 161 N.W. 371; 2 Roberts Fed. Liabilities of Carriers (2 Ed.), sec. 787. (a) Plaintiff's cause of action, as shown by her petition, is grounded on interstate transportation, and the Federal Employers' Liability Act. Inasmuch as plaintiff's decedent was not engaged, at the time of his injuries, in interstate transportation, her cause of action fails and the case must be reversed. Cox v. Mo. Pac. Ry. Co., 61 S.W.2d 965; Phillips v. Ry. Co., 328 Mo. 240, 40 S.W.2d 1046. (4) The verdict was and is excessive. Midwest Natl. B. T. Co. v. Davis, 288 Mo. 563, 233 S.W. 406; Burtch v. Wabash Ry. Co., 236 S.W. 338; Brown v. Railroad, 315 Mo. 409, 286 S.W. 45; Wilgues v. Penn. Ry. Co., 298 S.W. 817; Crecelius v. Railroad, 284 Mo. 26, 223 S.W. 413.
Eagleton, Waechter, Yost, Elam Clark for respondent.
(1) The elevator in question was an indispensable transporting device maintained by appellant and regularly used in the moving of interstate shipments. It was a permanent instrumentality of interstate commerce, so that the decedent's work of oiling it constituted a direct engagement in interstate transportation, and brought him within the operation of the Federal Employers' Liability Act. 45 U.S.C.A., Secs. 51-59; Sheehan v. Term. Railroad Assn., 81 S.W.2d 305; St. Louis-S.F. Ry. Co. v. Seale, 229 U.S. 156, 33 Sup. Ct. 651, 57 L.Ed. 1129; Baltimore O.S.W. Railroad Co. v. Burtch, 263 U.S. 540, 44 Sup. Ct. 165, 68 L.Ed. 433; Ill. Cent. Railroad Co. v. Porter, 207 F. 311, 125 C.C.A. 55; Swain v. Terminal Railroad Assn., 220 Mo. App. 1088, 291 S.W. 66, certiorari denied, 48 Sup. Ct. 18; Pedersen v. Delaware, L. W. Ry. Co., 229 U.S. 146, 33 Sup. Ct. 648, 57 L.Ed. 1125; Norfolk W. Ry. Co. v. Holbrook, 235 U.S. 625, 35 Sup. Ct. 143, 59 L.Ed. 392; New York C. Ry. Co. v. Porter, 249 U.S. 168, 39 Sup. Ct. 188, 63 L.Ed. 536; Grand Trunk Railroad Co. v. Knapp, 233 F. 950; O'Dell v. St. Louis-S.F. Ry. Co., 281 S.W. 456; Carter v. St. Louis, T. E. Ry. Co., 307 Mo. 595, 271 S.W. 358; Brier v. C., R.I. P. Ry. Co., 183 Iowa 1212, 168 N.W. 339; Coal Coke Ry. Co. v. Deal, 231 F. 604; Yarde v. Hines, 209 Mo. App. 547, 238 S.W. 151; Truesdell v. Chesapeake O. Ry. Co., 159 Ky. 718, 169 S.W. 471; Jones v. Chesapeake O. Ry. Co., 149 Ky. 566, 149 S.W. 951; Cherry v. Atlantic C.L. Ry. Co., 174 N.C. 263, 93 S.E. 785; Dowell v. Wabash Ry. Co., 190 S.W. 939; Kepner v. Chicago, C.C. St. L. Ry. Co., 322 Mo. 299, 15 S.W.2d 825, certiorari denied, 280 U.S. 564; Chesapeake O. Railroad Co. v. Kornhoff, 167 Ky. 353, 180 S.W. 523; Lombardo v. Pittsburgh L.E. Ry. Co., 91 Pa. Sup. Ct. 307; Deuel v. C., B. Q. Ry. Co., 253 F. 857; 2 Roberts' Federal Liability of Carriers (2 Ed.), secs. 725, 726, 766, 767; Freeman v. Frasher, 84 Colo. 67, 268 P. 538; Allen v. St. Louis-S.F. Ry. Co., 53 S.W.2d 884. (2) There was substantial evidence in the record that the operators of the train failed to give the customary warning, and that issue was properly submissible to the jury because: (a) The testimony of the witness Luna to the effect that the whistle was not blown, although negative in character, is positive evidence of a negative fact, he being in a position to, and having reason to, hear the whistle if it were blown. Sheehan v. Terminal Railroad Assn., 81 S.W.2d 305; Stotler v. C. A. Ry. Co., 200 Mo. 107, 98 S.W. 509; Toeneboehn v. St. L. S.F. Ry. Co., 298 S.W. 795; Clay v. Mo. Pac. Ry. Co., 5 S.W.2d 409; Crossno v. Terminal Railroad Assn., 31 S.W.2d 797; Sing v. St. Louis-S.F. Ry. Co., 30 S.W.2d 37; Henry v. Ill. Cent. Ry. Co., 3 S.W.2d 1004; Grand Trunk W. Railroad Co. v. Heatlie, 48 F.2d 759; Chicago, R.I. P. Railroad Co. v. Stepp, 164 F. 785; Cannarozzo v. N.Y. St. Ry. Co., 215 N.Y.S. 156, 216 A.D. 243; Cairney v. Cook, 165 N.E. 406; Thuel v. So. Pac. Ry. Co., 27 P.2d 910; Clark v. L.A. S.L. Ry. Co., 275 P. 582; Sharpless v. Delaware, L. W. Ry. Co., 286 Pa. 439, 133 A. 636; Anderson v. United States Railroad Adm., 211 N.W. 872; Seaboard A.L. Railroad Co. v. Sarman, 144 S.E. 810; Columbus G. Railroad Co. v. Lee, 149 Miss. 543, 115 So. 782. (b) Luna's testimony in this connection was not entirely negative. He was not only in a position to hear, and did not hear, the whistle blown, but he was in a position to see any of the trainmen who might have operated the whistle, and he testified distinctly and positively that there were no trainmen there to operate the whistle. (3) The judgment entered upon the jury's verdict, after remittitur, is not in the least excessive in view of the testimony, and the various elements of damage sustained, and recoverable by the plaintiff. Moran v. Atchison, T. S.F. Ry. Co., 48 S.W.2d 881; Truesdale v. Wheelock, 74 S.W.2d 585; St. Louis I.M. S. Railroad Co. v. Craft, 237 U.S. 648, 35 Sup. Ct. 704, 59 L.Ed. 1160; Talbert v. Chicago, R.I. P. Ry. Co., 15 S.W.2d 762; Noce v. St. Louis-S.F. Ry. Co., 85 S.W.2d 637.
Suit by Ethel Sheehan as administratrix of the estate of her deceased husband. On the first trial the verdict and judgment were for defendant. On plaintiff's appeal we reversed and remanded the case; holding that deceased, at the time he received the injuries which caused his death, was engaged in interstate commerce and that the action is governed by the Federal Employers' Liability Act, 45 U.S.C.A., Sections 51-59. We further held that plaintiff made a submissible case and that the trial court erred in giving certain instructions on the burden of proof. [ 336 Mo. 709, 81 S.W.2d 305.]
On the second trial plaintiff obtained a verdict for $49,352.10. The trial court required a remittitur of $5,000 and judgment was rendered for $44,352.10.
Defendant has appealed and assigns numerous grounds of error, but those which defendant has briefed and argued may be summed up as follows: (1) that the court erred in refusing to give defendant's instructions in the nature of a demurrer to the evidence; (2) that the court erred in giving plaintiff's instruction number two; (3) that the verdict is excessive.
(1) Appellant contends that the demurrers to the evidence should have been sustained and insists that deceased was not engaged in interstate transportation at the time of injury and, even if he was so engaged, the proof does not make a submissible case under the Federal Act.
On the former appeal we ruled both these points against the present contentions of appellant. The case was retried without amendment of the pleadings and the proof on the second trial was substantially the same as that recited in our former opinion, except that plaintiff made a better case on the question of interstate transportation. On the second trial, plaintiff proved that at the time of Sheehan's injury a truck of interstate merchandise was awaiting the completion of Sheehan's work in oiling the elevator, and was to be immediately transported on the elevator when such oiling was completed. Plaintiff also proved that in her claim now pending before the Missouri Workmen's Compensation Commission defendant has denied liability on the ground that Sheehan was engaged in interstate commerce at the time he was injured.
Under these circumstances our ruling on the former appeal constitutes "the law of the case" and was binding on the court at the second trial. [See Creason v. Harding et al., 344 Mo. 452, 126 S.W.2d 1179.]
Appellant contends that our ruling on the former appeal conflicts with the later case of Stogsdill v. Ry., 337 Mo. 126, 85 S.W.2d 447. In the Stogsdill case we ruled that the plaintiff, when injured, was not "engaged in interstate transportation, or in work so closely related to it as to be practically a part of it." Stogsdill was injured while oiling machinery used for hoisting coal to storage bins whence needed coal was supplied to locomotives used in intrastate and interstate commerce. In the present case the deceased was injured while oiling an elevator which, in and of itself, was a device used in interstate transportation and at the time a truck of interstate merchandise was waiting to be transported on the elevator as soon as the work of oiling was completed. The elevator, used to carry the merchandise from one floor to another in the station, was as much a part of the transportation system as a locomotive used to haul the merchandise from one station to another. In the Stogsdill case the machinery was used to hoist coal to be stored in bins and later used in locomotives when such locomotives were employed in transportation. Clearly, the work of deceased was much nearer related to transportation than the work of the plaintiff in the Stogsdill case and our ruling in that case does not conflict with our ruling on the former appeal in this case.
(2) Instruction No. 2 given by the court at request of plaintiff was on the measure of damages and was the only instruction requested or given on that subject. Appellant contends that this instruction was erroneous in that it did not provide for diminution of damages for any contributory negligence of which deceased was guilty. [Defendant cites Bird v. Ry., 336 Mo. 316, 78 S.W.2d 389; and Seaboard Air Line Ry. v. Tilghman, 237 U.S. 499, 35 Sup. Ct. 653, 59 L.Ed. 1069.]
In the Seaboard case, supra, the trial court attempted to instruct on the diminution of damages, but the United States Supreme Court held the instruction was improperly phrased. In the Bird case, supra, we held: that the answer properly pleaded contributory negligence; that there was some evidence of contributory negligence; and that plaintiff's instruction on the measure of damages, being the only instruction on that point, was erroneous for failing to provide for diminution of damages on account of contributory negligence.
Appellant claims that her said Instruction No. 2 is not improper because the defendant in the present case did not properly plead contributory negligence and that there was no evidence of such negligence on the part of the deceased.
Under the Federal Act contributory negligence is not a complete defense, and operates only to diminish the damages; but it is an affirmative defense not available unless pleaded or unless conclusively shown by the plaintiff's own evidence.
The defendant's answer in this case included a general denial, assumption of risk, and then stated: "that the injuries received by William Sheehan which caused his death, were the result of his contributory carelessness and negligence;" "the injuries received by the said William Sheehan were solely the result of his own carelessness and negligence as aforesaid." The prayer was that defendant be discharged with its costs.
In the case of O'Donnell v. Ry., 324 Mo. 1097, 1099, l.c. 1110, 26 S.W.2d 929, the answer charged that the negligence and carelessness of decedent "directly and proximately" caused his death. In Kamer v. Ry., 326 Mo. 792, 32 S.W.2d 1075, l.c. 1083, the answer alleged that "plaintiff's injuries were due solely to his own negligence." In both those cases we held that the alleged negligence of plaintiff or decedent was pleaded as a complete bar and not as "contributory negligence" in diminution of damages; and we also held that instructions, similar to plaintiff's Instruction No. 2 in the present case, were not erroneous. That ruling is in accordance with the weight of authority in other jurisdictions. [45 C.J. 1119, sec. 697.]
In the present case the answer, while referring in one place to the alleged negligence of Sheehan as "contributory," alleges that the injuries to Sheehan "were solely the result of his own carelessness." This is not a plea of contributory negligence; it alleges nothing which could not be shown under the general denial.
Plaintiff's case was brought and tried on the theory that the injures of deceased were due solely to the negligence of defendant, and defendant seems to have proceeded on the theory that such injuries were due solely to the negligence of the deceased. Plaintiff's said Instruction No. 2 required, among other things, that the jury find "that said William Sheehan was, on the occasion of his injury . . . in the exercise of ordinary care for his own safety." Defendant asked no instruction on the measure of damages, nor that the damages be diminished by reason of any negligence on the part of deceased. We do not think contributory negligence was in issue under the pleadings, and we have searched the record and do not find that such negligence is disclosed by the evidence. We therefore hold that the giving of plaintiff's Instruction No. 2 did not constitute error.
(3) Appellant complains that the verdict is excessive.
Sheehan was injured on November 5, 1928, and died on September 23, 1929. He was forty-nine years old when injured; left surviving him a wife, younger than he, and a daughter eleven months old; both dependent on him for support. His life expectancy was 21.63 years and he was earning $44.80 per week. He was in good health and, if he could have maintained his earning power for the entire period of his life expectancy, would have earned a little more than $50,000. During the ten and one-half months he lived after being injured, the proof shows that he constantly suffered intense pain; being frequently given narcotics to alleviate his suffering, but with little relief. He underwent two operations. The proved expenses for medical, hospital, and nursing services were $3868.10.
There is no satisfactory method by which to measure the damages in a case like this. The question has often been considered by this court. For a discussion of recent cases in Missouri see Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585, l.c. 591, and for cases in other jurisdictions, see 2 Paramele on Damage Verdicts, pages 2114-2164.
We have found no case in Missouri, for death under the Federal Employers' Liability Act, and few elsewhere in which a verdict in excess of $30,000 has been permitted to stand. We have found only two Missouri cases which have sustained verdicts for that amount. They are: Truesdale v. Wheelock, supra, and Moran v. A.T. S.F. Ry., 330 Mo. 278, 48 S.W.2d 881-888. In the Truesdale case the deceased was thirty-nine years old, earning $175 to $185 per month, with a life expectancy of 33.21 years and with a wife and six children dependent upon him. A verdict for $35,000 was reduced by this court to $30,000. In the Moran case the deceased was thirty-one years old, earning about $150 per month, with a life expectancy of thirty-five years and with a wife and infant daughter. We affirmed a judgment for $30,000. In both those cases the deceased persons were younger than the deceased in the present case, but their earnings were less and the element of conscious pain over a protracted period was not present as it is in the case now being considered. Also, in both those cases death was immediate and the question of expense for medical services did not arise. Medical expense is a proper element of damages. [Berry v. Ry., 324 Mo. 775, 26 S.W.2d 988.] After considering all the circumstances and comparing many previous decisions, we do not think the verdict should be upheld for more than $34,000.
It is therefore ordered that, if respondent will within ten days enter a remittitur of $10,352.10 as of the date of judgment, the judgment will be affirmed for the sum of $34,000; otherwise the judgment will be reversed and the cause remanded.