Opinion
No. 42803.
September 14, 1953.
APPEAL FROM THE CIRCUIT COURT FOR CITY OF ST. LOUIS.
Jones, Hocker, Gladney Grand, Lon Hocker, St. Louis, for appellant.
Tyree C. Derrick, Karl E. Holderle, Jr., St. Louis, for respondent.
In this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., a jury returned a verdict for plaintiff awarding $60,000 damages for personal injury. The trial court required a remittitur of $10,000, and defendant appealed from the ensuing $50,000 judgment.
Upon review this court reversed the judgment by opinion rendered April 14, 1952. It was held that plaintiff did not make out a case submissible to a jury under the Federal Employers' Liability Act either as to negligence or as to causation. Stone v. New York, C. St. L. R. Co., Mo.Sup., 249 S.W.2d 442. The Supreme Court of the United States granted certiorari, and upon review by that Court the judgment of this court was reversed, and the cause was remanded for proceedings not inconsistent with the opinion of the Supreme Court of the United States. Stone v. New York, C. St. L. R. Co., 344 U.S. 407, 73 S.Ct. 358. Because of an opinion holding there was no submissible case, we did not, upon former review, examine the contention of defendant-appellant that the trial court erred in instructing the jury. It now becomes necessary for us to consider that contention. However, before we particularly examine the question, we shall make a brief statement of the facts. (For a more complete statement of the facts reference is made to our former opinion, 249 S.W.2d 442 at pages 444-445.)
Plaintiff was seriously injured while working as a section man on defendant's track at Argus, Indiana. He was a member of a section crew consisting of himself, Hopkins, Fish and Denny. One Stoughton was "straw boss" and, at the time, was in charge of the crew. Plaintiff and a fellow employee were removing old or worn track ties. The customary method of removing ties is to jack up the rails, pull the spikes, remove the plates, and pull out the ties endwise by the use of tongs. Usually one or two men use the tongs in removing a tie. It generally pulls right out if there is nothing wrong. If there is an old spike protruding downwardly from a tie, it usually takes three or four men to pull out the tie. There are other methods by which a tie (from which a spike protrudes downwardly) may be removed. One method is to dig a trench along the tie and then roll the tie over sidewise into the trench thus freeing the tie and spike for removal. Another method is to jack up the rails high enough that the tie will come free; and still another method is to free the rails from the tie for a half rail length on both sides of the tie, and then jack up the rails so that the tie and spike are sufficiently free to be easily pulled. There are practical disadvantages attending the latter two methods.
When plaintiff was injured, he and his fellow employee, Fish, had been attempting to remove a tie from the lower side of which, it was subsequently disclosed, a spike protruded some four or five inches. Plaintiff testified, "* * * anyway I know Fish had to get on the tie with me * * * and we both couldn't pull it and Stoughton (the straw boss) was around somewhere, we asked him, we told him about the tie it was hard to come out or something, so he picks up a bar, walks over to the other end, maybe he says to me, you are not trying. You ain't pulling hard enough. So he puts the tie, fixed a bar under the end of the tie, he got a prizen hold over the rail and give us a lift. We give a pull and it wouldn't come, and he said, you are not pulling, if you can't pull that tie I will get somebody on both tongs that can. That is the words he said to me. * * * Well we both get back down and give a hard pull with him a prying and I hurt my back."
In considering the contention of error in instructing the jury, we deem it necessary to set out the substance of Instruction No. 1. It will be seen that, by this instruction, the trial court, at plaintiff's request, undertook to submit three theories of negligence of defendant — ordering plaintiff to overexert in removing the tie, failing to furnish additional men to help remove the tie, and failing to jack up the rails higher so as to free the tie and spike. In studying the instruction it will be further observed that it is long and involved. In the first paragraph thereof, the jury was told that plaintiff was defendant's employee at the time in question and that plaintiff and defendant were engaged in interstate commerce. In submitting the theory (a negligent order) in the second paragraph of the instruction, the jury was directed to return a verdict for plaintiff upon the finding of the facts therein hypothesized. The other two theories of defendant's negligence (a failure to furnish additional men, and a failure to jack up the rails higher) were submitted in the same instruction, but in separate paragraphs, and the instruction concluded with a fifth paragraph in which the jury was instructed to return a verdict for plaintiff if the jury found and believed from the evidence that defendant was negligent (causal, in whole or in part) "in any respect mentioned in this instruction."
More particularly, in submitting the issue of a negligent order, the jury was instructed "that if you find and believe from the evidence that * * * plaintiff was engaged in removing ties from the railroad tracks of the defendant * * * and if you further find that the plaintiff was being directed in the performance of the work and operation which he was then doing by the defendant * * * and if you further find and believe from the evidence that the plaintiff was being assisted by a fellow servant in the work then being performed * * * and if you further find and believe from the evidence that an iron spike had been driven through said tie in such a manner as to make it unsafe for the plaintiff and said fellow servant to remove the tie from the track in the usual, customary and ordinary manner * * * and if you find and believe from the evidence that the plaintiff and his fellow servant were exerting sufficient strength and were pulling on the tie sufficiently hard to remove a tie under ordinary circumstances, then if you find and believe from the evidence that the defendant, through its agent and servant, ordered and directed the plaintiff to exert more strength and to jerk said tie hard enough to remove it * * * and if you further find and believe from the evidence that the order, or direction * * * amounted to a direction to the plaintiff to exert more strength than was ordinarily necessary and customary to remove a railroad tie under ordinary and customary circumstances * * * and if you find and believe from the evidence that the plaintiff and his fellow servant were then and there exerting sufficient strength and were jerking hard enough to loosen and remove a railroad tie under ordinary circumstances, and that such fact * * * was known to the defendant * * * or by the exercise of ordinary care would have been known to it, and if you further find and believe from the evidence, under the circumstances then and there existing that the said defendant * * * was negligent in giving such order or direction, if you find the order or direction was given, and that the plaintiff was injured as a direct and proximate result of said negligence, then your verdict will be for the plaintiff * * *."
In submitting the issue of negligence in failing to furnish additional men, the jury was instructed "that if you find and believe from the evidence that the railroad tie * * * could not safely be removed by two men, by pulling on said tie, with the means and appliances provided by the defendant, and if you further find and believe from the evidence that the defendant * * * knew or by the exercise of ordinary care would have known that two men could not safely remove the tie in question with the means and appliances furnished by it, and if you further find that said tie could have been removed with additional help, with safety to the plaintiff, then you are instructed that it was the duty of the defendant * * * to have furnished the plaintiff with additional men to help remove said tie, and you are further instructed that the failure of the defendant to furnish additional men, if so, was negligence, under the circumstances then and there existing."
And in submitting the issue of negligence in failing to raise or jack up the rails higher, the jury was instructed `that if you find and believe from the evidence that the rails could have been jacked up high enough * * * so as to free said tie * * * and the spike therein, and if you further find and believe from the evidence that this would have enabled plaintiff and his fellow servant to remove said tie, without the necessity of exerting more strength than was ordinarily and customarily used in removing a tie, if you find they did exert more strength than was ordinarily and customarily used, and if you further find and believe from the evidence that by removing the tie after jacking up the rails and freeing the tie and spike, if you find it could have been freed, was a safer way to remove said tie than the method of jerking and prying on the said tie to loosen and remove it, if you find they did jerk and pry on said tie in order to remove it, without jacking the rails sufficiently high to free the tie, and if you further find and believe from the evidence that by the exercise of ordinary care, the defendant * * * would have known of the safer way of removing said tie, if it was safer, then you are instructed that the defendant's failure to use the safer way of removing the said tie, if you find it was safer and the defendant failed to use it, if you so find, was negligence, and you may so find even though you may find and believe from the evidence that it was more difficult and burdensome to the defendant to jack the rails up high enough to free the said tie and the spike therein."
Defendant-appellant makes the broad contention that Instruction No. 1 was erroneous because the theories of defendant's negligence were submitted in separate verdict-directing paragraphs, alternatively and disjunctively, and the various hypotheses were erroneous. Plaintiff-respondent in turn asserts the instruction was not erroneous. Plaintiff-respondent says the instruction, in submitting the "negligent order" theory, correctly required the jury to find the tie could not be safely removed by plaintiff by the exercise of the customary amount of force (it is noted the instruction actually uses the language, "unsafe * * * to remove the tie * * * in the usual, customary and ordinary manner"), which defendant knew or should have known, and defendant nevertheless ordered plaintiff to exercise additional force, and the jury could properly find defendant's order was negligent; that the law is clear that a master owes the duty to furnish a sufficient number of men to work with reasonable safety, and the instruction correctly submits the issue of negligence in failing to furnish sufficient help; and that, likewise, there was a jury issue of a "safer" alternative method and the issue of failure to use the alternative method of jacking "the rails up high enough to free the said tie" was correctly submitted in the instruction.
As we have observed Instruction No. 1 is long and involved. It is such as would tend to confuse the jury. The issue was in reality a simple one — negligence in ordering plaintiff (and his fellow employee) to pull harder in view of the shown circumstances of the unyielding tie and consequent likelihood that plaintiff would be injured by pulling beyond his physical capacity, and the shown availability of additional help and alternative methods of removing stubborn ties. Stone v. New York, C. St. L. R. Co., supra, 344 U.S. at page 409, 73 S.Ct. at page 359. It would seem that a short, plainly worded instruction would have been sufficient to submit this simple issue of negligence to a jury. Nevertheless, we suppose a plaintiff is entitled to request, and the trial court is obliged to give if requested (correct) instructions submitting (consistent) theories of negligence pleaded and supported by substantial evidence. And with reference to an employer's duty to provide a safe method for doing the work in which the employee is engaged, it has been stated generally that the employer has the duty to furnish a sufficient number of men to do the work required to be done with reasonable safety to employees engaged therein. Haviland v. Kansas City, P. G. R. Co., 172 Mo. 106, 72 S.W. 515; Meily v. St. Louis S. F. R. Co., 215 Mo. 567, 114 S.W. 1013; Hulsey v. Tower Grove Quarry Construction Co., 326 Mo. 194, 30 S.W.2d 1018. The employer had the undoubted right to select his own method of doing the work but such right is a qualified one, that is, from the standpoint of liability — the employer is bound to exercise the right within the limits of ordinary care. If the method employed is not a reasonably safe one and other methods just as practicable and equally available are, then the employer is negligent in adopting it. Schaum v. Southwestern Bell Telephone Co., 336 Mo. 228, 78 S.W.2d 439; Perryman v. Missouri Pac. R. Co., 326 Mo. 176, 31 S.W.2d 4; Spencer v. Quincy, Omaha K. C. R. Co., 317 Mo. 492, 297 S.W. 353.
Now again examining Instruction No. 1 — the instruction, in submitting the "negligent order" theory, hypothesized that, because of the spike, it was unsafe for plaintiff and his fellow employee to remove the tie "in the usual, customary and ordinary manner" and that defendant, through its agent, ordered plaintiff to exert more strength and "to jerk said tie hard enough to remove it," although plaintiff and his fellow employee were exercising sufficient strength to remove the tie under "ordinary circumstances" of which defendant had actual or constructive knowledge. It is to be noted that, while the instruction submitted defendant's knowledge, actual or constructive, that plaintiff was exerting strength sufficient to remove the tie under usual and ordinary circumstances, it did not submit that the defendant knew or should have known that the usual, customary and ordinary manner of removing the tie was not a reasonably safe way to remove the tie involved, or that it was not reasonably safe for plaintiff to exercise more strength or force than was exercised in removing a tie in usual and ordinary circumstances. Having thus submitted negligence in giving the order to pull harder, the trial court additionally submitted that if the tie could not be safely removed by "two men, by pulling on said tie," and that the tie could have been safely removed with additional help, then it was the duty of defendant to have furnished additional help and "that the failure of the defendant to furnish additional men, if so, was negligence," without regard to any other shown method which could have been employed with reasonable safety. And, although the jury was instructed that the failure to supply additional help (if the tie could not have been safely removed by two men) was negligence, there was the further submission of another method or way of removing the tie upon the hypothesis only that plaintiff was exercising more strength than was ordinarily and customarily used in removing the tie. Such alternative method was to jack up the rails high enough to free the tie and spike. The jury was advised that if the alternative method were found to be a safer way (without submitting that the customary way was not reasonably safe, and without regard to the preceding direction that the failure to supply additional help in removing the tie in the customary way was negligent or without regard to any other shown different, reasonably safe way), then, even though the use was more difficult and burdensome to defendant, the failure to use a safer way of removing the said tie "was negligence."
Our conclusion is that the instruction as a whole was misleading. Furthermore, we believe the instruction, as drafted, was prejudicially erroneous in instructing on the theories of "additional help" and "safer way." In submitting these alternative theories the instruction did not require a finding of negligence, and the facts hypothesized in submitting the theories did not necessarily constitute negligence as a matter of law on either theory. The issue of negligence of defendant on these theories was not actually submitted to the jury, but, on the contrary, the jury was, in effect, instructed to return a verdict for plaintiff.
The judgment should be reversed and the cause remanded.
It is so ordered.
LOZIER and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.