Gill v. Baltimore Ohio Railroad Co. , 302 Mo. 317 ( 1924 )

This is an appeal from a judgment upon a verdict for $22,333.33 in an action respondent, as administratrix, brought under the Federal Employers' Liability Act for damages for the death of Glenn C. Gill, a switch foreman, who was killed while at work for appellant in its years in or near East St. Louis, Illinois.

On the night of December 28, 1920, the switching crew of which Gill was in charge was at work in the yards, placing loaded cars on track fourteen and empty cars on track fifteen, doors opposite each other, in order that car-load lots might be placed in the empty cars by transfer from the loaded cars, each of which contained freight for different destinations in other states. There is ample evidence that the movements were in interstate commerce. The switch engine was handling a cut of fourteen cars, some empty and some loaded. During the work an empty car was kicked in upon track fifteen, and the engine drew the remaining cars eastward out upon the lead. The rear car stopped at a point about ten feet east of the switch which opened into track fifteen. The next movement intended to be made was to place the loaded rear car of the cut on track fourteen. Gill stepped to the switch opening from the lead into track fifteen for the purpose of closing it. In the meantime Dorst, the long-field man, or rear brakeman, discovered that the car kicked into track fifteen had stopped before clearing, i.e. before it moved far enough so that a car moving along track fourteen would pass it. Dorst gave a track signal, the purpose and effect of which was imply to inform Gill, the foreman, that the car mentioned had not cleared. The fact that it had not done so made it necessary to push this car further in upon track fifteen, so that the next car could be set in upon fourteen. Gill then left the switch into fifteen aligned for that track and stepped over to the rear of the end car of the cut still attached to the engine, in order, as was the custom and practice, to close the knuckle of the coupler. This had to be done by hand. The purpose of doing it was to prevent the rear car of the cut from coupling into the car on track fifteen by impact — which would have required that some one should follow this car down the track, when it had been pushed far enough, and uncouple, so that the other cars could be drawn out upon the lead, and the car upon fifteen left upon that track. While Gill was closing the knuckle, the engineer started the engine, and Gill was run over and so injured that he died a few days later. There is evidence that it was Gill's business, as foreman, to give all signals for the movement of cars and engine, and that the engineer was not authorized to move without a signal originated by him. Sometimes a brakeman relayed a signal from Gill to the engineer when the foreman was so placed that he could not be seen by the engineer. There is ample evidence, both direct and circumstantial, that Gill neither gave nor originated a signal for the movement made. There is direct testimony that no signal for the engineer to come forward (his engine was coupled into the east end of the cut so that it faced the cars) was given by anyone. Carter and Fisher, the head brakeman and the engineer, attempted to testify that someone signaled, but each was confronted by his written statement so contradicting him that it is not surprising the jury found as it did. Gill was dragged ten or fifteen feet before a stop was made, after the emergency signal was given by Dorst who heard Gill cry out. A more detailed statement of the evidence is not essential. The instructions will be set out so far as necessary in connection with a consideration of the objections made to them. The facts supposed to bear upon the question concerning the amount of the judgment appear in conjunction with what is said with reference to the point made respecting that matter.

I. It is argued, it seems, that there is a Federal rule to the effect that a trial court may, in that jurisdiction,Federal direct a verdict in accordance with the weight of theRule. evidence and that a verdict will be set aside in an appellate Federal court on a record it may think shows such verdict to be against the weight of the evidence; that this rule applies in this court in this case under the Employers' Liability Act; and that this court should reverse the judgment on its inspection of the record because of the failure of the trial court to direct a verdict for appellant on the weight of the evidence. There is more than one answer. (1) On the record presented here it is apparent that the weight of the evidence was with respondent. (2) If doubt on this head could be said to exist, the trial court's action in overruling the motion for new trial, necessarily implied that it found the weight of the evidence was with respondent. Otherwise, it was his duty to sustain the motion. That ruling of the court on that question would solve the question in a doubtful case even if there were such a rule in the Federal appellate courts, as is contended, and, if, further, it could be held to apply to this case. (3) The Conformity Act (Act of June 1, 1872, Rev. Stat., sec. 914, c. 255, sec. 5, v. 17, p. 197; Barrett v. Virginian Ry. Co., 250 U.S. l.c. 475, et seq.) would exclude the application of such a rule in this case, even if it existed in the other jurisdiction. (4) No such rule exists. [Crumpton v. United States,138 U.S. 361; Zeller v. Eckert, 4 How. l.c. 298; York Cumberland Ry. Co. v. Myers, 18 How. 246; City v. Babcock, 3 Wall. 240; Humes v. United States, 170 U.S. 210; Hyde v. Stone, 20 How. 170.] We venture to hold that further pursuit of this subject is unnecessary. The rule stated in Buesching v. Gas Co., 73 Mo. 219, so often cited and applied by this court, is the standard by which the sufficiency of the evidence in this case is to be measured.

II. It is true, as contended, that negligence must be proved. The facts stated show there was ample evidence of it, and the jury's verdict shows that they were convinced of the truth of that evidence. The ruling on the motion for newPresumption trial shows the view the trial court took of itsof Due Care. weight. It is quite true that the presumption or inference of due care on the part of one killed by cars, though applicable in a particular case, merely rebuts a charge of contributory negligence and does not tend to prove negligence on the part of the defendant. [Yarnell v. Railroad,113 Mo. 570.] Respondent does not rely upon such an inference or presumption to make out her case.

III. It is argued that the evidence tended to show more than one cause for the injury of Gill and his death, for one or more of which appellant was not liable, and that there was no substantial evidence tending to show that a cause for which it would be liable, rather than another, produced theMore Than fatal result. [Goransson v. Riter-Conley Mfg. Co.,One Cause. 186 Mo. l.c. 307.] This rule is not involved. The conflict of evidence, so far as it can affect this insistence, was upon the question whether Gill did or did not give or originate a signal for the movement which killed him. The allegations in the petition to the effect that Gill was lawfully behind the cars for a purpose necessary to his work, or any other purpose; that the authority to direct the engineer to move the cars resided in him and in no other; and that the engineer started the train without any such direction or signal given or authorized by Gill, were sufficient so far as the present and allied contentions are concerned. There was ample evidence in support of these allegations.

IV. It is quite true that the written statements made by Carter and Fisher, in which they had told a story contradicted by their testimony for appellant, did not constitute evidence of negligence on the part of appellant. The statementsImpeachment. were offered and used and doubtless operated to impeach the two.

V. It is urged that errors were committed in giving and refusing instructions.

(1) It is argued that the question whether the appellant and Gill were engaged in interestate commerce at the time of the accident was not properly submitted. On this point the instruction required the jury to find, in substance, before verdict for respondent, that appellant was a commonInterstate carrier by railroad and that at the time of theCommerce. injury Gill was in its employ as a switch foreman and acting as such, and he and his crew, as such, were engaged in switching cars in whole or in part loaded with shipments "originating in one State . . . and destined to and enroute to another and different State of the United States," and that in doing the work, etc. The argument is that the cars "may have been switched at the time in question for the sole and only purpose of making up a train for handling only intra-state commerce." No decisions are cited by appellant upon the particular point. Besides the fact that in a somewhat similar situation it has been held that the trial court ought to have directed a verdict on the point (Payne v. Bearden, 266 F. 879, Eighth Circuit), the identical question was decided contrary to appellant's contention in Bolch v. Railway, 90 Wash. 47, and the writ of error dismissed by the Supreme Court of the United States, 242 U.S. 616. The decision in Delk v. Railroad,220 U.S. 580, is a ruling which, in principle, supports respondent on this question. In addition, the instruction itself fairly answers appellant, and meets, substantially, the requirement upon which it insists.

(2) Another criticism is based upon a question respecting the evidence which has already been considered. It is further contended the instruction authorized the jury to base its finding of damages on the expectancy of Gill, who was younger than his wife. The instruction explicitly confined the jury to "only the pecuniary loss sustained, if any, by reason ofLife Expectancy. the death of Glenn C. Gill, by his widow, Anna W. Gill, . . ." It told the jury to base its finding as to her "loss, if any" on the "present cash value of the support, if any, lost to her." It also told the jury it might take into consideration Gill's age and probable expectancy. If the expectancies of Gill and his wife differed, that which was shortest was the basis of proper recovery. The instruction did not interfere with this rule. It authorized a finding solely for the loss to the wife and confined the loss to the probable value of the support she had lost. Gill's expectancy was an element. With respect to it, there was no misdirection. No evidence was offered as to the effect of Gill's hazardous occupation upon his expectancy. Neither did appellant ask an instruction upon the question it now raises.

(3) The use of the word "support" in the instruction is assailed. It is said respondent should have been restricted to "compensation for deprivations of the reasonable expectation of pecuniary benefits that would have resulted from theThe Word continued life of the deceased." It is argued that"Support". the jury might have misunderstood the word "support." A previously quoted part of the instruction explicitly limited recovery to Anna W. Gill's "pecuniary loss." We do not think a jury could have been misled to think that "support" could include something for which the instruction plainly told them no compensation could be allowed.

(4) Appellant asked an instruction which told the jury "that if, from a consideration of all the evidence in this case, you are unable to determine whether or not the preponderance or greater weight of evidence is in favor of the plaintiff or in favor of the defendant in this case, that then the plaintiff has not proved her case, as the lawGreater requires, and you should find your verdict in favor ofWeight. the defendant." The court refused this instruction in the form requested, but modified it and then gave it. The modification need not be set out, since it is not claimed the modified instruction is erroneous. It is argued that the instruction should have been given as above set out. One issue submitted to the jury was that of Gill's contributory negligence. It is obvious the instruction, as asked, was open to the construction that the burden was on respondent on all issues, including that of contributory negligence. The trial court would have been justified in refusing the instruction outright. In these circumstances the point must be ruled for respondent.

VI. The remaining contention is that the damages allowed are excessive. Gill was twenty-four years old at the time of his death. His wife, Anna W., was thirty-two. In Midway National Bank T. Co. v. Davis, 288 Mo. 563, 233 S.W. l.c. 412, Court en Banc referred to the American Experience Tables, inExcessive arriving at expectancies at given ages. Attention wasVerdict. called to the fact that the extra hazards of employment as switchmen were to be considered in reduction of the expectancies shown by the table to which reference was made. It might have been added that the American Experience Tables are based upon insured, and therefore, selected and healthy lives, and naturally show greater expectancies than tables based upon lives taken without selection with respect to health. The General Assembly once overlooked this distinction (Laws 1903, p. 167) and promptly corrected the error at its next session. [Laws 1905, p. 140.] It made the excessive values under the American Experience Tables the basis of an emergency clause to the amendatory act. In that act the Carlisle table was adopted. It is based upon lives considered without selection and is the table which has received the general approval of courts. The Northampton and Farr tables, of like kind, are not much used except under compulsion of a statute. [Giauque McClure on Annuities, p. 185 et seq.] In this case evidence was offered to show that Gill was in good health, and none was offered to the contrary. This evidence justified a finding by the jury in accordance with it and entitles respondent to have his expectancy considered as that of a healthy man, and makes the American Experience Tables applicable. Under these tables his expectancy was 39.49, and that of his wife, whom the jury saw as a witness, 33.92. Whether her appearance of health and strength justified a finding that her duration of life was likely to exceed the average of healthy persons was a question the jury could determine from their view of her, and a finding we are in no position to review. The single submitted ground of recovery was the "pecuniary loss" to Anna W. Gill. Her expectancy, if a healthy woman, as the jury might have found, as against any contention which can be made now, equaled, or even exceeded, 33.92 years at the time of her husband's death. The widow is entitled to be reimbursed for her pecuniary loss. It is generally held in State courts that "where future payments are to be anticipated and capitalized in a verdict, the plaintiff is entitled to no more than their present worth." [Ches. Ohio Ry. v. Kelly, 241 U.S. l.c. 493, and cases cited.] The interest to accrue upon the damages allowed must be considered. The rate ought to be such that the principal will be safe in an investment such that financial experience is not essential to its making. [Same case, l.c. 490.] In that case the court suggests that local conditions are to be considered and that "savings banks and other established financial institutions are in many cases accessible for the deposit of moderate sums at interest, without substantial danger of loss; the sale of annuities is not unknown; and for larger sums, state and municipal bonds and other securities of almost equal standing are commonly available." The net result of which implies (as the court elsewhere states) that a somewhat low rate of interest is to be employed in computing the capitalized value of future installment payments. No annuity or present worth tables were put in evidence. Neither, if they had been would they have constituted an "absolute guide of the judgment and conscience of the jury." [Ches. Ohio Ry. v. Kelly, supra.] The present worth of thirty-four annual installments each equal in amount to the annual money loss to Anna W. Gill on account of her husband's death will show the probable loss under like conditions to a healthy person, of the same age, of average strength and average prospects of longevity. During the first six months of the year preceding his death Gill earned nearly or quite $200 per month. During the last six months of that year he worked about half the time. Work had become somewhat slack. This gave a total income for the year of nearly $1800. Wages were higher than formerly, though we are not apprised by the record that the decrease anticipated in Midwest National B. T. Co. v. Davis, supra, had become an actuality. To offset this, steadier work for Gill was to be anticipated, both on account of the temporary character of slack periods in railroad work and on account of the reasonable probability of more continuous employment of Gill as foreman as his lengthening service and increasing experience would secure it for him. It is not unreasonable to think, in the circumstances, that his income would have increased rather than diminished during the succeeding years. The jury reasonably could have so found. The record justifies the acceptance of $1800, if not more, as the probable annual income. Seven hundred dollars, per annum, is a reasonable allowance for personal expenses of Gill and that part of the family expense attributable to his membership in the family. Much more than $1100 was turned over by him to his wife. The present worth of thirty-four annual installments of four per cent, is $22,377.19; interest at five per cent, $21,086.78. [Wolfe's Inheritance Tax Calculations, pp. 84, 85.] Taxes, from which Gill's income was free, will reduce the net value of the judgment very materially. When these are figured at one per cent, the judgment does not cover the capitalization of annual installments amounting to as much as $900 each. The problem works out this way, even if the jury were bound by average expectancies and were not authorized to find that Anna W. Gill would live longer than the average healthy person of her age. The showing does not warrant a reduction of the verdict. This conclusion is amply sustained by numerous decisions, State and Federal, cited in the briefs, which will appear with the opinion.

The judgment is affirmed.