Mississippi Central R. R. v. Lott

Stevens, J.,

delivered the opinion of the court.

The claimed right of the plaintiff in this case to recover is predicated on the alleged negligence of appellant in furnishing to the J. J. Newman Lumber Company, the shipper, the freight car with a defective grabiron. The defendant challenges the right of the plaintiff to recover anything, contending that, inasmuch as plaintiff was not a servant of the defendant carrier it owed plaintiff no duty, and cannot be made to respond in damages for any injury resulting from a defective grabiron. Much is said in the briefs of counsel about the two cars having been received from the Illinois Central Eailroad Company at Brookhaven prior to their loading. Whether the ears were or were not inspected, the shipment originated at Sumrall, and the cars complained of were tendered by the defendant as a common carrier of goods, and the primary duty rested *828 upon it to furnish cars suitable for the transportation of lumber. This duty was upon the railroad company, and not upon the shipper, to furnish, select, and inspect these cars. It is immaterial that the cars had been furnished as empties by a connecting carrier. In the present inquiry, the freight ears must be considered as much the cars of the Mississippi Central Eailroad Company as if the defendant possessed full ownership. The duty to furnish proper cars cannot be avoided, and the issue should not become clouded by any argument as to the responsibility of the connecting carrier or of the shipper. As said by Mr. Hutchinson:

“Nor can the carrier avoid responsibility as a carrier by devolving upon the shipper the duty of inspecting or selecting the vehicle in which his goods are to be carried.” Hutchinson on Carriers (3 Ed.) section 498.

There are no facts in this case tending to show a special agreement between the shipper and the railroad company whereby the carrier is to be discharged from liability for damages resulting from any defects in cars, but, on the contrary, the entire traffic arrangement between the J. J. Newman Lumber Company and appellant shows a most friendly and intimate arrangement whereby the lumber company is doing a large sawmill business and the railroad company is receiving and delivering all shipments and getting the entire transportation business of the lumber company. As between appellant and its employes the right of the carrier to furnish safe appliances and vehicles is not questioned, but, as stated by counsel for appellant, it is contended:

“No relationship has been shown between appellant and appellee, and there is nothing to indicate that appellant owed appellee any legal duty.”

The fact that plaintiff was not employed by the railroad company is not controlling. The- undisputed testimony clearly shows that Mr. Lott was employed by the shipper; that the car in question was furnished to *829 the shipper; that the shipper in this ease was doing the loading; that the plaintiff was within his duties in attempting to fasten the car door; and that the defective condition of the car thus furnished the shipper caused the injury. Mr. Lott was lawfully on and about the oar, and had a right to assume that the car tendered was not in such a defective condition as to cause these injuries. The jury has said by their verdict that the car was in fact defective. The important inquiry then, as we view the case, is whether the defective condition of the car could have been discovered by reasonable inspection. On this question there was a dispute in the testimony, and all doubts or conflicts in the evidence have been resolved in favor of the plaintiff, and on this point we see no reason to disturb the verdict of the jury. The general obligation rested upon appellant to furnish the shipper safe and proper cars, and to use ordinary care to inspect the ears in an effort to see that they were reasonably safe. Authorities on this point are abundant. Many of the cases are collated in the case note to Chicago, I. & L. R. Co. v. Pritchard, 9 L. R. A. (N. S.) 857 ( 168 Ind. 398 , 79 N. E. 508 , 81 N. E. 78 ). The first paragraph of the syllabi to the case mentioned states, we believe, the true rule and the one supported by authority:

“A railroad company is liable for injury, through defect in a car, to a servant of a shipper who is assisting in loading it, where the defect was imminently dangerous to persons using the car, and the circumstances were such as to require an ordinarily prudent person to put the car into proper condition before parting with it.”

In Moon v. Northern Pacific R. Co., 46 Minn. 106 , 48 N. W. 679 , 24 Am. St. Rep. 194 , it is stated in the opinion as follows:

“One may owe two distinct duties in respect to the same thing — one of a special character to one person, growing out of special relations to him; and another *830 of a general character, to those who would necessarily be exposed to risk any danger from the negligent discharge of such duty. 1 Shearman and Bedfield on Negligence, section 116; Bigelow on Torts, 614.”

The proof shows that the cars were furnished appellant by the Illinois Central Eailroad Company, and it was the duty of appellant properly to inspect these cars and to see that they were reasonably safe. This is a duty not only imposed by general law upon appellant as a common carrier, but the testimony in the case clearly shows that appellant recognized this duty and employed car inspectors and attempted to have its equipment properly inspected, and one of the defenses relied upon on the trial of the case was the contention that the two cars had in fact been inspected and were in fact reasonably safe. Mr. Stuart, expert car inspector, testified for the plaintiff as to the rules and regulations' prescribing this duty. He produced and read from regulations in writing known as “Master Car Builders’ Association Buies,” furnished all railroads and car inspectors, and from these regulations read to the jury the rule devolving the duty in this case upon appellant before it accepted the car from the Illinois Central, to see that it was “in a safe and serviceable condition.” This rule was referred to as “Interchanging Freight Cars, Eule 2,” and witness stated that if any defects were found the car should be referred to the proper “car knockers” to be fixed. There is testimony to the effect that a slight tap of a. hammer on the grabiron would have disclosed the rotten condition of the wood.

Under the testimony, the rules and regulations of good railroading, and under general obligations imposed by law, we unhestatingly say in this ease, as stated in paragraph 4 of the headnotes to Tateman v. Chicago, R. I. & P. R. Co., 96 Mo. App. 448 , 70 S. W. 514 , that:

“It is the duty of a railroad company to inspect its cars, even though received from other companies, to *831 see that they are reasonably safe for those who are required to go about them” that is to say, for those who are lawfully at and about the cars.

In Hamilton v. Louisiana & N. W. R. Co., 117 La. 243 , 41 So. 560 , 6 L. R. A. (N. S.) 787, recovery for plaintiff was justified on the showing that he was employed by a lumber company then operating a log train on the defendant’s tracks under a special agreement for the use of the roadbed, and where the plaintiff was injured by a defective bridge on the defendant’s line. It was argued in that case, as it is in the instant case, that “the plaintiff was neither a passenger nor an employee,” but the court directed attention to the fact that plaintiff “was lawfully on the train as an employee of the Athens Lumber Company, which had a contractual right to the use of the track,” the court concluding “that the defendant railroad company is liable to plaintiff for its failure to discharge the public duty of maintaining safe bridges on its line. The fact that the plaintiff was the employee of the lessee company makes no difference.” 117 La. 248 , 41 So. 562 .

The railroad company in receiving, transporting, and delivering freight well knows that shippers and consignees, and the servants of both, must have access tó freight ears, must resort to cars in loading and receiving good, and with this knowledge carriers must use ordinary care to prevent injuries to parties who lawfully make use of the car. This principle is recognized and applied by the Massachusetts Supreme Court in Ladd v. N. Y., N. H. & H. R. Co., 193 Mass. 359 , 79 N. E. 742 , 9 L. R. A. (N. S.) 874, 9 Ann. Cas. 988. Some of the authorities base negligence in a case of this kind upon the implied invitation of the railroad company to shippers and their servants to go upon the cars in handling shipments. So we conclude that counsel for appellant are wrong in their contention that appellant owed Mr. Lott no duty whatever. It is manifestly true this duty does not grow out of the *832 relationship of master and servant, but the negative proposition — that the appellant was not a servant of the railroad company — has no real bearing on this case.

What we have thus far said disposes of the main contention made for the appellant, and settles the basic right of the plaintiff, on his proof, to recover. It now becomes important to inquire whether the jury were misdirected by any of the instructions complained of. Counsel for appellant sets out and criticizes seriatim instructions 1 to 8, inclusive, granted appellee. Reference to the original briefs will disclose that the chief criticism made of instructions 1 to 4, inclusive, is the contention that they “extend to the appellee the benefit of the federal Safety Appliance Act;” that “the federal law protects the employees of railroads and travelers on trains only;” that “there was and could be no state law or rule of decision, in view of the inclusiveness of the federal law, making it the duty of the appellant to affix or have any kind of grabiron on the car in question, a foreign car, for the protection of appellee, an employee of the lumber company, and sustaining no relationship of any character to appellant.”

The views we have expressed in this opinion on the alleged nonliability of ' appellant disposes of this criticism of the first four instructions. The argument that these instructions submit to the jury the federal Safety Appliance Act is a mere assumption, and a very erroneous assumption. The instructions complained of make no reference whatever to the Safety Appliance Acts (U. S. Comp. St-, section 8605 et seq.), or to any federal law on the subject. They refer to no statute, federal or state. The instructions are grounded on the implied invitation of the carrier to the servants of the lumber company to make proper use of the cars in loading same for shipment, and state in language at least approximately correct the proper law of the case. There is no federal question involved.

*833 Appellant next contends that instruction No. 5 is fatally erroneous, first, in that by the use of the words “by defendant’s negligence” it assumes that in fact appellant was negligent. Other language of this instruction says, “if you find for the plaintiff that he was injured or damaged by the defendant’s negligence.” Conceding for the purposes of this discussion, but not deciding, that this was error, it was, we think, harmless error in this case.

' It is next attacked on the ground that it authorizes the jury to take into consideration appellee’s earning capacity, when there was, as appellant contends, no proof on this subject. We think the facts show with reasonable certainty that the plaintiff was a hard-working day-laborer in the sawmill plant of the J. J. Newman Lumber Company; his employment, his average wage, and habits of life were fully developed and fully shown in the presence of the jury.

The instruction is also attacked on the ground that it permits the jury to consider pain or suffering or loss of earning capacity which the plaintiff “may” sustain in the future. While counsel do not expressly say so in their briefs, it is intimated that the' word “may” was improperly used, and that it “turns the jury into the relm of possibilities and speculation.” There is no merit in this contention. Jurors are supposed to be men of good sense and sound judgment, and the proper predicates, we think, were laid, in the instruction. The exact language in reference to future pain, suffering, or loss of earning capacity is “any pain or suffering or loss of earning capacity that may be sustained after this date caused by said injury.”

As stated in Dean v. Kansas City, St. L. & C. R. Co., 199 Mo. 386 , 97 S. W. 910 , quoting from the prior Missouri case of Reynolds v. St. Louis Transit Co., 189 Mo. 408 , 88 S. W. 50 , 107 Am. St. Rep. 360 , the word “may” here “comprehends the idea of probability, and -also the thought of what is with more or less *834 certainty, to be expected.” The jury, we are sure, did not misunderstand this instruction, but, on the contrary, had their minds directed to. the probable and reasonable results of the injury complained of. If they believed the testimony, Mr. Lott at the time of the trial-was a hopeless and permanent cripple, unable to do manual labor or to hold any job requiring physical, labor. He was altogether disabled from doing the work or following the business he had been engaged in and which he was qualified to do. As to future pain, the proof showed that the plaintiff had been a constant sufferer from pain, so much so that he could only be relieved at times by “dopes,” and the statements of the plaintiff as a witness in his own behalf are to the effect that subsequent pain would be sure to follow, especially in view of the fact that plaintiff was then, under the undisputed testimony of physicians, in a weakened and tubercular, condition. What we have said as to any subsequent or future pain applies equally to plaintiff’s loss of earning capacity. Under the facts of this case the employment of the word “may” did not authorize the jury to roam the fields of speculation or conjecture. Reynolds v. St. Louis Transit Co., 189 Mo. 408 , 88 S. W. 50 , 107 Am. St. Rep. 360 ; Caplin v. St. Louis Transit Co., 114 Mo. App. 256 , 89 S. W. 338 .

It is contended that the sixth instruction ignored the question of negligence, and also permitted the jury to speculate on damages sustained as a result of tuberculosis. This indeed brings us to the most delicate question argued at the bar. Was testimony as to the existence of tuberculosis properly admitted and properly considered by the jury? In the determination of this question due weight should be given the facts of this particular case. The physicians testified unqualifiedly that plaintiff had tuberculosis of the lungs at the time his case was submitted to the jury, and the plaintiff, as he sat upon the witness stand in the presence of the jury, presented himself as one hopeless and *835 doomed by a plague which has taken a heavy toll of life. In fact, it was represented in the oral argument of counsel without objection, that the plaintiff, since the trial of this case in the court below, has died of this disease and the consequent injury here sued for, and that the beneficaries of this judgment are now his widow and his child of tender years. It is well to observe that nothing said in the instructions required the jury to allow damages from tuberculosis, but the jury were authorized to take into consideration the diseased condition of the plaintiff if they believed from the evidence there was any causal connection between the .injury and the disease. The question argued is not a new one, but one which has confronted the courts in damage suits many times. In Crane Elevator Co. v. Lippert, 11 C. C. A. 521 , 63 Fed. 942 , it was contended that the injury sued for was not in fact caused by the fall of the plaintiff, but by the presence of tubercular germs then existing in the plaintiff’s system. In response to this argument the court said:

“The plaintiff in error further contended on the oral argument that the injury sustained by the defendant in error was not the proximate result of his fall, but arose from the presence of tuberculous germs in his system. It was the hurt occasioned by the fall which afforded an opportunity for the active development of the poisonous germs which had theretofore been innocuous. It was the wrongful act which gave rise to the consequent injury, and it is not apparent that the injury would have occured in the absence of such cause. In the case of Railway Co. v. Kellogg, 94 U. S. 469, 475 ( 24 L. Ed. 256 ), it is said: ‘When there is no intermediate, efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must therefore always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury. ’

*836 “The 'wrongful act of the plaintiff in error subjected the injured party to other and dependent causes, which were set in motion by the original hurt. For this it is answerable.”

A similar question was presented in Vogeley v. Detroit Lumber Co., 196 Mich. 516 , 162 N. W. 975 . The court there reviewed the testimony saying:

“We are of the opinion that it tends to show that the deceased was struck while at his work by a broken, belt and injured about the face, nose, and right side; that as a result thereof traumatic pleurisy set in, and later developed into pneumonia; that, while Vogeley was suffering with pneumonia, typhoid fever set in, and as a result of both maladies he died.”

The opinion further concluded: “We think the foregoing testimony, if believed by the board (Industrial Accident Board under Workmen’s Compensation Act) supports its finding that pneumonia was a contributing cause of death.”-

In State v. District Court, 138 Minn. 334 , 164 N. W. 1012 , a case under the Workmen’s Compensation Law (Gen. St. 1913, chapter 84a), it was held that the evidence justified the trial court in finding, that the injuries complained of caused the plaintiff to have pulmonary tuberculosis, although three expert physicians in that case testified that claimant’s death was caused by disease and not by the injury.

In Balzer v. Saginaw Beef Co. (Mich.), 165 N. W. 785 , the very practical observation is made by the court, speaking through Ostrander, J.:

“It is possible for one to have the disease and not know it, so the physicians say, and sometimes an apparently strong, healthy man is found to be afflicted with the disease. But the evidence strongly supports the conclusion that claimant was a strong, healthy man at the time he was injured. It does not directly negative the fact, which could be learned, perhaps, only by an examination of his urine, that immediately before *837 the injury no test which conld he applied would have disclosed a diabetic condition. . . .

“No other event, or experience, made manifest in the testimony accounts for his diseased condition. If he was a well, healthy man when injured, it is probable, the physicians say, that the diabetic condition is a result of the injury. The conclusion that it was caused by the injury is not then mere conjecture. The finding of the board rests upon something more substantial.”

In Van Keuren v. Dwight Divine & Sons, 179 App. Div. 509 , 165 N. Y. Supp. 1049 , the headnote states the point of law and the conclusion reached by the court as follows:

“Where an employee had tuberculosis, and received an injury ‘arising out of and in the course of employment,’ which accelerated the disease and caused his death, an award under Workmen’s Compensation'Law, Section 3, subd. 7, providing for award in case of injury arising out of and in the course of employment and such disease as may naturally and unavoidably result therefrom, was proper, even though the disease itself might not have resulted from the injury.”

In Luisi v. Chicago Great Western Ry. Co., 155 Iowa, 458 , 136 N. W. 322 , the court said: “But on the other hand, if it be shown that the plaintiff’s physical injury superinduced, or contributed to, the production of pneumonia, the defendant is liable therefor. If pneumonia results from an injury, which renders the person susceptible thereto, the injury is a predisposing cause of the pneumonia. 1 Thompson on Negligence, section 154; Murphy v. Railroad Co., 31 Nev. 120 , 101 Pac. 322 , 21 Ann. Cas. 502; Railroad v. Buck, 96 Ind. 346 , 49 Am. Rep. 168 . There was evidence tending to show that the injury received by the plaintiff was, at least a predisposing cause of the pneumonia, if not the sole cause thereof. We are of the opinion therefore that the evidence under consideration was properly received.”

*838 Much is said in this case to the effect that there is no causal connection between the germs in plaintiff’s lungs and the injury to the plaintiff’s back. A similar contention was made in the case of Keegan v. Minneapolis & St. L. R. Co., 76 Minn. 90 , 78 N. W. 965 , in which the court, by Mitchell, J., made the following observations:

'“But, conceding that all the expert testimony as to the ‘germ theory,’ or any other theory, and as to the precise manner a bodily injury produces articular rheumatism, should be disregarded, yet we think the evidence in this case, based upon both the medical authorities and upon the professional experience of some of the witnesses, is sufficient to justify the conclusion that articular rheumatism so often follows personal injuries that this is not a mere coincidence, but that oftentimes the injury is the exciting cause of the disease. When this is reinforced by the evidence that the deceased was never previously attacked by the disease; that it developed in such a severe form so soon after the injury, without any other apparent cause — we think that the jury was justified in concluding that the latter was the cause of the former, regardless of the truth or falsity of many of the particular theories of the experts.”

It was not only expedient, but necessary, for the plaintiff in this case to show with some particularity his physical condition at the time of the trial; in doing this he very naturally related the existence of his tuberculosis and his condition generally. What else could the plaintiff do? Would it have been proper to suppress and to have kept from the knowledge of the jurors the existence of the disease? How could the jury properly relate and reconcile all the testimony as to the plaintiff’s physical condition and the probability of pain and suffering in the future without a searching inquiry into the full truth? The jury has awarded a lump sum as full damages sustained and to be sustained, and, this *839 being so, we might ask, as did the court in Beauchamp v. Saginaw Mining Co., 50 Mich. 163, 174 , 15 N. W. 55 , 69, ( 45 Am. St. Rep. 30 ):

“Can it be said with judicial certainty that the injury, the sickness and weakness following therefrom, did not directly cause or largely contribute to the attack of pneumonia, and that the party wrongfully injured was as able to withstand this resultant attack as he would have been if ‘a good, healthy, well-nourished boy’ as at the time he received the injury? If the injury received and sickness following concurred in and contributed, to the attack of pneumonia, the defendant must be held responsible therefor. It cannot be said that here was a second wrongful act, or a diseas’e, wholly independent of the first wrong, which caused the death of the boy.”

According to the proof he had no occassion prior to the injury to suspect the presence of tubercular germs in his lungs, and he positively states that so far as his knowledge went he did not have the disease prior to the injury. Could any truthful witness ordinarily testify to more? The question is a practical one, and should be viewed in a common-sense fashion. It is a matter of common knowledge that the normal, reasonably healthy laborer, whose health has not been sufficiently impaired to require medical treatment, does not know and cannot know whether he has tubercular germs in his system. In the very nature of things it was impossible for the plaintiff to have testified as to whether he did or did not have these germs in his lungs on the day he received his fall. He only knows he did not have any indication of tuberculosis prior to the fall, and he well knows that soon after the injury he developed a pronounced case of tuberculosis of the lungs. It needs, we think, no expert testimony to justify the jury in concluding that one’s power of resistance may become very much lessened, and one’s vitality lowered by severe accident or injury such as is here sued for, and in con- *840 eluding that tubercular germs find a fertile soil in those who for any reason are in a weakened or famished condition. This indeed is now a question that confronts nations as well as individuals. The particular instruction here under consideration had the proper qualification “if they find for the plaintiff that the defendant is liable. ” It is. elementary that this instruction and the language employed therein must be read in connection with all of the instructions in the case.

What we have said in reference to instruction No. 6 applies also to appellant’s criticism of instruction N. 7. Appellant excepts to the use of the word “believe” in this instruction. It is manifest that the belief here referred to m'ust be gathered from the evidence in this case, even to the extent of requiring the jury to believe from a preponderance of the evidence that the tuberculosis had a direct connection with plaintiff’s fall.

Instruction No. 8 should have qualified the language “if you believe” by a proper reference to the evidence; bnt this instruction, read in connection-with the other instructions in the case, did not, we think, mislead the jury by a failure to state that they must entertain their belief from all the evidence in the case, and accordingly does not amount to reversible error.

There is no merit in the contention that the eighth instruction denied the defendant its right’ to plead or claim contributory negligence. It stated plaintiff’s theory, and in doing-so stated the law of this jurisdiction correctly. It made no reference whatever to any federal act, and the- argument of counsel that it presented the federal statute as controlling is entirely without merit. The law given in charge by this instruction is the general law of negligence and is not based upon any federal statute whatever.

The refused instructions asked for by the appellant are assigned for error. All of them are in conflict with, the plaintiff’s theory of the case and in conflict with the *841 plaintiff’s instructions. There was no error in refusing any of them.

It is insisted, finally, that the verdict is grossly excessive. The award, in the writer’s opinion, is undoubtedly large, but this is a question about which individuals might well differ. It is always a delicate task to measure pain, suffering, or permanent injury in terms of dollars and cents. This task primarily is the province and responsibility of jurors. In the present case the jury not only heard elaborate testimony for both sides, but had an opportunity to see the plaintiff and to hear first hand his statements as to his physical condition, and the extent of his pain and suffering; and we cannot say that this amount is not justified by the testimony. There was a strenuous effort by the defendant to show that plaintiff was exaggerating his physical disabilities, but on the whole record there was no dispute about the plaintiff having- received the fall between the two freight cars, and about the fact that he was there picked up by the switching crew and carried away for medical attention. The real issue of fact was whether the fall was due to accident or to a 'defective ladder on the car. This conflict of fact on this vital issue has been settled in favor of the plaintiff. On the whole case we see no reversible error; and we leave the responsibility for the result where we find it.

Affirmed.