Higley v. Missouri Pacific Railroad

685 S.W.2d 572, 1985 Mo. App. LEXIS 3055
CourtMissouri Court of Appeals
DecidedJanuary 22, 1985
DocketNo. 47843
StatusPublished
Cited by2 cases

This text of 685 S.W.2d 572 (Higley v. Missouri Pacific Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higley v. Missouri Pacific Railroad, 685 S.W.2d 572, 1985 Mo. App. LEXIS 3055 (Mo. Ct. App. 1985).

Opinion

SMITH, Presiding Judge.

Defendant appeals from a judgment against it, pursuant to jury verdict, in the amount of $2,371,000 for injuries sustained by plaintiff. The action was brought for violation of the Federal Safety Appliance Act, 45 U.S.C. Sec. 2. We affirm.

Plaintiff was a veteran brakeman-switch-man for defendant in McGehee, Arkansas. At the time of the accident he was a member of a crew preparing to couple and move empty cars. Plaintiff was pulling pin lifters to open the coupling knuckles to allow the cars to be coupled together. In order for the cars to couple it is necessary that at least one of the knuckles be open. The pin lifter extends from the knuckle to the outside of the car. Its function is to allow an employee to lift the pin in the knuckle so that the knuckle will open. It is designed so that it is unnecessary for the employee to go between the cars to open the knuckle. Plaintiff reached the point where the accident occurred and observed that two cars were uncoupled and that the knuckles of each were in the closed or almost closed position. From his experience he knew the cars would not couple with the knuckles in that position. He took hold of the pin lifter which then separated from the knuckle and fell to the ground without opening the knuckle. The pin lifter for the other car was on the other side of the cars. Plaintiff went between the cars to manually open the knuckle. As he was doing so the cars came together crushing his left arm between the knuckles. It took approximately 45 minutes to free plaintiff. His left forearm and hand were mangled beyond salvage resulting in amputation below the elbow.

Defendant challenges plaintiff’s verdict directing instruction as unsupported by the evidence. That instruction substantially followed MAI 24.03 omitting the first paragraph which was uncontested. The form second paragraph as submitted read, “defendant used on its line a car which was not equipped with a coupler coupling automatically by impact without the necessity of the plaintiff going between the ends of the car ... ” Defendant contends that there was no evidence that there had occurred a prior impact in which coupling did not occur or that the coupling knuckles were in a position to couple prior to any impact, which it contends are prerequisites to liability under the Act. This in turn is based upon defendant’s theory that pin lifter failure presents a different Safety Appliance violation than coupler failure. We find no merit to these contentions.

The Safety Appliance Act provides that it is “unlawful for any common carrier ... to haul or permit to be hauled or used on its line any car ... not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” 45 U.S.C. Sec. 2. The “without the necessity” clause applies to both the act of coupling and uncoupling. Johnson v. Southern Pacific R. Co., 196 U.S. 1 l.c. 18, 25 S.Ct. 158 l.c. 162, 49 L.Ed. 363 (1904). A single failure of the coupling mechanism is sufficient to establish a violation of the Act. Affolder v. New York, Chicago and St. Louis Railroad Co., 339 U.S. 96 l.c. 99, 70 S.Ct. 509 l.c. 511, 94 L.Ed. 683 (1950). The Act imposes absolute liability regardless of care or diligence. Clark v. Kentucky and Indiana Terminal Railroad, 728 F.2d 307 (6th Cir.1984) [2]. From language used in the last cited case and certain other cases1 defendant distills a requirement that the evidence show an unsuccessful attempt to couple by impact before liability is established. We find no such requirement. The cases relied on by defendant involved situations where the [575]*575question was whether it was necessary for the plaintiff to go between the cars to effectuate a couple.2 Obviously, liability does not attach under the Act if the couplers will in fact couple automatically by impact without the necessity of plaintiff going between the cars.

That is not, however, the situation here. The evidence in this case established that the knuckles of the two cars involved were in positions where it was impossible to couple the cars by impact. Before a couple could be effectuated it was necessary that one of the knuckles be opened. It is for just such a necessity that pin lifters are provided. Their purpose is to allow opening of the knuckle from the side of the car. When the pin lifter failed the cars could not be coupled by impact without plaintiff going between the cars to open the knuckle.3 The failure of the pin lifter was a breach of defendant’s statutory duty. Jordan v. East St. Louis Connecting Ry. Co., 308 Mo. 31, 271 S.W. 997 (1925); Lovett v. Kansas City Terminal Ry. Co., 316 Mo. 1246, 295 S.W. 89 (1927). The instruction properly submitted this issue as an ultimate fact under MAI.

Defendant contends that the trial court erred in admitting into evidence a picture of plaintiffs mangled arm taken by the surgeon prior to amputation. The picture, admittedly gory, was a 3" x 3" color photograph, one of four taken by the surgeon as routine practice in amputation cases. The court refused to admit the other three photographs. Admission of photographs is within the discretion of the trial court, Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577 (1953) [7, 8], and will be disturbed only on a showing of abuse of that discretion, Beshore v. Gretzinger, 641 S.W.2d 858 (Mo.App.1982) [1, 2], The photograph was an accurate portrayal of the injuries to plaintiffs arm, was not enlarged and did not distort or exaggerate the injury. The photograph was relevant to the nature and extent of plaintiffs injury and to the damage element of pain and suffering sustained by plaintiff while being extricated and prior to amputation. We do not find an abuse of discretion. Helming v. Dulle, 441 S.W.2d 350 (Mo.1969) [6]; McWilliams v. Wright, 460 S.W.2d 699 (Mo.1970) [2-5].

Defendant next complains that two answers given in response to defendant’s cross-examination of plaintiff injected negligence of defendant’s employees into the case.4 The answers arose as a result of defendant’s efforts to establish plaintiff’s contributory negligence by eliciting that if he had not gone between the cars the accident wouldn’t have happened.5 It is questionable that the answers injected negligence of the train crew into the case. All the answers did was state that if the “train” hadn’t moved there wouldn’t have been an accident, a fact self-evident from the accident.

Furthermore, the answers were proper in response to defendant’s efforts to saddle plaintiff with contributory negligence. While the negligence of the railroad was irrelevant to plaintiff’s right of recovery, whether he was guilty of contributory negligence depended on all the circumstances. There was evidence that when a man went between the cars no movement of the train was to be made until he signalled for it.

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Bluebook (online)
685 S.W.2d 572, 1985 Mo. App. LEXIS 3055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higley-v-missouri-pacific-railroad-moctapp-1985.