Appeal from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding. Judgment in favor of
Defendants, Terminal Railroad Association of St. Louis, hereinafter called Terminal, and Southern Railway Company, hereinafter called Southern, appeal from the judgment of the Circuit Court of St. Clair County, entered against both defendants, upon a jury verdict in the amount of $125,000.
Count I of the complaint, directed against Terminal, is based on the Federal Employers' Liability Act (Title 45, USCA, § 51 et seq.). Count II, directed against Southern, alleges negligence on the part of Southern, and plaintiff's freedom from contributory negligence.
Terminal contends that it is entitled to a new trial because the trial court erred in denying its offer to read to the jury a portion of plaintiff's discovery deposition, which, it argues, is an admission against interest, and therefore, admissible, and erred further in giving, over the objection of Terminal, an instruction tendered by Southern.
Southern contends that the trial court erred in denying its motions for directed verdict, and argues that there is no evidence to sustain plaintiff's charges of negligence, and assuming, arguendo, that there is evidence of its negligence, such negligence was not the proximate cause of plaintiff's injury.
Both defendants contend that the verdict is grossly excessive.
The evidence shows that plaintiff was employed by Terminal as a switchman. He reported to work at 11:00 p.m. on April 8, 1963, at Terminal's C.D. Yards, located in East St. Louis. At approximately 12:40 a.m. on April 9th, he and the crew with whom he worked were ordered to take 22 cars loaded with refrigerated meat from Terminal's C.D. Yard to Southern's Coapman Yard, also located in East St. Louis. This was a movement which was made every night, and an exhibit offered by Terminal and admitted in evidence, shows that between the dates of April 1, 1962, and the date of plaintiff's injury, it left Terminal's C.D. Yard some time between 12:05 a.m. and 1:40 a.m. each morning. To reach the Coapman Yard, the train was required to pass through Southern's Sixth Street Yard. The time normally required to reach the Sixth Street Yard was 5 minutes, and the running time from C.D. Yard to Coapman, was usually about 25 minutes. The train traveled eastwardly, crossed Fourth Street in East St. Louis, and entered the Sixth Street Yard on what is described as Southern's main track.
W.R. Wilson, called by plaintiff under section 60 of the Civil Practice Act, testified that he was foreman of a Southern crew that brought a cut of 10 or 12 cars from Coapman to the Sixth Street Yard. Upon entering the Sixth Street Yard, they "kicked" the hind car onto track 3. Track 3 is a classification track which extends in a general easterly and westerly direction in Southern's Sixth Street Yard. It is the most northerly of the classification tracks, which are numbered 3 through 8, and is the nearest to the track referred to as Southern's "main." After kicking the car onto track 3, they proceeded to classify other cars standing on other tracks in the yard, which cars were to be taken to Coapman. The car kicked onto track 3 was also to be returned to Coapman.
Track 3 is not level, there is some grade change, and the car, after being kicked onto track 3, rolled back 10 or 15 feet, and when it stopped, was "fouling the main."
Mr. Wilson also testified that he knew the Terminal would make a delivery of cars from its C.D. Yard to Southern's Coapman Yard, these cars would be included in a Southern train scheduled to leave Coapman at 1:30 a.m., the movement would be required to come through Southern's Sixth Street Yard, and when the Southern Crew kicked the car onto track 3 at about 12:15 a.m., he knew the Terminal train had not as yet come through.
Freeman G. Montgomery, called by plaintiff, testified that he was employed by Terminal as a locomotive engineer, that he was operating the engine in reverse position, which placed him to the left of the cab, that upon entering the Sixth Street Yard, the train was traveling at a speed of 6 to 8 miles per hour, that "the condition of the Sixth Street Yard as far as lighting is concerned is fairly dark," that at a point where the main track curves to the right, he could see that a car standing on track 3, about 300 feet to the east, was west of the clearance point at which a car moving over the main track will clear a car standing on track three. He estimated the length of the standing car at 50 feet, and testified that approximately one-third of the car was "fouling" the main. He stated that as soon as he saw the standing car, he applied the brakes. An emergency application of the brakes locks all of the wheels, and is the automatic train brake, as distinguished from the engine brake. Once the brake is applied, "you can't take them out." The train comes to a complete stop and the engine must "set and pump them brakes all off again." He applied these brakes when five-car lengths away from the standing car, and it takes a car length to take hold. The train would have stopped in another car length. He did not know the speed at the time of impact, but "we hit a pretty good jolt."
An exhibit prepared by an engineer employed by Southern, shows that the Southern main track extends from the south line of Fourth Street in an easterly direction for 200 feet, to a switch, an industrial track extends east from the switch, the main curves to the southeast and then to the east, that the last point at which a car moving on the main track will clear a car standing on track 3 is 450 feet from the switch, that the switch for the main and track 3 is about 80 feet east of that point, that the point of impact between the locomotive and the standing car was 18 feet 9 inches east of the clearance point. The exhibit shows that there is a floodlight approximately 150 feet from the point at which the Terminal engine and the car collided, a street light approximately 160 feet distant, and another street light and a floodlight approximately 400 feet distant in the opposite direction.
Anthony A. Redfearn, the conductor on the Terminal's train, called by plaintiff under section 60, testified that he was riding in the cab, that they were using a switch engine, which works equally well forward or backward, that as the engine made the curve, the headlight, which is in a fixed position, illuminated the track ahead, that they saw the car, that there is not enough light in that part of the yard to see the car without the switch engine's headlight shining on it, none of them were sure whether the car fouled the main, and a slight brake application was made just in case, that when they were 200 to 225 feet back from the clearance point, the engineer made the emergency air brake application, the train slowed down, but hit the standing car.
Plaintiff testified that he had made this particular run twice before, that he was riding in the middle, on a small seat in the rear of the cab, that he first saw the standing car when the engine was 5- or 6-car lengths away, that at first he could not say whether the car was fouling the track, or was in the clear, that ...