Appeal from the Circuit Court of St. Clair County; the Hon.
JOSEPH A. TROY, Judge, presiding. Judgment reversed and cause
remanded for a new trial.
Plaintiff appeals from the judgment of the Circuit Court of St. Clair County entered upon a jury verdict for the defendant in plaintiff's action for damages brought under the provisions of the Federal Employers' Liability Act (Title 45, USCA, § 51 et seq.) and the Boiler Inspection Act (Title 45, USCA, §§ 22-29).
Plaintiff argues that the evidence was uncontroverted as to any material issue and the only legitimate inference from the evidence is that plaintiff was injured as the result of defendant's violation of the Boiler Inspection Act. Plaintiff contends that the trial court erred in refusing to direct a verdict for plaintiff on the issue of liability, and submit the case to the jury solely for the assessment of damages.
Plaintiff was employed by defendant as a switch foreman. Defendant owned three engines which differed from the others it operated in that the doors to the switchmen's compartment, as originally designed, were 15 inches shorter than on its other engines. Because of complaints made by the General Chairman of the union that the men were bumping their heads on the door frame, defendant sealed the short doors on the fireman's side on each of the engines and cut a full-length door. There was no modification made on the engineer's side, and there is a conflict in the testimony as to why those doors were permitted to remain in their original condition. There is testimony that it was difficult to enter or leave the engine by the short door.
Plaintiff testified that on December 21, 1962, he climbed up on defendant's engine No. 43 in order to use the radio equipment to contact the yardmaster. The hand set for the radio is located immediately inside the short door. In entering by the short door he struck his head on the steel door frame, and a few minutes later, struck it again against a pipe which was part of the support for the radio equipment. On December 24 or 25 he noticed a "blur" in his eye. He had a cold and thought it might have settled in his eye. On December 26 he was bowling and when he looked down the alley "everything was just a big blur in my eye." On January 2, 1963, he went to Dr. Szewczyk, an ophthalmologist. Dr. Szewczyk examined his eyes and inquired whether he had hit his head recently. He answered "I would say two or three weeks or a month ago" and also told him of being injured in an automobile accident ten or twelve years earlier. He was told that he had a detached retina, and was referred to doctors at Missouri Pacific Hospital in St. Louis.
When plaintiff spoke with Dr. Szewczyk and the doctors in St. Louis he was not certain of the exact date of the occurrence. He remembered with whom he had been working, and on what engine, and from that information was able to determine that it happened when he was working on engine 43 on December 21, 1962.
William Stufflebeam, and William Duhr, plaintiff's fellow crew members, testified that they saw plaintiff strike his head upon entering the engine. Neither could fix the exact date, but both stated that they had regularly worked with plaintiff from December 9 to December 23, 1962, and to the best of their recollection, it was shortly before December 23, 1962.
[1-3] The Boiler Inspection Act imposes upon the carrier an absolute and continuing duty to maintain a locomotive and all of its parts in a condition safe to operate without unnecessary peril to life or limb. Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 87 L Ed 411, 63 S Ct 347. Assuming, arguendo, that the maintenance of the short door was a violation of the Boiler Inspection Act as a matter of law, there still remained the issues of whether plaintiff suffered an injury, and whether the injury resulted from the alleged violation. From our review of the evidence, we conclude that these issues were properly submitted to the jury as the finders of fact, and the court did not err in refusing to direct a verdict on the issue of liability.
We have examined the cases cited by plaintiff, and while they are authority for the proposition that the evidence presents a jury question, they do not sustain the contention that he was entitled to a directed verdict.
Plaintiff contends that the court erred in admitting into evidence a memorandum prepared by defendant's witness, Geraldine Majka.
Miss Majka testified that she was employed as secretary to defendant's superintendent. In January 1963, she met plaintiff at a bowling alley, and noting that one of his eyes was partially closed, she inquired as to what had caused the condition. In response to her inquiry plaintiff stated that he did not know, his vision had become blurred and he decided to have it checked. He did not state that the condition had resulted from his striking his head on the door of a locomotive.
In cross-examination the witness stated that she had been employed by defendant for 5 years, and for 5 years prior to that time, had been employed by the law firm in which defendant's trial counsel was a partner. She stated she made no searching inquiry as to what caused the condition since that was not her job; she inquired out of personal interest because she knew plaintiff. She did not report the conversation to anyone connected with defendant until some three months later when she learned he was suing defendant, claiming an injury while working on an engine. On cross-examination she stated that she had prepared a memorandum at that time, she did not have the memorandum in her possession, and assumed defendant's trial counsel had it. She was interrogated as to whether there was a cocktail lounge in the bowling alley and whether she had had anything to drink prior to the conversation with plaintiff.
On redirect examination she was shown a paper which she identified as the memorandum which she made. She stated that when she told someone at the railroad office of her conversation with plaintiff, she was asked to prepare the memorandum, and did so. Over plaintiff's objection, the memorandum was admitted into evidence.
Plaintiff contends that the memorandum is self serving, is merely corroborative of her testimony, ...