Gould v. Chicago, Burlington & Quincy Railroad

*720 BLAIR, J. Action for personal injuries. The jury found for plaintiff and assessed his damages at the sum of $15,000. Defendant has appealed from the judgment rendered on such verdict. The petition alleged several negligent acts on the part of defendant. At the request of plaintiff, the trial court gave an instruction withdrawing from the consideration of the jury all grounds of negligence alleged in the petition, except the single ground submitted in Instruction 1, which was based on the humanitarian rule. The amended answer contained a general denial, a plea of contributory negligence, and a plea that plaintiff was not entitled to prosecute the action because such action was being prosecuted for the benefit of the United States Government and the United States Government is the real party in interest. There is no material conflict between counsel concerning the facts which the evidence of each party tended to establish, but there is great difference of opinion concerning the effect of such testimony. We will first consider whether a ease was made for the jury. I. Plaintiff was a soldier in the service of the Federal Government during our participation in the World War. On August 1, 1917, he was detailed, with other soldiers, to guard the railroad bridge of defendant over the Mississippi River, between Alton, Illinois, and Missouri. Shortly before six o’clock, A" M,> 011 day plaintiff was struck and injured by freight train moving toward Alton and entering said bridge from the Missouri side. ■ Plaintiff was assigned a post at the south end of the bridge. It was'his duty to guard the bridge against the approach of persons who might attempt to destroy or damage it, and also to observe persons upon trains using said bridge. Other soldiers were detailed for similar guard duty at the Illinois end and at regular intervals over, the entire length of the bridge. Guards were also stationed under the bridge on both banks of the river. *721 The bridge carried double railroad tracks and contained a draw span to permit the passage of boats. Approaching the bridge from the Missouri side the double tracks were in a curve to the left and on a slightly ascending grade. This and other obstructions present at the time gave only a limited view from the end of the bridge of trains approaching it from the Missouri side. Plaintiff’s post was about twenty feet square, was immediately off the Missouri end of the bridg.e and covered both tracks. It was his duty to walk along a side of this square and stop and look for persons approaching the bridge, and then turn and walk along another side of the square and repeat his observations. The testimony of plaintiff was that he was at his post and had stopped with his feet astride the rail facing the bridge when he was struck from behind by the approaching train; that he had looked down the tracks Immediately before, when he was facing in that direction, and saw no train; that he heard no bell or whistle and heard no other noise of an approaching train. It was just after sunrise. It. was a clear morning without fog. There was testimony that soon after his injury plaintiff made a statement that he was sitting beside the track when struck. Other testimony offered by plaintiff tended to show that no whistle was blown or bell rung by the locomotive; that the train was approaching at a speed of from fifteen to twenty miles an hour or more; that the train was coasting and the engine making no noise. An officer of the guard had just inspected plaintiff, had gone to the next guard and had inspected him, and was about to inspect a third guard when the accident happened. The engineer of defendant testified that, because of the curve, he could not see the end of the bridge until the locomotive was within about two ear-lengths thereof; that he then saw plaintiff sitting on a timber or guardrail beside and about two feet from the right-hand rail and leaning over toward the track; that he immediately shut off the air and applied the brakes and blew seven to a dozen sharp blasts of the whistle; that plaintiff did not move from his sitting position with his head down and forward; that the steam cylinder of the engine struck plaintiff on the left side of the head (the left side of the head was injured) ; that the train stopped in about ten or twelve car-lengths after plaintiff was struck. The engineer also testified that he blew the whistle for the curve and also one long blast for the draw bridge when the train was a half mile from the bridge; that there was a string of cars on the up-stream (left) track. The testimony of other witnesses, including the train men, was that the whistle was blown, both just at the bridge and before that for the curve (or a crossing) and the draw bridge. *722 The submission of the case under instructions requested by plaintiff solely under the humanitarian rule makes it unnecessary to consider whether plaintiff was guilty of contributory negligence or the train operatives were negligent in approaching the bridge without giving customary warnings. We will assume, and the record fully warrants such assumption, that plaintiff was guilty of negligence contributing to his injury. The case was submitted to the jury on the sole question of whether or not the engineer saw, or by the exercise of ordinary ‘care should have seen, plaintiff in a position of peril in the path of the-train and oblivious of his peril in time, by the- exercise of ordinary care on the part of said engineer, to have given plaintiff timely warning of the approach of said train and could have thereby avoided' striking plaintiff. Defendant’s contention that the trial court should have instructed the jury to render a verdict in its favor rests upon two main propositions: First, that the engineer was not required to be on the lookout for plaintiff, because the section-hand rule applied to plaintiff and he was required to look out for his own safety, so far as the danger from moving trains is concerned. Second, that there is no evidence that the engineer saw plaintiff in a position of peril and oblivious to such peril in time to have warned him and failed to give such warning. It will not be necessary to consider the first contention in determining whether a case was made for the jury. The same contention is urged in connection with alleged error in the giving of Instruction 1 and we will refer to such contention later in that, connection. We think a case was made under all the evidence which authorized submission of the case to the jury under the humanitarian rule. If made by no other testimony in the record, it was made by the testimony of the engineer that he saw plaintiff sitting on a timber or guardrail about two feet from the track with his head down and toward the track. This testimony, taken in connection with the testimony of plaintiff’s witnesses that the whistle was not blown nor the bell rung, tencls to prove that the engineer saw plaintiff in a position of peril and oblivious to such peril and thereafter failed to sound any warning to notify him of his peril in time to enable him to move out of the danger zone. Defendant contends that plaintiff cannot take the benefit of the engineer’s testimony that he saw plaintiff in a position of peril, when the locomotive was two car-lengths away from him,, without also accepting as true the engineer’s testimony that he thereafter caused seven to a dozen sharp blasts of the whistle to be given and that, therefore, all the testimony that the engineer actually saw *723 plaintiff in time to warn him of his danger also shows that timely and sufficient warning was actually given. The jury may believe all of the testimony of any witness or none of it or may accept it in part or reject it in part, just as it finds same to be true or false when considered in relation to the other testimony and the facts and circumstances in the case. [State v. Williams, 274 S. W. (Mo.) l. c. 52; State v. Harp, 267 S. W. (Mo.) l. c. 846 and cases; State v. Stewart, 278 Mo. l. c. 185; State v. Conley, 255 Mo. l. c. 197; Montague v. Railway, 193 S. W. (Mo. App.) l. c. 936; Preston v. Union Pac. Railroad Co., 239 S. W. (Mo.) l. c. 1082.] There was accordingly substantial testimony tending to prove that the engineer saw plaintiff in a position of peril and oblivious of his peril in time to have warned him of his danger and thereafter failed to exercise reasonable care to warn him of his danger. Whether plaintiff was standing astride the rail with his back to the approaching train, as he testified at the trial, or was sitting on a timber facing the track with his head down and toward the track, as he is said to have stated soon after the injury and as the evidence of defendant tended to show, is not controlling. If he was standing astride the rail a step or two at most would have taken bim out of the danger zone. If he was sitting beside the track, the mere turning away of his head, or, as the engineer said, merely raising his body to an upright sitting position, would have avoided his being struck by the locomotive. There was evidence, which it was the exclusive province of the jury to believe, that the engineer failed to blow the whistle or ring the bell. The engineer did not say that he did not have time to give sufficient warning after he saw plaintiff. There was evidence from which the jury was authorized to find that he did have time to sound a warning before the engine struck plaintiff. The inference naturally to be drawn from the engineer’s description of plaintiff’s position and heedlessness of the warning, which he says he gave him, is that plaintiff was asleep or that his attention was deeply absorbed elsewhere. Even if plaintiff was asleep, it only established plaintiff’s utter obliviousness to danger. That plaintiff was asleep might reasonably be inferred from the fact that he did not hear the train approaching, but such conclusion is inconsistent with the testimony of the guard officer that he inspected plaintiff just a moment or two before. Speculation on that point is altogether fruitless because, even if plaintiff was asleep or deeply absorbed by some other matter, it aids defendant not the least. Obliviousness to danger for some reason was shown by substantial testimony The trial court did not err in submitting the case to the jury. [Banks v. Morris & Co., 302 Mo. l. c. 267, and cases cited.] *724 II. (a) The alleged error in giving Instruction 1 is next for consideration. The first criticism is that it did not require the jury to find that, by the sounding of the whistle, plaintiff would have been able to have removed himself from the path of the engine in time to have avoided being struck and injured by it. instruction required the jury to find that the giving of timely warning, if it was not given, would have enabled the engineer to avoid striking plaintiff. Manifestly, the only way the engineer could have avoided striking plaintiff was for plaintiff to have moved out of the path of the engine. The finding required in the instruction was therefore equivalent to a requirement of a finding that timely warning would have enabled plaintiff to have removed himself from the danger zone before the locomotive reached him. We are unable to see any merit in this criticism of Instruction 1. (b) Instruction 1 is assailed because it submitted to the jury the question whether the engineer, by the exercise of ordinary care, should have discovered plaintiff in a position of danger. That is another way of contending that it was the duty of plaintiff to look out for his own safety and that it was not the duty of the engineer to be on the lookout for him. The concrete contention is that the rule applicable to section men working upon and along railroad tracks applied to plaintiff, and it therefore was his duty to look out for approaching trains and to protect himself against their movements and that defendant owed no duty to look out for plaintiff and that the humanitarian rule cannot be invoked unless the engineer actually saw plaintiff in a position of peril and oblivious to such peril or unable to extricate himself therefrom and failed to give him timely warning thereof. Interesting as the investigation of this question might prove to be, we are not called upon to consider it under the record in this case. In view of the positive testimony of the engineer, the only person in the world having knowledge of the fact, that he actually did see plaintiff sitting in a position of danger as soon as he could see around the front of his engine and while said engine was yet two car-lengths away from plaintiff, it is utterly inconceivable that the jury gave the slightest consideration to the question of whether or not said engineer, by the exercise of ordinary care, could have seen plaintiff in such position in time to have warned him of the approach of the train and thus avoid striking him. In other words, even though the section-hand rule was applicable to plaintiff, as defendant contends, the error, if error it was, due to the incorporation of the clause in question in Instruction 1, can confidently be asserted to have been entirely harmless error. Harmless error is not reversible error and we overrule defendant’s contention on that ground, with *725 out regard to and without considering the applicability of the section-hand rule to plaintiff. (c) The remaining criticism of Instruction 1 is that its concluding sentence precludes the possibility of the jury finding the plaintiff guilty of contributory negligence. The clause referred to reads: “And this is true even though you should believe and find from the evidence that plaintiff himself was negligent in failing to observe the approach of said train.” The case was submitted to the jury solely under the humanitarian rule. Contributory negligence of plaintiff was therefore no defense. [Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720; Banks v. Morris, supra.] III. (a) Error is assigned to the admission in evidence of proof tending to show that it was customary for trains approaching the bridge to sound the whistle. The same contention of error is made as corQ’t’s refusal to give defendant’s Instruction M. The custom of blowing the whistle when trains approach the bridge and plaintiff’s reliance upon such custom were pleaded in the petition. It is contended that such whistle was for a curve or crossing and for the draw on the bridge and that plaintiff did not plead that such whistle was for the benefit of soldiers guarding the bridge. Such evidence tended only to prove defendant’s primary negligence and it would seem that all such proof, together with any possible question of error in its admission went out of the case when all grounds of negligence, except the alleged negligence of defendant, under the humanitarian rule, were withdrawn from the consideration of the jury. Instruction 3 reads: “You are instructed that all grounds of negligence save the one submitted to you in Instruction 1 are withdrawn from your consideration as a basis of recovery in this case.” We hold that the giving of said Instruction 3 cured any error, if such was committed, in admitting the testimony of which complaint is now made. (b) Said Instruction 3 withdrew from the consideration of the jury all grounds of negligence, except those submitted in Instruction 1. Refused Instruction M did not refer to any ground of negligence submitted in Instruction 1. Instruction M was therefore covered by Instruction 3, and ... , ,, defendant is m no position now to urge error m the refusal of Instruction M and its correctness need not be considered. *726 *725 IV. Error is assigned to the admission of evidence tending to prove that individiials used the bridge by virtue of passes granted to them by the officer in command of the soldiers guarding the bridge. *726 The evident purpose of such proof was to charge the defendant and its engineer with notice that persons were likely to be upon said bridge and to charge defendant with the duty £0 JqqJj- 011£ for them. Any error alleged to have occurred through the admission of such evidence was harmless, in view of the testimony of the engineer that he actually saw plaintiff in a position of peril and apparently oblivious of such peril. This assignment is disposed of adversely to defendant by what has been said under paragraph 11(b)', supra. Y. Error is assigned because the court refused to give defendant’s Instruction I. Said instruction reads: ‘ ‘ The court instructs the jury that the plaintiff cannot recover anything in this case on the ground that the defendant failed to beep a reasonably careful lookout ahead for soldiers, includ- ^ plaintiff 0n or near its track on said bridge on which said train was running.” The harmlessness of this error, assuming it to be such, is shown by what we have already said under paragraph 11(b). 'VI. Complaint is made of the refusal of defendant’s Instruction K, as follows: ‘ ‘ The court instructs the jury that the plaintiff cannot recover anything in this case on the ground that the defendant operated the train in question at the time and place in question at a ¿a¿gero-as or excessive rate of speed.” We overrule this assignment for the same reasons controlling our ruling in respect to the refusal of defendant’s Instruction M, as set forth in paragraph III (b). VII. Refused Instruction L was as follows: "You are further instructed that you cannot return a verdict in this case on the ground that the defendant, its agents, servants and employees saw, or by the exercise of ordinary care, should have seen the plaintiff approaching a position of peril, or in a position of peril, or oblivious of his position of peril, or unable to extricate himself from said peril in the path of said train, in time by the exercise of ordinary care to have stopped said train, or to have slackened the speed thereof and thereby to have avoided striking plaintiff. ’ ’ The refusal of this instruction is justified by what we said in approving Instruction 1 under paragraph 11(b), supra. *727 *726 VIII. Instruction N, asked by defendant, was refused. It told the jury in substance that, if plaintiff was not exercising ordinary care *727 for his own safety and his injuries were caused solely by reason thereof, the jury should find for defendant. There is no evidenee tending to show that plaintiff’s injuries were <jue hjs goj[e act, independent of and not concurring with the alleged negligent act of defendant which was submitted to the jury. If, by this instruction, defendant sought to assert as a defense the contributory negligence of plaintiff, the refusal of the instruction was entirely proper, as appears from our consideration of the concluding sentence of Instruction 1, discussed in paragraph 11(c), supra. The same consideration sufficiently disposes of defendant’s complaint of the refusal of Instruction 0, which is quite similar to Instruction N. IX. We think the contention that the verdict of $15,000 is excessive is without substantial merit. Plaintiff was about twenty-five years of age when he was injured on August 1, 1917. His prior good physical condition is attested by the fact that he was accepted by the Government for military service a little over -foi:ir months prior to his injury. He was earning $25 per week before he joined the army. ■ The evidence on the part of plaintiff tended to show that he became unconscious very soon after the accident and remained so for a number of hours; that he was bleeding from the nose, both ears and one of his eyes, immediately after the accident; that he lost several teeth and had others broken, and suffered a fracture at the base of the skull; that there was a large swelling on the left side of the head above and behind the ear immediately after his injury. Dr. Fisher testified that plaintiff “had a staggering gait, dizziness, double vision, headaches, paralysis of the left side of his face, weakness of his left arm and leg’;” that he was unable to chew on his left side because of paralysis of the facial nerve. Plaintiff testified that he remained at home unable to work until July, 1920; that he had headaches and staggering spells and buzzing in his ear; that -his chest hurt him and that he spit up quantities of blood daily for about two years after the accident; that he could not hear with his left ear and that the left eye was weak. Plaintiff did not remain in the hospital very long, but underwent treatment thereat until as late as January, 1921, or nearly four years after the accident, and subsequently took electrical treatments. In March, 1921, he went to the Veterans’ Bureau for vocational training. He first took up training as an automobile mechanic, but found it too difficult for his physical condition. He then took up successively tailoring and shoe repairing, but gave them up for similar reasons. In August, 1922, he went to Kansas City and took up vocational training in storage-battery work, and was doing this *728 kind of vocational work at tbe time of tbe trial in 1923. Plaintiff testified that he continued taking treatments until about a month before the trial. There is evidence tending to prove that plaintiff’s mental condition and memory are bad; that he had lost the hearing in his left ear and that he has only fifty per cent vision and that such conditions are permanent. The only work done by plaintiff since his injury was in connection with his vocational training. Defendant admits that plaintiff sustained substantial injuries, but contends that they have been magnified unduly and that the jury was too liberal in its award. The jury was authorized to believe the testimony as to the extent of the injuries suffered by plaintiff, rather than the testimony of defendant which tended to minimize their character and extent. It is unnecessary to detail defendant’s evidence, because all we are here concerned with is the presence in the record of substantial evidence tending to support the award of damages made by the jury. "We think the evidence amply does this. It will serve no good purpose to review the cases cited by the parties to support the award or to show that it is excessive'. Each case must stand upon its own peculiar facts. The amount of the award in this case met the approval of the trial judge, and we find no good and sufficient reason for compelling a remittitur. X. It is.contended that plaintiff is not the real party in interest and is not entitled to maintain this action because, as defendant contends, the action is being prosecuted under the direction and for the benefit of the United States Government, under the such future compensation as is allowed by the act. provisions of the War Risk Insurance Act; that plaintiff at the time of the trial had received about $2,000 compensation under said act and is entitled to It is suggested that this fact alone required the trial court to give defendant’s peremptory instruction to find for defendant and that the court erred in failing to do so. Section 514tttt, U. S. Comp. Statutes, 1923, Cumulative Supplement, as same is set out in defendant’s brief, reads as follows: “If an injury or death for which compensation is payable under this article is caused under circumstances creating a legal liability upon some person other than the United States or the enemy to pay damages therefor, the director, as a condition to payment of compensation by the United States, may require the beneficiary to assign to the United States any right of action he may have to enforce such liability of such other person, or if it appears to be for the best interests of the beneficiary the director may require him to prosecute the said action in his own name, subject to regulations. The *729 director may require such assignment or prosecution at any time after the injury or death, and the failure on the part of the beneficiary to so assign or to prosecute said cause of action in his own name -within a reasonable time, to be fixed by the director, shall bar any right to compensation on account of the same injury or death. The cause of action so assigned to the United States may be prosecuted or compromised by the director, and any money realized or collected thereon, less the reasonable expenses of such realization or collection, shall be placed to the credit of the military and naval compensation appropriation. If the amount placed to the credit of such appropriation in such ease is in excess of the amount of the award of compensation, if any, such excess shall be paid to the beneficiary after any compensation award for the same injury or death is made.” There is no evidence that, as a condition to the payment of compensation to plaintiff by the United States, the director required plaintiff to assign to the United States his right of action against defendant. We are unable to concur in defendant’s assertion that the right of action stands assigned as a matter of law. But even if it did, neither such assignment of the right of action to the United States nor the prosecution of the right by the beneficiary in his own name, subject to regulations, contemplates the beneficial interest of the Government further than reimbursement to it for costs of collection and its payment of compensation to the beneficiary. Any excess is payable to the beneficiary. Hence, under the proof here, the most that can be said is that plaintiff’s interest in the damages collected on account of his injuries is dependent upon the realization of an amount sufficient to pay the costs of collection and to reimburse the Government for compensation paid to him. He had received about $2,000 as such compensation at the time of the trial. Such compensation was suspended during vocational training. The full extent of his compensation has not been determined, so far as the record discloses, but it may readily be seen that in all probability the collection of the judgment of $15,000 will take care of the costs of its realization, reimburse the Government for its compensation paid and hereafter to be paid to plaintiff and that a considerable balance will still be payable to plaintiff. He, therefore, has a most substantial interest in the right of action and the judgment obtained. The mere fact that the Government is entitled to claim a portion or all of the proceeds of the suit to enforce plaintiff’s right of action for damages does not permit defendant to avail itself of the defense that plaintiff is not the real party in interest. [30 Cyc. 78; Swift & Co. v. Wabash Railroad Co., 149 Mo. App. l. c. 530.] *730 ■ XI. The fiinal contention made in defendant’s brief is this: “The War Risk Insurance Act, under which this suit was prosecuted, as far as it undertakes to control, direct and compel the prosecution of plaintiff’s alleged cause of action and £ake an assignment thereof, is violative of the Federal Constitution. ’ ’ Under our rule a constitutional question must be raised at the first opportunity and kept alive during the trial. The third paragraph of the amended answer, upon which the case was tried, pleads that the United States Government is the real party in interest and disclosed full knowledge on the part of defendant at that time of the interest of the Government, under the statute we quoted in the preceding paragraph, in any judgment recovered. The attempted raising of the alleged constitutional questions in paragraphs 26 and 27 of the motion for new trial was too late. [Dudley v. Railroad, 238 Mo. 184; Milling Co. v. Blake, 242 Mo. 23; George v. Railroad, 249 Mo. 197; Miller v. Connor, 250 Mo. 677.] Outside of that, defendant is not entitled to challenge the constitutionality of the federal statute quoted. We are unable to understand how the alleged unconstitutionality of such statutes affects the rights or property of defendant in any way. Unless it does, defendant cannot raise the question. [12 C. J. 760; Danciger v. Express Co., 247 Mo. l. c. 212, and cases there cited.] XII. It clearly appears that the trial proceeded to verdict and judgment without the commission by the trial court of reversible error of which defendant can complain. Although it was the duty of plaintiff to be on guard at all times and to observe the approach to the bridge of trains, as well as unauthorized persons, and although he was no doubt derelict in that jn n0£ observing the approach of defendant’s train, yet such facts, under the humanitarian rule, do not defeat his recovery, if defendant’s agents in control of the operation of the train observed plaintiff in a position of peril and oblivious of such peril and failed to give him suitable warning when they could have given such warning. The determination of those facts was within the province of the jury. Substantial evidence tending to support the verdict returned by the jury is found in the record. Its award of damages does not appear to be excessive, if defendant is liable at all for plaintiff’s injuries. We are not authorized to disturb the judgment under such circumstances and it must be and is affirmed. All concur.