Gordon v. Kansas City Southern Ry. Co.

• Decision Date: 18 May 1909
• Citation: 222 Mo. 516,121 S.W. 80
• Parties: GORDON v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

121 S.W. 80

222 Mo. 516

GORDON v. KANSAS CITY SOUTHERN RY. CO.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

On Rehearing July 13, 1909.

1. MASTER AND SERVANT (§§ 276, 278) — INJURIES TO SERVANT — NEGLIGENCE — SUFFICIENCY OF EVIDENCE.

In an action for injuries to a railway switchman from a defective handrail on a car, while the burden was upon plaintiff to prove that the defect existed at the time of the injury, that it was the cause of the injury, and that the railway company had either actual or constructive knowledge thereof long enough before the injury to have enabled it by the exercise of reasonable care to repair the defect, it was not necessary to prove those facts by direct testimony; it being sufficient to establish them by facts and circumstances.

2. MASTER AND SERVANT (§ 111) — SAFE INSTRUMENTALITIES — DUTY OF MASTER.

It is the duty of a railroad company to keep its cars, cabooses, and the handrails thereof in a reasonably safe condition for its employés who have to work with such instrumentalities.

3. TRIAL (§ 139) — QUESTION FOR JURY — WEIGHT OF EVIDENCE.

The weight of evidence is for the jury.

4. MASTER AND SERVANT (§ 286) — INJURIES TO SERVANT — QUESTIONS FOR JURY.

In an action for injuries to a switchman, evidence held sufficient to go to the jury on the question of defendant's negligence in failing to repair a defective handrail after knowledge of the defect, or after the defect had existed long enough for defendant to have discovered it by the exercise of reasonable diligence.

5. WITNESSES (§ 372) — CROSS-EXAMINATION — HOSTILE WITNESS.

A liberal cross-examination of an adverse or unfriendly witness is permissible to ascertain his feelings or bias against the party against whom he is testifying, or for testing his memory of the facts to which he testifies, though not allowable on direct examination; and hence where a railroad car inspector had given important testimony against plaintiff in an action for injuries from a defective handrail on a car, predicated upon a record which he claimed to have made, it was permissible on cross-examination to test the accuracy of his record.

6. WITNESSES (§ 379) — CONTRADICTION — INCONSISTENT STATEMENTS.

In an action for injuries to a railway switchman from a defective handrail on a car, where defendant's yard foreman had testified that he had examined the handrail an hour and a half after the accident, and that it was not defective, evidence that he had stated to the injured person's mother, about an hour after the injury, that the injury was caused by the switchman taking hold of an old loose handrail on the caboose, which he (the yard foreman) had been trying to have put in the shops for a month, was admissible to contradict his testimony; the rule that the statements of a railway company's employé with reference to a past event, upon which he was not authorized to speak for his employer, are not admissible as not being part of the res gestæ not being applicable.

7. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

A train causing an injury to a switchman was a "hurry-up" train partly loaded with perishable fruit, and the yard foreman advised the switchman working under his immediate direction that it should be got out without delay, and directed him to meet it at the end of the yards, cut off the caboose, and attach another caboose. The switchman met the train, and when the caboose came opposite him, moving at the rate of about 4 miles an hour, he took hold of the handrail to get on the steps, and was injured because of a defect in the handrail. It was the custom in the yards for the switchmen and employés to board trains in switching and handling cars when they were moving as rapidly as 12 miles an hour. Held, that the switchman was not negligent as matter of law in attempting to board the moving car.

8. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

It being necessary to uncouple the caboose from the front end, the switchman was not negligent as matter of law in attempting to board it at the front end, instead of at the rear.

9. MASTER AND SERVANT (§ 240) — INJURIES TO SERVANT — NEGLIGENCE.

It being necessary for the switchman to get on the platform of the caboose to put on the brake and stop the caboose after uncoupling it, as he was required to do by the yard foreman, he was not negligent because he did not uncouple it with the lever at the side of the car, instead of attempting to do so by drawing out the coupling pin.

10. WITNESSES (§ 369) — CROSS-EXAMINATION — BIAS.

Where a former conductor on defendant's railroad had given strong testimony against plaintiff in a personal injury action, it was permissible to show on his cross-examination, to affect his credibility, that he had been discharged by defendant for drunkenness and had an application in for reinstatement.

11. EVIDENCE (§ 588) — WEIGHT AND SUFFICIENCY — CREDIBILITY OF WITNESS.

Fact that a witness manifests partiality for the party who calls him is a proper matter for consideration of the jury in weighing his testimony.

12. JURY (§ 116) — DISMISSAL OF PANEL — REMARKS OF JURY.

Fact that one of the regular panel of jurors, on examination as to his qualifications, stated that he had read about the case, and thought at the time he read about it that plaintiff ought to have damages, but that the matter had passed from his mind, and he had thought no more about it, was no ground for dismissal of the entire panel upon excusing the juror.

On Rehearing.

13. DAMAGES (§ 132) — PERSONAL INJURIES — EXCESSIVENESS.

A person prior to his injury was an ablebodied man, 29 years old, with several years' experience in the railroad business, and earning about $90 a month. His back and five of his ribs were broken, his pelvis and hip bones mashed, and he was bruised in his entire body. His injuries resulted in total paralysis from the middle of his back down, so that he had no control of that portion of his body. He could not sit up without being propped to hold his body in position and had no control of the functions of his body. Held, that a recovery of $35,000 was excessive, and would be reduced to $25,000.

Appeal from Circuit Court, Vernon County; L. W. Shafer, Judge.

Action by W. F. Gordon, administrator of Harry L. Pangle, against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on rehearing, on condition that a remittitur be made.

S. W. Moore, Cyrus Crane, and H. C. Clark, for appellant. Scott & Bowker, M. F. Harrington, and Arthur F. Mullen, for respondent.

BURGESS, J.

This is an action for damages for personal injuries, in which Harry L. Pangle, now deceased, recovered a verdict for $50,000, but which was reduced by the trial court to $35,000, and judgment entered for that sum. Defendant's motions for a new trial and in arrest of judgment having been overruled, an appeal was taken to this court.

Harry L. Pangle was employed as switchman by the defendant company in its railroad yards in the city of Pittsburg, Kan. His duty as switchman required him to follow the switch engine and switch and uncouple cars, and to meet trains coming into the yards, and make such disposition of them as might be ordered by the yard foreman. Pittsburg was a division point on defendant's line, and engines, cabooses, and train crews were changed there. The defendant's switch yards extended some distance south of the station. South of the yards the defendant's line was crossed twice by the Frisco tracks, and further north was the Santa Fé Railroad crossing. Incoming trains from the south stopped at the first Frisco crossing, if the gate which was there for protection was turned against them, and always stopped before reaching the next Frisco crossing, further north, without any signals whatever. At the Santa Fé crossing the trains from the south also stopped, unless there was a yardman present to signal them to cross. Further north, and at a point where the defendant company's switches commence, was a box fixed on a post, in which box it was customary to put slips containing directions for the trainmen of the different trains as to what track they should take in coming into the yards.

On the 16th day of April, 1904, the day of the injury complained of, a freight train was due to arrive from the south, its destination being Kansas City, Mo., and at Pittsburg the train crew, engine, and caboose on this train had to be changed. This was known as a "hurry-up train," being largely composed of fruit cars, and was required to be operated quickly and sent on to Kansas City. Just before the time the train was bound to arrive. C. H. Manker, the yard foreman, ordered Pangle to take a caboose down to the south end of the yards to attach to this train, and also ordered him to take the slip out of the box in question containing directions for this train, and send the train up the main line, and to cut off the caboose and "clear the switch"; the yard foreman stating to him at the same time that he was in a hurry to get the train out. Pangle and his associate, Meeks, as directed by Manker, attached a caboose to an engine and placed this caboose which was to be attached to the train at a switch. He then took the slip out of the said box, and proceeded south to meet the train and execute the other orders of the foreman. After the train had crossed the last Frisco crossing, some distance south of the company's switches, Pangle gave a signal indicating that the train should keep to the main line, and as the engine passed slowly by him he told the engineer and the head brakeman, who was on the engine, to pull up on the main line, and he then went south to meet and get on the caboose and uncouple it. The train was then moving at a speed of about four miles an hour. In order to cut off the caboose and clear the switch, it was necessary to get up on the...