Bright v. Wheelock

• Decision Date: 13 September 1929
• Docket Number: 27690
• Citation: 20 S.W.2d 684,323 Mo. 840
• Parties: Percy L. Bright, Appellant, v. William W. Wheelock et. al., Receivers of Chicago & Alton Railroad Company
• Court: Missouri Supreme Court

20 S.W.2d 684

323 Mo. 840

Percy L. Bright, Appellant, v. William W. Wheelock et. al., Receivers of Chicago & Alton Railroad Company

No. 27690

Supreme Court of Missouri

September 13, 1929

Rehearing Overruled October 14, 1929.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

Madden Freeman & Madden and J. V. Jones for appellant.

(1) Plaintiff's Instruction 5 was not erroneous, but properly defined and declared the law in its application to the facts in evidence, and the giving thereof by the court did not constitute error. Shaw v. Railroad Co., 282 S.W 416; Wells v. Davis, 303 Mo. 388; State v. Hoffman, 274 S.W. 362; Kendall v. Dunn, 71 W.Va. 262, 43 L. R. A. (N. S.) 556. (2) The refusal of defendants' Instruction 12 was proper, and did not constitute error. This instruction purported to declare that, if appellant stepped from the engine to the ground, whether such stepping was voluntary or involuntary, whether caused by respondents' breach of the Safety Appliance Act or otherwise, he was under a duty "to watch where he was stepping and be careful in stepping off the step," and that, if appellant were negligent in breach of such duty, resulting in his injury, he could not recover. This instruction was therein patently erroneous, and properly refused. (a) If the stepping was involuntary on the part of appellant, he was not, as a matter of law, under a duty "to watch out where he was stepping" or to "be careful in stepping," and his failure to perform this impossible duty could not constitute negligence as a matter of law. (b) Whether an employee is, even in stepping voluntarily to the ground under such circumstances, under such a duty or guilty of negligence, is a question for the jury and not for the court to declare as a matter of law. Chicago Ry. Co. v. Brown, 229 U.S. 317. (c) Under this instruction, breach of the duty declared would bar appellant even if his falling and involuntary stepping were directly caused by the respondents' breach of the Safety Appliance Act. This is erroneous, since any negligence on the part of appellant could at most, under such circumstances, amount to contributory negligence, constituting no defense. Lovett v. Terminal, 295 S.W. 89; Great Northern Railway v. Otos, 239 U.S. 349; Spokane Railroad v. Campbell, 241 U.S. 497; Chicago Railroad v. Schendel, 267 U.S. 287; Foster v. Davis, 252 S.W. 433; Fletcher v. Railway, 155 N.W. 3; Railroad v. Wagner, 241 U.S. 476; Railroad v. Layton, 243 U.S. 617. (d) The instruction is further erroneous and misleading in failing to require a finding, as a condition precedent to a bar of appellant's cause, that any negligence on his part was the sole proximate cause of his injury, or that respondents' breach of the Safety Appliance Act did not contribute thereto. (3) No prejudicial error occurred in the opening statement of appellant's counsel. (a) No exception to any matter occurring during such statement was properly preserved by respondents in their motion for new trial and hence no such matter could be urged in support of the motion or constitute a ground, after the term had passed, as here, for the court to sustain such motion. Bartner v. Darst, 285 S.W. 449. (b) Reference to respondents' pictures, which were offered by respondents as revealing the pin-lifter on the engine when appellant was injured, and introduced by respondents in both trials, and to the substitution and change of pin-lifters between the date of appellant's injury and the date of such photographs, was proper under the issues: In the first trial respondents had been guilty of fabrication of evidence in introducing pictures of a substituted pinlifter as true photographs of the pin-lifter on the engine when appellant was injured. The falsity of such pictures was revealed in the cross-examination of respondents' witness in the first trial, and could be shown in the second trial as an admission implied from such misconduct that respondents' cause could not rest upon its merits, and as raising a presumption that the truth thus attempted to be suppressed, would be detrimental to respondents' cause. 22 C. J. 111, 321; Pennington v. Railways Co., 201 Mo.App. 483; Moore v. Railroad Co., 135 S.E. 473; Power v. Grogan, 81 A. 416; In re Dundas' Estate, 63 A. 48; Moriarty v. Railroad Co., L. R. 5 Q. B. 314; McHugh v. McHugh, 186 Pa. 197; DeGroodt v. Skrbina, 144 N.E. 601; Nowack v. Ry. Co., 166 N.Y. 433; Fulkerson v. Murdock, 53 Mo.App. 151; Egan v. Bowker, 87 Mass. 449; Chicago Ry. v. McMahon, 103 Ill. 485; People v. Spaulding, 309 Ill. 292; Allen v. United States, 164 U.S. 500; Waller v. United States, 179 F. 813; 1 Wigmore on Evidence (2 Ed.) sec. 278, pp. 566-589, and notes; 38 A. L. R. 595. (c) Reference to such pictures and to the substitution of pin-lifters was further proper since in both trials respondents introduced these pictures as true pictures of the pin-lifter on the engine when appellant was injured, in an attempt to show that an injury was impossible on such an appliance in the manner claimed by appellant. Under such circumstances, it was competent for appellant to show that another type of pin-lifter was on the engine when he was injured, that that pin-lifter was changed and another substituted on the engine therefor before the pictures were taken, and that the pictures introduced by respondents were photographs of the substituted pin-lifter. And in view of the defense so raised in a former trial, counsel for appellant were warranted in stating such facts in the opening statement having no reason to anticipate that the same defense would not be again interposed, as, in fact, was done. Thompson v. Ry. Co., 183 S.W. 636. (d) Even if respondents had not intended to interpose the same defense, reference thereto was proper since a shifting of defenses and the falsity of testimony introduced to sustain a previous defense can be shown and referred to in the opening statement, as bearing upon the good faith of respondents in their defenses. Becker v. Philadelphia, 66 A. 564; Bageard v. Traction Co., 64 N. J. L. 321. Failure to produce at a second trial evidence introduced as material at a former trial, such as these pictures, would warrant the inference that such evidence was unfavorable; and the fact of the possession by respondents of such pictures can be mentioned in the opening statement and proved in evidence, together with all facts incident to proof of the falsity of such pictures. The rule against proof of subsequent changes extends no further than to declare such evidence incompetent to establish negligence. Where, as here, it was offered for another and proper purpose, the rule does not apply. Respondents cannot raise the issue of subsequent changes, as here, and introduce pictures purporting to reveal the pin-lifter on the engine when appellant was injured, and then exclude proof of the falsity of such pictures on the pretext of the rule against showing subsequent changes to establish negligence. These issues having been raised by respondents in both trials, it was proper to state the facts showing the falsity of such pictures in the opening statement of the second trial. 45 C. J. 1232-1234, 1236; 1 Wigmore on Evidence (2 Ed.) sec. 283, p. 582; Bujalo v. Box Co., 227 S.W. 846; Sample v. Railroad 233 Ill. 564; Achley v. Marion, 126 Iowa 47. (e) Every objection of respondents, moreover, to the mention of such pictures and the disclosure of the substitution of pin-lifters, was by the court sustained. Hence, no error could be predicated thereon. Hayward v. Motorbus Co., 1 S.W.2d 254. (4) The cross-examination of the witness Utt was proper, and did not constitute error. Cross-examination of Utt was restricted to purposes of impeachment, for which it was manifestly proper. He was interrogated on his testimony at the previous trial, wherein he had confessed that his evidence on direct examination was untrue, and that respondents' pictures did not disclose, as respondents asserted, and as Utt had previously testified, the pin-lifter on the engine when appellant was injured. He had further, in contradiction of his direct testimony, admitted that the pin-lifter on the engine when appellant was injured was of the type claimed by appellant and denied by respondents, and that the pin-lifter shown in the pictures was a changed and substituted pin-lifter. Such interrogation was proper as bearing on his veracity, credibility, and accuracy. Kleckamp v. Lautenschlaeger, 266 S.W. 473; Gurley v. Transit Co., 259 S.W. 898; Eidson v. Ry. Co., 209 S.W. 577. The method of cross-examination by use of a transcript was proper, such method being, moreover, the method required by the court upon the insistence of counsel for respondents, who specified the method of cross-examination to be followed by appellant. The witness admitting his former testimony, the transcript was not introduced in evidence. This was proper. Andrews v. Parker, 259 S.W. 810; Whitlow v. Ry. Co., 282 S.W. 525; Peppers v. Ry. Co., 295 S.W. 761; Eidson v. Ry. Co., 209 S.W. 577.

Charles M. Miller for respondents.

(1) Plaintiff's given Instruction 5 warranted the granting of a new trial under the facts of this case, (a) because it did not properly declare the law, and (b) was misleading, as the trial court, who was familiar with every angle of the case found. Michigan Cent. Railroad Co. v. Mix, 49 S.Ct. 207; Davis v. Farmers Cooperative Co., 262 U.S. 312, 43 S.Ct. 556; Santa Fe v. Wells, 265 U.S. 101; McCleary v. Railroad, 264 S.W. 376; In re Rash Estate, 256 S.W. 525; Bales v. Wabash, 271 S.W. 851; Tabor v. Nutt Co., 274 S.W. 911. (2) The refusal of defendants' Instruction 12 warranted the granting of a new trial, because it properly declared the law under the facts of this case, and defendants were entitled to have it given. The...