Clancy v. St. Louis Transit Company

• Decision Date: 16 January 1906
• Citation: 91 S.W. 509,192 Mo. 615
• Parties: MICHAEL CLANCY v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

91 S.W. 509

192 Mo. 615

MICHAEL CLANCY v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division One

January 16, 1906

Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed.

Boyle & Priest and J. W. Jamison for appellant.

(1) There is no pretense that the injury was wantonly or willfully inflicted. Upon his own showing plaintiff was not entitled to recover and the court should have directed a verdict for defendant. Davies v. Railroad, 159 Mo 1; Maxey v. Railroad, 113 Mo. 1; Jones v Barnard, 63 Mo.App. 501; Vogg v. Railroad, 36 S.W. 646; Evans v. Railroad, 178 Mo. 517. Plaintiff's position was similar to, but more dangerous than that of one employed as a "section man" to work on steam railroads. Evans v. Railroad, supra. Nor was plaintiff entitled to go to the jury upon the theory that although he may have been guilty of negligence which directly contributed to his injury he was nevertheless entitled to recover if defendant's employees knew of his peril or by the exercise of ordinary care might have known thereof in time to have enabled them by the exercise of ordinary care to have averted the injury. This rule cannot be applied under the facts and circumstances developed by the testimony in this case. Evans v. Railroad, 178 Mo. 517; Ries v. Railroad, 179 Mo. 1; Ferguson v. Traction Co., 9 Pa. Co. Ct., 147. Plaintiff's position in the trench was such that it was necessary for him to exercise greater care than would be ordinarily expected of section men because the latter work above ground and are generally in a position where they must necessarily be seen by the engineer. (2) There was error in refusing to permit defendant to impeach the witness Bray. Having the deposition of witness and two written statements in its possession from him detailing the facts with respect to the collision and no notice that witness had subsequently made an experiment, and had gone to plaintiff's counsel and made contradictory statements, and no notice that he would change his testimony at the time of the trial, defendant should have been permitted to impeach him upon the ground that it had been entrapped into offering him, and that defendant had been imposed upon and misled. Dunn v. Dunnaker, 87 Mo. 597; State to use v. Martin, 52 Mo.App. 511; State v. Burks, 132 Mo. 363. (3) There is an irreconcilable conflict between instructions 1, 2 and 3 given at the instance of plaintiff. Furthermore, the law as declared in those instructions cannot be reconciled with the law as announced in the instructions given for defendant. Such repugnant directions afford no guide to the jury, nor can it be presumed that they follow one rather than the other. Desnoyers Shoe Co. v. Lisman & Ramsey, 85 Mo.App. 344; Linn v. Massillion Bridge Co., 78 Mo.App. 111; Baustian v. Young, 152 Mo. 317; Goetz v. Railroad, 50 Mo. 472; Worthington v. Railroad, 72 Mo.App. 162.

Taylor R. Young, Frank H. Haskins, Stern & Haberman and N. T. Gentry for respondent.

(1) The court committed no error in refusing defendant's instruction in the nature of a demurrer. The verdict was fully supported by the evidence. Seckinger v. Mfg. Co., 129 Mo. 590; Gessley v. Railroad, 32 Mo.App. l. c. 418; I Thompson on Negligence, 461; Church v. Railroad, 119 Mo. 218. (2) The court committed no error in refusing to permit defendant's counsel to read to the jury the testimony of witness Bray as contained in his deposition, and in refusing to permit defendant to prove the contents of two written statements made by Bray prior to the trial, for the following reasons: (a) Bray was defendant's own witness, and it is not competent for a party to impeach his own witness even in case of surprise. Clafflin v. Dodson, 111 Mo. 195; Brown v. Wood, 19 Mo. 475; Dunn v. Dunnaker, 87 Mo. 597; Putnam v. U. S.,162 U.S. 687; Sanchez v. People, 22 N.Y. 147; People v. Sanford, 5 Denio 117; Com. v. Hudson, 11 Gray 64; Com. v. Walsh, 4 Gray 535. (b) The courts have sometimes permitted a party to ask his own witness if he has not on a previous occasion made contrary statements, but this is only done where it is shown to the satisfaction of the court that the party had been trapped or surprised by the witness. State v. Burks, 132 Mo. 374; Feary v. O'Neill, 149 Mo. 473. (c) Defendant was not trapped or surprised by the witness. (d) A party cannot ask his own witness if he has not made previous contradictory statements when he puts the witness on the stand knowing him to be infamous or of bad character. 2 Philips on Evidence (5 Am. Ed.), p. 981; Rapalje on Witnesses (Ed. 1887), sec. 212, p. 532. (e) It is within the discretion of the trial court whether or not to permit a party to ask his own witness whether he has not made previous contradictory statements, and the decision of the trial court is final, and a refusal to allow the question is not ground for reversal. Hurlburt v. Billows, 50 N.H. 115; State v. Squires, 48 N.H. 368; Selover v. Bryant, 21 L. R. A. 433; Hirsch v. Green, 83 Mo.App. 489; Greenleaf on Evidence (15 Ed.), sec. 435, p. 570. (f) Defendant was permitted to cross examine Bray and voluntarily waived his right to question him regarding previous statements made by the witness. (g) The deposition with which defendant wished to contradict Bray does not contain anything contradictory to his testimony. (h) The purpose of permitting a party to ask his own witness whether he has not made previous contradictory statements is solely for the purpose of refreshing the recollection of the witness, or of awakening his conscience, and cannot be done for the purpose of impeaching him. Bullard v. Pearsall, 53 N.Y. 230; Hurley v. State of Ohio, 4 L. R. A. 163; Creighton v. Modern Woodmen, 90 Mo.App. 378; Railroad v. State to use, 41 Md. 295. (i) Evidence aliunde cannot be introduced for the purpose of showing that the witness has made previous contradictory statements. Collins v. Hoehle, 75 N.W. 416. (j) Before a party can ask for a reversal upon the ground that an objection to the question has been sustained, he must make an offer of proof showing to the court what he intends to prove by the witness, and this offer must be properly made. Jackson v. Hardin, 83 Mo. 179; Hickman v. Green, 123 Mo. 179; Lyon v. Batz, 42 Mo.App. 606; Wheeler v. Rice, 62 Mass. 205. (3) The instructions given at the request of plaintiff merely state the law, and if they are in conflict with those given on behalf of defendant, then the latter are erroneous, and a party cannot complain of self-invited error. Christian v. Ins. Co., 143 Mo. 460; Nagel v. Railroad, 104 Mo.App. 438; Goetz v. Railroad, 50 Mo. 472. (4) The "humanitarian doctrine" applies in this case. Evans v. Railroad, 178 Mo. 517; Fearons v. Railroad, 79 S.W. 398; Jett v. Railroad, 77 S.W. 740; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 275; Lynch v. Railroad, 111 Mo. 601; Fiedler v. Railroad, 107 Mo. 651; Guenther v. Railroad, 108 Mo. 18; Scullin v. Railroad, 83 S.W. 760.

MARSHALL, J. Valliant and Lamm, JJ., concur in the second and in the fourth paragraphs, and in the result; Brace, P. J., absent.

OPINION

MARSHALL, J.

This is an action for $ 20,000 damages received by the plaintiff on the 3rd of July, 1902, at a point on Shenandoah avenue, between Thurman boulevard and Vandeventer avenue, in the city of St. Louis, in consequence of one of defendant's cars striking the plaintiff while he was engaged at work on the street between the double tracks of defendant's road, and while he was standing in a ditch that had been dug, at that point, for the purpose of laying gas pipes. A change of venue was taken by the plaintiff from the city of St. Louis, and the case was sent to Boone county, where the plaintiff recovered a judgment for $ 10,000, and the defendant appealed.

THE ISSUES.

The petition charges the corporate capacity of the defendant, and alleges that it was engaged in operating street cars in the city of St. Louis, particularly at the point where the accident occurred; that on the day of the accident, the plaintiff was engaged as an employee of the Laclede Gas Light Company, in laying pipes under the tracks of the defendant, at said point, "and while in a stooping position between the two tracks of the defendant, at said time and place, the plaintiff was struck," etc.; that the defendant's servants in charge of the car knew that the plaintiff and several employees of the gas light company were engaged in laying pipes under the defendant's tracks, and "saw, or by the exercise of ordinary care and diligence in keeping a lookout for plaintiff and other persons on the track could and would have seen, plaintiff in time, by the exercise of ordinary care, to have stopped said car so as to have prevented said injuries, and by reason of such carelessness and disregard of duty on the part of defendant, its servants, agents and employees, and in failing to keep proper lookout for persons on its track at said time and place, and in failing to stop said east-bound car in time to avoid said injuries, plaintiff was struck and injured as aforesaid.

"Plaintiff further alleges that said injuries were caused by the aforesaid negligence and carelessness, and also by defendant's agents and servants in charge of said car failing to keep a vigilant lookout for all persons on foot, either on the track or moving towards it, and on the first appearance of danger to persons, to stop said car in the shortest time possible; and in running said car at a greater rate of speed than eight miles an hour, as required by subdivision four and ten, respectively, of city ordinance 1275, relating to running street cars" -- the ordinance relied upon being set out; that the city granted to defendant the right to lay its street car tracks on Shenandoah...