Harrison v. St. Louis-San Francisco Ry. Co.

• Decision Date: 12 November 1936
• Citation: 99 S.W.2d 841,339 Mo. 821
• Parties: Ben Harrison v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

99 S.W.2d 841

339 Mo. 821

Ben Harrison v. St. Louis-San Francisco Railway Company, Appellant

Supreme Court of Missouri

November 12, 1936

Appeal from Jackson Circuit Court; Hon. C. Jasper Bell Judge.

Affirmed (upon condition).

Joseph W. Jamison, Henry S. Conrad, L. E. Durham, Hale Houts and Ilus M. Lee for appellant.

(1) The verdict was against the great weight of the evidence and justice demands that all the rulings of the trial court be closely scrutinized for prejudicial error. Nolan v Railroad Co., 250 Mo. 621. (2) The court erred in admitting incompetent and irrelevant evidence in behalf of the plaintiff and improper examination by plaintiff's counsel. (a) Evidence of a jolt on the track at a subsequent time and photographs identified as correct at a subsequent time. Bailey v. Kansas City, 189 Mo. 511; Conduitt v. Gas & Electric Co., 326 Mo. 146. (b) The opinions which were improper and inadmissible conclusions of witnesses: That the claimed movement at the time in question was extraordinary; as to the effect of an increase of speed over the track in question to thirty miles an hour from twenty to twenty-five miles an hour, and that it would throw a fireman off his feet; as to the time it will take the track to get into a condition which will cause a jolt testified to. Fishang v. Evermann Contracting Co., 333 Mo. 883; State ex rel. Jenkins v. Brown, 19 S.W.2d 484; Tash v. Ry. Co., 76 S.W.2d 698; Trowbridge v Fleming, 269 S.W. 616; Hall v. Merc. Trust Co., 332 Mo. 821; Kimmie v. Terminal Railroad, 334 Mo 605; DeDonato v. Wells, 328 Mo. 457. (c) It was error to permit plaintiff's counsel to propound and receive a favorable answer to a leading question directly contradicting plaintiff's evidence as to the usual speed of the train. 4 C. J. 824. (3) The court erred in excluding the deposition of plaintiff when offered in evidence by the defendant and again in excluding it when re-offered and in excluding pages 149 to 178 of the deposition when offered. Southern Bank v. Nichols, 202 Mo. 324; Mertens v. McMahon, 334 Mo. 195; Friedman v. United Rys. Co., 293 Mo. 245. (4) The court erred in giving plaintiff's Instruction 1. The instruction erroneously submitted excessive speed without designating any rate. Brainard v. Railroad Co., 319 Mo. 898; Allen v. Transit Co., 183 Mo. 432; Owens v. McCleary, 313 Mo. 224. (5) The court erred in giving plaintiff's Instruction 2. The instruction erroneously excluded from consideration of the jury plaintiff's assumption of risks and dangers ordinarily incident to his employment. Martin v. Wab. Ry. Co., 325 Mo. 1122; Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 11; Cross v. Ry. Co., 291 P. 336, certiorari denied 283 U.S. 821; Massee v. Southern Pac. Co., 232 P. 505, certiorari denied 268 U.S. 703; New York C. & St. L. Railroad v. Pelle, 164 N.E. 705, certiorari denied 279 U.S. 842; Baltimore & O. S.W. Railroad v. Carroll, 163 N.E. 99; Campbell v. Ry. Co., 234 N.W. 395; Morgan v. Ry. Co., 294 P. 541. (6) The court erred in overruling defendant's objection to argument of plaintiff's counsel, improper and unsupported by the record, that plaintiff was examined by Dr. Twyman who was not a witness and Dr. Twyman was employed by defendant. Also in overruling objection to comment of counsel that defendant did not use deposition of Dr. Woolsey which was on file and equally available to the plaintiff. Atkinson v. United Rys. Co., 286 Mo. 643; Rothschild v. Barck, 324 Mo. 1130; Monroe v. Railroad Co., 297 Mo. 644. (7) The verdict was excessive. Reynolds v. Transit Co., 189 Mo. 422; Page v. Payne, 293 Mo. 625; Boyer v. Railroad Co., 293 S.W. 390; Carpenter v. Wabash, 71 S.W.2d 1076; Colwell v. Ry. Co., 73 S.W.2d 227; Nelson v. Boiler Co., 20 S.W.2d 911; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 917; Spencer v. Railroad Co., 317 Mo. 504.

Cope & Hadsell, Cowgill & Popham and John F. Cook for respondent.

(1) The court did not err in its rulings concerning admissibility of evidence. (a) There was no error in the court's ruling on the evidence of the witness Green, to the effect that he noticed there was a dip in the track at the place of plaintiff's accident within a day or two after the accident: First. Because the appellant is not before this court on this point, it not having made any objection to the question before it was answered, and it did not move or request the court to strike the answer or instruct the jury to disregard the testimony. Second. Even though appellant was properly before the court on this point, the evidence was admissible. Where objection is not made until after answer and there is no motion to strike answer, party cannot complain on appeal. Brackett v. Black Masonry & Contracting Co., 32 S.W.2d 290; Garvey v. Piel, 43 S.W.2d 775; Boyd v. Kansas City, 237 S.W. 1009; Raindge v. Ry. Co., 206 S.W. 395; Radler v. Ry Co., 51 S.W.2d 1011. Evidence admissible even though discovered one or two days subsequent to accident. Bailey v. Kansas City, 87 S.W. 1185; Morrow v. Mo. Gas & Elec. Serv. Co., 286 S.W. 117. (b) The court did not err in admitting the photographs in evidence over the objection of appellant to the effect that the evidence was too remote. Bailey v. Kansas City, 87 S.W. 1185; Morrow v. Mo. Gas & Elec. Serv. Co., 286 S.W. 117. Even had the testimony been inadmissible, no reversible error committed because testimony similar and to the same effect was admitted prior thereto without any objection from defendant. Reynolds v. Maryland Cas. Co., 201 S.W. 1134; James v. Bailey & Reynolds Chandelier Co., 30 S.W.2d 125; Snyder v. Am. Car & Foundry Co., 14 S.W.2d 606; Siberell v. Ry. Co., 9 S.W.2d 915. (c) Appellant cannot complain of the ruling on the admissibility of evidence it seeks to raise under subdivision B of Point 2 of its brief. Furthermore, the trial court did not err in its rulings on the admissibility of evidence complained of in subdivision B of appellant's Point 2, and if the trial court should, for any reason, be held to have ruled erroneously, such error, if any, was harmless. Defendant opened the issues and invited the error, if any, and cannot complain. James v. Bailey-Reynolds Chandelier Co., 30 S.W.2d 125; Reynolds v. Maryland Cas. Co., 201 S.W. 1134; Snyder v. Am. Car & Foundry Co., 14 S.W.2d 606; Siberell v. Ry. Co., 9 S.W.2d 915. The witnesses were experts in their line of work, did not invade the province of the jury, and the subject of the testimony was properly a matter of expert testimony. Williamson v. Ry. Co., 74 S.W.2d 583; Hiatt v. Ry. Co., 69 S.W.2d 632; Young v. Wheelock, 64 S.W.2d 957. The error, if any, could not have been harmful under the circumstances. James v. Bailey-Reynolds Chandelier Co., 30 S.W.2d 124; O'Leary v. Steel Co., 303 Mo. 375, 260 S.W. 59. (d) The court did not err in permitting the plaintiff to testify that he had never seen a train going over the particular bit of track on which he was injured at a speed faster than twenty-five miles an hour. (2) The trial court did not err in its rulings in refusing to admit plaintiff's deposition in evidence. Defendant's offers admittedly included incompetent matter and the trial court was not required to sort out the competent from the incompetent, but could reject the whole offer. Lynch v. Railroad Co., 61 S.W.2d 923; Daggs v. Ry. Co., 51 S.W.2d 167. The deposition was attempted to be used in an unfair way and not in accordance with the procedure declared by this court in Peppers v. Ry. Co., 295 S.W. 762; Shull v. Kallauner, 300 S.W. 554. (3) The trial court did not err in giving plaintiff's Instruction 1. Plaintiff by Instruction 1 merely shouldered an unnecessary burden, because the instruction was in the conjunctive and required the jury to find defendant negligent in both respects pleaded, whereas plaintiff was entitled to recover under the first hypothesis without the aid of the second hypothesis. Barry v. Railroad Co., 43 S.W.2d 782; Grubbs v. K. C. Pub. Serv Co., 45 S.W.2d 75; Wolfe v. Payne, 241 S.W. 915; Callicotte v. Railroad Co., 204 S.W. 527; Scott v. Railroad Co., 62 S.W.2d 839; Lepchenski v. Railroad Co., 59 S.W.2d 615. Whether the speed of the train was negligent does not depend solely upon its rate, but upon the circumstances and conditions existing at the time and place in question. Herrell v. Ry. Co., 18 S.W.2d 481; Ward v. Ry. Co., 277 S.W. 910. (4) The court did not err in giving plaintiff's Instruction 2 because the instruction did not exclude from the consideration of the jury the risk or danger ordinarily incident to plaintiff's employment; furthermore, if Instruction 2 had excluded the ordinary risks from the consideration of the jury, it could not have been prejudicial error because plaintiff's verdict was predicated solely upon the affirmative finding of facts set out in plaintiff's Instruction 1, which facts if they existed, and they were by the jury found, completely wiped out all possibility that plaintiff was injured by reason of any dangers ordinarily incident to his employment; furthermore, plaintiff's instructions 1 and 2 both referred the jury to the "instructions of the court" and "other instructions of the court" for an explanation of the meaning of assumption of the risk, and instructions D-2, D-3, and D-9 all made it plain to the jury that plaintiff assumed any risk or danger ordinarily incident to his employment. Instructions referring to other instructions must all be considered together. Samples v. Ry. Co., 232 S.W. 1049. The instructions in the case must all be read and considered together, and there can be no reversible error when another instruction requires the jury, before returning a verdict for plaintiff, to find facts making assumption of the risk impossible; or when the instruction as a whole fairly present the issues. McClure v. Ennis Real Estate & Inv....