Arnold v. Alton R. Co.

• Decision Date: 10 June 1941
• Docket Number: 37420
• Citation: 154 S.W.2d 58,348 Mo. 516
• Parties: Ernest A. Arnold v. The Alton Railroad Company, Appellant
• Court: Missouri Supreme Court

154 S.W.2d 58

348 Mo. 516

Ernest A. Arnold v. The Alton Railroad Company, Appellant

No. 37420

Supreme Court of Missouri

June 10, 1941

Rehearing Denied July 25, 1941. Motion to Transfer to Banc Overruled September 25, 1941.

Appeal from Jackson Circuit Court; Hon. John F. Cook Judge.

Affirmed.

Charles M. Miller for appellant.

(1) The trial court erred in refusing the peremptory instruction requested by defendant at the close of all the evidence for the reason that under the physical facts and evidence adduced plaintiff made no case, justifying a recovery, under the Federal Boiler Inspection Act (45 U.S.C. A., Sec. 22 et seq.). Dunn v. Alton Railroad, 104 S.W.2d 311; San Antonio Pub. Serv. Co. v. Frazer, 70 S.W.2d 232; State ex rel. K. C. So. Ry. Co. v. Shain, 340 Mo 1195, 105 S.W.2d 915; Monroe v. Alton Railroad Co., 297 Mo. 633, 249 S.W. 644. (2) The trial court erred in denying defendant the right to cross-examine plaintiff for the purpose of affecting his credibility, reliableness, trustworthiness and good faith as to injuries alleged in his petition on the first trial, being the result of other accidents, which allegations of injuries were, on the second and third trials by him, stricken from his petition in an endeavor to avoid cross-examination as to such injuries and accidents, for the reason that under the law defendant was entitled to cross-examine plaintiff as to any matter which might tend to test the credibility or affect the credit of the witness, or have a tendency to show his lack of honesty and good faith. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218; Pullman Co. v. Hall, 55 F.2d 139; Muller v. Hospital Assn., 73 Mo. 242, 5 Mo.App. 401; Rogers v. St. Avit, 60 S.W.2d 698; State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635; State v. Davis, 284 Mo. 695, 225 S.W. 707; Kirkpatrick v. Am. Ry. Express, 6 S.W.2d 527; Carpenter v. Tri-State Tel., 211 N.W. 463; 3 Wigmore on Evidence (3 Ed.), sec. 982, p. 549, and sec. 963 on false claims. (3) Trial court erred in not discharging the jury for the prejudicial statement of counsel, for the reason that under the law the same was improper and created prejudicial error against defendant. Warren v. Pulitzer Pub. Co., 336 Mo. 184, 78 S.W.2d 404. (4) The trial court erred in permitting counsel for plaintiff to cross-examine defendant's witness, Naber, as to having made an application for change of venue. Warren v. Pulitzer Pub. Co., 336 Mo. 184, 78 S.W.2d 404. (5) The trial court erred in sustaining plaintiff's objection to certain portions of cross-examination of plaintiff's witness Cox. Kaminski v. Iron Works, 167 Mo. 462, 67 S.W. 221; Meily v. Railroad, 215 Mo. 267, 114 S.W. 1013. (6) The trial court erred in permitting plaintiff to call five jurors on the first trial as witnesses, and show and feature the fact that they were jurors on the first trial, and permit the jurors to testify from actual demonstration as to the ease with which the vision window in question on the first trial, was subject to movement, as compared with the same on the third trial in connection with a claim of tampering with the window, unsupported by any evidence, and further erred in refusing to permit defendant to cross-examine the witness with respect to their attitude on the first trial. The court also erred in not admitting in evidence the verdict. State ex rel. v. Douges, 320 Mo. 1234, 10 S.W.2d 931; Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 259 S.W. 89; Knopp v. Knopp, 183 S.W. 576; Clark v. United States, 289 U.S. 1, 53 S.Ct. 465.

John C. Nipp, E. E. Thompson, Mont T. Prewitt, Sam Mandell and Cowgill & Popham for respondent.

(1) The trial court properly refused the peremptory instruction requested by the defendant at the close of all the evidence. Arnold v. Alton Ry. Co., 343 Mo. 1049, 124 S.W.2d 1092; Kick v. Franklin, 137 S.W.2d 512; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Monroe v. Alton Ry. Co., 297 Mo. 633, 249 S.W. 64; Steger v. Meehan et ux., 63 S.W.2d 109. (2) The trial court acted properly and exercised sound judicial discretion in limiting cross-examination of plaintiff against "wangling," extraneous, immaterial, collateral and prejudicial inquiry. Bertke v. Hoffman, 330 Mo. 584, 50 S.W.2d 107; Craig v. United Rys. Co. of St. Louis, 185 S.W. 205; Dent v. Monarch Life Ins. Co., 231 Mo.App. 283, 98 S.W.2d 123; Gardner v. St. Louis Union Trust Co., 85 S.W.2d 86; Lock v. Chicago, B. & Q. Ry. Co., 281 Mo. 532, 219 S.W. 919; Nagel v. Met. Life Ins. Co., 80 S.W.2d 709; Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104; Massman v. Muehlebach, 231 Mo.App. 72, 95 S.W.2d 808; McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37; Roach v. Kansas City Pub. Serv. Co., 141 S.W.2d 800; State ex rel. v. Hoffman, 132 S.W.2d 27; Wells v. Mo. Ed. Elec. Co., 108 Mo.App. 607, 84 S.W. 204. (3) The trial court did not err in refusing to discharge the jury because of the "voluntary statement" of plaintiff's counsel. Arnold v. Brotherhood of Firemen & Enginemen, 101 S.W.2d 729; Perry v. Sedalia, 168 Mo.App. 235, 153 S.W. 536; Powell v. Kansas City Rys. Co., 226 S.W. 916; Warren v. Pulitzer Pub. Co., 336 Mo. 184, 78 S.W.2d 404. (4) The court properly permitted cross-examination of appellant's witness Naber in connection with the application for change of venue prepared by Naber as attorney for the Brotherhood in Mr. Arnold's suits against it. (5) The trial court properly sustained plaintiff's objections to portions of cross-examination of plaintiff's witness, Cox, and acted with proper judicial discretion in so doing. Owen v. K. C., C. C. & St. J. Ry. Co., 225 S.W. 234; Robison v. Chicago, Great Western Ry. Co., 66 S.W.2d 180. (6) The trial court did not err in permitting plaintiff to call five jurors on the first trial as witnesses or to refuse to permit appellant to cross-examine such witnesses with respect to their attitude on the first trial. Bertke v. Hoffman, 50 S.W.2d 107, 330 Mo. 584; Busch v. Louisville & N. Ry. Co., 322 Mo. 469, 17 S.W.2d 337; Neal v. Caldwell, 34 S.W.2d 104, 326 Mo. 1146; State ex rel. State Highway Comm. v. Hoffman, 132 S.W.2d 27. (7) Defendant's requested Instruction 10 was properly refused. Arnold v. Alton, 343 Mo. 1049, 124 S.W.2d 1092; Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158.

OPINION

Tipton, P. J.

In the Circuit Court of Jackson County, Missouri, the respondent recovered a judgment against the appellant in the sum of $ 15,000 for injury to his left eye. The respondent's action is founded upon an alleged violation of the Federal Boiler Inspection Act, as amended, 45 U.S.C. A., Sections 22-24. From this judgment the appellant has duly appealed.

Respondent was a fireman on one of appellant's local freight trains running west out of Slater, Missouri. On February 28, 1934, he was injured while engaged in making a "drop switch" of an interstate freight car at Marshall, Missouri, by the glass in the clear vision window on his side of the locomotive cab shattering and particles thereof striking him in the eye and face. This is the second appeal in this case. Our opinion in the first appeal is reported in 343 Mo. 1049, 124 S.W.2d 1092, where a detailed statement of the facts may be found.

The appellant's first assignment of error is, that its demurrer to the evidence should have been sustained because respondent's evidence is contrary to the physical facts and is unbelievable. This identical question was ruled contrary to appellant's contenton on the first appeal of this case. As we have already decided this is a submissible case, we are bound by that decision on this appeal unless we made a mistake of fact or law. [Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512.]

The appellant contends that the facts in the second trial were different from the facts in the first trial. Appellant made tests with the engine in question, and enginemen of other railroads testified that in their opinion the movement of engines as described by plaintiff could not cause the glass to shatter with enough force so that a particle of glass could get in respondent's eye. This additional evidence merely goes to controvert the respondent's evidence, which was practically the same as in the first trial. Moreover, this additional evidence was only accumulation of evidence offered by appellant in the first trial. To sustain its contentions, the appellant relies upon the case of Monroe v. C. & A. Railroad Co., 297 Mo. 633, 249 S.W. 644. In that case the plaintiff's testimony was absolutely contrary on the second trial to what it was on the first trial, and we held that since plaintiff's testimony on one or the other occasion was obviously false, it had no probative value. That case is not in point because the respondent's testimony in both trials in case under review was practically the same. The jury in the case at bar evidently did not believe appellant's additional evidence; in fact, it did not believe appellant's evidence that controverted respondent's evidence. This it had a right to do.

The appellant's next assignment of error as stated in its brief is, "The trial court erred in denying defendant the right to cross-examine plaintiff for the purpose of affecting his credibility, reliableness, trustworthiness, and good faith, as to alleged injuries asserted in his petition on the first trial, that may have been the result of injuries in other alleged accidents, which allegations of injuries were, on the second and third trials, by him stricken from his petition in an endeavor to avoid cross-examination as to such injuries, which involved his good faith and credibility."

The original petition not only contained an allegation of injury to respondent's left eye, but also to his entire nervous system. The first trial was based upon the original petition. At the beginning of...