Bain v. Missouri-Kansas-Texas R. Co.

• Citation: 141 S.W.2d 577
• Decision Date: 29 April 1940
• Docket Number: No. 19635.,19635.
• Parties: BAIN v. MISSOURI-KANSAS-TEXAS R. CO.
• Court: Court of Appeal of Missouri (US)

141 S.W.2d 577

BAIN v. MISSOURI-KANSAS-TEXAS R. CO.

No. 19635.

Kansas City Court of Appeals. Missouri.

April 29, 1940.

Rehearing Denied May 20, 1940.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Action by Robert C. Bain against Missouri-Kansas-Texas Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed.

Cooper, Neel & Sutherland, of Kansas City, Carl S. Hoffman, of St. Louis, for appellant.

Mont T. Prewitt and E. E. Thompson, both of Kansas City, for respondent.

SHAIN, Presiding Judge.

This is an action for damages. The plaintiff, after alleging the incorporation of defendant and its ownership, maintenance and control of railroad switch tracks, all admitted, made allegations as follows: "Plaintiff further states that on or about June 25, 1937, he was engaged in unloading watermelons from a railroad freight car consigned to the Great Atlantic and Pacific Tea Company, which at all times mentioned herein was located on the aforesaid switch track, owned by defendant, at a point approximately two hundred fifty (250) feet north of said Seventeenth Street; that he was engaged in doing said work under the directions and supervision of the said Great Atlantic and Pacific Tea Company; that in doing said work, plaintiff was standing in a position so that one of his feet was on the door sill of above-mentioned railroad freight car, and the other foot was resting on the truck into which said watermelons were being placed; that said freight car was standing on defendant's said team track, closely adjacent to several other cars standing thereat; that while he was so engaged in unloading said watermelons, the defendant, by and through its agents, servants, and employees, negligently caused, allowed, or permitted a locomotive engine, owned and operated by defendant, to violently and suddenly collide with and bump into the aforesaid freight cars, causing said cars to be propelled into and against the car in which plaintiff was working with great force and violence, thereby causing plaintiff to be severely and permanently injured, as hereinafter set out."

Plaintiff pleads rule of defendant touching the moving of occupied cars without warning. Plaintiff alleges his injuries are the direct result of the negligence charged above.

The defendant answers by general denial and affirmatively alleges negligence on part of plaintiff in placing himself in a position of danger without knowledge or acquiescence of defendant, and in failing to use ordinary care for his own safety when he saw, or by the exercise of ordinary care, could have apprehended the danger.

Plaintiff, in reply, made general denial of all matters set forth in defendant's answer.

A trial was had before a jury, resulting in verdict of $2,500 for plaintiff. Judgment was had and entered in accordance with verdict, and defendant has appealed

We will continue to refer to respondent as plaintiff and to appellant as defendant.

The defendant makes four specifications of error, to-wit: Error in giving Instruction No. 1; error in prejudicial remarks made by plaintiff's counsel in the closing argument; error in inclusion in hypothetical question of the statement, that on June 25, 1937, the plaintiff "was a strong, robust, healthy man;" and error in that verdict was excessive.

Necessary to a review of said assignments, we must include herein a fair narrative of the evidence bearing on the respective points.

The instruction complained of is as follows: "The court instructs the jury that if you find and believe from the evidence in this case, that the `team track' in question was owned by defendant, and that on or about June 25, 1937, in Kansas City, Missouri, as described in evidence, at or about 7 A. M., defendant by and through its agents, servants, and employees, placed said stock car in question on said `team track' for the purpose of permitting the Atlantic Commission Company, mentioned in evidence, to unload the contents thereof, and if you further find and believe from the evidence that the said Atlantic Commission Company authorized the Parker Transfer Company, mentioned in evidence, to unload the contents of said car, and if you further find and believe from the evidence that plaintiff on said date was an employee of said Parker Transfer Company, and in the furtherance of his duties as such employee was, on the occasion in question, engaged in unloading watermelons from said stock car and placing them in the truck owned and operated by said Parker Transfer Company, if you so find, and that in so doing, plaintiff was, at said time and place, working in, on, and about said stock car, if you so find, and that the defendant, through its agents, servants, and employees, knew, or by the exercise of ordinary care could have known, that plaintiff was so working in, on, and about said stock car, if you so find, and was in a position, if so, where he would be likely to be injured, if you so find, if said car was moved or collided with, if you so find, and if you further find and believe from the evidence that at said time and place defendant, through its employees, negligently, if so, caused, allowed or permitted its said locomotive engine, mentioned in evidence, to be suddenly, if so, and with great force, if so, propelled into and against the cars mentioned in evidence, standing on said `team track,' including the car in which plaintiff was working in, on, or about, if you so find, with great force and violence, if you so find, and if you further find that defendant, through its agents, servants, and employees, negligently, if so, failed to warn plaintiff that said stock car would be collided with, if so, and moved, if so, if you so find it was so moved and collided with, and if you further find from the evidence, defendant, its agents, servants, and employees, negligently, if so, failed to warn plaintiff that said engine would be suddenly, if so, propelled against said cars, including the melon car in question, if you so find, and that prior to colliding with said car, if so, and moving same, if so, defendant, negligently, if so, failed to warn plaintiff by word of mouth that said car would be moved or disturbed, if you so find, in violation, if so, of a long established custom and practice by defendant, to so warn persons so working in, on, or about cars being unloaded, if you so find such custom and practice by defendant existed, and that as a direct result of the negligence of defendant, as aforesaid, if you so find defendant was negligent as aforesaid, plaintiff was caused to be knocked and thrown down into said automobile truck, if you so find, and was thereby injured, if you so find, and that plaintiff was at all times mentioned in evidence, in the exercise of ordinary care for his own safety, if you so find, then your verdict must be in favor of Robert C. Bain, and against defendant, Missouri-Kansas-Texas Railroad Company." (Italics ours)

The specific objections to instruction one appear in defendant's brief as follows:

"(a) The said instruction was prejudicially erroneous in that its unnecessary length, repetition and emphasis of confusing and prejudicial phraseology would tend to confuse and prejudice the jury against the defendant."

"(b) The said instruction emphasized defendant's failure to `warn plaintiff that said stock car would be collided with,' which is a requirement for a warning not supported by the pleadings or by any evidence."

"(c) The said instruction emphasized defendant's failure to `warn plaintiff that said engine would be suddenly, if so, propelled against said cars, including the melon car in question,' which is a requirement for a warning not supported by any evidence."

"(d) The said instruction commingled two inconsistent and contradictory theories of recovery, i. e. (1) negligent collision with the car, and (2) negligent failure to warn of an intentional movement of the car."

In the direct testimony of plaintiff, questions and answers appear as follows:

"Q. When you got down there where the cars were, you and Mr. Lineker, what did you do? What is the first thing you did? A. We hunted up where Mr. Thacker was and the car he was in, and backed into the car and started loading my truck. We looked around there.

"Q. That was loaded with what? What was in the car? A. Watermelons."

At the time of the accident plaintiff was helping to load watermelons from a railroad car into a truck driven by a Mr. Thompson. An understanding of the situation is shown by questions and answers as follows:

"Q. Now, you were facing which direction as you stood in your position? A. Well, as I received the melon I was standing north — facing north and east. That is when I would catch the melon.

"Q. All right. And after you caught it did you change your position in any manner? A. Well, then I would just pivot and throw it up in the truck to Mr. Thompson.

"Q. Pivot to the left? A. Yes, sir.

"Q. Standing with your left foot on the tail board and the right foot on the door sill on the floor of the car? A. In the car.

"Q. Stock car? A. Yes, sir.

"Q. Now, Mr. Bain, while you were unloading the melon car was the car which you were working on disturbed or moved? A. Yes, sir.

"Q. About how far along had you got in loading Thompson's truck before the car was moved or disturbed? A. Well, I expect we was a little more than half through.

"Q. All right. Now then, Mr. Bain, you were standing, when this occurrence took place, facing toward the north or northeast? A. Yes.

"Q. Now, you just describe to the gentlemen of the jury and Judge Harris what took place in that respect. A. Well, we were all standing there working and passing the watermelons to one another and all of a sudden there was an unusually violent jar and the car door hit me in the back and a watermelon hit me in the head just about the same time and jarred my head back against this car door and this jar jarred...