Barraclough v. Union Pacific Railroad Co.

• Decision Date: 03 September 1932
• Docket Number: No. 29325.,29325.
• Parties: SADIE BARRACLOUGH, as Administratrix of the Estate of LAWRENCE G. BARRACLOUGH, JR., Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Corporation.
• Court: Missouri Supreme Court

52 S.W.2d 998

SADIE BARRACLOUGH, as Administratrix of the Estate of LAWRENCE G. BARRACLOUGH, JR., Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Corporation.

No. 29325.

Supreme Court of Missouri, Division 1.

September 3, 1932.

Appeal from Jackson Circuit Court. — Hon. E.E. Porterfield, Judge.

AFFIRMED.

Atwood, Wickersham, Hill & Chilcott and E.J. Levis for appellant.

(1) The court erred in refusing to permit the plaintiff to cross-examine Lawrence G. Barraclough, Sr., divorced husband of plaintiff, and father of the deceased. He was a malicious and vicious witness, testifying against his former wife and his dead son The court erred in refusing plaintiff's offer of proof (R. 204) as to his treatment of his wife and family which affected his credibility as a witness. State v. Pruett, 45 S.W. 1114, 144 Mo. 92; Warner v. Oriel Glass Co., 8 S.W. (2d) 846, 319 Mo. 1196, 60 A.L.R. 448. (2) The court erred in striking out the testimony of witness Burrows about the negligent manner of attaching the storm curtain between the tank and engine with a wire and knotted rope. Burrows was an expert railroad man and as such, his opinion was admissible. Crecelius v. Railway, 223 S.W. 413, 284 Mo. 26; Kidd v. Railroad Co., 274 S.W. 1079, 310 Mo. 1; Neely v. Railroad Co., 14 S.W. (2d) 972; State ex rel. v. Trimble, 14 S.W. (2d) 978; Finnegan v. Railroad Co., 169 S.W. 969, 261 Mo. 481; Hill v. Sturgeon, 28 Mo. 323; McMillan v. Bausch, 234 S.W. 835; Marshall v. Kansas City, 249 S.W. 82, 297 Mo. 304; Littig v. Urbauer-Atwood Heat, Co., 237 S.W. 779; Fesler v. Hunter, 35 S.W. (2d) 641; Kirkpatrick v. Am. Creosoting Co., 37 S.W. (2d) 996; Bennett v. Myres, 21 S.W. (2d) 943; Home Exchange Bank v. Koch, 32 S.W. (2d) 86; Curry v. Lackey, 35 Mo. 389; Moore v. Hinsdale, 77 Mo. App. 217. (3) The court erred in giving defendant's Instruction 14. It ignored the humanitarian feature of the case; it gave the jury a "roving commission" to defeat the plaintiff's claim on any theory the jury might surmise was a defense. Littig v. Urbauer-Atwood H. Co., 237 S.W. 785. (4) The court erred in giving defendant's instructions Nos. 15 and 16 because the same do not declare the law applicable to the facts of this case. Impossible for evidence to be "evenly balanced." McCloskey v. Koplar, 329 Mo. 527. (5) The court erred in giving defendant's Instruction 17, declaring that if Barraclough's death resulted from "thoughtlessness on his part" plaintiff could not recover. The instruction was entirely too general, indefinite and was not confined to the issues or proof and ignored the humanitarian theory of plaintiff's case. Pischel v. Coal Co., 221 S.W. 80; Macklin v. Fogel Const. Co., 31 S.W. (2d) 19; State v. Globe Indemnity Co., 2 S.W. (2d) 821. (6) The court erred in giving defendant's Instruction 18 telling the jury that the only damages plaintiff could recover was money in hand paid. Plaintiff was entitled to recover for any pecuniary benefits or assistance, whether in money, goods or chattels, which she might have received from her son had he lived. Carter v. Railroad, 71 Atl. 253, 76 N.J.L. 602, 19 L.R.A. (N.S.) 128, 16 Ann. Cas. 929; Railroad v. McVey, 87 S.W. 328, 99 Tex. 28; "Pecuniary benefits," 48 C.J. 778; 3 Words and Phrases (2nd Series) 936.

T.M. Lillard and Watson, Ess, Groner, Barnett & Whittaker for respondent.

(1) The trial court committed no error in ruling that defendant's witness Lawrence G. Barraclough, Sr., could not be cross-examined as to the contents of the divorce petition which had been filed against him. (a) The divorce petition was the best evidence. State v. Nasello, 30 S.W. (2d) 141. (b) The scope of cross-examination is in the discretion of the trial court and will not be reviewed on appeal. Kleckamp v. Lantschlaeger, 305 Mo. 539, 266 S.W. 473; Muller v. Hospital Assn., 5 Mo. App. 401; State v. Ryland, 324 Mo. 714, 25 S.W. (2d) 109; Neal v. Caldwell, 24 S.W. (2d) 104; State v. Ellison, 34 S.W. (2d) 98. (c) The witness having been offered solely on measure of damages and not on negligence, and the jury having found against plaintiff, no error in the admission of testimony on measure of damages could be prejudicial. Welp v. Bogy, 320 Mo. 679. (2) It is only where it is sought to show that a witness, previous to the trial, made some statement or admission contradicting his testimony at the trial that a foundation must be laid therefor. The bias or prejudice of a witness may always be shown to affect his credibility. There is, therefore, no merit to appellant's point 2. Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 201; Wills v. Sullivan, 211 Mo. App. 325; People v. Brooks, 130 N.Y. 189; Ellsworth v. Potter, 41 Vt. 685; State v. Smith, 183 S.W. 873; Vassar v. Railroad, 236 N.W. 189; State v. Smith, 183 N.W. 873; Burnamen v. State, 159 S.W. 244. (3) The various assignments under appellant's point 3 are not supported by the record, are trivial and entirely without merit. (4) Instruction 14 is entirely free from error. It is always proper to instruct the jury that the fact of injury and the filing of the suit may not be considered, absent peculiar facts and circumstances connected with the injury, not existent in the case at bar, which of themselves tend to show negligence. Nicholson v. Franciscus, 40 S.W. (2d) 625; Sharp v. Carthage, 319 Mo. 1028; Schmeer v. Anchor Cold Storage Co., 12 S.W. (2d) 433. (5) Instructions 15 and 16 were proper. It is not error to instruct on the effect of evidence being equally balanced. Denkman v. Prudential Fixture Co., 289 S.W. 591. (6) Instruction 17 was not erroneous. (a) The act of Barraclough in stepping in front of a moving train was, by whatever name it might be called, culpable negligence; and the jury were not misled by the use of the word "thoughtlessness" in the instruction. Railroad Co. v. Houston, 95 U.S. 702. (b) The words "any negligence" give the jury a roving commission against respondent, and not against appellant. The only defect in the instruction, therefore, is that it is too favorable to the losing party, and of that appellant cannot complain. Schlueter v. Railway Co., 316 Mo. 1290; State ex rel. v. Duncan, 223 Mo. 441, 19 S.W. (2d) 467.

HYDE, C.

This is an action under the Federal Employers' Liability Act (U.S.C.A. 51-59) by plaintiff, as the administratrix of the estate of Lawrence G. Barraclough, Jr., for $20,000 damages for his death while in the employ of defendant as a brakeman in interstate commerce. Plaintiff says also that the Boiler Inspection Act (U.S.C.A. 23) applies but assigns no error on that feature of the case. Barraclough was killed at Harper, Wyoming, November 15, 1922. The negligence charged upon which the case was submitted was that there was a storm curtain over the gangway between the engine and tender which was negligently fastened so as to obstruct the passage and the view of Barraclough descending from the engine cab to the ground: that he was negligently required to crawl under this curtain when it was dangerous to do so; that the engine which struck Barraclough failed to sound the bell or whistle as required by the rule and custom of defendant; and negligence under the humanitarian doctrine in failing to warn him when he was seen or could, by the exercise of ordinary care, have been seen in a position of peril in time to have done so.

Plaintiff's evidence concerning the accident consisted of the deposition of conductor Burke of the train upon which Barraclough was serving as head brakeman. Barraclough had just been employed and was referred to as a student brakeman. This conductor's evidence was that their train, an eastbound double-header freight train of fifty-six cars, pulled onto the passing track at Harper about 6:30 A.M., to allow a passenger train, also eastbound, to pass them. Harper was merely a passing station on the prairie. There were two main line tracks with a passing track between them, eight feet distant from each, measuring between rails. The overhang of the cylinders of the engines, in use there, was two and one-half feet. The passenger train was late and arrived about eight o'clock. During this wait, Barraclough was resting in the head engine, which was the head brakeman's proper place. The conductor said that, when he saw the smoke of the passenger train which they were to follow, he went to the head engine, told Barraclough that the train was coming, and that Barraclough answered him and started down the gangway on the north side of the engine. His duty was to throw the switch, after the passenger train had passed, so their train would pull out on the main line. The conductor said that he went on toward the front of the engine in order to identify and observe the passenger train; that when he got to the cylinder head of the engine he turned around and looked to see if Barraclough was coming; and that he could see his body pushing out the canvas curtain and could see his feet and the lower part of his legs below the bottom of the curtain. He then heard the passenger train coming on the south track and went on toward the front of the engine. As he did so, he noticed a westbound freight train approaching on the north track, four to six car lengths away. (A car length is about forty feet.) He turned and yelled to Barraclough but he did not appear to hear him. The westbound train was traveling about thirty-five miles an hour and was only about three car-lengths from Barraclough when his feet hit the ground. Barraclough was facing the engine, from which he had descended, with his back toward the north track, and with his cap pushed forward over his eyes. Barraclough readjusted his cap, took one step which faced him to the east, about seven inches nearer the approaching train, and was almost immediately struck by the cylinder head of the engine. He received injuries from which he died.

The passenger train, which was passing on the south track, was traveling up-grade and making a lot of noise, while the freight train on the...