Bond v. St. Louis-San Francisco Railway Company

• Citation: 288 S.W. 777,315 Mo. 987
• Decision Date: 11 October 1926
• Docket Number: 25564
• Parties: Robert Bond v. St. Louis-San Francisco Railway Company, Appellant
• Court: United States State Supreme Court of Missouri

288 S.W. 777

315 Mo. 987

Robert Bond v. St. Louis-San Francisco Railway Company, Appellant

No. 25564

Supreme Court of Missouri

October 11, 1926

Transferred to Court en Banc November 15 1926. Appeal Dismissed by Appellant December 8, 1926.

Appeal from Barton Circuit Court; Hon. Berry G. Thurman Judge.

Affirmed (upon condition).

E T. Miller, H. W. Timmonds, Ward & Reeves and Mann & Mann for appellant.

(1) The court erred in refusing to sustain defendant's demurrer offered at the close of the whole case. Under the rule of res ipsa loquitur, invoked in this case, by plaintiff pleading general negligence of an injury to a passenger caused in the wreck, the plaintiff made out by presumption a case when he showed: (a) That he was a passenger, (b) the wreck, (c) his injury. But when the proof of defendant showed a "cloudburst" and an unprecedented flood, the washing out of the trestle, the wreck caused by vis major, then the presumptive case of negligence made by the rule of res ipsa loquitur is conclusively overcome and defendant is legally excused, and plaintiff will be case on demurrer unless he comes forward and shows some act of negligence on the part of the defendant that caused, or was the moving factor directly co-operating with the act of God in producing, the wreck and injury, and unless such proof is produced, then the demurrer should be sustained. Hurch v. Railroad, 252 Mo. 48; Davis v. Railroad, 89 Mo. 350; Evans v. Railroad, 222 Mo. 456; Turner v. Haar, 114 Mo. 346; Wolf v. Express Co., 43 Mo. 421; Read v. Railroad, 60 Mo. 206; Sawyer v. Railroad, 37 Mo. 257; Reeves v. Railroad, 10 U.S. 190 (Wall.) , 77 U.S. 176; Hite v. Ry. Co., 130 Mo. 135. Plaintiff's case, having been made out on a presumption, when the proof comes in of the actual facts, then the presumption goes out. Guthrie v. Holmes, 272 Mo. 233; Tetwiler v. Railroad, 242 Mo. 194; Glassman v. Harry, 182 Mo.App. 304; Hite v. Railroad, 130 Mo. 138; Sowders v. Railroad, 127 Mo.App. 119; Mockowik v. Railroad, 196 Mo. 571; Bragg v. Railway, 192 Mo. 354; Hurck v. Railroad, 252 Mo. 39; Davis v. Railroad, 89 Mo. 350; Evans v. Railroad, 222 Mo. 457; Turner v. Haar, 114 Mo. 346; Wolf v. Express Co., 43 Mo. 423; Sawyer v. Railroad, 37 Mo. 259; Reeves v. Railroad, 10 U.S. 190 (Wall.) ; Hite v. Ry. Co., 130 Mo. 135. (2) The court erred in admissibility of testimony. (a) Plaintiff was permitted to offer the rules of the company governing conductors and engineers, bridge and track foremen, which were incompetent because they lay a greater burden on defendant than required by law; because this is not an action by an employee based upon an infraction of rules between defendant and its servants; because they mislead the jury against the defendant for violating rules rather than violating the law. (b) Plaintiff was permitted to ask hypothetical questions which were not based on any proven facts in this case. Henson v. Railway, 301 Mo. 415; Seelig v. Railway, 287 Mo. 343; Russ v. Railway, 112 Mo. 48; Root v. Railway, 195 Mo. 377. (c) Plaintiff was permitted to ask his witness Guy Smith what was said by defendant's witness Ryan, which was not a part of the res gestae, was not asked in proper form for impeachment; also to show by plaintiff's witness Cooper what defense witness Ryan said. (d) Plaintiff was permitted to show what defendant's witness Phillipson said to defendant's witness Ryan; it was an attempt to impeach Phillipson on an immaterial matter. 40 Cyc. 2699; Greenleaf on Evidence, sec. 461; Hamburger v. Rinkle, 164 Mo. 398; State v. Cox, 263 S.W. 215; Connell v. Haase & Co., 302 Mo. 91; Swinehart v. Ry. Co., 233 S.W. 59; State v. Baker, 296 Mo. 51; McFadin v. Catron, 120 Mo. 263. (3) Instruction 1 is erroneous in that it places the burden of proof upon defendant, not only to show that the wreck was caused by the act of God, but also to show that the defendant could not reasonably anticipate, foresee or avoid such act of God. (a) The law is that when the defendant shows that the wreck was caused by the act of God, or some third party or outside interference over which the defendant has no control, then the burden of proof is upon the plaintiff to show that defendant was negligent in failing to anticipate, foresee or avoid such act of God, etc. Hurck v. Railroad, 252 Mo. 39; Davis v. Railroad, 89 Mo. 350; Evans v. Railroad, 222 Mo. 450; Turner v. Haar, 114 Mo. 346; Wolf v. Express Co., 43 Mo. 421; Read v. Railroad, 60 Mo. 206; Sawyer v. Railroad, 37 Mo. 241; Reeves v. Railroad, 10 U.S. 189 (Wall.) , 77 U.S. 176; Hite v. Railway Co., 130 Mo. 140. (b) Said instruction is further erroneous in permitting plaintiff to recover on a presumption after all the facts are in, because presumption always gives way to facts. Authorities supra. (4) Instruction 3 is erroneous wherein it says: "And in all you should give him such a sum as you may find and believe from the evidence will be a fair and reasonable compensation to the plaintiff, not to exceed, however, the sum of $ 85,000." This is a suggestion on the part of the court that the jury should give a large sum, and where the full amount asked for is given, as in this case, such instruction is erroneous. Stidd v. Railroad, 236 Mo. 382; Lessenden v. Railroad, 238 Mo. 247; Applegate v. Railroad, 252 Mo. 173; Kenney v. St. Ry. Co., 261 Mo. 97; Gaty v. U. Ry., 227 S.W. 1041; Vaughn v. Hines, 206 Mo.App. 425; Rooker v. Railroad, 215 Mo.App. 481. (5) The court erred in refusing to instruct for defendant that "there is no testimony in this case that the wreck in question and the plaintiff's injury therefrom was caused by rotten or defective piling in the bridge where the wreck occurred and you cannot find for the plaintiff upon that theory of the case." Peterson v. United Ry. Co., 270 Mo. 67; DeWolfe v. D. G. Co., 240 S.W. 1095. (6) The verdict is so grossly excessive as to clearly show that it is the result of passion, partiality and prejudice on the part of the jury, accelerated by sympathy for the plaintiff. Where the verdict is so excessive as to shock the judicial conscience of the court and is clearly the result of either passion, partiality or prejudice on the part of the jury, the appellate court will, in the exercise of its inherent power, reverse the judgment. Trowbridge v. Fleming, 269 S.W. 617; Lessenden v. Railroad, 238 Mo. 247; McQuary v. Railway Co., 269 S.W. 605; Crockett v. Railway Co., 243 S.W. 908; Jones v. Railway Co., 287 Mo. 64; Laughlin v. Railway, 275 Mo. 459; Hart v. Railway Co., 264 S.W. 902; Richardson v. Railway Co., 288 Mo. 258; Brock v. Railroad, 305 Mo. 502; Hurst v. Railway, 280 Mo. 566; Foster v. Davis, 252 S.W. 433; Varley v. Railway, 240 S.W. 218.

Sizer & Gardner and C. R. Cravens for respondent.

(1) Defendant's demurrer offered at the close of the case was properly overruled, as this is a passenger case wherein res ipsa loquitur doctrine has its peculiar application; and in such case the issue of negligence is always a question for the jury. Gibson v. Wells, 258 S.W. 1; Anderson v. Railroad, 290 Mo. 8; Brown v. Railroad, 256 Mo. 522; Cecil v. Wells, 259 S.W. 844; Railroad v. Irving, 234 F. 562; Trowbridge v. Fleming, 269 S.W. 610. (2) Before defendant can relieve itself from liability under the prima-facie case made by plaintiff, it must prove to the satisfaction of the jury that the wreck and resulting injury was caused solely by the act of God, or some cause over which it had no control, and which, by the exercise of the highest degree of care, it could not have anticipated, foreseen, or avoided. Price v. Railroad, 220 Mo. 434, 456; Lemon v. Chanslor, 68 Mo. 456; Hipsley v Railroad, 88 Mo. 352; Moran v. Railroad, 232 S.W. 1111; Trowbridge v. Fleming, 269 S.W. 610. (3) If defendant was guilty of any negligence which concurred with an extraordinary rainstorm to cause the fall of the bridge and consequent wreck, the defendant is liable to plaintiff; and plaintiff's second instruction properly declared the law. Applegate v. Railroad, 252 Mo. 198; Sluder v. Railroad, 189 Mo. 138; Benton v. St. Louis, 248 Mo. 98; Harrison v. Light Co., 195 Mo. 623; Hickman v. Union Electric Co., 226 S.W. 575; Sandy v. Railroad, 235 Ill. 194; Railroad v. Cains, 37 Tex. Civ. App. 531; Ellett v. Railroad, 76 Mo. 518; 10 C. J. 908-909-957. (4) Being a res ipsa loquitur case, it was not error to hypothecate a recovery on presumption of negligence after the testimony was all in and the facts were fully before the court and jury. Trowbridge v. Fleming, 269 S.W. 610; Gibson v. Wells, 258 S.W. 1; Brown v. Railroad, 256 Mo. 522; Anderson v. Railroad, 290 Mo. 1; Price v. Railroad, 222 Mo. 535. (5) Defendant's rule requiring conductors and enginemen to make careful inquiry at all stopping places, of the extent and severity of storms, and to make extra stops for such purpose, was admissible. Also its rule providing that during heavy storms bridge and track foremen must detail their forces to watch the road and take every precaution to prevent accidents, was admissible. Foster v. Railroad, 235 S.W. 1070; Hunt v. Railroad, 259 S.W. 481; Railroad v. Cains, 84 S.W. 682; Crowley v. Railroad, 204 Mass. 241; Grady v. Railroad, 169 F. 400; Railroad v. Carr, 84 S.W. 682. (6) The testimony of witnesses Smith and Cooper as to statements made by defendant's conductor and foreman was competent. Section Foreman Ryan having testified that he had not reported this bridge as defective, it was competent to contradict such testimony by proving statements made by him on this occasion, that the bridge had been reported by him as unsafe. Smith v. Railroad, 279 Mo. 173; Hartman v. Fleming, 264 S.W. 873; Gordon v. Railroad, 222 Mo. 516; Schloemer v. Transit Co., 204 Mo. 99; Mullin v. Transit Co., 196 Mo. 572; Spohn v. Railroad, 122 Mo. 18, 101 Mo. 454; Kramer v....