Clark v. Atchison & Eastern Bridge Co.

• Citation: 62 S.W.2d 1079,333 Mo. 721
• Decision Date: 24 August 1933
• Docket Number: 31102
• Parties: Charles F. Clark v. The Atchison & Eastern Bridge Company, Appellant
• Court: United States State Supreme Court of Missouri

62 S.W.2d 1079

333 Mo. 721

Charles F. Clark v. The Atchison & Eastern Bridge Company, Appellant

No. 31102

Supreme Court of Missouri

August 24, 1933

Appeal from Buchanan Circuit Court; Hon. Samuel Wilcox Judge.

Affirmed (on condition).

William E. Stringfellow and W. F. Guthrie for appellant.

(1) The conclusion of the court may be based upon the evidence as to the question of any liability, or upon the evidence as to the amount of liability, or considering both when one tends to corroborate the other. In such consideration, the court will reject all incompetent testimony. Spiro v. Transit Co., 76 S.W. 689; Whitsett v. Ransom, 79 S.W 260; Spohn v. Railroad, 87 S.W. 84; State v Prim, 11 S.W. 732; Haynes v. Trenton, 18 S.W. 1005; Burdict v. Ry. Co., 27 S.W. 453; Vaughn v. Ry., 18 S.W.2d 66; Jones v. Railroad, 228 S.W. 785. Ordinarily, the court will reverse and remand. But, if plaintiff has had a sufficient number of opportunities to prove his case, the court will reverse outright. Nugent v. Milling Co., 33 S.W. 425. Remittitur is a proper remedy to correct merely an honest error as to amount of damages. Recognition of honest error is made as to verdicts because of the impossibility of any two individuals agreeing on compensation for personal injury. But, where the verdict discloses passion and prejudice, honest mistake or mere surmise or conjecture, a remittitur is not a proper remedy. Even if such objections are shown only by the amount of the verdict, it cannot be assumed that the verdict as to liability was dispassionately and intelligently rendered. (Cases, supra.) (2) This is not a case for cure by remittitur. The injuries were fortunately very slight. The verdict is so extravagantly excessive as to show either passion or prejudice or wild conjecture and surmise. Forty days' incapacity to work, with some pain and suffering, only conjecture as to future inconvenience of a trifling character, with a very slight disfigurement, resulted in a verdict almost twice the amount allowed for a limb or an eye, with infinitely greater disfigurement and the certainty of future incapacity and loss of earnings. Brady v. Railroad, 102 S.W. 979; Farrar v. Railroad, 155 S.W. 444; Applegate v. Railroad, 158 S.W. 376; Ostertag v. Railroad, 169 S.W. 6; Johnson v. Coal Co., 205 S.W. 619; Bryant v. Kansas City, 228 S.W. 476; Fitzsimmons v. Railroad, 242 S.W. 923; Mount v. Coal Co., 242 S.W. 943; Mahmet v. Radiator Co., 294 S.W. 1014. (3) Opinions are received in some cases as a necessary evil, because of the impossibility of bringing before the jury complex facts not susceptible of clear presentation to a jury to the extent that they may be impressed upon the witness. When, as in the case at bar, the witnesses could have clearly told the jury all the facts upon which they based their own opinions (which were really conclusions and findings and not opinions), the witness cannot express even an opinion. Berthold v. Danz, 27 S.W.2d 451; State v. Evans, 183 S.W. 1065; Heinbach v. Heinbach, 202 S.W. 1127; Black v. Camery, 176 S.W. 1077; Kirchoff v. Ry. Co., 135 S.W. 98; Equipment Co. v. Smith, 165 S.W. 804; Demaet v. Storage Co., 132 S.W. 732; Ulmer v. Gas Co., 203 S.W. 216; Smith v. Mullins, 202 S.W. 603; Marshall v. Taylor, 153 S.W. 539. (4) The discretion of a trial court to exclude cross-examination does not permit exclusion of questions definitely directed to a ground of impeachment upheld by the reviewing courts, but only to deciding (when the question is "open") whether cross-examination tends to impeach; and to controlling the length and range of cross-examination. O'Connor v. Transit Co., 80 S.W. 306; Cantrell v. Davidson, 168 S.W. 274; Karp v. Ins. Co., 79 S.W. 761; State v. Clark, 9 S.W.2d 640.

Miles Elliott, Melvin J. Duvall and W. J. Boyd for respondent.

(1) Appellant saved no exception to the action of the trial court in overruling its motion for a new trial and there is nothing before this court except the record proper. Park v. Park, 259 S.W. 419; McKee v. Jones Dry Goods Co., 152 Mo.App. 241, 132 S.W. 1192; Danforth et ux. v. Lindell Ry. Co., 123 Mo. 198, 27 S.W. 715; St. Joseph v. Ensworth, 65 Mo. 628. (2) The trial court committed no error in overruling defendant's motion for a new trial. (a) The decision on the former appeal is the law of this case. Matthews v. Austin, 317 Mo. 1021, 297 S.W. 366; Coleman v. Northwestern Mutual, 233 S.W. 187; Bradley v. Becker, 11 S.W.2d 8; Wair v. American C. & F. Co., 300 S.W. 1048; Reed v. Missouri Mutual, 33 S.W.2d 986. (b) The pleadings and evidence at the present trial were the same as the pleadings and evidence on the former appeal. (3) No error was committed by the trial court in permitting the witness Underwood to testify to another accident on the bridge approach. McCall v. City of Butler, 285 S.W. 1018; Wagner v. Kansas City, 186 S.W. 1129; Hebenheimer v. St. Louis, 189 S.W. 1180, 269 Mo. 92; Charlton v. Ry., 98 S.W. 529, 200 Mo. 413; Cunningham v. City, 31 S.W.2d 125. (4) No error was committed by the trial court in refusing to permit counsel for defendant to cross-examine plaintiff as to previous arrests. 40 Cyc. p. 2620, where it is stated: "Although some latitude of discretion is allowed to the trial court and the cases are not uniform, the view supported by the preponderance of authority is that, as a mere accusation of crime does not render the person accused less worthy of credit, a witness cannot be asked on cross-examination whether he has been charged with or arrested or indicted for a crime." (Italics ours.) State v. Grant, 144 Mo. 56, 45 S.W. 1102; State v. Wigger, 196 Mo. 90, 93 S.W. 390; State v. Weisman, 238 Mo. 547, 141 S.W. 1108; State v. Edmundson, 218 S.W. 864; State v. Tracy, 284 Mo. 619, 225 S.W. 1009; State v. Snow, 252 S.W. 629; State v. Ross, 306 Mo. 499, 267 S.W. 853; Kribs v. United Order, 177 S.W. 766. (5) The trial court committed no error in giving plaintiff's Instruction E on the measure of damages. Said Instruction E was in approved form. Browning v. Wabash Western Ry. Co., 124 Mo. 55, 27 S.W. 644; Haymaker & Crookshank v. Adams & Son, 61 Mo.App. 585; McQuarry v. Ry. Co., 269 S.W. 605; Keys v. Railroad Co., 31 S.W.2d 64; Hulsey v. Tower Grove Quarry & Cons. Co., 326 Mo. 194, 30 S.W.2d 1018. (6) When the seriousness of plaintiff's injuries is taken into consideration, the verdict of the jury is for a moderate amount. The assessment of damages for personal injuries is within the peculiar province of the jury. Brennecke v. Ganahl Lumber Co., 44 S.W.2d 627; Porter v. Railroad Co., 325 Mo. 381, 28 S.W.2d 1035; Grott v. Johnson, Stephens & Shinkle Shoe Co., 2 S.W.2d 785; Furnish v. Railroad Co., 102 Mo. 669, 15 S.W. 315; Waldhier v. Railroad Co., 87 Mo. 37. No hard and fast rule can be stated as to amount of personal injury damages, but each case must be governed by its own facts. Kamer v. Railroad Co., 32 S.W.2d 1075, 326 Mo. 792.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The defendant appeals from a judgment in plaintiff's favor for personal injuries. This is the second appeal in this action to this court, as will be seen by reference to 324 Mo. 544, 24 S.W.2d 143. On that trial judgment was for defendant, but the trial court granted plaintiff a new trial on account of erroneous instructions and this court on defendant's appeal affirmed such order. The case was then retried to a jury, resulting in a verdict and judgment for plaintiff for $ 18,800, from which defendant has again appealed.

A rather full statement of the issues and facts involved will be found in our former opinion and it will not be necessary to repeat much that was there said both as to the law and the facts. It will suffice to here say that plaintiff claims to have been severely injured by reason of the overturning of a motor truck which he was driving, due to defendant's negligence in not maintaining the east approach to its toll bridge, spanning the Missouri River east and west opposite Atchison, Kansas, in a reasonably safe condition for travel thereon. This bridge was used for both railroad and vehicular travel, having a railroad track near the center of the bridge, and plaintiff was crossing the bridge from Atchison Kansas, to the Missouri side, his truck being overturned at the eastern or Missouri approach to the bridge. The specific negligence charged is that the iron rails of the railroad track at the eastern approach to the bridge were higher than the wooden planks between the rails, forming a dangerous obstruction to automobiles passing over the same. In crossing over the bridge, on account of its narrowness, automobiles going west towards Atchison drove astraddle of the north rail of the railroad track and those going east to the Missouri side drove astraddle of the south rail of this track. At the east end of the bridge vehicular traffic turned to or from the bridge onto a highway on the north side of the railroad, so that a passenger going east turned or angled north so as to leave the railroad track on the south and proceed east on the highway. It was necessary, therefore, that plaintiff, with his truck going east, when he came to the east approach to the bridge, to turn and angle north so as to leave the railroad track and pass onto the adjacent highway, and in doing so his two south or right wheels had to angle across the south rail of the railroad track and all four wheels had to pass at an angle over the north rail. There was a joint in the north rail at the point where vehicular travel usually crossed this north rail in going onto or leaving the approach to the bridge. The evidence favorable to plaintiff shows that at this place on the approach the boards between the rails of the railroad track had become worn, sunk down under the weight of loaded trucks,...