Crabtree v. Kurn

• Decision Date: 07 June 1943
• Docket Number: No. 38304.,38304.
• Citation: 173 S.W.2d 851
• Parties: RUTH CRABTREE, Administratrix of the Estate of RUSSELL D. CRABTREE, Deceased, v. J.M. KURN and JOHN G. LONSDALE as Trustees of ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellants.
• Court: Missouri Supreme Court

173 S.W.2d 851

RUTH CRABTREE, Administratrix of the Estate of RUSSELL D. CRABTREE, Deceased, v. J.M. KURN and JOHN G. LONSDALE as Trustees of ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellants.

No. 38304.

Supreme Court of Missouri.

Division Two, June 7, 1943.

Rehearing Denied, July 6, 1943.

Motion to Transfer to Banc Overruled, September 7, 1943.

Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Maurice G. Roberts, E.G. Nahler, Thomas E. Deacy and Milligan, Kimberly & Deacy for appellants.

(1) The evidence in the case at bar did not disclose any violation of the Safety Appliance Act or the regulations but did establish that the engine and cars were equipped in strict accord with the law and the regulations and that none of the equipment was defective. The plaintiff therefore did not make a submissible case. Secs. 2-4 and 12, Title 45, U.S.C.A. Order of Interstate Commerce Commission entitled "In The Matter of Designating the Number, Dimensions, Location, Manner of Application of Certain Safety Appliances, dated March 13, 1911, Atchison, T. & S.F.R. Co. v. Scarlett, 300 U.S. 471, 57 S. Ct. 541; Zachritz v. St. Louis-S.F. Ry. Co., 81 S.W. (2d) 608; Peters v. Wabash Ry. Co., 42 S.W. (2d) 588; Devine v. Chicago & C.R. Co., 102 N.E. 803; Harlan v. Wabash Ry. Co., 73 S.W. (2d) 749; Riley v. Wabash Ry. Co., 44 S.W. (2d) 136; Satterlee v. St. Louis-S.F. Ry. Co., 82 S.W. (2d) 69. (2) Plaintiff's evidence having disclosed that the engine and car adjacent thereto were equipped with stirrups, ladders and lifting pin devices of such a nature that the engine could have been disconnected from the car without the necessity of Crabtree going between the engine and car, there was no violation of the Federal Safety Appliance Act. Secs. 2-4 and 12, Title 45, U.S.C.A. Order of Interstate Commerce Commission entitled "In The Matter of Designating the Number, Dimensions, Location, Manner of Application of Certain Safety Appliances, dated March 13, 1911; Atchison, T. & S.F.R. Co. v. Scarlett, 300 U.S. 471, 57 S. Ct. 541; Zachritz v. St. Louis-S.F. Ry. Co., 81 S.W. (2d) 608; Peters v. Wabash Ry. Co., 42 S.W. (2d) 588; Devine v. Chicago & C.R. Co., 102 N.E. 803; Harlan v. Wabash Ry. Co., 73 S.W. (2d) 749; Riley v. Wabash Ry. Co., 44 S.W. (2d) 136; Satterlee v. St. Louis-S.F. Ry. Co., 82 S.W. (2d) 69. (3) The alleged violation of the Federal Safety Appliance Act was not the proximate cause of Crabtree's death and injury. The evidence did not establish that he fell from the pilot sill-step while in the act of or by reason of effecting an uncoupling. Plaintiff's evidence disclosed that the uncoupling had been effected before he ever stepped or fell from the pilot step. Devine v. Chicago & C.R. Co., 102 N.E. 803; Peters v. Wabash Ry. Co., 42 S.W. (2d) 588. (4) The Safety Appliance Act was not intended to cover the negligent act of an employee in the use or misuse of an appliance safe and proper in itself and free from mechanical defects. The plaintiff was not entitled to recover from defendants by reason of an alleged violation of the Safety Appliance Act on the ground that he was negligently or improperly ordered or directed by the conductor or any other person to use these safety appliances in an improper or dangerous manner if those appliances complied with the law and were free from defects. Atchison, T. & S.F. Ry. Co., v. Scarlett, 300 U.S. 471, 57 Sup. Ct. 541; Harlan v. Wabash Ry. Co., 73 S.W. (2d) 749. (5) Plaintiff's main instruction was erroneous. It did not require a finding that defendants had violated any of the terms or provisions of the Federal Safety Appliance Act or that there were any defects in any of the equipment or that any of the equipment failed to properly operate. Zachritz v. St. Louis-S.F. Ry. Co., 81 S.W. (2d) 608. (6) The instruction erroneously permitted the judgment of the jury to be substituted for that of the Interstate Commerce Commission. Atchison, T. & S.F.R.R. Co. v. Scarlett, 300 U.S. 471, 57 Sup. Ct. 541; Satterlee v. St. Louis-S.F. Ry. Co., 82 S.W. (2d) 69. (7) Plaintiff's damage instruction 2 was erroneous. It permitted the jury to fully compensate the widow for all pecuniary loss without limiting the consideration of the jury to the evidence in the case and gave to the jury a roving commission. (8) The instruction charged the jury that it was their duty to consider the age and life expectancy of the deceased when there was no evidence of such facts and erroneously failed to charge the jury that it should also consider the age and life expectancy of the plaintiff who was the widow of the deceased. McCord v. Schaff, 279 Mo. 558, 216 S.W. 320; Stevens v. Kansas City P. & L. Co., 200 Mo. App. 651, 208 S.W. 630. (9) It was error to permit the plaintiff over the objection and exception of defendants to attempt to impeach the testimony of plaintiff's witness Edwards on the collateral issue as to whether or not on the day following the accident the witness had stated to plaintiff's witnesses Atkins and Crabtree that engineer Reppert was on the ground at the time of the accident, and to thereafter permit plaintiff to impeach the testimony of her witness Edwards by proving by witnesses Atkins and Crabtree that Edwards had stated, on the day following the accident, to them at Ft. Scott, Kansas, that engineer Reppert was on the ground at the time of the accident. A party calling a witness will not be allowed to cross-examine, discredit or impeach him by showing that he has theretofore made any other statements contradictory of his testimony on the stand unless it appears that the witness himself or the adverse party has by some statement or artifice mislead or entrapped the party into calling the witness. Woelfe v. Connecticut Mut. Life Ins. Co., 112 S.W. (2d) 865; Hoffman v. Graber, 153 S.W. (2d) 817; Gallager v. Schutte Lbr. Co., 273 S.W. 213; O'Shea v. Opp, 111 S.W. (2d) 40; In re Lorque's Estate, 200 S.W. 83; Burnham v. Chicago Great Western R. Co., 100 S.W. (2d) 858; United Factories, Inc., v. Brigham, 117 S.W. (2d) 662; Arnold v. Alton R. Co., 154 S.W. (2d) 56. (10) Any statement or admission made by the witness Edwards who was in the employ of the defendants, after the occurrence of the accident or completion of the transaction was not provable against the defendants and was in no wise binding upon them. Sheldon v. Wolf Cheese Co., 93 S.W. (2d) 947; State ex rel. v. Dawes, 19 S.W. (2d) 700. (11) It was reversible error to permit plaintiff to impeach her own witness Edwards by the testimony of the witnesses Atkins and Crabtree, it being apparent that the only purpose of such attempted impeachment was to discredit plaintiff's witness Edwards and to deprive the defendants of the benefit of that portion of his testimony which was favorable unto them. Glenn v. Met. St. Ry. Co., 150 S.W. 1092, 167 Mo. App. 109. (12) The verdict was excessive. It was in an amount greatly in excess of the proven pecuniary loss of plaintiff.

Arthur S. Brewster and Douglas Hudson for respondent.

(1) In passing upon a demurrer to the evidence, all evidence must be viewed in the light most favorable to the respondent, giving her the benefit of any favorable inference that can reasonably be drawn therefrom. Mosely v. Sum, 344 Mo. 969, 130 S.W. (2d) 465; Perles & Stone v. Childs Co., 337 Mo. 448, 84 S.W. (2d) 1052; Chenoweth v. Sutherland, 141 Mo. App. 272, 124 S.W. 1055; Jones v. Chicago, B. & Q.R. Co., 343 Mo. 1104, 125 S.W. (2d) 5; Rischeck v. Lowden, 347 Mo. 426, 147 S.W. (2d) 650; State ex rel. v. Hughes, 348 Mo. 125, 152 S.W. (2d) 193; Davis v. F.M. Stamper Co., 347 Mo. 761, 148 S.W. (2d) 765; Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 130 Fed. (2d) 971; Armstrong v. Mobile & O.R. Co., 331 Mo. 1224, 55 S.W. (2d) 460. (2) Substantial evidence will be found in the record to require submission of the case to the jury and this evidence fully supports the jury's findings that it was necessary that Crabtree stand on the east pilot sill-step in between the ends of the car and the engine for the purpose of effecting the uncoupling and that as a proximate result of his being between the ends of the car for such purpose was killed in the act of uncoupling or immediately thereafter. Christy v. Wabash R. Co., 195 Mo. App. 232, 191 S.W. 241; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W. (2d) 585. (3) A general finding for the plaintiff is a finding in favor of the plaintiff of every fact necessary to support the verdict and such finding must stand if supported by evidence. This court will not weigh the evidence. State ex rel. v. Daues, 323 Mo. 466, 292 S.W. 58; Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W. (2d) 119; Meyer v. Pevely Dairy Co., 333 Mo. 1109, 64 S.W. (2d) 696; Schneider v. Dubinsky Realty Co., 344 Mo. 654, 127 S.W. (2d) 691; Jones v. Chicago, B. & Q.R. Co., 343 Mo. 1104, 125 S.W. (2d) 5; Waeckerley v. Colonial Baking Co., 228 Mo. App. 1185, 67 S.W. (2d) 779; Capstick v. T.M. Sayman Products, 327 Mo. 1, 34 S.W. (2d) 480; Bloch v. Kinder, 338 Mo. 1099, 93 S.W. (2d) 932; Sakowski v. Baird, 334 Mo. 951, 69 S.W. (2d) 649; Grange v. Chicago & E.I. Ry. Co., 334 Mo. 1040, 69 S.W. (2d) 955. (4) The verdict of the jury approved by the trial court when supported by evidence is conclusive on the appellate court as to all questions of fact submitted to the jury. Schneider v. Dubinsky Realty Co., 344 Mo. 654, 127 S.W. (2d) 691; Jones v. Chicago, B. & Q.R. Co., 343 Mo. 1104, 125 S.W. (2d) 5; Waeckerley v. Colonial Baking Co., 228 Mo. App. 1185, 67 S.W. (2d) 779; Capstick v. T.M. Sayman Products, 327 Mo. 1, 34 S.W. (2d) 480. (5) No regulation can be prescribed by the Interstate Commerce Commission in derogation of the safety appliance act itself. Section 2 of the act prohibits a carrier from making it necessary for a man to go between the ends of cars for the purpose of uncoupling. If couplers become inoperative because of the manner in which the cars are loaded, the lay...