Crawford v. Kansas City Stock Yards Company

• Decision Date: 23 December 1908
• Citation: 114 S.W. 1057,215 Mo. 394
• Parties: GEORGE W. CRAWFORD, Appellant, v. KANSAS CITY STOCK YARDS COMPANY
• Court: Missouri Supreme Court

114 S.W. 1057

215 Mo. 394

GEORGE W. CRAWFORD, Appellant, v. KANSAS CITY STOCK YARDS COMPANY

Supreme Court of Missouri, First Division

December 23, 1908

Appeal from Jackson Circuit Court. -- Hon. Jas. H. Slover, Judge.

Reversed and remanded (with directions).

Botsford Deatherage & Young for appellant.

(1) The verdict of the jury is conclusive that there was no contributory negligence on the part of plaintiff. That finding is abundantly supported by the evidence. Railroad v. White, 67 F. 481; Young v. Waters-Pierce Oil Co., 185 Mo. 666; Railroad v. Gee, 92 F. 318; Murphey v. Railroad, 115 Mo. 125; Railroad v Nichols, 85 F. 945; Carpenter v. Railroad, 56 F. 451; Railroad v. Allen, 88 P. 966; Whipple v Railroad, 35 A. 305. The uncontradicted evidence shows that the gates used by the stockyards company were usually kept closed when cars were passing, and that they were only opened, properly, when the cars had stopped in front of the pens, and when the opening of the gates and putting them up close to the cars were necessary in order to make a chute for the passage of the cattle from the car to the pens. The testimony shows that plaintiff was in the line of his duty in going into the car as he did and getting the cattle up, and coming out as he did, and being on the ladder at the time he was hurt. The fact that plaintiff and other stockmen in coming into Kansas City as he did usually rode on a street car from Argentine into the stockyards, does not have any influence upon the legal question in this case. The undisputed evidence is that the Santa Fe Company left the cabooses of these stock trains at Argentine. (2) The uncontradicted proof shows that plaintiff was injured by defendant's gate, in charge of defendant's employees, extending out at and before the time plaintiff was injured in such dangerous proximity to the car on which plaintiff was engaged with his cattle, as to inflict injury upon him while in the necessary and proper discharge of his duty to his employer. This proof made out a prima-facie case of negligence on the part of defendant. The gate in question which injured plaintiff was owned by defendant and was under the management and control of its servants. The rule is a well-settled one that negligence may be infered when the thing causing the accident is under the management of the defendant or its servants, and the accident is such that in the ordinary course of matters it does not happen if those having the management use proper care. Hill v. Scott, 38 Mo.App. 374; Dougherty v. Railroad, 9 Mo.App. 484; Bevis v. Railroad, 26 Mo.App. 23; Minster v. Railroad, 53 Mo.App. 282; Dougherty v. Railroad, 81 Mo. 325; Gannon v. Laclede Gas Light Co., 145 Mo. 507; Rintoul v. Railroad, 17 F. 905; Trans. Co. v. Downer, 11 Wall. 129; Malloy v. Railroad, 173 Mo. 80. The authorities in support of the proposition in this case that it was the duty of defendant to plaintiff to keep defendant's tracks and adjacent platform owned and used by defendant for its profit free from such obstructions as would be liable to strike plaintiff while on a ladder as he was, in the proper discharge of his duty, are very numerous. Young v. Waters-Pierce Oil Co., 185 Mo. 634; Railroad v. Burton, 97 Ala. 240; Wilson v. Railroad, 7 Colo. 101; Ellison v. Railroad, 87 Ga. 692; Killian v. Railroad, 79 Ga. 234; Railroad v. Phinazee, 93 Ga. 488; Railroad v. Thompson, 101 Ga. 27; Railroad v. Frelka, 110 Ill. 498; Railroad v. Hopkins, 200 Ill. 122; Gates v. Railroad, 2 S.D. 422; McMarshal v. Railroad, 80 Iowa 757; Railroad v. Earle, 94 Ky. 368; Martin v. Railroad, 95 Ky. 612; Railroad v. Barnhart, 115 Ind. 400; Wolcott v. Railroad, 45 Minn. 368; Martin v. Iron Works, 31 Minn. 407; Nugent v. Railroad, 80 Maine 62.

Pratt, Dana & Black for respondent.

(1) (a) If defendant's motion for a new trial was properly sustained for any reason, whether that given by the trial court or any other which can be deduced from the record and which was set forth in the motion, then the order sustaining it must be affirmed here. Baughman v. Water Works, 58 Mo.App. 580; Hewitt v. Steele, 118 Mo. 473; Bank v. Wood, 124 Mo. 72; Stanard Co. v. Railroad, 122 Mo. 258; Kreis v. Railroad, 131 Mo. 540; Hoepper v. Hotel Co., 142 Mo. 378; Metropolitan Co. v. Webster, 193 Mo. 363; Stoner v. Royar, 200 Mo. 451. (b) This is so even when the trial court assigns wrong grounds for sustaining the motion. Thiele v. Railroad, 140 Mo. 335; Bank v. Armstrong, 92 Mo. 282; Ittner v. Hughes, 133 Mo. 679. (c) And the burden rests on appellant of showing that the trial court erred in granting a new trial; prima-facie that court exercised its discretion properly. Bank v. Armstrong, 92 Mo. 278; Hewitt v. Steele, 118 Mo. 473; Folding Bed Co. v. Railroad, 148 Mo. 478. (2) Even if the trial court erred in the first and second reasons assigned for granting a new trial, this court will not interfere with its action on the third ground, viz.: that the verdict was not supported by the evidence. Reid v. Ins. Co., 58 Mo. 430; Bank v. Armstrong, 92 Mo. 279; Lawson v. Mills, 130 Mo. 171. (3) But the court below did not err in assigning as reasons for granting a new trial (1) that it should have sustained defendant's demurrer at the close of plaintiff's case, and (2) that it should have sustained defendant's demurrer at the close of the whole case; those reasons are abundantly supported by the record. (a) Because the allegations of the petition were not sustained by the testimony; nor did that testimony show that any negligence of defendant was the proximate cause of plaintiff's injuries. Chitty v. Railroad, 148 Mo. 74; Hesselbach v. St. Louis, 179 Mo. 524; Roddy v. Railroad, 104 Mo. 234; Winterbottom v. Wright, 10 Mees. & W. 109; Collins v. Seldon, L. R. 3 C. P. 495; Moore v. Railroad, 84 Mo. 486; Straub v. Soderer, 53 Mo. 42. (b) Because, further, plaintiff's own testimony plainly showed that his injuries were contributed to if not wholly caused by his own carelessness and disregard of his personal safety. Kelley v. Lawrence, 195 Mo. 87; Hurst v. Railroad, 163 Mo. 309; Hulit v. Railroad, 67 Mo. 239; Towner v. Railroad, 52 Mo.App. 648. (4) The record shows reasons (all set forth in defendant's motion for new trial) other than those assigned by the trial court for sustaining that motion, which were sufficient to have warranted the court's action, and for such reasons that action should be sustained under the authorities cited supra. (a) The trial court erred in admitting irrelevant and incompetent testimony. (b) Instruction 1 given at plaintiff's request was erroneous. (c) Instructions 5 and 6 given at plaintiff's request were erroneous. (d) The trial court erred in refusing defendant's instructions 3, 10, 11, 13 and 14. (e) The verdict was against the law as declared by the court to the jury.

OPINION

VALLIANT, P. J.

This is an appeal from an order of the trial court sustaining a motion for a new trial. There was a verdict for the plaintiff for $ 5,000 damages for personal injuries which plaintiff alleged were suffered by him on account of the negligence of the defendant. The grounds for sustaining the motion, as specified in the order, were two, first, the refusal of the court to give a peremptory instruction asked by the defendant at the close of the plaintiff's evidence and again at the close of all the evidence to the effect that the plaintiff was not entitled to recover; second, that the verdict was not supported by the evidence.

I. The first point made by respondent is that although grounds specified in an order sustaining a motion for a new trial may not justify the order, yet if the record in the case shows that there was error committed in the course of the trial, not so specified, that did justify it, the action of the court will be sustained.

That is a correct proposition, but in such case the burden is on the respondent to discover and point out to the appellate court such other error. [Millar v. Madison Car Co., 130 Mo. 517, 31 S.W. 574.] In apparent recognition of that obligation respondent has pointed out certain other rulings which he thinks justifies the order. Those rulings we will discuss later in the course of this opinion, but at this stage of the case we will consider the two grounds assigned as they relate to each other, to-wit: that the demurrer to the evidence should have been sustained, and that the verdict is not supported by the evidence. Those two grounds, if the second one means what respondent thinks it does, are contradictory of each other; the first signifies that there was no evidence at all tending to sustain the plaintiff's cause of action, the second as interpreted by respondent signifies that there was such evidence but that it was not sufficient or was outweighed by other evidence to the contrary. This court has often said that the granting of a new trial on the ground that the greater weight of the evidence was against the verdict was a matter peculiarly within the province of the trial court and in a case fairly falling within that province the discretion of the trial court would not be reviewed. That is to say, we will not weigh the evidence pro and con to find on which side is the greater weight, because the trial court has done that and on that point we will defer to its judgment. And even if there is some testimony tending to sustain the plaintiff's case and therefore the trial judge should feel constrained to submit it to the jury and there be no evidence to the contrary, still, if the trial judge should be satisfied that the evidence is so suspicious in its character or so trivial in its weight that justice would cry out against a judgment founded on it, he would set the verdict aside and let another jury pass on the case. In such case the trial judge, in...