Dodd v. Missouri-Kansas-Texas R. Co.

• Decision Date: 02 January 1945
• Docket Number: 39047
• Citation: 184 S.W.2d 454,353 Mo. 799
• Parties: Ruth Dodd, Administratrix of the Estate of James C. Dodd, Deceased, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

184 S.W.2d 454

353 Mo. 799

Ruth Dodd, Administratrix of the Estate of James C. Dodd, Deceased, v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 39047

Supreme Court of Missouri

January 2, 1945

Appeal from Henry Circuit Court; Hon. Dewey P. Thatch Judge.

Reversed and remanded.

Haysler A. Poague and Carl S. Hoffman for appellant.

(1) The court erred in refusing the peremptory instructions in the nature of demurrers to the evidence offered by appellant at the close of respondent's case and at the close of all of the evidence. The uncontradicted evidence of respondent's witness, the locomotive engineer, showed that immediately upon discovery of deceased on the track everything possible was done to avoid the accident. Chesapeake & Ohio Ry. Co v. Nixon, 271 U.S. 218; Deere v. Southern Pacific Co., 123 F.2d 438; Central Vermont Ry. v Sullivan, 86 F.2d 171; Thompson v. Downey, 78 F.2d 487; Burge v. Wabash Railroad Co., 244 Mo. 76; Klotsch v. P.F. Collier & Son Corp., 159 S.W.2d 589; Orlann v. Leaderich, 92 S.W.2d 190; Becker v. Donahue, 168 S.W.2d 960. (2) The court erred in permitting, over appellant's objection, respondent's witnesses Goodman and Lyons to answer hypothetical questions concerning distance in which speed of trains could be slackened. These questions were not predicated on the evidence. Henson v. St. Louis-S.F. Ry. Co., 256 S.W. 771; Frank v. Greenhall, 105 S.W.2d 929; Burge v. Wabash Railroad Co., 244 Mo. 76. (3) The court erred in giving at respondent's request Instruction 5. It is in conflict with Instruction 4 given by the court of its own motion. Lemmon v. Continental Casualty Co., 169 S.W.2d 920; Sloan v. Polar Wave Ice & Fuel Co., 19 S.W.2d 476; Monroe v. Chicago & Alton R. Co., 249 S.W. 644; Carpenter v. Kurn, 136 S.W.2d 997; Stroud v. Doe Run Lead Co., 272 S.W. 1080; Harper v. Western Union Tel. Co., 92 Mo.App. 304; Haake v. G.H. Dulle Milling Co., 153 S.W. 74; Jackman v. St. Louis & H. Ry. Co., 206 S.W. 244; Hancock v. Kansas City Term. Ry. Co., 100 S.W.2d 570; Smith v. St. Louis Southwestern Ry. Co., 31 S.W.2d 105.

Charles A. Calvird, Crouch & Crouch, Cowgill & Popham and Sam Mandell for respondent.

(1) The last chance doctrine applies to cases brought under the Federal Employers' Liability Act, and plaintiff made a submissible case. Moran v. Atchison, T. & S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881. (2) Plaintiff was not bound by the testimony of her witness, Engineer Spendiff, which was contradicted by other evidence in the record. McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Klotsch v. P.F. Collier & Son, 349 Mo. 40, 159 S.W.2d 589. (3) In propounding the hypothetical questions to experts Goodman and Lyons, we were entitled to assume that state of facts which the evidence tended to establish and which presented our theories of fact. Russ v. Wabash Western Ry. Co., 112 Mo. 45, 20 S.W. 472. (4) Appellant waived its objections to the hypothetical questions asked of plaintiff's experts, Goodman and Lyons, because it refused and failed, on our request, to point out the facts without which it claimed the questions were improper "as not embodying all the elements present under the evidence adduced." Kinlen v. Metropolitan Street Ry. Co., 216 Mo. 145, 115 S.W. 523; Edmondson v. Hotel Statler Co., 306 Mo. 216, 267 S.W. 612. (5) Respondent's given Instruction 5 was project. It is not in conflict with Instruction 4, given by the court of its own motion. Benton v. Thompson, 156 S.W.2d 739; State ex rel. Thompson v. Shain, 349 Mo. 1075, 163 S.W.2d 967. (6) There was nothing improper or prejudicial in the conduct and argument of plaintiff's counsel. Schroeder v. Wells, 298 S.W. 806; Bishop v. Brittain Inv. Co., 229 Mo. 699, 129 S.W. 668; Evans v. Trenton, 112 Mo. 390, 20 S.W. 614; Paul v. Dunham, 214 S.W. 263. (7) Appellant's objection to the argument were too general and are invalid. Torreyson v. United Rys. Co. of St. Louis, 164 Mo.App. 366, 145 S.W. 106; Randol v. Klines, Inc., 330 Mo. 343, 49 S.W.2d 112; Leingang v. Geller, Ward & Hassner Hardware Co., 335 Mo. 549, 73 S.W.2d 256; Adams v. Quincy, O. & K.C.R. Co., 287 Mo. 535, 229 S.W. 790; Mahaney v. St. Louis & H. Ry. Co., 108 Mo. 191, 18 S.W. 895; Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 65. (8) No review can be had of complaints of argument not set out in the motion for new trial. Lefever v. Stephenson, 193 S.W. 840. (9) Prejudice can be presumed and the discretion of the trial judge should be deferred to. Gann v. Chicago, R.I. & P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

James C. Dodd was employed by the Missouri-Kansas-Texas Railroad as a signal maintainer. As he traveled from Windsor to Clinton an extra freight train overtook and ran into the motorcar he was operating. At the time he was engaged in interstate commerce and for his death his widow, as the administratrix of his estate, recovered a judgment of $ 18,000.00 under the Federal Employers' Liability Act.

The engineer testified that as the freight train traveled south at a speed of forty, forty-three or forty-four miles an hour his view of the tracks was obstructed by the superstructure of a highway underpass then in process of construction. As the engine passed the superstructure the engineer looked to the right and left on Highway 52 for approaching traffic and then saw Dodd about two telegraph pole lengths or 300 feet south of the intersection of Highway 52 and the tracks traveling at a speed of about fifteen miles an hour. Dodd was leaning over with his back to the train and there was never any indication that he was aware of its approach. After the collision Dodd's body was found in the vicinity of the sixth telegraph pole or 897 feet south of the overhead crossing and there was some indication that the motorcar was about 800 feet south of the crossing when it was struck. Between the time the engineer saw Dodd and the engine struck the motorcar (800 feet) the speed of the train had been reduced to thirty, thirty-eight or forty miles an hour.

In urging that its demurrers should have been sustained the railroad does not contend that Dodd, by reason of his employment, assumed the risk of injury under the circumstances or that there was no duty on the part of the train crew to maintain a lookout. Chesapeake & Ohio Ry. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914. The engineer was looking and saw Dodd when he was 800 feet away, unaware of the train's approach, and if thereafter the engineer could have stopped the train or slackened its speed to fifteen miles an hour it was his duty to do so and failing he would be negligent and the danger of injury would not then be assumed by Dodd as a risk ordinarily incident to his employment. Thomson v. Downey, 78 F.2d 487. The railroad does not contend that Dodd was not oblivious, that he was not in peril or that he was aware of the train's approach and had the last clear chance to take one step to safety. Deere v. Southern Pac. Co., 123 F.2d 438.

The railroad's position is that its demurrers should have been sustained because there was no substantial evidence that it failed to exercise due care to avoid the injury after Dodd was actually discovered in peril. The basis of its contention in this respect is that Mrs. Dodd called as her witness the engineer, Spendiff, and it is urged that she is conclusively bound by his testimony that after he saw Dodd on the track he applied the air in emergency, closed off the steam, sanded the track and did everything humanly possible to avoid a collision but despite his utmost efforts was unable, under the circumstances, to stop the train or slacken its speed in time to avoid striking the motorcar. Of course, if there had been no other witnesses and no other testimony but that of the engineer, the railroad's contention, of necessity, would have to be sustained. Draper v. Louisville & N.R. Co., 348 Mo. 886, 156 S.W.2d 626; Central Vermont Ry. v. Sullivan, 86 F.2d 171. But in this case the respondent, in addition to the engineer, called as witnesses two former railroad engineers as experts and in answer to hypothetical questions they testified that the train could have been stopped or its speed slackened to fifteen miles an hour in time to have avoided striking the motorcar. The respondent, therefore, was not in the position of having called but a single adverse witness to prove a material fact. Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190. Since there were two other witnesses and consequently other evidence from which the jury could find that the engineer could have avoided the collision "Plaintiff was not bound by the engineer's testimony, in so far as it was contradicted by evidence of other witnesses. The jury was at liberty to believe part of the engineer's testimony and disbelieve any part that conflicted with plaintiff's other evidence." McCall v. Thompson, 348 Mo. 795, 801, 155 S.W.2d 161, 164; Klotsch v. P.F. Collier & Son, 349 Mo. 40, 49, 159 S.W.2d 589, 594; Summa v. Morgan Real Estate Co., 350 Mo. 205, 215, 165 S.W.2d 390, 394.

To obviate the force and effect of the testimony of the expert witnesses it is urged that the court erred in permitting them to answer the hypothetical questions because the questions were not predicated on the evidence. The questions assumed an 842 Mikado type engine, twenty-two cars with eighteen empty dry rails substantially level with a differentiation of about one per cent grade, a slight curve, Westinghouse air brakes carrying eighty pounds pressure, a speed of forty to forty-two miles an hour and safety to the train and its passengers. Under the assumed circumstances the witnesses said that the train could have been slowed to fifteen miles an hour in 700 feet and stopped in...