Draper v. Louisville & N. R. Co.

• Decision Date: 25 July 1941
• Parties: Robert Draper v. Louisville & Nashville Railroad Company, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 626

348 Mo. 886

Robert Draper v. Louisville & Nashville Railroad Company, Appellant

Supreme Court of Missouri

July 25, 1941

Reported at 348 Mo. 886 at 897. Motion to Transfer to Banc Overruled October 30, 1941. Motion to Reconsider Order of October 30, 1941, Overruled December 12, 1941.

Original Opinion of June 12, 1941, Reported at 348 Mo. 886.

Hyde C. Broadley and Dalton, CC., concur.

OPINION

HYDE

On Motion to Transfer to Court En Banc.

Plaintiff as ground for transfer to Banc, reargues matters heretofore argued in the briefs and on motion for rehearing. As to these (including the contention that there could be a case of duty to plaintiff to keep a lookout on a switching movement in the part of defendant's yards involved) we reaffirm the rulings made.

The motion further seeks a modification of the opinion so that the cause will be remanded for a new trial. Plaintiff says "In its opinion the Court definitely holds that plaintiff's judgment should be sustained if plaintiff's own witness (the defendant's fireman) had not denied specifically that he did not actually see plaintiff's peril. This suggestion can be easily complied with. All plaintiff has to do to win his case and hold his judgment would be to not call the defendant's engineer (or fireman) if the Court adheres to the rule that in this particular case plaintiff is bound by all the statements of the adverse hostile witness." In considering this part of the motion, we have carefully read the depositions of the engineer (who also said he did not see plaintiff before he was struck and further stated that he had not looked toward the fireman before he called to him to stop) and of the fireman (also the other depositions) which plaintiff offered in connection with their testimony. However, these do not show substantial evidence to go to the jury upon the theory of an actual discovery of the plaintiff in a position of peril in time to prevent his injury; and certainly not on the fantastic theory (now advanced) that they could have done something to save him after plaintiff saw the engine only a foot from him and yelled. Plaintiff's trouble is a failure of proof to establish any theory of liability. Of course, on any primary negligence he would be barred by his own contributory negligence.

Plaintiff's case was originally based upon the theory that plaintiff was at a place where he was an invitee so that there was a duty, on defendant's employees making switching movements in these yards, to keep a lookout for him. The situation, when the whole case was closed, was that plaintiff had failed to make a case on the invitee theory. Likewise, there was no evidence whatever, direct or circumstantial, to show that defendant's fireman ever actually saw plaintiff on the track. Thereafter, plaintiff was permitted to reopen the case and call the fireman to attempt to prove this essential fact (of actual discovery) by him. The fireman very positively said he never did see plaintiff until after he had been run over by the engine, and his direct examination shows that plaintiff's counsel expected him to so testify. (The direct examination as to this was as follows: "Q. Now, as I understand it, you pulled from what was known as Napother yards north on track No. 2 and that you finally discovered Draper south of the scale house after he was injured on that pull? A. You mean when he was injured? Q. Yes. A. I found him just a little north of the scale house. When I saw him first he was about ten feet from there. Q. Well, when you first saw Draper was after he was injured, I understood? A. Sir? Q. When you first saw Draper he was lying beside the track after he was injured? A. That is right. He was lying -- Q. That is right. Now, I understood that that was just a little south of the scale house? A. Yes, sir.") Thereafter, the fireman further testified that he was looking north as the train went north to clear the switch in the Strawberry yards. (The direct examination as to this was, as follows: "Q. When you left the south end of the yards on that occasion to go north, you were sitting in this cab window on the west side, or the left-hand side of the cut? A. Yes, sir. Q. Is that right? A. Yes, sir. Q. Looking north? A. Looking north. Q. And that you continued to ride in that position and looked north until you heard groaning or moaning under the cars? A. Yes, sir. Q. Is that right? A. Right.") Plaintiff claims this part of his testimony made a case for the jury, because the fireman's testimony as to the direction of his looking (which was stated even more positively in the fireman's deposition) was sufficient circumstantial evidence to warrant a finding that the fireman did see plaintiff on the track in a position of peril in time to have thereafter avoided his injury under the last chance rule of Kentucky.

The trouble with this contention is that the only witness plaintiff called to prove this fact, by such circumstantial evidence, gave positive direct testimony that he never did see him on the track. Our rule as to such a situation has always been, as stated by Judge Lamm in Rodan v. St Louis Transit Co., 207 Mo. 392, l. c. 408, 105 S.W. 1061, that: "If A put B on the stand and prove by him a certain state of facts, this does not preclude A from putting C, D or E on the stand and proving a different state of facts; but if A puts B on the stand as his only witness to prove a fact, and does prove it, then he is...