Forsythe v. Railway Express Agency
| Decision Date | 07 March 1939 |
| Docket Number | No. 24905.,24905. |
| Citation | 125 S.W.2d 539 |
| Court | Missouri Court of Appeals |
| Parties | FORSYTHE v. RAILWAY EXPRESS AGENCY, Inc., et al. |
Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.
"Not to be reported in State Reports."
Action for damages by Clarence Forsythe against the Railway Express Agency, Incorporated and another to recover for personal injuries sustained while handling mail in the Union Station in the City of St. Louis. Judgment for plaintiff, and the named defendant appeals.
Judgment affirmed.
Watts & Gentry, of St. Louis, for appellant.
Reardon & Lyng and John H. Martin, all of St. Louis, for respondent Clarence Forsythe.
BENNICK, Commissioner.
This is an action for damages for personal injuries sustained by plaintiff on the night of December 20, 1935, while employed in handling mail in Union Station in the City of St. Louis.
Plaintiff, a lather by trade, had secured work with the Terminal Railroad Association of St. Louis as an extra employee during the rush period immediately before Christmas, and had been so employed for four days when his injury was received.
It appears that mail, baggage, express packages, and the like are hauled to and from trains in Union Station by means of trucks and tractors, some of which belong to the Terminal Railroad Association, which owns and operates the station, while others belong either to the Railway Express Agency, the appellant in this case, or else to the Southeastern Express Company, both of which carry on their respective businesses within the station.
On the night in question plaintiff was pulling an empty truck westwardly on the platform between the gates and the tracks preparatory to turning in to the south on the loading platform which extends from north to south between tracks D and E. Immediately preceding him was a Terminal truck loaded with mail which plaintiff followed until he reached the point where his turn to the left was to be made. Waiting until the first truck had been pulled far enough ahead for him to have the necessary clearance for his own truck, plaintiff turned around and faced his truck so as to be in a position to see that its wheels were kept on the platform as he guided it around to the south. As he did so, a tractor which he had previously noticed at a standstill in the vicinity, but which had meanwhile been started up, struck against the rear corner of his truck, causing the truck to be pushed forward and swung around so that the handlebar, to which plaintiff was holding with his left hand, came in violent contact with the first truck which had but barely cleared the platform, catching his thumb at the point of impact, and crushing it quite severely.
The chief issue in the case was one of fact with respect to the question of whether the tractor which struck against plaintiff's truck belonged to appellant and was being operated at the time by one Stullken in the regular course of his duty as an employee of appellant.
Some five minutes after the happening of the accident plaintiff had the opportunity to report his injury to his foreman, Guenther, and on their way to the first-aid station for treatment of it they had occasion to pass over the east and west platform upon which the accident had occurred.
At this juncture in his testimony plaintiff's counsel attempted to have him show that when he and Guenther reached the east and west platform he called Guenther's attention to the tractor which had struck his truck, and was told by Guenther that the driver's name was Stullken. However, such testimony was rejected by the court upon appellant's objection that plaintiff's statements or declarations to his foreman after the accident were hearsay and no part of the res gestæ.
Guenther, the foreman, was then put upon the stand as a witness for plaintiff and was permitted to testify that as he and plaintiff came to the end of the platform on their way to the first-aid station, plaintiff directed his attention to a tractor in the vicinity which belonged to appellant and was being operated by Stullken, whom Guenther knew by sight and identified during the course of his testimony when Stullken was ordered by the court to stand up at the point where he was seated in the court room. Guenther admitted, however, that he had no personal knowledge of the accident or of the identity of the tractor that had struck plaintiff's truck, and, upon appellant's objection, was denied permission to testify that plaintiff had pointed out Stullken's tractor to him as the one that had been responsible for the accident.
So matters stood when plaintiff rested his case at the end of the first day of the trial, but on the following morning, when court reconvened and it appeared that a verdict was about to be directed in favor of appellant, he obtained leave to reopen his case, and then took the stand so that he himself might identify Stullken as the man who was operating the tractor that struck his truck and as the one whom he had pointed out to his foreman, Guenther, on the night of the accident.
With plaintiff's case thus reinforced, the court overruled appellant's request for a peremptory instruction, whereupon appellant put on its own evidence, which was to the effect, not only that Stullken's tractor had not struck plaintiff's truck on the occasion in question, but also that from plaintiff's description of the tractor which had figured in the accident, it could not have been one belonging to appellant, but instead was of the type which was operated in the station by the Southeastern Express Company or else by appellant's codefendant, the Terminal Railroad Association of St. Louis.
The court had meanwhile sustained a demurrer to the evidence which had been interposed by the Terminal Railroad Association at the close of plaintiff's case, so that when the evidence was all in, the case was submitted to the jury against appellant alone, upon the theory that in permitting its tractor to be started in motion and to collide with plaintiff's truck while the same was being turned upon the platform, appellant had been guilty of negligence directly and proximately resulting in plaintiff's injury.
The jury returned a verdict in favor of plaintiff, and against appellant, for the sum of $3,000; and from the judgment which was entered in conformity therewith, the latter's appeal to this court has been perfected in the usual course.
Appellant argues as a matter of chief insistence that its demurrer to all the evidence should have been sustained, the burden of its complaint being that plaintiff's own testimony on the second day of the trial, after the case had been reopened at his counsel's request, was so contradictory to that which he had given on the first day of the trial as to have completely destroyed its credibility or probative value within the rule of Steele v. Kansas City S. Ry. Co., 265 Mo. 97, 175 S.W. 177.
We may concede, at least for our present purposes, that plaintiff did not succeed in making out a case for the jury upon the issue of appellant's responsibility for the accident until after the case had been reopened at the beginning of the second day of the trial, when, for the first time, he identified Stullken as the operator of the tractor that had figured in the collision. Furthermore, we are not unmindful of his testimony on the first day, that while he knew to whom the tractor belonged — the "American Express Company" as h...
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