Gordon v. Kansas City Southern Railway Co.
| Citation | 121 S.W. 80,222 Mo. 516 |
| Parties | W. F. GORDON, Administrator of Estate of HARRY L. PANGLE, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant |
| Decision Date | 13 July 1909 |
| Court | United States State Supreme Court of Missouri |
Rehearing Denied 222 Mo. 516 at 540.
Appeal from Vernon Circuit Court. -- Hon. L. W. Shafer, Judge.
Affirmed on condition.
S. W Moore, Cyrus Crane and H. C. Clark for appellant.
(1) The evidence as to defendant's negligence was not sufficient to warrant the submission of this case to the jury. (a) The necessary elements were not established by the evidence. Bowen v. Railroad, 95 Mo. 268; Hamilton v Railroad, 123 Mo.App. 619; Burnes v. Railroad, 129 Mo. 53; Glasscock v. Dry Goods Co., 106 Mo.App. 663; Hester v. Dold Packing Co., 84 Mo.App. 451; Bennett v. Lumber Co., 116 Mo.App. 710; Kelly v. Railroad, 105 Mo.App. 375; Howard v. Railroad, 173 Mo. 531; Murphy v. Railroad, 71 N.W. 662; Johnson v. Railroad, 36 W.Va. 73; Railroad v. Thompson, 11 Tex. Civ. App. 658; Perry v. Railroad, 65 N.W. 608; Railroad v. Wagoner, 33 Kan. 667; Carruthers v. Railroad, 55 Kan. 600; Ahearn v. Railroad, 45 A. 1032; Riley v. Campbell, 59 F. 990; Railroad v. Ledbetter, 8 P. 411. (b) The presumption existed that the master had done his duty in keeping the instrumentalities in a reasonably safe condition. Wood on the Law of Master & Servant, sec. 382, p. 754; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Franklin v. Railroad, 97 Mo.App. 482; Railroad v. Lindamood, 78 S.W. 100; Kincaid v. Railroad, 29 P. 3; Duntley v. Inman, etc., 42 Ore. 334; Droney v. Doherty, 186 Mass. 205. (2) The court erred: (a) In admitting testimony of repairs made on caboose car No. 531 after the accident occurred. 1 Elliott on Evidence, sec. 228, p. 327; Ely v. Railroad, 77 Mo. 36; Hipsley v. Railroad, 88 Mo. 348. (b) This error was not cured by the instruction given at plaintiff's request, attempting to limit the effect of this testimony. Cobb v. Griffith, 12 Mo.App. 130; Meyer v. Lewis, 43 Mo.App. 417; Mueller v. Weitz, 56 Mo.App. 36; Stephens v. Railroad, 96 Mo. 207; Seafield v. Bohne, 169 Mo. 546. (3) The court erred in admitting evidence of the declarations of Manker, the yardmaster, which were not part of the res gestae and were not binding on defendant. 1. The declaration was not part of the res gestae and was not proper as an admission against defendant's interest. Koenig v. Railroad, 173 Mo. 698; Ruschenberg v. Railroad, 161 Mo. 70; Adams v. Railroad, 74 Mo. 553; Barker v. Railroad, 126 Mo. 143; Devlin v. Railroad, 87 Mo. 545. 2. The declaration admitted was not competent as impeaching testimony. Hamburger v. Rinkel, 164 Mo. 398; Roe v. Bank of Versailles, 167 Mo. 406; Wojtylak v. Coal Co., 188 Mo. 288; Covey v. Railroad, 86 Mo. 635. (4) The court erred in allowing the case to go to the jury, because plaintiff was guilty of negligence as a matter of law. 1. In doing the work when the train was in motion instead of at a standstill. 2. In boarding the caboose at the front end instead of the rear end. Bailey's Personal Injuries Relating to Master and Servant, secs. 1121 and 1123; Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 309; Smith v. Forrester-Nace Box Co., 193 Mo. 715; Patton v. Railroad, 179 U.S. 658. 3. In not using the lever to the automatic coupler. Federal Safety Appliance Act, sec. 2; Gilbert v. Railroad, 128 F. 529; Dawson v. Railroad, 114 F. 870; Morris v. Duluth, 108 F. 747; Railroad v. Brady, 161 F. 719. (5) The court erred in permitting plaintiff to show on cross-examination of Conductor Marsh that he had been discharged for drunkenness. 1 Elliott on Evidence, sec. 167, p. 229; 3 Ency. of Evidence, p. 756; State v. Grant, 144 Mo. 63; Hancock v. Blackwell, 139 Mo. 445; Vawter v. Hultz, 112 Mo. 639; Culbertson v. Railroad, 140 Mo. 57; Shaefer v. Railroad, 98 Mo.App. 454; State v. Clawson, 30 Mo.App. 143; Seymour v. Farrell, 51 Mo. 97; Wright v. Kansas City, 187 Mo. 693; State v. Rogers, 108 Mo. 202; State v. Gesell, 124 Mo. 535. (6) The damages are excessive. Markey v. Railroad, 185 Mo. 366; Devoy v. Railroad, 192 Mo. 225; Waldhier v. Railroad, 87 Mo. 37; Furnish v. Railroad, 102 Mo. 438; Burdict v. Railroad, 123 Mo. 236; Nicholds v. Plate Glass Co., 126 Mo. 68; Rodney v. Railroad, 127 Mo. 676; Hollenbeck v. Railroad, 141 Mo. 112; Markey v. Railroad, 185 Mo. 365; Chitty v. Railroad, 166 Mo. 443; Stolze v. Railroad, 188 Mo. 581; Reynolds v. Railroad, 189 Mo. 408. (7) In this case a mere remittitur will not be sufficient to cure the wrong verdict of the jury as manifested in the excessive award made. This excessive award, coupled with the further errors in the record and with the whole proceedings as disclosed by the record, shows clearly that the verdict was the result of passion and prejudice, or in other words, was not a just, true and fair verdict. Lindsay v. Kansas City, 195 Mo. 182; Norris v. Whyte, 158 Mo. 36; Spohn v. Railroad, 87 Mo. 84; Cook v. Railroad, 94 Mo.App. 417; Fullerton v. Fordyce, 144 Mo. 519; Nicholds v. Crystal Plate Glass Co., 126 Mo. 68.
Scott & Bowker, Arthur F. Mullen and M. F. Harrington for respondent.
(1) Owing to the severe and terrible character of the injuries and suffering sustained by the respondent in this case, the judgment of the court entered therein is not excessive. Waldheir v. Railroad, 87 Mo. 37; Devoy v. Railroad, 192 Mo. 197; Markey v. Railroad, 185 Mo. 365; Reynolds v. Railroad, 189 Mo. 408; Stotler v. Railroad, 200 Mo. 107; Smith v. Whittier, 95 Cal. 279; Friedman v. Railroad, 41 Ill.App. 270; Erickson v. Railroad, 32 N.Y.S. 915; Ehrman v. Railroad, 60 Hun 580; Herrald v. Railroad, 24 Hun 184; Witrak v. Railroad, 65 N.Y.S. 257; Fonda v. Railroad, 79 N.W. 1043; Kelley v. Railroad, 80 S.W. 1073; Whitehead v. Railroad, 114 N.W. 467; Reeves v. Gas Co., 92 P. 89; Snell v. Waters-Pierce Oil Co., 106 S.W. 107; Wallace v. Railroad, 45 So. 857; Barton v. Railroad, 130 Ill.App. 573. (2) The fact that one witness is contradicted by a number of witnesses, or as many as twelve witnesses, and that the verdict of the jury is based upon the testimony of the one witness, is no ground for saying that the verdict of the jury is the result of passion, prejudice or corruption. Drake v. Kansas City, 190 Mo. 370; Widman & Co. v. St. Joseph, 191 Mo. 459. (3) The question of whether or not respondent was guilty of contributory negligence at the time he received his injury, under the testimony in this case, was a question for the jury. Brady v. Railroad, 206 Mo. 509; Edington v. Railroad, 204 Mo. 61; Curtis v. McNair, 173 Mo. 270; Charlton v. Railroad, 200 Mo. 413; Dean v. Railroad, 199 Mo. 386; O'Mellia v. Railroad, 115 Mo. 205; Murphy v. Railroad, 115 Mo. 111; Hollenbeck v. Railroad, 141 Mo. 97. (4) It was negligence on the part of appellant to have a car in use upon its railroad with a defective handrail. Parsons v. Railroad, 94 Mo. 286; Settle v. Railroad, 127 Mo. 336. (5) Evidence of custom in the character of tools and appliances furnished and in general use, and also the manner and method of performing certain services, is admissible on the question of negligence and contributory negligence. Brady v. Railroad, 206 Mo. 509; Eddington v. Railroad, 204 Mo. 61; O'Mellia v. Railroad, 115 Mo. 205; Minnier v. Railroad, 167 Mo. 99; Minnier v. Railroad, 115 Mo.App. 152. (6) The question of whether or not respondent pursued the safest course, or rather a dangerous course to perform his duty for the appellant at the time he was injured, or pursued such a course as would make him guilty of contributory negligence under the doctrine that when there is a safe way and an unsafe way for the servant to perform his duty, was for the jury. Brady v. Railroad, 206 Mo. 509; Eddington v. Railroad, 204 Mo. 61; Murphy v. Railroad, 115 Mo. 111; O'Mellia v. Railroad, 115 Mo. 205. (7) A party has a right to show that a witness who has testified to material facts in issue has made contradictory statements in regard to such matters even after the accident for the purpose of impeaching the credibility of such witness. Spohn v. Railroad, 101 Mo. 417; Mullen v. Railroad, 196 Mo. 572; State v. Forsha, 190 Mo. 296; Kenner v. Railroad, 69 Mo.App. 312; Hamilton v. Mining Co., 108 Mo. 364; Fry v. Railroad, 200 Mo. 406; Spohn v. Railroad, 122 Mo. 1. (8) A wide latitude is allowed on cross-examination of an opposing witness and any question tending to test his memory, means of knowledge, accuracy and veracity is admissible, and such an examination is largely within the discretion of the trial court. Mebford v. Railroad, 121 Mo.App. 647; State v. Nelson, 101 Mo. 464; State v. Boyd, 178 Mo. 2; Richards v. Bank, 119 Mo.App. 18; State v. Smith, 190 Mo. 706. (9) Even where testimony is admissible for some purposes and is so admitted by the court at the time without limiting its effect, yet where the court does limit the effect of such testimony by proper instructions, this is all that is necessary. Bennen v. St. Louis, 92 Mo. 482; McDermit v. Railroad, 87 Mo. 285; Farmer v. Farmer, 129 Mo. 530; Baustian v. Young, 152 Mo. 317; Garesche v. College, 76 Mo. 332. (10) The cross-examination of J. W. Marsh, the conductor, showing that he had been discharged for drunkenness, was not erroneous. The matter of cross-examination is largely within the discretion of the trial court and is not reversible error unless grossly abused. Hirsch v. Green, 83 Mo.App. 487; State v. Hack, 118 Mo. 92; State v. Boyd, 178 Mo. 2; State v. Harris, 150 Mo. 56.
This is an action for damages for personal injuries, in which Harry L. Pangle, now deceased, recovered a verdict for $ 50,000, but which was reduced by the trial court to $ 35,000, and judgment entered for that sum. Defendant's motions for a new trial and in arrest of judgment having been overruled, an appeal was taken to this court.
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