Henry v. Illinois Cent. R. Co.

• Decision Date: 17 March 1928
• Docket Number: 28378
• Parties: Lawrence Henry, An Infant, by David G. Henry, His Next Friend, v. Illinois Central Railroad Company, Appellant
• Court: Missouri Supreme Court

3 S.W.2d 1004

319 Mo. 432

Lawrence Henry, An Infant, by David G. Henry, His Next Friend, v. Illinois Central Railroad Company, Appellant

No. 28378

Supreme Court of Missouri

March 17, 1928

Appeal from Circuit Court of City of St. Louis; Hon. Harry A Rosskopf, Judge.

Affirmed.

Watts & Gentry for appellant; V. W. Foster of counsel.

(1) The court erred in overruling the demurrer to the evidence at the close of the whole case. The story told by plaintiff is utterly contrary to human experience and physical facts and therefore, it should be disregarded. Graney v. Ry Co., 150 Mo. 666; Cadwell v. Stove Co., 238 S.W. 418; Miller v. Schaff, 228 S.W. 491; Alexander v. Ry. Co., 233 S.W. 44; Payne v. C. & A. Ry. Co., 136 Mo. 562; Sexton v. Street Ry. Co., 245 Mo. 254; Champagne v. Hamey, 189 Mo. 709; Giles v. Railroad Co., 169 Mo. 24; Nugent v. Milling Co., 31 Mo. 241. (2) The court erred in admitting evidence, under the guise of rebuttal, after the close of defendant's case, which was not in rebuttal of anything offered by the defendant. Exidence admitted in rebuttal should be confined strictly to that which tends to contradict what has been offered for the first time in the case by the defendant. Beyer v. Herman, 173 Mo. 306; Glenn v. Stewart, 167 Mo. 593; Chrystal v. Craig, 80 Mo. 375; Flowers v. Smith, 214 Mo. 98. (3) The court erred in giving Instruction 3, at the request of the plaintiff, said instruction being erroneous because of the assumption in it of a disputed fact. It assumes that the plaintiff was run into by the engine in question and that plaintiff's injuries were caused thereby. Gebhardt v. Railroad Co., 296 S.W. 446; Rey v. Plumb, 287 S.W. 785; Shepherd v. Elec. Co., 299 S.W. 90; Boland v. Ry. Co., 284 S.W. 144; Ward v. P. B. I & F. Co., 264 S.W. 80; Reel v. Investment Co., 236 S.W. 47; Smith v. Motor Service Co., 273 S.W. 741; Roman v. King, 233 S.W. 161; Dixon v. Frazier Const. Co., 298 S.W. 832; Ganey v. Kansas City, 259 Mo. 654; Zini v. Terminal Railroad, 235 S.W. 86; Wetty v. Kress & Co., 295 S.W. 501. (4) The court erred in failing to rebuke plaintiff's counsel for improper remarks made by him in his closing argument to the jury. Jackman v. Railway Co., 206 S.W. 244; Levels v. Railroad Co., 196 Mo. 606; State v. Burns, 286 Mo. 665; Lewellyn v. Haynie, 287 S.W. 634; Monroe v. Ry. Co., 249 S.W. 644.

Charles P. Noell for respondent; Glen Mohler of counsel.

(1) The court did not err in overruling the demurrer to the evidence at the close of the whole case. The weight of the evidence and credibility of the witnesses were matters to be passed upon by the jury. Buesching v. Gaslight Co., 73 Mo. 231; Kibble v. Railroad Co. (Mo.), 227 S.W. 46; Nahorsky v. Electric Co., 310 Mo. 227; Bachman v. Railroad Co., 310 Mo. 61; State ex rel. Gas Co. v. Trimble, 307 Mo. 551; National Bank v. Laughlin, 305 Mo. 29. (2) Appellant cannot complain of the introduction of the rebuttal testimony of Frank Marsh. He did not preserve the point in the motion for new trial. In any event, the matter was discretionary with the trial court. Burns v. Whelan, 52 Mo. 520. (3) The court did not err in giving instruction number three at the request of the plaintiff. This instruction which was on the measure of damages did not assume that plaintiff was struck by the engine. Oschlen v. Scott, 79 Mo.App. 541; Gayle v. Car & Foundry Co., 177 Mo. 427; Young v. Webb City, 150 Mo. 333; Kaemmerer v. Wells, 299 Mo. 266; Powell v. Railroad, 255 Mo. 453; Geary v. Kansas City, 138 Mo. 251. (4) The trial court was not guilty of an abuse of its discretion in failing to rebuke plaintiff's counsel during the closing argument. The remark complained of was warranted by the record and was induced by the previous argument of defendant's counsel. It was merely counsel's construction placed upon matters in the record. Gidionsen v. Ry., 129 Mo. 403; Citizens' Bank v. Douglass, 187 S.W. 158; Huckshold v. Ry. Co., 90 Mo. 558; Plannett v. McFall, 284 S.W. 854; Fuller v. Robinson, 230 Mo. 55; Asadorian v. Sayman, 282 S.W. 510; L. Cohen Gro. Co. v. Bonding Co., 251 S.W. 129; Ingram v. Poston, 260 S.W. 776.

OPINION

Gantt, J.

Action for personal injuries alleged to have been sustained by plaintiff as the result of the negligence of defendant. He was injured at a public crossing in Belleville, Illinois, where defendant's track, running east and west, crosses 17th Street, running north and south. This is the second appeal, and the opinion on the former appeal will be found in 282 S.W. 423.

The petition contained a number of charges of negligence, but plaintiff went to the jury on only two of them: (1) failure to give the bell and whistle signal; and (2) the humanitarian doctrine.

The answer of defendant admitted its corporate existence, its operation of a railroad in the State of Illinois, that on May 15, 1921, plaintiff sustained an injury in Belleville, which resulted in the amputation of his left arm; and denied all the other allegations of the petition. The remainder of the answer attacked the validity of certain ordinances pleaded in the petition, but those ordinances were abandoned. Judgment was for plaintiff for $ 15,000, and defendant appealed.

There was evidence pro and con that the bell and whistle signal was given. Defendant concedes that if plaintiff was standing on the crossing at the time mentioned in his testimony he was in plain view of the engineer and fireman, who testified they were at their post of duty, and that the engine could have been stopped many times before injury to the boy.

Plaintiff contends that at the time he was injured he was standing on the south rail of defendant's track at the 17th Street crossing, with his back toward the east, and that he was struck by an engine moving westward over said crossing.

Defendant contends plaintiff was not so injured, but that he was injured about ninety feet west of the crossing as a result of having been pushed down the bank by his brother Howard against the engine or car as the train was passing.

The facts are as follows: Plaintiff resided with his parents at 10 N. 15th Street in Belleville. On Sunday, May 15, 1921, Frank Marsh, a friend of plaintiff's brother, Howard Henry, dined with the Henry family. Immediately after the noonday meal the Henry boys and Marsh started to the Marsh home, about three-fourths of a mile west of the Henry home. Howard was eleven, Frank ten, and plaintiff, Lawrence, eight years old. The older boys ran west to 17th Street, then south on 17th across defendant's track, then west up a bank that ran west from the west side of said street and parallel to and near defendant's unfenced track. From the time the boys left the Henry home plaintiff, though running, could not keep up with the older boys. He testified that when he reached 17th Street he was out of breath and tired, which caused him to slow up as he crossed said street; that he continued slowly south on the west side of said street to defendant's track, where he stopped on the south rail to rest; that he stood there with his back towards the east, crying and appealing to the boys to wait for him; that while in this position some part of the front of the engine struck the left side of his back, became entangled in his clothing so that he was dragged ninety feet from the west line of 17th Street, and there the hold of the engine upon his clothing broke and he fell south of the track; that he arose and ascended the sloping bank, where he was met by Howard and Frank in response to his cries; that they assisted him to 17th Street, and there two men assisted him to the residence of Mr. Steakhouse, where he was given first aid and then taken to a hospital in Belleville, where his arm was amputated that day.

Howard Henry testified that when he reached the top of the bank west of 17th Street he looked back and saw plaintiff standing on the track at the 17th Street crossing; that he continued west and did not see an engine, train or plaintiff from that time until the engine and train were passing a point directly north of him; that at this time Frank Marsh, who was following, called his attention to the cries of plaintiff, whereupon they went to his assistance, met him about the time he got to the top of the bank and assisted him to 17th Street and turned him over to two men who assisted him to the residence of Mr. Steakhouse; that he and Frank then hurried to the Henry home to inform plaintiff's parents of his injury. As they went over the 17th Street crossing he found Lawrence's cap near the south rail of the track and just a few feet west of the west line of 17th Street.

Mrs. Ethel Eicker testified for plaintiff, as follows: that she resided with her parents, Mr. and Mrs. Brewer, at the northwest intersection of the railroad right-of-way and 17th Street on May 15, 1921; that on this day and about noon time she and her mother were cleaning up the dinner dishes, and she went from the kitchen to throw scraps to the chickens in a pen in the back yard. When she reached the south porch she heard plaintiff crying, and, looking across toward the east, saw him standing on the south side of the railroad track right at the crossing; that no train was in sight at that time, and she went to the west end of the lot to the chicken pen, threw the scraps to the chickens and started east toward the house. Just before she reached the porch a train, moving westward, was passing, and she heard loud screams. When the train had passed she saw plaintiff going up the bank south of the right-of-way and saw the older boys coming down to meet him; that she did not see plaintiff when he was injured by the train.

Members of plaintiff's family testified as follows: that plaintiff's clothing at the time of his injury consisted solely of a...