Hollenbeck v. Missouri Pac. Ry. Co.

• Decision Date: 19 January 1897
• Parties: HOLLENBECK v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

38 S.W. 723

141 Mo. 97

HOLLENBECK v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

January 19, 1897.

INJURY TO BRAKEMEN — UNCOUPLING MOVING CARS — NEGLIGENCE — HARMLESS ERROR — IMPROPER QUESTIONS — EXCESSIVE DAMAGES.

1. That there is a safe rate of speed for coupling and uncoupling cars is sufficiently proved, in an action by a brakeman for injuries received while uncoupling moving cars, by introduction of a rule of defendant in regard to coupling and uncoupling, which says, "Do not go between cars unless they are moving at a slow and safe speed."

2. For plaintiff's counsel, knowing the question to be improper, to ask plaintiff in a personal damage suit if he has a family, which question is not objected to till answered in the affirmative, is not ground for reversal.

3. Any error in allowing counsel to read to the jury from the statutes of another state is cured by his withdrawing the same from the consideration of the jury before submission of the case to them.

4. Permitting counsel in a common-law action for personal injuries, not bottomed on any statute, to read to the jury a statute of another state, declaring how statutes shall be construed, is harmless error.

5. A prima facie case of negligence is shown, in an action by a brakeman against a railroad for injuries received by stepping into a ditch in the track while uncoupling moving cars, by evidence that it was four to six inches deep; that a rule of the company permitted employés to go between cars, when moving at a safe rate of speed, which was shown to be the case at the time of the accident; and that the section foreman in charge at that point had for several months known of the ditch.

6. It is not, as matter of law, contributory negligence for a brakeman, not knowing of a ditch in a railroad track, to go, for the purpose of uncoupling cars, between them while they are moving at a slow and safe speed, a rule of the company implying that in coupling and uncoupling cars employés may go between them when moving, and there being evidence that the speed was safe, and this though the brakeman was in charge of the train, he having testified that he did not have time to uncouple while the train was standing still, and that the way he attempted to do it was the customary way.

7. A judgment will not be set aside on the ground that the verdict for $10,000 was excessive, plaintiff being at the time of his injury 32 years old, and earning $65 per month, and his left leg having been crushed, resulting in long and severe suffering, confinement in the hospital for six months, and three amputations of the leg, the last above the knee.

Sherwood, J., dissenting.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by T. J. Hollenbeck against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Elijah Robinson, for appellant. O. L. Smith and L. H. Waters, for respondent.

BURGESS, J.

This is an action for damages for personal injuries sustained by plaintiff while in the service of defendant as a brakeman, because of an alleged defect in its roadbed, which resulted in the loss of his left leg. The answer alleges contributory negligence on the part of plaintiff. He recovered a verdict and judgment for $10,000 damages, and defendant appealed.

The facts are substantially as follows: The accident occurred at a station on the line of defendant's road in the state of Kansas on the 17th day of February, 1892. At the time plaintiff was in the employ of defendant in the capacity of brakeman and baggageman on what is known as a "cutoff," running from Marquette to Gypsum City, in said state, a distance of 27 miles. The train was a mixed train, composed of one passenger coach and a number of freight cars. It left Marquette at 7:41 a. m., and was due to arrive at Gypsum City at 9:05 a. m., thus giving an hour and 24 minutes in which to make the run. Besides the side track near the depot at Lindsborg, there is a spur track, used for the purpose of loading and unloading cars. When the train reached Lindsborg, on the morning of the accident, there was a car on the spur track, which was to be taken in the train, and one standing on the main line, or in the train, which was to be left on the spur track. Plaintiff took charge of the train, as it was his custom to do, and undertook to do the switching. During the switching it became necessary to move the train north of the point of the spur track, in order to back it in on the main track. When it had gotten far enough north for that purpose, plaintiff signaled the engineer to back down, and started north to meet the train. Near where he met it there were two depressions in the track, one somewhat larger than the other. He went in between the cars to uncouple them, walked along with the motion of the cars, and, while doing so, stepped in the smaller ditch, fell down, and was run over by the cars and injured. The ditches were dug the latter part of the preceding summer, and were variously estimated by the witnesses to be from four to six inches deep. Plaintiff had been running over this cutoff twice a day for more than a year before the accident; occasionally switching cars at this station, and placing them on and taking them off this spur track. The ditch which caused plaintiff to fall was in plain view. When he met the train, it was then moving from three to four miles an hour. While doing the switching, plaintiff had control of the movements of the train. He testified that he did not know the ditch which caused him to fall was there, before that time; that he had never been over that part of the track; and that it was perfectly safe to go in between cars for the purpose of coupling them, and to walk along with them, and in between them, when only moving at the rate of from three to four miles per hour. On cross-examination he stated that he knew that it was dangerous to go in between cars when they were in motion. The evidence on the part of the defense tended to show that plaintiff had knowledge of the ditch before the accident. Plaintiff was something over 32 years of age at the time, and earning $65 per month. After the injury he was taken by defendant to its hospital, in Kansas City, where his injured limb was dressed by the company surgeons, and the broken bones wired in place. His leg was amputated at the hospital, above the knee, on the 16th day of June, 1892. He remained at the hospital for six months.

1. During the trial, plaintiff asked one of his witnesses (J. A. Foster) the following question: "What is a slow and safe rate of speed to do coupling and uncoupling when switching cars?" To this question defendant objected upon the ground that it assumed that there was some rate of speed which would be safe for coupling and uncoupling cars. The objection was overruled and the witness answered: "About three or four miles an hour. About as fast as a man could walk, walking fast." It is now insisted that the question assumed a fact which had not been proven, — that is, that there was "a safe rate of speed for coupling cars and uncoupling cars," — and there was error committed in permitting it to be answered. It may be conceded that a question based upon the assumption that a certain fact has been prover, when it has not been, is improper. Railroad Co. v. Thompson, 10 Md. 76; People v. Graham, 21 Cal. 261; 1 Greenl. Ev. § 434. Before the question was asked, plaintiff had read in evidence a rule of defendant company, which is as follows: "Great care must be used in coupling and uncoupling cars. Do not go between the cars unless they are moving at a slow and safe speed, not attempt to make any coupling unless the drawbars and other coupling appliances are known to be in good order." This rule implies that there may be a slow and safe rate of speed for coupling and uncoupling cars, and obviated any necessity for proving by other evidence that such is the case. Moreover, another witness for plaintiff (J. L. Patrick) testified, without objection, to the same effect. Under the circumstances, there was no error committed in admitting this evidence.

2. During the examination of plaintiff, who testified as a witness in his own behalf, the following occurrence took place: "Mr. Waters (attorney for plaintiff): I will ask you this question (you needn't answer if the gentleman objects): Have you a family? A. I have. Mr. Robinson (attorney for defendant): I object to that. Colonel Waters knew it wasn't competent. Mr. Waters: I think it is competent, but I don't care to take any risk on it. (The objection was sustained.)" The question was manifestly improper. Whether plaintiff had a family or not had no connection whatever with the accident, or any injury occasioned thereby; but the objection was not made until after the question had been answered; hence too late. When the objection was made it was sustained, and, if defendant desired to remove any prejudicial effect that the evidence might have on the minds of the jurors, it should have moved the court to exclude it at the time, or by instruction, from their consideration. Having failed to do either, defendant impliedly waived any objection that it had to the introduction of the evidence which it might have enforced by timely action. 1 Thomp. Trials, §§ 715, 716. But defendant insists that counsel for plaintiff, by asking a question which he knew to be improper, got before the jury a fact that was hurtful to it, and evidently influenced the jury; that a verdict obtained by such methods ought not to be permitted to stand; and, as the attention of the trial court was called to it in the motion for a new trial, that error was committed in overruling the motion. If a verdict of a jury is to be set aside because of illegal and improper questions propounded to a witness during such a trial by counsel who may be so fortunate as to...