Hulen v. Wheelock

• Citation: 300 S.W. 479,318 Mo. 502
• Decision Date: 07 December 1927
• Docket Number: 26334,26335
• Parties: Kathryn Hulen v. William W. Wheelock and William G. Bierd, Receivers of Chicago & Alton Railroad Company, Louisiana & Missouri River Railroad Company and A. P. Green Fire Brick Company, Appellants
• Court: United States State Supreme Court of Missouri

300 S.W. 479

318 Mo. 502

Kathryn Hulen v. William W. Wheelock and William G. Bierd, Receivers of Chicago & Alton Railroad Company, Louisiana & Missouri River Railroad Company and A. P. Green Fire Brick Company, Appellants

Nos. 26334, 26335

Supreme Court of Missouri

December 7, 1927

Appeal from Audrain Circuit Court; Hon. Ernest S. Gantt Judge.

Affirmed in part and reversed in part.

A C. Whitson and Charles M. Miller for the Receivers and Louisiana & Missouri Railroad Company.

(1) The trial court erred in not sustaining the objections made by defendant Receivers and Louisiana & Missouri River Railroad Company, to the introduction of any evidence, for the reason that under the petition and under the opening statement of counsel for plaintiff, the petition failed to state facts sufficient to constitute a cause of action against them, and also because under the opening statement of counsel for plaintiff no cause of action was stated against these defendants, but on the contrary, it was shown by the opening statement that no cause of action against them existed. Roscoe v. Met. St. Ry. Co., 202 Mo. 587. (2) The trial court erred in refusing the peremptory instructions requested by defendant Receivers and Louisiana & Missouri River Railroad Company, at the close of plaintiff's evidence in chief, and at the close of all the evidence, for the reason that on the issues, as joined, and the evidence no cause of action was stated or proven. Heidt v. Motor Bus Co., 219 Mo.App. 683; Riggs v. Railroad, 216 Mo. 327; Reeves v. Railroad, 251 Mo. 169. (3) The trial court erred in holding that the Louisiana & Missouri River Railroad Company was liable as a lessor for the acts of the Receivers of the Chicago & Alton Railroad Company, it being the contention of the Louisiana & Missouri River Railroad Company that it was not liable for the acts of said Receivers, who were strangers to it in the operation of the railroad, appointed by a court without their sanction or consent. Chamberlain v. Railroad, 71 F. 636. (4) The trial court erred in receiving in evidence, over the objection of defendant Receivers and Louisiana & Missouri River Railroad Company, the testimony of Ellis and Edwards, relative to certain alleged experiments and observations made from switch No. 3, as to the distance they could see an engineer in an engine cab, from switch No. 3, for the reason that such evidence was incompetent, under the issues as joined, and was further incompetent because not under the same conditions as existed at the time of the accident. Riggs v. Railroad, 216 Mo. 327; Ballman v. Leuking Teaming Co., 281 Mo. 354; Klenk v. Klenk, 282 S.W. 156. (5) The trial court erred in giving plaintiff's Instruction B, because it was a roving commission to the jury and did not correctly declare the law, as applicable to these defendants, under the issues, as joined in the case. (6) The trial court erred in giving plaintiff's Instruction E, directing a verdict against the Brick Company and these defendants, if certain things were found by the jury, because the instruction did not correctly declare the law, as applicable to this case, and was also a roving commission to the jury, so far as the Receivers were involved. (7) The trial court erred in giving plaintiff's Instruction G, relating to the measure of damages, because it was an implication that the court was of the opinion that the evidence warranted an assessment of damages up to $ 25,000. Bond v. Frisco Railroad, 288 S.W. 785. (8) The trial court erred in giving Instruction 1 on behalf of the Brick Company, because the instruction did not properly declare the law, and was prejudicial to these defendants, and there was no evidence upon which to predicate such instruction. Schlander v. Chicago Traction Co., 97 N.W. 233. (9) The trial court erred in refusing to give these defendants' Instruction 7, withdrawing from the consideration of the jury any alleged negligent act of the engineer, in not seeing the switch open and stopping the train before it collided with the cars on the stock yard track, for the reason that said instruction upon the issues joined, and the evidence, was proper, and it was prejudicial to these defendants to refuse it. (10) Because the verdict against these defendants is against the evidence. (11) Because the verdict and judgment are excessive.

Fry & Hollingsworth for appellant A. P. Green Fire Brick Company.

(1) The verdict of $ 10,000 is so excessive as to show that it was the result of passion and prejudice on the part of the jury. The evidence showed no injuries warranting a verdict of such amount. Verdicts in similar cases have been reduced by this court and the courts of appeals. Shuff v. Kansas City, 282 S.W. 128; Potashwick v. Wells, 273 S.W. 777; Corn v. Ry. Co., 288 S.W. 78; Chambers v. Hines, 233 S.W. 949; Kenner v. Mo. Pac. Ry. Co., 269 S.W. 635. (2) All the evidence clearly shows that the proximate or direct cause of the collision or accident was the engineer's failure to stop his train after he saw the open switch, and, therefore, defendant Brick Company's Instruction 4 should have been given. Cecil v. Wells, 259 S.W. 844; Stauffer v. Railroad, 243 Mo. 305; Olsen v. Railway Co., 152 Mo. 426; Miller v. United Rys. Co., 155 Mo.App. 528; Yates v. United Rys. Co., 222 S.W. 1034; Moran v. Railways Co., 232 S.W. 111; Dunn v. Cass Ave. Ry. Co., 21 Mo.App. 188.

Rodgers & Buffington for respondent.

(1) Defendant Railroad Company's objection to the introduction of evidence and its peremptory instruction at the close of the evidence were properly overruled, because the issues raised by the pleadings and the proof adduced made a case for the jury. Carlson v. Wells, 276 S.W. 28; Stauffer v. Railroad, 243 Mo. 317; Price v. Railway, 220 Mo. 435; Wills v. Railroad, 133 Mo.App. 632. (2) No error was committed in the admission of the evidence relative to observations made by witnesses Ellis and Edwards, because: (a) prior testimony of like kind was admitted without objection; (b) objection when made was too general to be valid; (c) the testimony in question was unnecessary to plaintiff's case and was harmless; (d) the observations made were competent under the facts and circumstances; (e) error, if any, was harmless, as verdict was for right party. Edmondson v. Hotel Co., 267 S.W. 17; Griggs v. Rys. Co., 228 S.W. 511; Holman v. Modern Woodmen, 243 S.W. 252; Gilchrist v. Rys. Co., 254 S.W. 164; Ertel v. Wagner Co., 238 S.W. 578; Thierry v. Thierry, 249 S.W. 952. (3) Plaintiff's Instructions B, E and G were proper, as the law was thereby correctly stated as to defendant Railroad Company's liability and as to the measure of damages. Olsen v. Railway, 152 Mo. 430; Stauffer v. Railroad Co., 243 Mo. 326; Grubb v. Ry. Co., 230 S.W. 679; Moore v. Mo. Pac. Ry. Co., 136 Mo.App. 214; Pope v. Terminal Ry. Co., 254 S.W. 47; Lessenden v. Railroad, 238 Mo. 264; Browning v. Railroad, 124 Mo. 71; Harris v. Railway, 168 Mo.App. 338; Dunham v. Miller, 154 Mo.App. 319. (4) No error was committed against defendant Railroad Company by reason of defendant Brick Company's Instruction 1 being given, because (a) plaintiff only is entitled to complain; (b) defendant Railroad Company suffered no harm, as the Brick Company was adjudged jointly liable. Beal v. Railroad Co., 285 S.W. 487; Leighton v. Davis, 260 S.W. 989. (5) Defendant Railroad Company's Instruction 7 was properly refused, as contrary to the law under the evidence adduced. See cases under Point 1. (6) The defendant Brick Company's negligence was a joint and concurring proximate cause of the collision. Newcomb v. Ry. Co., 169 Mo. 430; Harrison v. Light Co., 195 Mo. 624; Vogelsang v. St. Louis, 139 Mo. 136; Kidd v. Ry. Co., 274 S.W. 1086; Floun v. Birger, 296 S.W. 203; Miller v. United Rys. Co., 155 Mo.App. 528; Cecil v. Wells, 259 S.W. 844; Shafir v. Sieben, 233 S.W. 424; Applegate v. Railroad, 252 Mo. 198. (7) The verdict of the jury was not excessive. Powelson v. Ry. Co., 263 S.W. 150; Hart v. Ry. Co., 264 S.W. 906; Richardson v. Ry. Co., 231 S.W. 942; Hurst v. Ry. Co., 219 S.W. 567; Manley v. Wells, 292 S.W. 69.

Ragland, J. All concur, except Gantt, J., not sitting.

OPINION

RAGLAND

Plaintiff was a passenger on one of the trains of the Chicago & Alton Railroad Company, going from Fulton, Missouri, to Mexico, Missouri. As the train approached Mexico and after it had gotten within the city limits, it ran off the main line of the railroad through an open switch and onto a side track, where it violently collided with cars which were stored there. She seeks in this action to recover for personal injuries sustained as the result of the collision.

The defendant, The Louisiana & Missouri River Railroad Company (hereinafter called the Railroad Company), was the owner and lessor of the railroad over which plaintiff was traveling at the time of her injury; the Chicago & Alton Railroad Company was the lessee; defendants William W. Wheelock and William G. Bierd (hereinafter called the Receivers) were operating the road as receivers of the Chicago & Alton, duly appointed by the District Court of the United States for the Eastern Division of the Northern District of Illinois; and defendant, The A. P. Green Fire Brick Company (hereinafter called the Brick Company), owned an extensive plant for the manufacture of brick lying adjacent to both the railroad and the corporate limits of the city of Mexico.

The facts for the most part are not in dispute. The general direction in which the railroad ran from Fulton to Mexico was north. As it approached Mexico, however, it turned northeasterly on a twenty degree curve. On the north and west side of the curve and immediately adjacent thereto lay the plant of the Brick Company. From the main line of the railroad two spur tracks extended into the...