Joice v. Missouri-Kansas-Texas R. Co.

• Decision Date: 04 September 1945
• Docket Number: 39366
• Parties: Benjamin B. Joice v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 568

354 Mo. 439

Benjamin B. Joice v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 39366

Supreme Court of Missouri

September 4, 1945

[Copyrighted Material Omitted]

Motion for Rehearing or to Transfer to Banc Overruled October 1 1945.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed (subject to remittitur).

Everett Paul Griffin and Carl S. Hoffman for appellant.

(1) It was the duty of respondent to rely on his own watchfulness and protect himself against approaching trains. Chesapeake & Ohio Ry. Co. v. Nixon, 271 U.S. 218; Aerkfetz v. Humphreys, 145 U.S. 418; Boldt v. Pennsylvania R. Co., 245 U.S. 441; Deere v. Southern Pac. Co., 123 F.2d 438. (2) The sole proximate cause of the accident was respondent's violation of the printed rules of appellant which required him to call the dispatcher at every opportunity, to flag curves and cuts, and to keep in the clear of trains. Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139; Great Northern Ry. Co. v. Wiles, 240 U.S. 444; Southern Ry. Co. v. Youngblood, 286 U.S. 313; Southern Ry. Co. v. Dantzler, 286 U.S. 318. (3) If there were any defect in the motorcar such defect was not a proximate cause of the accident. St. Louis-S.F. Ry. Co. v. Conarty, 238 U.S. 243. (4) The court erred in permitting respondent to prove by witness Wilson, who had been injured in the same accident, that appellant had effected a compromise and settlement with him. 31 C.J.S., p. 1056, notes 1 and 2; Pfiffner v. Kroger Grocer & Baking Co., 140 S.W.2d 79; Hawthorne v. Eckerson Co., 77 F.2d 844; Paster v. Pennsylvania R., 43 F.2d 908; Borrson v. M.-K.-T.R. Co., 172 S.W.2d 826. (5) The court erred in refusing to grant appellant a new trial because of prejudicial conduct and argument by respondent's counsel. Stroud v. Doe Run Lead Co., 272 S.W. 1080; Monroe v. Chicago & Alton R. Co., 249 S.W. 644; Harper v. Western Union Tel. Co., 92 Mo.App. 304; Haake v. G.H. Dulle Milling Co., 153 S.W. 74; Jackman v. St. Louis & H. Ry. Co., 206 S.W. 244; Hancock v. Kansas City Term. Ry. Co., 100 S.W.2d 570; Smith v. St. Louis Southwestern Ry. Co., 31 S.W.2d 105. (6) The court erred in giving at respondent's request Instruction 1. St. Louis-S.F. Ry. Co. v. Conarty, 238 U.S. 243; Rothe v. Hull, 180 S.W.2d 7; Authorities under Points (1), (2) and (3). (7) The court erred in refusing Instruction A offered by appellant. This instruction properly declared what would constitute contributory negligence on part of respondent. There was no other instruction given defining contributory negligence. State ex rel. v. McKay, 325 Mo. 1075; Smith v. Chicago, R.I. & P. Ry. Co., 104 S.W.2d 1050; Root v. Quincy, Omaha & K.C.R. Co., 237 Mo. 640, 141 S.W. 610; Francis v. The Kansas City, St. J. & C.B. Ry. Co., 110 Mo. 387, 19 S.W. 935. (8) The court erred in refusing Instruction C offered by appellant. This instruction properly declared the law that if respondent's violation of the printed rules, made for his safety, was the sole cause of the accident then respondent could not recover. Authorities under Points (1), (2) and (3), supra; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254; Yoakum v. Lusk, 223 S.W. 53. (9) The court erred in refusing Instruction E offered by appellant. This instruction properly advised the jury that if he violated appellant's rules in having his car towed, and that directly contributed to cause the accident, then respondent was guilty of contributory negligence. Authorities under Point (7), supra; Francis v. The Kansas City, St. J. & C.B. Ry. Co., 110 Mo. 387, 19 S.W. 935; Schaub v. The Hannibal & St. J. Ry. Co., 106 Mo. 74, 16 S.W. 924; Yoakum v. Lusk, 223 S.W. 53. (10) The verdict is so grossly excessive that it could only have been the result of passion and prejudice. Aly v. Terminal Railroad Assn. of St. Louis, 342 Mo. 116, 119 S.W.2d 363; Kurn v. Manley, 153 P. 623; Mann v. St. Louis-S.F.R. Co., 72 S.W.2d 977; Pulliam v. Wheelock, 319 Mo. 139, 3 S.W.2d 374; Bond v. St. Louis-S.F. Ry. Co., 315 Mo. 987, 288 S.W. 777.

Mark D. Eagleton and Wm. H. Allen for respondent.

(1) The evidence plainly made a submissible case as for negligence on the part of defendant's agents, servants and employees in giving improper, erroneous and misleading information as to the location or whereabouts of the extra train mentioned in the evidence and in failing to give proper and correct information regarding the same, warranting a recovery under the Federal Employers' Liability Act. Title 45, U.S.C.A Sec. 51, Act of April 22, 1908, chap. 149, as amended August 11, 1939, chap. 685; Blair v. Baltimore & Ohio R. Co., 65 S.Ct. 545; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Tiller v. Atlantic Coast Line R. Co., 65 S.Ct. 421; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409; Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44; Brock v. Mobile & Ohio R. Co., 330 Mo. 918, 51 S.W.2d 100. (2) And the undisputed evidence made a submissible case as for negligence on the part of defendant's roadmaster, Horner, warranting a recovery under the Act, in negligently failing to furnish plaintiff a reasonably safe appliance with which to work and a reasonably safe place to work, in that plaintiff was furnished and required to work with a motorcar that was defective and insufficient for the performance of his work and was ordered and required to use said defective and insufficient motorcar by having it fastened behind and towed by another motorcar. Title 45, U.S.C.A., Sec. 51; Blair v. Baltimore & Ohio R. Co., 65 S.Ct. 545; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. (3) What is the proximate cause of an injury is ordinarily a question for the jury, to be determined as a fact in view of the circumstances of fact attending it; and the finding of the jury upon that question must be allowed to stand unless all reasonable men, exercising an unprejudiced judgment, would draw an opposite conclusion. Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409. (4) Furthermore, since the issue of negligence with respect to information as to the whereabouts of the extra train and that of negligence in furnishing the defective instrumentality were submitted in the conjunctive, in ruling the demurrer to the evidence it is not necessary to determine the sufficiency of the evidence to take the latter issue to the jury. Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Scott v. Mo. Pac. R. Co., 333 Mo. 374, 62 S.W.2d 834. (5) The contention that defendant was entitled to a directed verdict on the ground that plaintiff was negligent and that his negligence was the sole proximate cause of his injury, is plainly without merit. There is abundant evidence that plaintiff's injuries proximately resulted from negligence on the part of defendant's agents, servants and employees, and if there may be said to be any evidence of negligence on plaintiff's part this could not bar his right to recover under the Federal Employers' Liability Act which authorizes a recovery for injury or death of an employee resulting "in whole or in part" from the negligence of any of the carrier's officers, agents or employees and expressly provides that in actions under the Act for injuries to or death of an employee "the fact that the employee may have been guilty of contributory negligence shall not bar a recovery." Title 45, U.S.C.A., Sec. 51; Title U.S.C.A., Sec. 53; Rocco v. Lehigh Valley R. Co., 288 U.S. 275; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444; Copeland v. Terminal R. Assn., 182 S.W.2d 600; Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44. (6) The trial court did not err in permitting plaintiff's counsel to elicit from defendant's witness Wilson on cross-examination the fact that defendant had made a settlement of his claim for injuries sustained in the same collision. It was clearly within the realm of legitimate cross-examination to inquire into this matter as being one affecting the credibility of the witness and the weight to be given to his testimony; and plaintiff's counsel made it entirely plain that it was sought to adduce such testimony solely for that purpose. Sommer v. Continental Portland Cement Co., 295 Mo. 519, 246 S.W. 212; Riner v. Riek, 57 S.W.2d 724; Gurley v. St. Louis Transit Co., 259 S.W. 895; Breitschalf v. Wyatt, 167 S.W.2d 931; Golden v. Onerem, 123 S.W.2d 617, 623. (7) Whether remarks of counsel in the argument are prejudicial rests very largely in the discretion of the trial judge who hears the evidence and the arguments and observes all of the incidents of the trial and has the best opportunity to weigh and determine the probable or possible effect of such remarks; and his rulings thereon will not be disturbed on appeal except in case of manifest abuse of such discretion, which plainly does not here appear. Cordray v. City of Brookfield. 88 S.W.2d 161, 165; Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919; Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552; Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Barraclough v. Union Pac. R. Co., 331 Mo. 157, 52 S.W.2d 998; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115; Rouchene v. Gamble Construction Co., 338 Mo. 123, 89 S.W.2d 58. (8) Appellant cannot here complain of argument to which it did not object, or where its objection was waived. Nor can appellant here complain of argument to which its objection was sustained, with no request by it for further action. Copeland v. Terminal Railroad Assn., 182 S.W.2d 601. (9) There was no...