Jones v. St. Louis-San Francisco Ry. Co.

• Decision Date: 24 August 1933
• Docket Number: 30869
• Citation: 63 S.W.2d 94,333 Mo. 802
• Parties: J. Mit Jones v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

63 S.W.2d 94

333 Mo. 802

J. Mit Jones v. St. Louis-San Francisco Railway Company, Appellant

No. 30869

Supreme Court of Missouri

August 24, 1933

Appeal from Lawrence Circuit Court; Hon. Emery E. Smith Judge.

Affirmed.

E. T Miller and Mann, Mann & Miller for appellant.

(1) No case was made for the jury and defendant's instruction in the nature of a demurrer to the evidence should have been sustained. (a) Negligence consists of the failure to exercise due care and due care in a case depends upon and adjusts itself to the circumstances of the case. Dean v. Railroad Co., 199 Mo. 408; Parks v. Central C. & C. Co., 183 S.W. 561; Kelly v. Benas, 217 Mo. 9; Zitzman v. Glueck B. Co., 276 S.W. 25; Davidson v. Railroad Co., 229 S.W. 788. (b) Due care does not require one to anticipate, search for or guard against an occurrence which an ordinarily prudent person would not have reasonably anticipated. Wecker v. Ice Cream Co., 31 S.W.2d 977; Nelson v. C. Heinz S. Co., 8 S.W.2d 921; Schindler v. Standard Oil Co., 207 Mo.App. 190, 232 S.W. 736; McCord Railroad Co. v. St. Joseph Water Co., 181 Mo. 678. See also cases cited under 1 (a). (c) The undisputed evidence shows that when the car was moved plaintiff and the other three men were each in their respective places, bending over with their hands hold of the car; the two on the front end of the car in position to pull and the two on the opposite end in position to push. No signal to begin had been customarily given, or was expected, but each was to push or shove when all were in position. The jury was not warranted in finding that the car was negligently moved forward "without any notice or warning to plaintiff" and in a manner and at a time when plaintiff had no cause to expect or anticipate such a movement of said car. Ingram v. Railroad Co., 30 S.W.2d 994; Norwood v. Railroad Co., 296 S.W. 224; Lynch v. Laclede G. Co., 223 S.W. 114. (d) Failure to warn is not negligence where the danger is known or obvious. Ring v. Railroad Co., 112 Mo. 220; Nugent v. Kauffman M. Co., 131 Mo. 255; Herbert v. Mound City B. & S. Co., 90 Mo.App. 305; Bennett v. Harry Benjamin E. Co., 214 S.W. 244; Knoles v. S.W. B. T. Co., 218 Mo.App. 235, 265 S.W. 1010; Bradley v. Forbes, T. & C. Co., 214 Mo. 332; Henson v. Armour P. Co., 113 Mo.App. 621. (e) A prudent man measures his precaution by that which appears likely to occur in the known course of things, and is not negligent in so doing. State ex rel. Lusk v. Ellison, 271 Mo. 473; Fuchs v. St. Louis, 167 Mo. 645; American B. Assn. v. Talbot, 141 Mo. 684; Anderson v. Forrester N. B. Co., 103 Mo.App. 386; Zasemowich v. Am. Mfg. Co., 213 S.W. 803; Wecker v. Ice Cream Co., 31 S.W.2d 977. (f) The motor car weighed upward of 900 pounds. The undisputed evidence is that it required the combined strength of the men to move it. The jury was not warranted in finding that the motor car was moved "with unnecessary force, speed and violence." The failure of fellow employees to pull and push with the same force at all times and to accurately judge and anticipate the effect of their effort is not negligent. Kempe v. Hall C. R. Co., 232 N.W. 657. (g) Plaintiff was in charge of and directing the work. He chose the position in which he was when injured. He knew all that was to be known about the risks and dangers incident to the movement of the car under the customary plan adopted. He assumed the risk. Jones v. Railroad Co., 325 Mo. 1153, 30 S.W.2d 483; Frederick v. Railroad Co., 36 F.2d 718; Railroad Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 157; Railroad Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; Railroad Co. v. Berkshire, 254 U.S. 415, 65 L.Ed. 335; McAdoo v. Auzellott, 271 F. 268; O'Dell v. Railroad Co., 281 S.W. 456. (2) The evidence did not warrant the jury in finding defendant's employees guilty of negligence in moving the car "with unnecessary force, speed and violence," or "without any notice or warning to plaintiff," or in a manner and at a time when plaintiff had no cause to expect or anticipate such a movement of said car. (a) This instruction, therefore, assumes and fails to require the jury to find a necessary fact in determining the negligence of these men. Connell v. Haas & S. F. Co., 302 Mo. 48, 257 S.W. 772; State ex rel. Hartford F. I. Co. v. Trimble, 250 S.W. 396; Reel v. Consolidated I. Co., 236 S.W. 47; Roland v. Railroad Co., 284 S.W. 144; Zini v. Term. Railroad Co., 235 S.W. 86. (b) By the language "and if you further find that such movement of said car, if any, was under all of the circumstances a failure to exercise ordinary care on the part of such other employees of the defendant," this instruction gave to the jury a roving commission to go outside of either or both the pleadings and the evidence to determine the question of negligence. Gandy v. Railroad Co., 41 S.W.2d 637; Wojtylak v. Coal Co., 188 Mo. 283; Hall v. Coal Co., 260 Mo. 367; State v. Swarens, 294 Mo. 145; Dameron v. Hamilton, 264 Mo. 116; Rouden v. Heisler's Estate, 219 S.W. 692. (3) The court erred in refusing to reprimand counsel for plaintiff and in failing to discharge the jury upon request of defendant and because of the improper argument of counsel for plaintiff, in which he said "talk about free treatment -- twenty-seven or thirty-seven years' service at one dollar a month would pay that hospital thousands and thousands of dollars, and it not only goes to the hospital, but it goes to every one of the doctors." Statements made in argument to the jury of an alleged fact of which there is no evidence is reversible error. Henry v. Railroad, 282 S.W. 425; McGowan v. Wells, 24 S.W.2d 639; Monroe v. Railroad, 297 Mo. 644, 249 S.W. 646; Chawkley v. Railroad, 317 Mo. 782, 297 S.W. 30; Nelson v. Boiler Co., 20 S.W.2d 911; Atkinson v. Railroad, 286 Mo. 634, 228 S.W. 485; O'Harra v. Construction Co., 197 S.W. 165; Stroud v. Doe Run Lead Co., 272 S.W. 1083; Jackman v. Railroad, 206 S.W. 246; Courter v. Mercantile Co., 299 S.W. 626; Franklin v. Kansas City, 248 S.W. 617; Williams v. Taxi Cab Co., 241 S.W. 973; Phillips v. Shoe Co., 178 Mo.App. 215; Bowles v. Railroad, 271 S.W. 853; Barr v. Railroad, 138 Mo.App. 478; Barnes v. St. Joseph, 139 Mo.App. 550; N. Y. Cent. Railroad v. Johnson, 279 U.S. 310. Such error is presumed to be prejudicial and the judgment must be reversed because thereof, unless it is affirmatively shown to have been harmless. Aronovitz v. Arky, 219 S.W. 620; Haynes v. Trenton, 123 Mo. 335; Cottrill v. Krum, 100 Mo. 406; Langston v. Railroad, 147 Mo. 467; Atkinson v. Railroad, 286 Mo. 640; Chawkley v. Railroad, 317 Mo. 782, 297 S.W. 30; Monroe v. Railroad, 297 Mo. 633, 249 S.W. 646; Henry v. Railroad, 282 S.W. 425.

Sizer & Gardner for respondent.

(1) Where testimony is competent for impeachment purposes it may be considered for all purposes unless the court, at the request of the opposing party, limits its consideration and unless such request is made, the point is waived on appeal. Esty v. Walker, 30 S.W.2d 749; Courter v Mercantile Co., 199 S.W. 625. (2) The testimony most favorable to plaintiff must be accepted as true and viewed in the light most favorable to plaintiff and every inference which a fair-minded jury might legitimately draw therefrom. Burtch v. Wabash, 236 S.W. 388; Burton v. Holman, 288 Mo. 70, 231 S.W. 630; Keppler v. Wells, 238 S.W. 425; Karagas v. Union Pacific, 232 S.W. 1100; Shephard v. Century Electric Co., 299 S.W. 92. (3) The act of Thorp, Lollar and Sparks in shoving the car violently forward onto plaintiff while plaintiff was in a position where he was liable to be struck thereby, and at a time when he was not expecting it, was a negligent act regardless of whether they knew of his position or not. They were within four or five feet of him, in plain view, and are charged with all the exercise of ordinary care would have disclosed to them. Ordinary care required that they use some effort to ascertain plaintiff's position before moving the car forward onto him particularly where it appears that they knew when the car was stopped he was between the same and the rail. Hogue v. Railway Co., 20 S.W.2d 304; Koukouris v. Union Pacific, 193 Mo.App. 495; Martin v. Union Pacific, 253 S.W. 513; Karagas v. Union Pacific, 232 S.W. 1100; Wheeler v. Missouri Pacific, 18 S.W.2d 494; Vannest v. Railroad, 181 Mo.App. 371; Miller v. Railroad, 188 Mo.App. 402; Thomas v. Am. Sash & Door Co., 14 S.W.2d 1. (4) Plaintiff did not assume the risk. The risk having arisen out of negligence, was an extraordinary risk. It arose out of a sudden emergency through the negligent act of a co-employee and such a risk is never assumed. Koukouris v. Union Pacific, 193 Mo.App. 497; Martin v. Union Pacific, 253 S.W. 516; Reed v. Dir. Gen., 66 L.Ed. 482; C. R. I. & P. Ry. v. Ward, 253 U.S. 18, 64 L.Ed. 430. (5) The burden is upon defendant to establish the assumption of an extraordinary risk and defendant did not sustain the burden in this case. Oglesby v. Railroad, 1 S.W.2d 178. (6) No error was committed in Mr. Sizer's argument. If any error was committed the burden is upon defendant to establish that such error constituted actual prejudice, and unless defendant has sustained this burden, the error will be treated as harmless. (7) The rule that error is presumptively prejudicial and that error and prejudice go hand in hand applies only to error in instruction and matters in which the trial court has no discretion. In the matter of argument, however, a large discretion rests with the trial court. Mann v. Doerr, 122 Mo. 15; Sullivan v. Railroad, 12 S.W.2d 741; Dittmeir Real Estate Co. v. So. Surety Co., 289 S.W. 890; Planatt v. McFall, 284 S.W. 854; Stroud v. Lead Co., 272 S.W. 1083; Asborian v. Sayman, 282 S.W. 511. (8) Whether the verdict is or is not excessive is the guiding star in determining whether or not...