Landers v. Quincy, O. & K. C. R. Co.

• Decision Date: 07 December 1908
• Court: Missouri Court of Appeals
• Parties: LANDERS v. QUINCY, O. & K. C. R. CO.

114 S.W. 543

134 Mo. App. 80

LANDERS v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

1. PLEADING (§ 369) — ELECTION BETWEEN COUNTS—NECESSITY.

A plaintiff may state his cause of action in several consistent counts, and he will not be required to elect on which he will proceed to trial.

2. EVIDENCE (§ 472) — OPINION EVIDENCE — ADMISSIBILITY.

Where, in an action by a servant for injuries caused by the derailment of a hand car on which he was riding, it was alleged that the derailment was caused by an iron bar being negligently kicked off the car onto the tracks, permitting a witness to state in his opinion, as a fact, that the bar had been kicked off, was error, as allowing the witness to usurp the province of the jury.

3. MASTER AND SERVANT (§ 259) — INJURIES TO SERVANT—ACTION—PLEADING.

An allegation in the petition in an action by a servant for injuries caused by the derailment of a hand car on which he was riding that one or more of defendant's employés while engaged in operating defendant's railroad in propelling the hand car negligently struck, kicked, or pushed an iron bar off of and in front of the car, derailing it, does not charge that the bar was kicked or shoved off intentionally, but that it was the result of carelessness on the part of the workmen.

4. MASTER AND SERVANT (§ 202) — INJURIES TO SERVANT—TORTIOUS ACTIONS OF FELLOW SERVANT—LIABILITY OF MASTER.

A master is liable for the tortious acts of a servant committed in the course of the employment.

5. MASTER AND SERVANT (§ 259) — INJURIES TO SERVANT—ACTION—PLEADING.

An allegation in the petition in an action by a servant for injuries caused by the derailment of a hand car on which he was riding that one or more of defendant's employés while engaged in operating defendant's railroad in propelling the hand car negligently struck, kicked, or pushed an iron bar off of and in front of the car, derailing it, sufficiently states that the act was done while the servant was in the performance of his duty.

6. TRIAL (§ 29)—REMARKS OF COURT.

Where objection was made to the testimony of a physician as being a privileged communication within Rev. St. 1899, § 4659 (Ann. St. 1906, p. 2539), the action of the court on sustaining the objection, in announcing that counsel could examine the physician as to matters disconnected with the relation of physician and patient, was not error.

7. MASTER AND SERVANT (§ 270) — INJURIES TO SERVANT—ACTION—EVIDENCE.

In an action by a servant for injuries caused by the derailment of a hand car on which he was riding alleged to have been due to the fact that it was dilapidated and out of repair, evidence of the condition of such car and of repairs made on it before and after the accident is inadmissible.

8. EVIDENCE (§ 317)—ADMISSIBILITY—HEARSAY.

Evidence as to what another told witness of a conversation he had with the roadmaster of defendant in reference to the hand car's condition was inadmissible as hearsay.

9. MASTER AND SERVANT (§ 270) — INJURIES TO SERVANT—NOTICE OF DEFECTS—EVIDENCE.

Testimony of a witness as to a conversation he heard between a foreman and the roadmaster as to the hand car's condition was admissible as showing notice to defendant of the defects prior to the injury.

10. WITNESSES (§ 361) — CREDIBILITY — EVIDENCE TO SUSTAIN.

Counsel for plaintiff interrupted the answer of a witness to a question on cross-examination with another question, whereupon defendant's counsel objected and asked that witness be allowed to answer in full, at which time the court said: "The witness has shown that he needs a careful cross-examination." On exception being taken, the court replied: "You can except all you want to. I am not caring for your appeals." Held that, as the court's remarks tended to discredit the witness, it was error to exclude evidence as to his reputation for truth and veracity.

11. TRIAL (§ 29) — CONDUCT — REMARKS OF JUDGE.

The language of the court was calculated to influence the jury, and was ground for reversal.

12. APPEAL AND ERROR (§ 1001) — REVIEW — VERDICT—QUESTION OF FACT.

Where there is evidence to support the verdict, it will not be disturbed on appeal.

Appeal from Grundy Circuit Court; Geo. W. Wanamaker, Judge.

Action by Bert Landers against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. G. Trimble and Hall & Hall, for appellant. A. G. Knight, E. M. Harber, and E. R. Sheetz, for respondent.

BROADDUS, P. J.

This is a suit for damages for an injury to plaintiff alleged to have been the result of defendant's negligence. While plaintiff and other employés of defendant engaged in repairing its tracks were riding on one of the tracks in a hand car near Coffeysburg, in Davies county, at the rate of speed of from five to eight miles an hour, the hand car became derailed, and plaintiff received severe injuries. This case was once before this court, and reversed for the reason that the court submitted to the jury an issue raised on a count in his petition which the plaintiff had dismissed. The case is reported in 114 Mo. App. 655, 90 S. W. 117. The plaintiff before the second trial amended his petition by stating his cause of action in three different counts. The defendant moved to require him to elect on which he would proceed to trial, which motion the court overruled. There was no error in this action of the court, as a party has the right to state his cause of action in different consistent counts. Rinard v. Railroad, 164 Mo. 270, 64 S. W. 124; Shuler v. Railroad, 87 Mo. App. 618. The amended petition contained three counts substantially as follows: First. That plaintiff was furnished an old dilapidated hand car which was out of repair and unsafe, and that on account of its condition it became derailed, whereby plaintiff was injured. Second. That a certain iron bar carried upon the car was so negligently placed thereon and unsecured, and that by reason of the way it was loaded and carried, and by reason of the failure of the foreman to perform his duties to plaintiff to prevent the escape of said bar from...