Landers v. Quincy, Omaha & Kansas City R. Co.
| Decision Date | 15 May 1911 |
| Citation | 137 S.W. 605,156 Mo.App. 580 |
| Parties | BERT LANDERS, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Sullivan Circuit Court.--Hon. John P. Butler, Judge.
Judgment affirmed.
J. G Trimble and Hall & Hall for appellant.
(1) Errors in admission of evidence which caused a reversal on the last appeal, were again committed by the admission of the same evidence. The court erred in admitting evidence as to the condition of the hand car long before and long after the accident and as to repairs made upon it before and after the accident. This evidence did not prove the condition of the car at the time of the accident and was clearly erroneous and prejudicial. The court held that the admission of the same identical evidence of the former trial was error and this was one of the reasons for the reversal on the last appeal. Plaintiff persisted over defendant's objections, in introducing this evidence and has no right to complain if the judgment is reversed again. Landers v. Railroad, 134 Mo.App. 80; Hipsley v. Railroad, 88 Mo. 348; Mahaney v. Railroad, 108 Mo. 191; Ely v Railroad, 77 Mo. 34; Alcorn v. Railroad, 108 Mo. 90; Brennan v. St. Louis, 92 Mo. 482; Stalzer v. Packing Co., 84 Mo.App. 574; Colyer v. Railroad, 93 Mo.App. 147; Smart v. Kansas City, 91 Mo.App. 586. (2) Opinions and conclusions of witnesses on non-expert questions were improperly admitted. The conclusion of a witness that some one was at fault was admitted as evidence and the province of the jury thereby usurped. Landers v. Railroad, 134 Mo.App. 80. (3) Plaintiff's counsel again as on the former trial disclosed that plaintiff has a wife and children thereby prejudicing the jury. The action of plaintiff's counsel in asking him upon his redirect examination if his wife and children went with him to gather gooseberries was the grossest character of prejudicial error and was plainly intended and surely calculated to arouse sympathy for the plaintiff and although defendant objected to the question the court refused or failed to rule upon it, but the defendant saved its exceptions at the time. Benning v. Medart, 56 Mo.App. 443, 449; Stephens v. Railroad, 96 Mo 207; Dayharsh v. Railroad, 103 Mo. 570; Mahoney v. Railroad, 108 Mo. 191. Such error as this is presumed to be prejudicial and if plaintiff's counsel deliberately persist in committing such errors the responsibility is upon them if the judgment is reversed. The verdict on this trial was greatly increased and it devolves upon plaintiff to prove that the error was not prejudicial. Dayharsh v. Railroad, 103 Mo. 570; Walter v. Hoeffner, 51 Mo.App. 46; Morton v. Heidorn, 135 Mo. 608. (4) Opinion of non-expert witnesses as to plaintiff's physical condition were admitted as evidence. Plaintiff is not entitled to recover and defendant's instructions in the nature of demurrers should have been given. Creason v. Railroad, 133 S.W. 57; Holloran v. Pullman Co., 148 Mo.App. 243. The verdict is based upon conjecture presumption and uncertainty and therefore ought not to stand. Smart v. Kansas City, 91 Mo.App. 586; Demaet v. Storage Co., 121 Mo.App. 92; Hamilton v. Railroad, 123 Mo.App. 619, and cases cited; Byerly v. Light, Power & Ice Co., 130 Mo.App. 593; Fowler v. Elevator Co., 143 Mo.App. 422; Railroad v. Fulghan, 181 Fed. (C. C. A.) 91.
E. M. Harber and A. G. Knight for respondent.
This case is here for the third time. There have been three verdicts and one mistrial.
The allegation of the second amended petition on which the cause was tried alleges among other matters that on the 23d day of April, 1904, and for a short time prior thereto, plaintiff with others was in the employ of defendant as a section hand, engaged in the operation of its railroad; the duties of the plaintiff and others employed with him being to assist in the building and repairing of the track and roadbed along its said line of railroad; that in the discharge of their said duties plaintiff, and those engaged with him, was required to propel and ride from place to place on the track of defendant. That plaintiff in his said employment, as well as said other employees, was under the control and direction of defendant's section foreman or boss, it being the duty of said foreman or boss, among others, to direct plaintiff and said other laborers so employed about their said work and in the management of said hand car, and the loaning and carrying of tools thereon, and look after and give attention to said tools and other things when loaded upon said car, and prevent same from escaping therefrom or otherwise injuring plaintiff and those employed with him. Which said tools were required to be carried from place to place over said track upon said hand car, and which said tools were to be and were used by plaintiff and other employees in the discharge of their duties and labors aforesaid. That it was the duty of the co-employees of the plaintiff and each of them to discharge their said duties in a reasonably careful and prudent manner, and in such way and manner as not to unnecessarily or negligently cause injury to themselves or to plaintiff; that it was the duty of defendant to furnish plaintiff and the others, a reasonably safe hand car, tools, track and appliances with which to discharge and perform their said duties.
And plaintiff says that the duties so owing to him and his co-employees by said railroad company and its said foreman and boss, as well as the duties of plaintiff's co-employees towards plaintiff aforesaid, were wholly and knowingly disregarded in such careless, reckless and negligent manner, that plaintiff while so in the discharge of his duties aforesaid was injured.
The issue was tried upon the following charges of negligence, viz.: 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 the 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 the plaintiff to prevent the escape of said bar from the hand car, it jostled and fell from the car, one end of which caught a tie or rail and the other striking the car, thus derailing it, and injuring the plaintiff.
The plaintiff introduced evidence tending to sustain the said issues and defendant introduced evidence tending to disprove the same. With his other evidence plaintiff introduced witnesses who had been employed on the defendant's railroad and on other roads as section hands, and proved by them that in their opinion it was not reasonably safe to carry lining bars like the one in question loose on the platform of the car, as the bars were being carried at the time of plaintiff's injury. Their testimony was objected to because they were not shown to be experts. Plaintiff also introduced a witness over the objections of defendant who had not used the car, and stated that in his opinion the condition of the car would cause the bars to be shaken backward and forward. The witness stated that a reasonably safe way to carry such bars was to secure them to their places, behind and before the wheels of the car; that he did not consider it safe to carry them on the platform because the jolt of the car shook them and caused them to slide from it. The witness had about one year's experience in the business. He was asked:
On cross-examination plaintiff stated that he was able a short time after the accident to go out and gather wild gooseberries. He was asked by his counsel: "Did your wife and children go with you?" Defendant's counsel objected to the question. There was no ruling by the court. Then he was asked: "Who went with you?" Defendant objected to the question which the court sustained.
Plaintiff was permitted over defendant's objections to show by different witnesses the condition of the car for a time before and after the accident. One witness who was familiar with the condition of the car in the month of...
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