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

• Decision Date: 10 June 1940
• Docket Number: No. 19646.,19646.
• Parties: LINEKER v. MISSOURI-KANSAS-TEXAS R. CO.
• Court: Missouri Court of Appeals

142 S.W.2d 356

LINEKER v. MISSOURI-KANSAS-TEXAS R. CO.

No. 19646.

Kansas City Court of Appeals. Missouri.

June 10, 1940.

Rehearing Denied July 1, 1940.

Appeal from Circuit Court, Jackson County; Paul A. Buzard, Judge.

"Not to be published in State Reports."

Action by Dewey Lineker against the Missouri-Kansas-Texas Railroad Company for personal injuries, wherein a verdict for plaintiff was returned in the amount of $7,500. From a judgment for plaintiff in the amount of $4,000 after a remittitur in the amount of $3,500 was made by plaintiff, defendant appeals.

Affirmed.

Carl S. Hoffman, of St. Louis, and Cooper, Neel & Sutherland, of Kansas City, for appellant.

Mont T. Prewitt and E. E. Thompson, both of Kansas City, for respondent.

SPERRY, Commissioner.

This is a damage suit for personal injuries. Plaintiff, Dewey Lineker, sued defendant, Missouri-Kansas-Texas Railroad Company. The jury returned a verdict for plaintiff in the amount of $7,500, but the trial court ordered a remittitur in the amount of $3,500, under condition that if not made a new trial would be granted. The remittitur was made, and judgment in the amount of $4,000, was entered in favor of plaintiff. Motion for new trial was overruled and defendant appeals.

A carload of watermelons had been shipped into defendant's yards, where the car was left for unloading on defendant's "team track 6"; defendant notified the consignee of the arrival of the car. Consignee employed the Parker Transfer Company to transport the melons from the car and plaintiff, together with others, was engaged in transferring the melons from the freight car to a transfer truck of his employer, Parker Transfer Company, when he was injured.

Charles Tucker, an employee of the consignee of the melons, was in the north end of the car selecting the melons to be loaded. When he selected a melon he tossed it to plaintiff, who stood at a point about half way from the north end of the car to the west door thereof. Plaintiff would catch the melon and would toss it to one Bain, a fellow employee who stood near the west door of the car. Bain would catch the melon, pivot and toss it to Thompson, another employee of the transfer company, who placed it in the truck. The melons weighed from ten to twenty pounds.

The car from which the melons were being unloaded was one of a string of several cars standing on the "team track." The cars may or may not have been connected and the melon car was toward the center of the string. While the unloading was proceeding, as above outlined, defendant's engine struck one of the cars with great force and violence, causing it to strike the next, etc., until the melon car was so struck, knocking it some seven or eight feet to the north and then rebounding back to the south some two or more feet. Plaintiff, at the time the collision occurred, had received a melon and had turned to throw it to Bain. He was thrown violently against the door jamb of the car, and then was thrown to the floor of the car. His back was severely injured and he still suffers therefrom as well as from a kidney condition. No warning, either by word of mouth or by signal, was given to plaintiff prior to the car being struck, although it was proved that there was a rule of defendant that required that persons engaged in loading and unloading cars should be warned by defendant's agents before the car should be moved; and it was also proved that such warnings were habitually given and that plaintiff knew of said rule and custom but had no prior warning of the impending collision above mentioned. The evidence above mentioned regarding the rule as to warning, and that concerning the failure to warn before moving the car, stands undisputed and is virtually admitted by defendant.

We have stated the evidence from the viewpoint most favorable to plaintiff for we must so consider the evidence after verdict in his favor.

Defendant's first contention is that the court erred in giving plaintiff's instruction I. It is a long instruction and we will not set it out in detail here for the reason that we quoted a similar instruction in Bain v. Missouri-Kansas-Texas Railroad Company, hereinafter referred to.

Defendant claims said instruction is erroneous because "of its long, repetitions and inexcusable phraseology." We have previously held, in White v. Hasburgh, 124 S.W.2d 560, loc. cit. 563, that an instruction will not be declared fatally erroneous merely because of its length, nor because of repetition. The instruction here considered is almost identical in language and construction with that considered by this court in a companion case (where witness Bain in this case was plaintiff against this same defendant in an action for damages received by him in the same incident here litgated), and we held the instruction good as against the same defect here urged. Bain v. Missouri-Kansas-Texas Railroad Company, Mo.App., 141 S.W.2d 577, opinion filed April 29, 1940 [not yet reported in State Reports].

Complaint is made that the instruction places "undue and unwarranted emphasis upon merely incidental features of the case." We held in the Bain case that there was no undue repetition of certain terms which are said to lay unwarranted emphasis on the suddenness and force of the collision caused by the connection made between the engine and the string of cars of which the melon car was one. The evidence on behalf of plaintiff was to the effect that there was a sudden collision, without warning to him, and which collision knocked the car some seven feet and caused it to rebound about two feet. The instruction, in this respect, merely submitted the case from plaintiff's viewpoint, and is supported by his evidence.

It is urged that the instruction tends to center the minds of the jury on defendant's failure "to warn plaintiff that the engine would be suddenly propelled against said * * * propelled against said cars." The evidence was undisputed, in fact, it stood admitted, that there was a rule of defendant that required that a warning be given to those working in cars before some were moved, and that no warning by word of mouth was given, although it was the custom of defendant so to do. Plaintiff knew of said rule and custom and testified that he received no warning either by word of mouth or otherwise. Under such circumstances defendant could not have been injured by the instruction in that regard; and it was supported by the evidence of plaintiff. We overruled this contention in the Bain case and find no reason for changing our opinion on this case.

It is urged here, as in the Bain case, that two conflicting theories of recovery were joined in this instruction, to-wit: 1. Negligent collision and negligent failure to warn of an intentional movement of the car. We specifically ruled this point against defendant in the Bain case, supra, and so rule it here. See Westenhaver v. St. Louis-San Francisco Railroad Company, 340 Mo. 511, 102 S.W.2d 661, loc. cit. 664.

It is claimed that the court erred in overruling defendant's motion for a new trial when it was called to the court's attention in the motion therefor that one of the jurors had concealed the fact, on the voir dire examination, that he had collected a claim for personal injuries against the Fred Harvey corporation. The following questions were asked the panel: Whether or not any of the panel had ever been a "plaintiff in a law suit against either a railroad company or anybody else;" whether or not any of the members or their families "had ever had such a suit;" and "Have any of you ever filed claims or had a claim on account of damages against somebody else?" None of the panel responded to the questions.

It developed that one juror who sat on the case and who joined in signing the tenman verdict, had been paid some $600, in 1933, by the Fred Harvey Company, on account of injuries received by him. However, he filed no suit and the settlement was an amicable one out of court. The record does not disclose that the juror wilfully concealed this information, or that he had any motive for so doing; nor does it disclose that defendant was injured by reason of the failure of the juror to disclose the information. However, defendant had a right to know the fact inquired about, so that it could intelligently make its strike off of jurors. The question before us is whether or not we should reverse the trial court, on the record before us, not what we should do if the record were of a different character.

After the trial this matter was called to the attention of the trial court by defendant in its motion for new trial and plaintiff placed the juror on the witness stand and offered his testimony in opposition to the motion. He testified that he did not understand that any question on the voir dire examination required him to disclose the above information. It is possible that he did not understand that the above questions related to the amicable settlement of his claim, which claim was never formally filed and in which matter he had no attorney.

The verdict was agreed on by ten members of the jury. The facts here presented are entirely different from those presented in Gibney v. Transit Company, 204 Mo. 704, 103 S.W. 43, strongly relied on by defendant. The case of Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800, also cited by defendant, we do not believe requires a reversal. There it was held that the failure of a juror to disclose that he was acquainted with counsel for plaintiff did not disqualify him and that the trial court was fully qualified to determine as to whether or not failure to disclose such information was prejudicial to defendant. The Supreme Court in that case deferred to the judgment of the trial court regarding the matter. In the same case, another juror, Hogan, was not shown to have had knowledge of the fact alleged to have been concealed.

In Bass v. Durand and R. Bryson Jones, 136 S.W.2d 988 [not yet...