Mattice v. Terminal R. R. Ass'n

• Decision Date: 16 March 1925
• Docket Number: No. 24635.,24635.
• Citation: 270 S.W. 306
• Parties: MATTICE v. TERMINAL R. R. ASS'N OF ST. LOUIS.
• Court: Missouri Supreme Court

270 S.W. 306

MATTICE v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 24635.

Supreme Court of Missouri, Division No. 1.

March 16, 1925.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

Action by Carey Mattice against the Terminal Railroad Association of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

J. L. Howell and R. C. Beckett, both of St. Louis, for appellant.

Sidney Thorne Able and Charles P. Noell, both of St. Louis, for respondent.

LINDSAY, C.

This is a suit for personal injuries in which the plaintiff had a verdict. He was acting as foreman of a switching crew at the time of his injury, and was making a coupling between two of a line of freight cars which were on a switch, to be coupled together, preparatory to movement from that switch. The crew consisted of the engineer and fireman of the engine in use, and two switchmen in addition to plaintiff. The cars were on track 26, extending north and south, in defendant's yards, on the east side of the Mississippi river. The engine came in onto that track from the north. There were about 25 cars on that track, and five or six couplings to be made, preparatory to their movement out. The engine was headed south, so that the engineer was on the west side, and the switchmen worked on the west side of the cars. The plaintiff, as foreman, had stationed Collins, one of the crew, at the south end of track 26, which entered the same lead track as did track 25. This was done so that Collins could signal and prevent interference at that point between the line of cars to be coupled and a train of cars pulling out of the lead track onto track 26.

The plaintiff stationed McDaniel, the other member of the crew, between himself and the engine, to repeat his signals to the engineer The plaintiff himself undertook to look after the immediate act of coupling. In doing this he was thus between McDaniel and Collins. The time was at a little after 10 o'clock at night, and signals were given with lanterns. Plaintiff's method was to pass down the line of the cars and, when he came to where a coupling was necessary, to ascertain first that the knuckle of one of the couplers was open, so that impact of the cars would make the coupling automatically, and, if so, to give the signal for the engineer to move ahead. The signal to move or to stop, given by plaintiff, was conveyed to the engineer by McDaniel, stationed between them for that purpose. The engineer was to look for and respond only to signals given by McDaniel.

When plaintiff had reached a point at about 18 cars from the engine, he found a coupling was to be made between two cars which stood with their drawheads about 1½ feet apart. He found that the knuckles were closed in both. He undertook to open the knuckle of the coupler on the last car of those already joined by jerking up the lever or pin lifter on the outside of the car. The plaintiff testified that the pin would apparently come up, but the knuckle would not come open, and after two or three efforts in that way, without result, he undertook to open the knuckles with his right hand. While so engaged a forward movement was made by the engine. Plaintiff's right wrist and hand were crushed between the drawheads of the two cars. The plaintiff testified that he gave no signal for this movement to be made, and the question of the identity of the person who gave such signal was a prominent feature of the case. The plaintiff himself gave with his left hand the signal, which caused the engineer to stop the movement, and release the plaintiff's hand.

The engineer, fireman, and the two switchmen were called by defendant. The fireman testified, but being on the east or left of the engine he saw no signal. The engineer testified that he took signals only from McDaniel, and got a signal from him each time he moved the engine. Collins testified that he gave no signals in regard to the coupling; that his only duty was to protect the train in case it shoved out on the lead track; that he had his lantern on his arm a part of the time, and a part of the time hanging down at his side; that he did not know of any motion he may have made with his lantern which might have had the appearance of a signal. McDaniel testified on his direct examination that he got the signal "from the nearer of two lights." "I couldn't see the man giving the signal well enough to recognize him; all I could see was two lights, one farther away and one near to me, and I took the signal from the light closest to me. Then I gave the engineer the come-ahead sign."

Collins and McDaniels were cross-examined concerning written statements made by them to plaintiff's attorneys, and those statements, as contradictory of their testimony given at the trial, were offered by the plaintiff, and were admitted in evidence. Error is assigned thereon. It was conceded that the train operation in question was one in interstate commerce. The case is one falling within the federal Employer's Liability Act (U. S. Comp. St. §§ 8657-8665) and within the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.) and the grounds of recovery are the alleged failure to furnish an appliance to work properly, and the negligence of defendant in moving the train while plaintiff was endeavoring to adjust the coupler with his hand. There is testimony in the record concerning the proper working condition of the coupler before and after the injury to plaintiff, and other testimony as to the circumstances under which the injury was sustained.

Defendant has assigned as error the refusal of the court below to give an instruction in the nature of a demurrer to the evidence, but beyond that formal assignment makes no effort whatever to show from the record that the evidence for plaintiff failed, to make a case to go to the jury, and the evidence made a case for the jury. On that account, and because of the evidence we find in the record, the further references to the facts will be to such as bear upon the points which are urged here as grounds for reversal. Three grounds are urged: (1) Admission of the testimony of Dr. Briggs, an X-ray expert, and refusal to strike it out on defendant's motion; (2) admission in evidence of written statements made by defendant's witnesses, McDaniel and Collins, admitted in connection with their cross-examination, and as in contradiction of their testimony upon the trial; (3) that the verdict is so grossly excessive as to indicate passion and prejudice on the part of the jury.

I. Taking these contentions in order, it is necessary to consider first the testimony of Dr. Briggs concerning the X-ray pictures. On direct examination he testified:

"I am X-ray specialist. On November 14, 1922, I examined X-rayically the right arm of the plaintiff in this case. That was just a week ago. I have the X-rays that I made at that time."

Counsel for plaintiff then asked that the pictures, one of the right hand and the other of the forearm and part of the hand, be marked respectively as Exhibits A and B, but did not at that time offer the pictures in evidence. The witness was then examined at length concerning what was shown by these pictures as to fractures of the bones, and the apposition or want of proper apposition of the broken parts. To that evidence at that time, defendant made no objection. Later in connection with the testimony of Dr. Henry, plaintiff offered the pictures in evidence.' Objection being made that they had not been sufficiently identified, plaintiff did not press his offer, but later, recalled Dr. Briggs. He then testified, on direct examination:

"This Exhibit B is a Roentgenogram of the plaintiff's right forearm. It bears the title `Mr. Mattice, File 17927, Nov. 1922.' That is the date the picture was made. I didn't examine the hand myself, any more than just the X-ray; no physical examination at all."

He testified on cross-examination:

"I took these pictures myself, but I did not do the development of them myself. I know that the same plate that came out of the Roentgenogram was the same plate that I took of his arm. You get them out of the dark room, and you send them back, and watch them after they are developed and check these things all during the process. Although 1 wasn't in the dark room, I know this is the same plate that I took of plaintiff's arm because you go in there as soon as they are in the hypo; you see these things before the process of silver elimination is complete. There is one way you can check, and a very accurate way. I am positive that this is the plate that I took, although it passed out of my hands and stayed a while in the dark room."

And on redirect examination:

"These pictures were developed immediately after the exposures were made, before the man leaves the office. They are checked up before he gets out. We do not have more than one patient's plates in there at a time; that is, being developed at the same time. We take one patient and finish him up, especially on work of this sort. The developing takes about 5 minutes and 30 seconds. We can tell if there is any movement in the part that has been X-rayed. If it is clear, the patient can be dismissed at that time. I could not tell by pressure and feeling of the bones whether or not this is an X-ray...