Mauck v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 25 September 1941 |
| Docket Number | 37376 |
| Citation | 154 S.W.2d 73 |
| Parties | MAUCK v. ATCHISON, T. & S. F. RY. CO |
| Court | Missouri Supreme Court |
Cyrus Crane, George J. Mersereau, John N. Monteith, Dean Wood James F. Walsh, and Horace F. Blackwell, Jr., all of Kansas City, and Rick F. Bennett, of Plattsburg, for appellant.
Oscar S. Hill and Henry A. Riederer, both of Kansas City, and Pross T. Cross and Gerald T. Cross, both of Lathrop, for respondent.
BOHLING, Commissioner.
Charging violations of that part of the Federal Safety Appliance act known as the Boiler Inspection act, 45 U.S.C.A. § 23, Henry J. Mauck recovered a judgment against the Atchison, Topeka and Santa Fe Railway Company, a corporation, for $ 42,500 for personal injuries. Defendant appealed, and contends (1) that error was committed in the trial court's failure to restrain counsel for plaintiff and discharge the jury on account of misconduct allegedly arousing the passions and prejudices of the jury against defendant, and (2) that the judgment is excessive for the injuries sustained; and states a judgment in excess of $ 15,000 should not be permitted to stand, intimating, as we read defendant's brief, the direction of a remittitur, if the judgment be considered excessive, may serve the ends of justice. Defendant asserts it had the preponderance of the evidence but that the jury chose to believe plaintiff's evidence.
Plaintiff was injured near Rutledge, Missouri, on July 26, 1938, while in the discharge of his duties as fireman on a run from Fort Madison, Iowa, to Kansas City over defendant's railway, by being thrown violently first against the engineer and then back across the engine cab in such manner as to result in a metal casting on the fireman's seat striking him in the small of the back, where the hips and the back come together and over the right kidney, and being thrown to the floor of the cab. The engine was known as a 'rough rider', swayed laterally and rode rough on the rails. Plaintiff submitted his case, in separate instructions, on the theory that the 'trailer centering device' was loose and defective and a piece of sheet iron, placed over and covering about two-thirds of the wood floor of the engine cab, was slick, unsafe and defective. The trailer centering device is located between the floating wheels underneath the engine cab and the cab and, according to plaintiff's testimony, is designed to reduce the jarring and lateral swaying of a moving engine. Plaintiff testified that in firing he stood with one foot on the 'apron,' a piece of sheet iron bridging the space between the engine and the tender, and the other on the sheet iron flooring, which was smooth and slick. As the engine came off a curve near Rutledge, the swaying of the engine threw plaintiff off balance and the slick of the sheet iron flooring prevented him from regaining his footing.
Contending that our Rule 15 has been violated by defendant's presentation of the alleged misconduct of plaintiff's counsel in that defendant has failed to assert the specific errors and point to the place in the record wherein the same appear, plaintiff says the issue is not for review. Plaintiff's vigorous answer to the merits of defendant's contention and his counterattack on the conduct of defendant's counsel manifests that defendant's presentation has not misled plaintiff. Defendant's assignment of the error, reiterated, with citation of authority, in its 'Points and Authorities,' to the effect that the conduct of plaintiff's counsel throughout the trial was such as to arouse the passions and prejudices of the jury and the court's failure to sustain objections thereto, to reprimand counsel and to discharge the jury prevented defendant having a fair trial and was prejudicially erroneous is general and, therefore, in the nature of a conclusion. However, in defendant's argument the record with respect to the alleged misconduct is quoted, the pages are noted, the reasons for asserting misconduct are developed and authorities with respect thereto are cited and quoted. This is a substantial compliance with Rule 15. It complies therewith to a greater extent than other presentations which have been upheld. Plaintiff's position is not well taken. Farmers' Elevator & Grain Co. v. Davis, Banc, Mo.Sup., 267 S.W. 393, 398[2]; Scullin Steel Co. v. Mississippi Valley Iron Co., 308 Mo. 453, 466, 273 S.W. 95, 97[1].
Dr. Frank D. Dickson, a physician and surgeon specializing in orthopedic surgery, was cross-examined on a number of collateral matters by plaintiff's counsel with a view to establishing prejudice on the part of the witness against plaintiffs in damage suits. The witness' answers were practically all in the negative. Defendant's brief quotes freely from and refers to other specified pages in the record. Examining these with an eye to the objections interposed and the development of the assignment in the brief, we are not called upon to set out all matters thus referred to for a determination of the issue and shall limit our inquiry accordingly. Several questions after an answer that this was the first time the witness had testified on behalf of a railroad company in response to an inquiry if witness had testified for so many insurance companies and railroads as to have become prejudiced, the following occurred:
Approximately five pages later in the record another objection on the same grounds was sustained to a question, not answered, but counsel's request (made after the ruling sustaining the objection) 'to instruct the jury to disregard it' was replied to by the court as follows: 'Well, I will let the jury have it as far as it has gone, but I think it has gone far enough.' Approximately four pages later in the record, we find another objection interposed and sustained after answer given.
With respect to the first objection, it is to be noted that counsel never finished the question. Notwithstanding the overruling of the objection, the question was never asked. The next question, differently framed, was evidently considered not objectionable. If the objection referred to the question embodying the thought with respect to insurance companies and railroads, it was not timely having been interposed sometime after answer given. Wolfson v. Cohen, Mo.Sup., 55 S.W.2d 677, 680[5]; Gately v. St. Louis-S. F. Ry. Co., 332 Mo. 1, 15[9], 56 S.W.2d 54, 60[12]; Doherty v. St. Louis Butter Co., 339 Mo. 996, 1008[6], 98 S.W.2d 742, 742,[8, 9];Waldo v. Russell, 5 Mo. 387, 393; Wayne County v. St. Louis & I. M. Rd. Co., 66 Mo. 77, 78. Next, if the court understood the request 'to instruct the jury to disregard it' to refer to the prior cross-examination which had been going in without objection, and defendant's discussion in its brief apparently so construes it, the court should not be convicted of reversible error.
With respect to the objection sustained after answer given, as well as another passage quoted in defendant's brief wherein the objection was sustained and the jury instructed to disregard the answer, there is naught of record upon which to bottom an exception and none is shown.
The next instance developed in defendant's brief relates to the cross-examination of a witness concerning statements made by one Stevenson, one of defendant's shop foremen, who died prior to the trial. Plaintiff's counsel, reading from a deposition: Did you make that answer to that question? A. That is what Stevenson said, yes.' Defendant objected 'to the form of the question' and 'to the answer as being a conclusion of the witness and not binding on this defendant.' The objection, coming after an unresponsive answer to the question propounded, was too late under the authorities supra. Whether the objection should have been sustained is immaterial here as no reference to the assignment under consideration is found in the objection.
Defendant offered witness Vanderpete, the engineer. During his cross-examination and after answers of a somewhat evasive character as to the condition of the sheet iron on the floor of the engine and the final acknowledgment by the witness that it was 'shiny' and 'had become slick'; and after the witness stated he could not say the Interstate Commerce Commission's regulations required the 'apron,' fitting over the opening between the engine and the tender, to be roughened for safety, the record reads: Upon the regulation, requiring 'aprons' to be 'roughened' et cetera 'to afford a safe footing,' being read, the witness stated he was familiar with it. If counsel's statement that the regulation was not relevant be considered a request to the court for a ruling and within the scope of the issue under discussion, we think the occurrence insufficient to call for reversal on the ground of prejudicing the jury.
The discretion vested in trial courts to allow a liberal...
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