Mitchell v. Wabash Ry. Co.

• Citation: 69 S.W.2d 286,334 Mo. 926
• Parties: James Mitchell v. Wabash Railway Company, Huston Whitlock and C. T. Burnley, Appellants
• Decision Date: 23 February 1934
• Court: United States State Supreme Court of Missouri

69 S.W.2d 286

334 Mo. 926

James Mitchell v. Wabash Railway Company, Huston Whitlock and C. T. Burnley, Appellants

Supreme Court of Missouri

February 23, 1934

Appellants' Motion for Rehearing Overruled December 20 1933.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Homer Hall, S. J. Jones and Sebree, Jost & Sebree for appellants.

(1) The court committed error in not giving the peremptory Instructions A, B, C and D requested by the defendants. (2) The court committed error in giving plaintiff's instructions 2 and 3 as modified. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645; State ex rel. v. Ellison, 272 Mo. 571; Heigold v. United Rys. Co., 308 Mo. 142; Macklin v. Fogel Construction Co., 326 Mo. 38, 31 S.W.2d 14; Blackwell v. Union Pacific, 52 S.W.2d 814. (3) The court committed error in refusing to give the defendants' Instruction N. Baker v. McMurry Contracting Co., 282 Mo. 685; Roberson v. United States, 80 U.S. 363, 20 L.Ed. 653; Southwest Virginia Mining Co. v. Chase, 95 Va. 50; 17 C. J. 524; 27 R. C. L. 198; McClellan v. Railroad, 62 F.2d 61; C. M. & St. P. v. Lindaman, 143 F. 946. (4) The court committed error in refusing to give defendants' Instruction G. O'Brien v. Railroad, 164 N.E. 446; Cain v. Humes-Deal Co., 49 S.W.2d 90. (5) The verdict was the result of prejudice. (6) The verdict is excessive. Hurst v. C. B. & Q., 280 Mo. 572; Greenwell v. C. M. & St. P., 224 S.W. 410, 284 Mo. 418; Miller v. Schaff, 228 S.W. 488; Foster v. Davis, 252 S.W. 433; Thompson v. Smith, 253 S.W. 1023; Stahl v. Railroad, 287 S.W. 628.

Trusty & Pugh for respondents.

(1) The court did not err in overruling the demurrers of the defendants, and defendants cannot now complain, because: (a) The demurrers were general, and the petition contained four separate and distinct grounds of negligence, and there was evidence to support such grounds of negligence, and so they were properly overruled. Torrance v. Pryor, 210 S.W. 430; Soureal v. Wisner, 13 S.W.2d 551; Pulsifer v. City, 47 S.W.2d 233. (b) The defendants do not dispute the sufficiency of the evidence, but say that this court should pass on the weight of the evidence, which it does not do. Jackman v. Ry. Co., 231 S.W. 978; Markowitz v. Markowitz, 290 S.W. 119. (c) Defendants offered no specific demurrer on contributory negligence, and offered no specific withdrawal instruction on such issue, and submitted it to the jury as an issue of fact, and so bound itself. Anderson v. Davis, 284 S.W. 453. (d) While plaintiff was going upon the table in obedience to a specific order, starting the table without warning to him was negligence. Crane v. Liberty, 17 S.W.2d 945; Thomas v. Am. Sash & Door Co., 14 S.W.2d 1; Bender v. Kroger, 310 Mo. 496, 276 S.W. 405; Clark v. I. & F. Co., 234 Mo. 450, 137 S.W. 577; Hayden v. Indep. Gravel Co., 186 S.W. 1193; McCauley v. Anheuser-Busch, etc., Co., 254 S.W. 868. (e) The motion for new trial was not refiled to the new judgment, and the assignments of error are not sufficient. Mahmet v. Am. Radiator Co., 294 S.W. 1014; Gray v. Doe, etc., Co., 53 S.W.2d 877. (2) The court did not commit error in giving plaintiff's Instructions 1 and 3 as modified, and the appellant cannot complain and has not preserved its right to complain. (a) The petition charges that, "At said time and place the defendants were guilty of negligence as follows:" followed by four specific charges of negligence. (b) The negligence charged is in starting the table without warning while the plaintiff was going upon it in obedience to a specific order. (c) Defendants' Instruction Q deprives plaintiff of the right to recover if the table was moving south when he was injured. (d) Since the word "northward" precedes, does not appear in, the allegations of negligence and the negligence is not based on such word, it may be omitted from an instruction because it could be stricken from the petition and the same good cause of action would be stated: Berry v. Railroad Co., 43 S.W.2d 785; Radcliffe v. Railroad Co., 90 Mo. 127, 2 S.W. 277; Owens v. Kansas City, etc., Co., 95 Mo. 169, 8 S.W. 350; Morrow v. Surber, 97 Mo. 155, 11 S.W. 48; Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S.W. 968; Van Horn v. St. Louis Transit Co., 198 Mo. 481, 95 S.W. 326; Mehan v. St. Louis, 217 Mo. 35, 116 S.W. 514; Broyles v. Eversmeyer, 171 S.W. 334; Bradley v. Becker, 246 S.W. 561; Powell v. Ry. Co., 255 Mo. 420, 164 S.W. 628; Wessell v. Lavender, 262 Mo. 421, 171 S.W. 331; Myers v. Independence, 189 S.W. 816; Callicotte v. Ry. Co., 204 S.W. 529; Meeker v. Union Elec. Co., 279 Mo. 574, 216 S.W. 923; State ex rel. v. Trimble, 260 S.W. 746; Soltesz v. J. Belz Co., 260 S.W. 990; McMurray v. Prairie Oil & Gas Co., 141 S.W. 463; Heryford v. Spitcaufsky, 200 S.W. 123; Bradford v. St. Joseph, 214 S.W. 281; Chambers v. Hines, 208 Mo.App. 222, 233 S.W. 949. (e) When a servant is going upon or is about an appliance in obedience to a direct order it is the duty of the master to give warning of any intention to move such appliance. Crane v. Liberty, 17 S.W.2d 945; Thomas v. Am. Sash & Door Co., 14 S.W.2d 1; Bender v. Kroger, 310 Mo. 496, 276 S.W. 405; Clark v. I. & F. Co., 234 Mo. 450, 137 S.W. 577; Hayden v. Indep. Gravel Co., 186 S.W. 1193; McCauley v. Anheuser-Busch, etc., Co., 254 S.W. 868. (f) Practically all of defendants' instructions use the same or similar expressions. (g) Defendants' defense was that plaintiff was sitting on the wall south of the table in the position shown by Exhibit 5. (h) There was no defense that he was getting on the table at the wrong place, or at the south side, and that because of this there was no duty or different duty. (i) Because of the foregoing there was no broadening of the petition and failure to use the word "northward" was perfectly harmless. Berry v. Railroad Co., 43 S.W.2d 785; Morris v. Atlas, etc., Co., 19 S.W.2d 877; Midwest, etc., Co. v. Davis, 233 S.W. 406; Brackett v. James Black Co., 32 S.W.2d 290; Took v. Wells, 53 S.W.2d 389; Heryford v. Spitcaufsky, 200 S.W. 126; Alvarez v. Traffic, etc., Corp., 271 S.W. 534; Halley v. Federal Truck Co., 274 S.W. 507; Kaiser v. Jaccard, 52 S.W.2d 18; Petera v. Ry. Exchange Bldg., 42 S.W.2d 947; Semper v. American Press, 273 S.W. 191. (3) The court did not commit error in refusing to give defendants' Instruction N, and defendant has not preserved its right to complain and has waived such alleged right. (a) The evidence made the issue one for the jury. Baker v. J. W. McMurry, etc., Co., 223 S.W. 45; O'Donnell v. Railroad Co., 26 S.W.2d 933. (b) The evidence sought to be withdrawn was vital on the issue of contributory negligence. Woodward v. Railroad Co., 295 S.W. 98. (c) The instruction did not ask that the evidence be restricted. It was confusing and misleading and conflicted with other instructions given for defendants. Woodward v. Railroad Co., 295 S.W. 98. (d) Defendants offered twenty-two complicated overlapping and confusing instructions, which was improper. Rice v. J. C. B. Co., 216 S.W. 746; Missouri Digest, subject Trial, key 230. (e) Plaintiff's Instruction 3 was in the conjunctive. Berry v. Railroad, 43 S.W.2d 782; Webster v. International, etc., Co., 18 S.W.2d 131. (4) The court did not err in refusing defendants' requested Instruction G. (a) It conflicted with defendants' Instruction H and with defendants' given Instructions S and U. (b) Defendants did not complain of the refusal of their Instruction H and for this reason waived the above contention. The evidence sought to be withdrawn was material on the issue of contributory negligence. Woodward v. Railroad Co., 295 S.W. 98. (c) It was conceded the flood lights should have been burning and that they were kept burning to make the place safer and for the benefit of the men. (d) The evidence was sufficient to establish negligence on this issue and causal connection. (5) The court did not err in refusing defendants' requested Instruction G. (a) The court reduced the $ 25,000 verdict to $ 15,000 and entered a new judgment, and a motion for new trial was not refiled. Gray v. Doe Run Lead Co., 53 S.W.2d 877. (6) The present judgment is not excessive. (a) After the new judgment was entered the motion was not refiled and there was no complaint as to the new $ 15,000 judgment, and it was reasonable. Gray v. Doe Run Lead Co., 53 S.W.2d 877.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Action for damages for personal injuries in which plaintiff obtained a verdict for $ 25,000. The circuit court required him to remit $ 10,000 of the verdict and upon that being done entered a judgment for him for $ 15,000, from which all the defendants have appealed.

Plaintiff had his right leg crushed by a turntable of defendant railway company at Kansas City. Defendants Whitlock and Burnley were employees of the railway company. Burnley was its foreman in charge of the men employed at and about the turntable and roundhouse and of the work being done and Whitlock was operating the turntable when plaintiff was injured. Both are charged with acts of negligence. Plaintiff's evidence tended to prove the following:

The turntable is set in a circular pit about one hundred feet in diameter and four or five feet deep. A wall with a top eighteen inches or two feet wide surrounds the pit. The table is about one hundred feet long extending across the pit, resting upon a structure in the center of the pit upon which it revolves and at each end upon a four-wheel truck. The trucks move on a circular track built in the pit near the wall. Except for the table and its supports the space inside the pit is open. The table is wide enough for one railroad track which runs the length of the table. The rails thereon are on a level with those on the tracks leading to it from the...