Oglesby v. Missouri Pacific R. Co.

• Decision Date: 03 November 1903
• Citation: 76 S.W. 623,177 Mo. 272
• Parties: OGLESBY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

76 S.W. 623

177 Mo. 272

OGLESBY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

November 3, 1903

Appeal from Pettis Circuit Court. -- Hon. Geo. H. Longan, Judge.

Reversed.

Martin L. Clardy and R. T. Railey for appellant.

(1) Where an attorney makes improper remarks in his argument to the jury, it is not sufficient for the court to sustain an objection thereto, but it must direct the jury to disregard same; and even then, a new trial may be granted. Smith v Tel. Co., 55 Mo.App. 628; Ensor v. Smith, 57 Mo.App. 596; 1 Thompson on Trials, secs. 264 and 266; Stratton v. Nye, 63 N.W. 928; Andrews v Railroad, 71 N.W. 377; A. L. & L. S. Co. v May, 71 N.W. 69; Sutton v. Railroad, 73 N.W 995; Railroad v. Kellogg, 76 N.W. 464; Rudiger v. Railroad, 77 N.W. 171; Taylor v. Railroad, 79 N.W. 18; Hennies v. Vogel, 87 Ill. 242; Magoon v. Railroad, 31 A. 156; Tucker v Henniker, 41 N.H. 317; Martin v. State, 63 Miss. 505; Rudolph v. Landwerlen, 92 Ind. 34. (2) It is not charged or claimed in the petition that defendant's inspectors were incompetent. Hence, if the inspectors were guilty of personal negligence in not properly inspecting the "U. L." car, plaintiff is not entitled to recover, as he and said inspectors were fellow-servants. This is true whether considered by departmental rule or the common law. Graltes v. Railroad, 153 Mo. 385; Schaub v. Railroad, 106 Mo. 88; Railroad v. Miller, 117 Ind. 439; Neutz v. Coal Co., 139 Ind. 411; Thymy v. Railroad, 156 Mass. 13. But even if the master be responsible for the personal negligence of its inspectors, yet the petition must allege the duty, and charge defendant with a violation of the same. Although plaintiff may allege general negligence in petition, yet if it is followed by a specific charge of negligence, as in this case, the plaintiff will be confined in his proof to the specific charge so made. Feary v. Railroad, 62 S.W. 457; Bartley v. Railroad, 148 Mo. 139; Chitty v. Railroad, 148 Mo. 74; McCarty v. Hotel Co., 144 Mo. 402; Huston v. Tyler, 140 Mo. 263; McManamee v. Railroad, 135 Mo. 447; Hite v. Railroad, 130 Mo. 136; Waldhier v. Railroad, 71 Mo. 518. There is no charge in the petition to the effect that defendant was guilty of negligence in failing to have in its service a sufficient number of inspectors to inspect its cars on the date alleged in petition. If this had been true, it was an independent act of negligence on the part of defendant, in respect to a duty which it owed to plaintiff. Plaintiff having elected in the petition to charge defendant with personal negligence in failing to inspect said "U. L." car, had no legal right, under the authorities heretofore cited, to introduce evidence in chief, much less rebuttal, for the purpose of convicting defendant of negligence in failing to have a sufficient number of inspectors to inspect said car. (3) Over objections of defendant the court permitted the plaintiff in rebuttal to examine witness Zeigler as follows: "Q. How long would it take, Mr. Zeigler, to make a thorough and proper inspection of a freight car? A. About ten to twenty-five minutes." This question, over objections of defendant, was submitted to witness as an expert. The admission of such testimony authorized the jury to roam at will in the fields of conjecture, and to convict defendant's inspectors of negligence regardless of any standard in general use among the railroads. It left the witness in his own mind to determine what was a thorough inspection. Bates v. Railroad, 45 N.E. 111. The question and answer having gone to the jury with the sanction of the court, it imposed a duty on defendant not required by either the law or exigencies of trade. Guttridge v. Railroad, 94 Mo. 472; State v. Palmer, 61 S.W. 657; Graney v. Railroad, 157 Mo. 682; Langston v. Railroad, 147 Mo. 465; Boettger v. Iron Co., 136 Mo. 536; Benjamin v. Railroad, 133 Mo. 288; King v. Railroad, 98 Mo. 240; Eubank v. City of Edina, 88 Mo. 655; Koons v. Railroad, 65 Mo. 597; Gavisk v. Railroad, 49 Mo. 276; Benjamin v. Railroad, 50 Mo.App. 610; Muff v. Railroad, 22 Mo.App. 584; Railroad v. Smith, 61 S.W. 3; Brown v. Mitchell, 31 S.W. 628; Railroad v. Sheldon, 51 P. 808; Jones v. Portland, 50 N.W. 731; Briggs v. Railroad, 53 N.W. 1019; Lawson on Exp. Ev., 30; Rogers on Exp. Tes., sec. 53, pp. 127-8-9. (4) The charge of negligence, when boiled down, is to the effect that defendant on December 11, 1892, took into its train at Kansas City an unsafe, rotten car, which broke down, wrecked the train and injured plaintiff. The answer was practically a general denial, and put in issue the foregoing. The elementary question to be decided was whether defendant's inspectors had exercised ordinary care in inspecting said car for safety, before it departed on its journey. Every fact, therefore, which plaintiff relied upon to substantiate this charge, was a part of his case in chief. Under the rules of pleading, any man who has the testimony at hand, to prove negligence in three different ways, can not be permitted to introduce his testimony tending to establish negligence in one respect, as a part of his case in chief, and then reserve the remainder as rebuttal. R. S. 1899, sec. 592; R. S. 1889, sec. 2039; Pier v. Heinrichoffen, 52 Mo. 335; Christal v. Craig, 80 Mo. 375; Feary v. Railroad, 62 S.W. 457. Plaintiff testified, over objection of defendant in rebuttal, in respect to matters which were a part of his case in chief, and defendant moved to strike it out as rebutting testimony. The court overruled said motion, and exceptions were duly saved. Plaintiff on cross-examination said that after leaving Kansas City on the morning of the accident, and before he got to Independence, some tramps got on his train and on this "U. L." car. He said he made them get off at Big Blue bridge. At this stage of the case the court held that plaintiff could not be cross-examined upon any matters not formerly asked about, or which related to the inspection. This court at an early date held that when a witness was put on the stand and examined about any matter, the opposite side had the right to cross-examine him about the whole case. Page v. Kankey, 6 Mo. 433; Brown v. Burrus, 8 Mo. 26; Railroad v. Silver, 56 Mo. 266; State v. Brady, 87 Mo. 145. (5) (a) The plaintiff in his petition did not in any respect attack defendant's system of inspection in use at either Atchison or Kansas City. (b) He did not in the petition aver that defendant failed to have a sufficient number of inspectors to do the work at either place. (c) He did not aver in the petition that the switchmen ran the cars out of the yard before the inspectors had sufficient time to inspect the same. If any one or more of the three foregoing propositions had been alleged in petition, and the facts had sustained the same, such facts would have constituted negligence upon the part of defendant. The plaintiff in lieu of setting out any of the three propositions, supra, in petition, relied upon the doctrine of res ipsa loquitur, and claimed thereby that the car spoke for itself. He saw fit to stand in his petition, on the last proposition. Not only did plaintiff fail to allege any of said three charges in petition, but he failed to offer in chief any evidence in respect to any of said three charges. The defendant, in its answer, tendered no issue as to said three charges. The defendant offered no evidence relating in any particular to any of said three charges. There could, therefore, be nothing for plaintiff to rebut in respect to any. Yet the court, in the face of defendant's objection, permitted plaintiff's witnesses, under the guise of rebuttal, to attack, first, defendant's system of inspection, by attempting to show that it did not allow its men a sufficient length of time to inspect car; second, it permitted plaintiff, under the guise of rebuttal, to offer testimony tending to show that defendant did not have a sufficient number of inspectors to do the work at Kansas City; third, it permitted plaintiff to introduce evidence tending to convict defendant of negligence, in permitting the switchmen in charge of the yards to remove and switch cars as they came in, before the inspectors had time to inspect same, and that by reason thereof said cars passed without inspection. The admission of this damaging testimony, in respect to the three propositions, supra, which had not been pleaded by either plaintiff or defendant, and which were not referred to in evidence in chief by either plaintiff or defendant, was well calculated to influence the jury to return a verdict for plaintiff. (6) Plaintiff had the right to prove that the facts testified to by witness Hessler were different, but under the law he vouched for the credit and veracity of said witness when he was put upon the stand. Imhoff & Co. v. McArthur, 146 Mo. 377; Bensberg v. Harris, 46 Mo.App. 406. There is no intimation in the record that he had not testified truthfully nor does the record contain a syllable of evidence which in the least impairs the truthfulness of the testimony of said witness. We understand the rule of law in this State to be that if the facts are shown by competent evidence on one side, and the evidence is not contradicted on the other, and there is no attempt to impeach the witness, there is no question of fact involved in the case, but simply a question of law is presented. Studybaker v. Cofield, 159 Mo. 600; Davies v. Railroad, 159 Mo. 7; Carter v. Railroad, 156 Mo. 642; King v. King, 155 Mo. 425; May v. Crawford, 150 Mo. 527; Bartley v. Railroad, 148 Mo. 140; Culbertson v. Railroad, 140 Mo. 63; Spillane v. Railroad, 135 Mo. 427; Hite v. Railroad, 130 Mo. 132; Reichenbach v. Ellerbe, 115 Mo. 588; Lynch v. Railroad, 112 Mo. 433. (7) Upon the facts the cause should be reversed...