Orris v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 25 June 1919
• Citation: 214 S.W. 124,279 Mo. 1
• Parties: JOHN P. ORRIS, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Missouri Supreme Court

214 S.W. 124

279 Mo. 1

JOHN P. ORRIS, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Missouri

June 25, 1919

Appeal from Grundy Circuit Court. -- Hon. George W. Wanamaker Judge.

Reversed and remanded.

Platt Hubbell and Geo. H. Hubbell for appellant.

(1) The defendant's instruction numbered 1 is erroneous in that said instruction tells the jury that the injury to plaintiff's eye is no evidence whatever of negligence. The nature and character of the injury, the manner in which the injury was received and the facts surrounding the injury are evidence for plaintiff tending to show negligence on the part of the defendant, and the court erred in withdrawing this evidence from the consideration of the jury by this instruction. Walker v. Railroad Co., 178 S.W. 110; 2 Thomp. Neg. sec. 2293; Texarkana Ry. Co. v O'Kelleher, 21 Tex. Civ. App. 96; Myers v. City of Independence, 189 S.W. 823; Railway Co. v Howard, 124 Ark. 588; Flannery v. Railway Co., 44 Mo.App. 400; Melican v. Electric Co., 90 Mo.App. 599, 602; Peeler v. McMillan, 91 Mo.App. 316. (2) Defendant's instruction numbered 2 is erroneous in that said instruction places the test of negligence as "when in usual and ordinary repair . . . under such circumstances" regardless of whether due care was exercised in keeping the netting in proper repair, and allowed the defendant to set up its own standard of reasonable care; and, said instruction concludes with a comment on the effect and weight of the evidence, in the nature of an argument on behalf of defendant; and, this instruction assumes the exercise of ordinary care on the part of the defendant. Railway Co. v. Proffitt, 36 S.Ct. 622; Frazier v. Smelting & Refining Co., 150 Mo.App. 430; Flannery v. Railway Co., 44 Mo.App. 400. (3) The defendant's instruction numbered 3 is erroneous in that said instruction arbitrarily classes all of plaintiff's evidence as circumstantial evidence and contains the erroneous and misleading abstract direction to the jury, to-wit: "it devolves upon the plaintiff to prove to your reasonable satisfaction that each one of the circumstances has been established by the evidence." Bryce v. Railway Co., 129 Iowa 342; 38 Cyc. 1739; State ex rel. Fire & Marine Ins. Co. v. Ellison, 187 S.W. 23; Railway Co. v. Watson, 190 U.S. 287, 47 L.Ed. 1057; Schmidt v. Dubuque County, 136 Iowa 403; Jackson v. Railroad Co., 31 Iowa 355; St. Louis Railway Co. v. Brothers, 165 S.W. 488; 3 Ency. Ev. 63, 64, 65; 2 Thomp. Neg. secs. 2260, 2291, 2293. There is direct evidence of negligence against defendant, in addition to circumstantial evidence. (4) The defendant's instruction numbered 4 is erroneous in that said instruction assumes that the alleged inspection on the part of the defendant was in the exercise of reasonable and due care, and said instruction submits to the jury the issue of the netting suddenly becoming out of repair after the departure of the engine from Trenton, and before it reached the point where plaintiff was injured, while there is no evidence upon which to base such an instruction and said instruction permitted the jury to wander into conjecture when such a possibility was not even suggested in the course of the trial. And, said instruction singles out the defendant's evidence of inspection and makes an unwarranted comment thereon. Holden v. Mo. Pac. Ry. Co., 177 Mo. 469; McKeon v. Railway Co., 42 Mo. 84; Scholthauer v. Railway Co., 89 Mo.App. 72; Meyer v. Railroad, 45 Mo. 138. (5) The defendant's instruction numbered 5 is erroneous because it is an argument on the part of defendant, and is an abstract proposition tending only to mislead and misguide the jury. 3 Elliott on Railroads, sec. 1245b; Louisville Ry. Co. v. Sullivan Timber Co., 138 Ala. 379; Coleman v. Railway Co., 36 Mo.App. 491. Plaintiff offered to prove and introduce evidence showing his good reputation. Defendant had offered evidence of alleged contradictory statements out of court, which entitle the plaintiff to this evidence. Miller v. Railroad, 5 Mo.App. 481; Walker v. Ins. Co., 62 Mo.App. 220; Browning v. Railroad, 118 Mo.App. 451; Berryman v. Cox, 73 Mo.App. 74; Landers v. Railroad, 134 Mo.App. 89; Gourley v. Callahan, 176 S.W. 239, 190 Mo.App. 666; Ross v. Grand Pants Co., 170 Mo.App. 291; Texas Cent. Ry. Co. v. Weidman, 62 S.W. 810; 30 Am. & Eng. Ency. Law (2 Ed.), p. 1150; Alkire Grocer Co. v. Tagart, 78 Mo.App. 166.

Paul E. Walker and A. G. Knight for respondent.

(1) Defendant's instruction No. 1, given by the court, was accurate, and enunciates a correct principle of law. Blanton v. Dold, 109 Mo. 74; McFern v. Gardner, 121 Mo.App. 6; Warner v. Railroad, 178 Mo. 133; Burns v. Railroad, 176 Mo.App. 338. (2) The criticism of defendant's instruction numbered 2 is without merit. This instruction simply told the jury that plaintiff assumed the risk from cinders getting in his eyes, such as usually and ordinarily escaped through the mesh of the netting in use on the engine at the time of plaintiff's injury, when in usual and ordinary repair. The mesh of the netting -- three-sixteenths of an inch -- was admitted on all sides to be standard; the netting was admitted to be the standard kind in use by all roads; the only question was, whether it was out of repair by having had holes larger than three-sixteenths of an inch, either burnt or worn in it. Miles v. Coal & Coke Co., 172 Mo.App. 239, 240. (3) The objection to a portion of defendant's fourth instruction is not well taken. The plaintiff's criticism states that this instruction permitted the jury to wander into conjecture. The only question of "conjecture" is, whether the netting ever became out of repair, and we frankly concede there was no proven fact on which to base such a conclusion, but the mere "conjecture" or "guess" of the plaintiff as to the size of the flying cinder, but this "guess" was resolved in his favor by the court, and disbelieved by the jury, and he cannot complain. Krampe v. Brewing Association, 59 Mo.App. 281; Redmond v. Railroad, 225 Mo. 739; Howard v. Railroad, 173 Mo. 524; Bennett v. Lumber Co., 116 Mo.App. 699; Kelley v. C. & A. Railroad, 105 Mo.App. 365; Hach v. Railroad, 117 Mo.App. 11. (4) As to what amount of impeachment or what amount of cross-examining, or what amount of contradicting a witness, will allow of reinstatement of such witness by character proof, has been the subject of much discord in this State, as a reference to the opinions and dissenting opinions will show. But, an examination of the cases on this subject in this State will show that at least the witness's character must have been assailed, by imputing criminal conduct or moral turpitude, or impeachment of the witness's general character, in order to admit of such sustaining evidence, as distinguished from a mere contradiction, or an intimation of the want of credence in his story, or of intense interest or zeal, or the lack of recollection, or want of candor or frankness, or other of the many incidents of cross-examination. Fulkerson v. Murdock, 53 Mo.App. 151, 123 Mo. 292; Gourley v. Callahan, 190 Mo.App. 670; Ross v. Grand Pants Co., 170 Mo.App. 293.

GRAVES, J. Walker, Blair and Williams, JJ., concur; Faris, J., concurs in the result; Bond, C. J., dissents in separate opinion, refiling his divisional opinion; Woodson, J., absent.

OPINION

In Banc

GRAVES J.

Whilst in the service of the defendant as fireman upon an interstate train, the plaintiff lost his left eye by reason of a burning or hot cinder escaping from defendant's engine. Plaintiff says the defendant was negligent in furnishing to him and his crew an engine which was out of repair, and that his injury was the result of such negligence.

The action is one under the Federal Act. He states the alleged negligence of the defendant thus:

"Said engine was defective in that some of the flues of said engine permitted water to leak onto the flue-sheet from the boiler of said engine, and in that some of the flues of said engine were stopped up, honeycombed with impurities and chemicals from the coal and parts of the coal and cinders, and some of said flues were stopped and filled with a mixture of cinders and coal formation, which prevented said flues from performing their proper function and which prevented the passage of smoke and flame through them; and said condition of the aforesaid flues was caused by the negligence of the defendant; and said condition of said flues required the other and remaining flues of said engine to do the work of those which were so stopped up and filled, and caused said remaining flues, which were open, to draw abnormally and unreasonably on the fire of said engine, and caused said remaining and open flues to pull ignited particles of coal and pieces of slack through said open and remaining flues, before said ignited pieces of coal and slack had been thoroughly burned and while the same were afire and alive and burning and caused said ignited pieces of coal and pieces of slack to escape from the smoke-stack of said engine as live cinders, burning and afire; and said engine was defective in its smoke-box netting and defective in its diaphragm and its deflector plate and defective in its other apparatus and equipment for the prevention of the escape of burning and live cinders from its smoke-stack; and said engine was defective in its steam valves, and said steam valves on both sides permitted steam to escape up the smoke-stack without going into the cylinders of said engine and said escaping steam contributed to the passage of live and burning cinders and live and burning pieces of coal and slack up and through the smoke-stack of said engine; and said engine, by reason of the aforesaid defects, and by reason of other defects now unknown to the plaintiff, threw an...