Page v. Barton
| Decision Date | 08 April 1922 |
| Citation | 240 S.W. 156,293 Mo. 600 |
| Parties | JOHN E. PAGE v. JOHN BARTON PAYNE, Director General of Railroads, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Daniel E. Bird, Judge.
Affirmed (on condition).
Luther Burns, Guthrie, Conrad & Durham and Hale Houts for appellant.
(1) The safety appliance act is not applicable. That act creates a liability irrespective of negligence and irrespective of the fact that the employer has exercised ordinary care. Its effect is to create and impose a penalty. To allow recovery under it would be to inflict a penalty upon the Director General of Railroads and the Federal Government, and this cannot be done. Iron Mountain Railroad Co. v Taylor, 210 U.S. 281; Mo. Pac. Ry. Co. v. Ault, 41 S.Ct. 593. The movement in progress when plaintiff was injured was a switching movement, and the provision of the safety appliance act requiring an efficient hand-brake does not apply to a switching movement. Farrell v Railroad, 93 A. 682. (2) The court erred in not granting a new trial on the ground that defendant was surprised by the testimony of witness Bruce. Sly v. Railroad, 134 Mo 681; Gatz v. Railways, 227 S.W. 1045. (3) The court erred in refusing to allow defendant to interrogate plaintiff upon cross-examination as to various acts and conduct of plaintiff tending to discredit him as a witness, and in denying defendant's offers to prove such acts and conduct by the plaintiff upon cross-examination. Muller v. Hospital Assn., 5 Mo.App. 401, 73 Mo. 242; State v. Long, 201 Mo. 674; Miller v. Journal Co., 246 Mo. 722; State v. Davis, 225 S.W. 709; Carp v. Ins. Co., 104 Mo.App. 520; O'Connor v. Transit Co., 106 Mo.App. 220; Briscoe v. Ry. Co., 118 Mo.App. 670; Ridenour v. Mines Co., 164 Mo.App. 596. (4) The court erred in excluding evidence and restricting cross-examination bearing upon the extent of plaintiff's injury. Ford v. Kansas City, 181 Mo. 144. (5) The court erred in permitting counsel for plaintiff to read in evidence to the jury statements of various railroad doctors to the effect that they had examined plaintiff upon application for employment to those railroads and found him physically able to accept that employment. Howell v. Sherwood, 242 Mo. 540. (6) Plaintiff's Instruction 2 was erroneous and highly prejudicial. It discussed defendant's answer and the defenses therein pleaded and told the jury they were not available to defendant. Blackmore v. Ry. Co., 162 Mo. 463; Dassler v. Wisely, 32 Mo. 500; Wesner v. Railroad, 177 Mo.App. 123; Alms v. Conway, 78 Mo.App. 492. It used technical and legal terms, "assumed risk" and "contributory negligence," without defining the same. Turnbow v. Dunham, 272 Mo. 65; Montgomery v. Railroad, 181 Mo. 513; State v. Hardelein, 169 Mo. 579; Gardner v. Ry. Co., 167 Mo.App. 612; Ry. Co. v. Dawley, 50 Mo.App. 487; Mullix v. Bryant, 98 S.W. 90; Strother v. Railway, 183 S.W. 658; Scheidel Co. v. Bacon, 201 S.W. 919. It told the jury that the Director General of Railroads was a law breaker. Mo. Pac. Ry. Co. v. Ault, 41 S.Ct. 597. (7) The measure-of-damages instruction was erroneous. It permitted recovery for all injuries resulting from "the movements of the brake-wheel." Had the "dog" been in perfect order and the brake been efficient, the wheel would have turned, moved, when the brake was released. Plaintiff was entitled to recover, if at all, only for injuries resulting from such movement of the brake-wheel as was unusual, and found by the jury to have been caused by a broken "dog." Menhardt v. Storage Co., 163 Mo.App. 283; Davis v. Rys., 188 Mo.App. 143. The instruction authorized the jury to award plaintiff the cash value at the time of the trial of the wages previously lost by plaintiff and the medical expenses previously incurred by him. Rigley v. Pryor, 233 S.W. 832. (8) The court erred in not granting a new trial on account of excessiveness of the verdict. The award of $ 20,000 was wholly unwarranted by the evidence. Gibney v. Transit Co., 204 Mo. 704; Davidson v. Transit Co., 211 Mo. 320; Chalanda v. Transit Co., 213 Mo. 244; Rigg v. Railroad, 212 S.W. 880; Hulse v. Ry. Co., 214 S.W. 155; Corn v. Ry. Co., 228 S.W. 79; Rogles v. Rys. Co., 232 S.W. 93; Chambers v. Hines, 233 S.W. 952. The verdict was so excessive as to indicate passion and prejudice on the part of the jury and to require reversal of the judgment. Gibney v. Transit Co., 204 Mo. 704; Davidson v. Transit Co., 211 Mo. 320.
Atwood, Wickersham, Hill & Popham for respondent.
(1) It is conceded that as to the law of this case it is governed by the Federal Employer's Liability Act and the Federal Safety Appliance Act. Therefore, the defense of assumed risk and contributory negligence pleaded by defendant was not available. Thayer v. Railroad, 185 P. 542; Railroad Co. v. Layton, 243 U.S. 617; Callicotte v. C. R. I. & P., 204 S.W. 529; Moore v. Railroad, 268 Mo. 31. Contrary to defendant's contention, defendant was required to equip its car with an efficient hand-brake. The Director General was governed by the Federal Safety Appliance Act. Reap v. Hines, 273 F. 88; 2 Roberts, Fed. Liability of Carriers, p. 1372, sec. 839; Director Gen. v. Ronold, 265 F. 138; Ry. Co. v. Rigsby, 241 U.S. 33; Dutton v. Hines, 267 F. 452. (2) The court did not err in refusing to grant a new trial on the ground of alleged "surprise." Defendant's counsel made no objection even, much less filing an affidavit of surprise, when witness Bruce was on the stand. Sang v. St. Louis, 262 Mo. 467; Formento v. Hines, 225 S.W. 105; Oncken v. Ehrler, 222 S.W. 1047; State v. Speritus, 191 Mo. 41; Grocery Co. v. Hotel Co., 183 Mo.App. 440; Knox v. Railroad, 199 Mo.App. 72. (3) (a) The court committed no error in refusing to permit the defendant to interrogate plaintiff regarding the irrelevant, immaterial matters regarding plaintiff's private life. Defendant's counsel offered no purpose for attempting to introduce such testimony and the questions called for incriminating answers which plaintiff had a right to refuse to give. Moreover it was within the court's discretion to refuse to admit such testimony. Wendling v. Bowden, 252 Mo. 695; State v. Potts, 239 Mo. 413; State v. Davis, 225 S.W. 709; Miller v. Journal Co., 246 Mo. 729. (b) Where a party to a suit is the witness interrogated, counsel may claim the privilege of incrimination for the witness. Clifton v. Granger, 86 Ia. 573; State v. Shockley, 29 Utah 25. (c) Defendant's counsel stated he wanted to show that plaintiff lived in adultery with women. Adultery is a crime, hence plaintiff rightfully interposed his constitutional privilege against self-incrimination. R. S. 1919, secs. 3515, 3664, 3712; 40 Cyc. 2535; 28 R. C. L., p. 608, sec. 198. (4) Appellant's contention that Instruction 2 offered by plaintiff is erroneous is without merit, because: (a) It is conceded the liability, if any in the case, was governed by the Federal Employer's Liability Act and Safety Appliance Act. This being true, there was nothing left for the jury to determine but the nature and extent of the injuries and the damages to be awarded. Moore v. Railroad, 268 Mo. 31; Tex. & Pac. Railroad v. Rigsby, 241 U.S. 33. (b) Defendant's answer set up assumed risk and contributory negligence. Under the proof these defenses were clearly unavailing. Plaintiff's instruction merely directed the jury's attention to defenses interposed by defendant and used the language used by defendant in the answer. Moreover, if defendant was apprehensive that the jury might be misled by the terms "contributory negligence" and "assumed risk" it should have offered an instruction correctly defining these terms. Distler v. Railroad, 163 Mo.App. 678; Tucker v. Carter, 211 S.W. 138; Malone v. Ry. Co., 213 S.W. 864. (5) Plaintiff's measure-of-damage instruction is correct. "The movement of the brake wheel" mentioned in the instruction specifically tells the jury that such movement is meant as is explained in the preceding instructions, and clearly followed the proof and told the jury what they should find. (6) The verdict of the jury was not excessive. The overwhelming proof showed plaintiff suffered such injuries as to cripple him for life and make it impossible for him to work and earn a livelihood. Taking into consideration plaintiff's age, his railroad experience and previous good health, the award of $ 20,000 for the painful, disabling injuries was only a reasonable award. Smith v. Kansas City Southern, 213 S.W. 481; Meeker v. L. & P. Co., 216 S.W. 923; Turnbow v. Rys. Co., 211 S.W. 41.
Personal injury case. The plaintiff was a switchman employed by the Director General of Railroads in control of and operating the Rock Island Railroad. He was injured September 4, 1919, while engaged in switching an interstate livestock train at the stock yards in Kansas City, Kansas. At the time he was on the top of a car, attempting to release the hand-brake thereon, said brake having been previously set. The "shank" of the "dog" in the ratchet wheel attached to the brake, the plaintiff testified, was broken off, so that he could not use it to release the brake, but he was required to pry or push the "dog" out of the ratchet with his foot and to assume a cramped position in order to do so, with the result that when thus released, the brake whirled around so suddenly and violently that plaintiff was thrown against the brake and the car and severely injured.
The petition predicated defendant's liability upon the broken or defective "dog" as constituting a defective or inefficient hand-brake used in violation of the act of Congress requiring all cars used in interstate commerce to be equipped "with efficient hand-brakes."
The answer was: First, a...
To continue reading
Request your trial