Page v. Payne

Decision Date14 March 1922
Docket NumberNo. 22476.,22476.
Citation293 Mo. 600,240 S.W. 156
PartiesPAGE v. PAYNE, Director General of Railroads,
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by John E. Page against John Barton Payne, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

Luther Burns, of Topeka, Kan., and Guthrie, Conrad & Durham and Hale louts, all of Kansas City, for appellant.

Atwood, Wickersham, Hill & Popham, of Kansas City, for respondent.

SMALL, C.

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 live stock train at the stockyards in Kansas City, Kan. 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 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 (U. S. Comp. St. § 8618) requiring all cars used in interstate commerce to be equipped "with efficient hand brakes."

The answer was: First, a general denial; second, plaintiff's injury due to his own negligence; third, that plaintiff assumed the risk; fourth, defect complained of was not the proximate cause of the injury. Reply was a general denial.

Not only the plaintiff himself testified that the shank of the dog was broken off, but Bruce, the foreman of the switch crew, when put upon the stand by the defendant, so testified. At the time, the defendant's counsel made no affidavit of surprise and in no way objected to the foreman's testimony on that or other grounds. But one of the grounds of defendant's motion for new trial was that said foreman had previously stated to defendant's claim agent and one of its attorneys that said shank was not broken and that defendant was surprised at his testimony to the contrary. Affidavits were filed by defendant to sustain the truth of this ground for new trial.

On cross-examination of the plaintiff, defendant's counsel asked him numerous questions for the purpose of affecting his credibility as a witness which the court excluded. Thereupon defendant's counsel offered to show by the witness that on or about the 23d of January, 1904, plaintiff was married to Edith L. Page, formerly Edith Wallace; that shortly prior to January 13, 1910, said Edith L. Page caught the plaintiff in a room with another woman; and that shortly thereafter she filed suit for divorce. Defendant also offered in evidence the transcript of the record and decree in said divorce suit which showed that the petition was filed January 13, 1910, in the circuit court of Jackson county, Mo.; that defendant was served personally with summons, and judgment was regularly and duly entered by default at the January term, 1910, granting a decree of divorce to Edith D. Page from the plaintiff, John E. Page. This record was excluded. Among other things, said petition alleged that said John E. Page had been "paying attentions to another woman," and had been guilty of adultery with a woman named Margaret. Defendant offered to show by plaintiff that this woman Margaret was placed in a hospital and shortly after gave birth to a child, and that she was under the care of a Dr. Guffey, to whom plaintiff wrote letters on April 11th, June 8th, July 4th, and July 17th, in 1910, in which letters plaintiff represented said woman as his sister and promised to pay her doctor bill and asked the doctor to let him know "if any fellow comes there to see her, just to visit her at all." He also, in one of his letters, said:

"I would do this in a minute but I will tell the truth, I am afraid to, I don't want to be advertised, but say I will see him and see if he will deduct that amount and send it to you, $50 for hospital fees, $25 for placing the baby and your expense, total, $175. * * * And I thought you could place the baby and when I got my money I could pay you and nobody would be any the wiser."

This offer was refused and the letters excluded. Defendant then offered to prove by the witness that on October 27, 1910, plaintiff married Elsie Arnold, and that in 1918 she filed suit for divorce from him. This offer was excluded. Defendant then offered in evidence a duly certified copy of said divorce suit showing that Elsie Page obtained a divorce from John E. Page in the district court of Labette county, Kan., on April 12, 1918; service being had by publication, and judgment being by default. The petition, among other things, alleged facts which tended to show that the defendant was the father of the illegitimate child of Margaret Kirkpatrick and that, at various times named, he had improper relations with other women. The transcript of these divorce proceedings in the Kansas district court was excluded. Defendant further offered to prove by the witness that in the spring of 1910 he lived with a woman, not his wife, at Tenth and Harrison streets; that at 1212 Troost avenue he lived with a woman, not his wife; and that at 1312 Holmes street he lived with a woman, not his wife. "I mean that he lived in adultery with these women; * * * that the woman with whom he was living was married to some one else." Defendant also offered to prove by plaintiff that on August 27, 1919, at 1212 Troost, plaintiff signed the register, "Mr. and Mrs. J. E. Page," and that Mrs. J. B. Page was not his wife, but was a woman married to another man, and that plaintiff referred to this woman as his wife, and that he was living with her at the time of his injury. All of this testimony was excluded, Defendant also offered to show by the witness that he lived with an unmarried woman who was not his wife, both before and after the divorce was granted to Edith Page. (It appears, supra, Edith Page procured her divorce at the January term, 1910, and plaintiff married Elsie Arnold October 27, 1910, and she divorced him April 12, 1918.) This testimony was all excluded by the court on objection of plaintiff's counsel that the testimony was not relevant and was immaterial and would violate the personal rights of the plaintiff and was an effort to compel plaintiff to incriminate himself and to testify against himself.

On cross-examination of plaintiff, he identified defendant's Exhibits 2 to 8 as applications signed and sworn to by him for employment with a number of railroad companies. Defendant's counsel then said, "I will offer Exhibits 2 to 8 in evidences if your honor please." The defendant then read portions of said applications in evidence in which plaintiff stated that he had never before been injured in railroad or other accidents and at various dates, including November, 1917, weighed only 121 pounds; whereas, plaintiff had stated on the witness stand that lie had always weighed around 140 pounds and had been injured in four or five railroad accidents before the date of such applications and laid up each time for a couple of months, receiving a broken nose in one accident. On redirect examination, plaintiff's counsel read in evidence the certificates of the examining surgeons of the railroad companies written or printed just below the signature of the plaintiff on said Exhibits 2 to 8, certifying in general that they had examined the plaintiff for defects of vision, color, perception, hearing, and other physical defects, and found him qualified to fill the position of brakeman. Immediately below the surgeons' certificate was another statement signed by plaintiff acknowledging receipt of the rules of the railroad company and memoranda of the location of its bridges. To these surgeons' certificates defendant's counsel objected that they were incompetent, irrelevant, and immaterial and not a statement by the witness and as not the best evidence and not within the issues; that defendant not use any part of said exhibits below the plaintiff's signature thereon; that defendant wanted the plaintiff's statement and thought that was all that was offered by it, but the court ruled that not only the statements on said exhibits signed by the plaintiff, but that the whole of said exhibits, including the certificate of the examining physician, was offered in evidence by the defendant, and therefore overruled defendant's objection to the reading in evidence by the plaintiff of such certificates. After they were read by plaintiff, defendant's counsel moved to strike out all of the statements of the physicians so read as not within the issues and being mere statements of persons who were not witnesses under oath, and that defendant never offered anything contained in said exhibits except plaintiff's own statement over his own signature, which motion was overruled.

As to plaintiff's injuries: Plaintiff himself testified that at the time of the accident he was jerked "awfully bad" and thrown around and back against the car and struck in the middle of his back and his head struck something; either the brake staff or the wheel, he did not know which. Back hurt the worst; felt like every bone in his body or back was broken. He hung where he was thrown until the cars stopped at the switch, some 35 or 40 car lengths. His body seemed twisted and hung to the brake wheel. After the cars stopped, he got down and hobbled with the aid of a stick up to the office,...

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