Palmer v. Saint Louis and San Francisco Railroad Company

• Decision Date: 04 April 1910
• Parties: ARTHUR L. PALMER, Respondent, v. SAINT LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

127 S.W. 96

142 Mo.App. 440

ARTHUR L. PALMER, Respondent, v. SAINT LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

April 4, 1910

Appeal from Laclede Circuit Court.--Hon. L. B. Woodside, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

W. F Evans, Edgar P. Mann and Joseph B. Todd for appellant.

(1) The court erred in allowing the witness, R. E. Wright, to testify as an expert to the time in which a passenger train could be stopped running at a specified rate of speed, without any hypothetical question having been submitted to him involving the facts in this particular case to which, of course, the inquiry was intended to apply. Turner v. Harr, 114 Mo. 335; Senn v. Railway, 108 Mo. 142; Mammerberg v. Railway, 62 Mo.App. 563. (2) Under such circumstances, the violation of the speed ordinance by the defendant was not the proximate cause of the accident but a mere incident thereto, and the speed limit ordinance was not admissible in evidence for any purpose. Bragg v Railway, 192 Mo. 352; Reno v. Railway, 180 Mo. 469; Moore v. Railroad, 176 Mo. 528. (3) Presumptions are never indulged in where the witness is alive and able to go upon the stand and testify. Mockowick v. Railroad, 196 Mo. 571; Nixon v. Railroad, 141 Mo. 439; Green v. Railroad, 192 Mo. 142; Stotler v. Railroad, 204 Mo. 639; Moore v. Railroad, 176 Mo. 528; Lynch v. Railroad, 112 Mo. 434; Laun v. Railroad, 216 Mo. 563. (4) Where there is no evidence of plaintiff's earning capacity before and after the accident upon which an estimate could be made, the question of such damages should not be submitted to the jury. Davidson v. Transit Co., 211 Mo. 346; Leech v. Railroad, 118 S.W. 510; Maston v. Mt. Vernon, 58 N.Y. 391; Sedgwick on Damages, sec. 181; Paquin v. Railroad, 90 Mo.App. 128. (5) The defendant was entitled to have submitted to the jury the question of plaintiff's contributory negligence. It was pleaded in defendant's answer; it was developed in plaintiff's own testimony, as outlined in the instruction, and this instruction should have been given. Reno v. Railroad, 180 Mo. 464; Green v. Railroad, 192 Mo. 142; Moore v. Railroad, 176 Mo. 528; Laun v. Railroad, 216 Mo. 563.

I. W. Mayfield, D. O. Vernon and L. C. Mayfield for respondent.

(1) The appellant's first contention that the court erred in allowing witness Wright to testify is not well taken. This evidence is responsive to the pleadings, and is invited by defendant's special answer. The authorities cited do not support his conclusions. Besides his objections to this evidence are too general. Clark v. Loan Co., 46 Mo.App. 248; Creighton v. Modern Woodmen, 90 Mo.App. 378; Randall v. Railroad, 102 Mo.App. 342. (2) Appellant's second assignment of error is likewise untenable. The evidence does not support his position, nor do the authorities cited uphold his contention. Stotler v. Railroad, 200 Mo. 135; Hutchinson v. Railroad, 161 Mo. 246; Bragg v. Railroad, 192 Mo. 353; Riska v. Union Depot Co., 180 Mo. 168; Powers v. Transit Co., 202 Mo. 267. (3) The court properly declared the law under the evidence in this case. Weller v. Railroad, 164 Mo. 180; Powers v. Transit Co., 202 Mo. 267; Eckhard v. Transit Co., 190 Mo. 593. (4) In the absence of other evidence, the unlawful rate of speed, if shown, will be presumed to be the cause of the injury. Schereth v. Railroad, 96 Mo. 515; Graney v. Railroad, 140 Mo. 89; Powers v. Transit Co., 202 Mo. 283.

GRAY, J. Cox, J., concurs. Nixon, P. J., not sitting.

OPINION

GRAY, J.--

This suit was instituted in the circuit court of Laclede county, to recover damages in the sum of $ 15,000 for personal injuries sustained by plaintiff through the alleged negligence of the defendant in running its train against plaintiff, while he was on the track of defendant. The petition, after alleging that at the times complained of, defendant was a corporation and operating a railroad through the city of Lebanon, a city of the fourth class, stated:

"That on the 13th day of January, 1905, that he was traveling eastward on and along the defendant's railroad in the corporate limits of the said city, from where Jefferson avenue crosses the defendant's road to Washington avenue where defendant's road crosses same, each of said avenues being public crossings in the said city of Lebanon, Mo.

That a number of days prior to the 13th day of January, 1905, there had fallen a very heavy snow covered with sleet and ice, and that it had formed an embankment on each side of the defendant's roadbed between said named points, to-wit: Jefferson and Washington avenues, and by and on account of same it was extremely difficult to get off of said tracks between said named points in said city.

Plaintiff further represents that the defendant's said road between said Jefferson and Washington avenues, and for a long distance west of said avenues, is straight and level and that said roadbed between said points for many years prior to the said 13th day of January, 1905, had been used as a road and footpath by the public by the forbearance and tacit consent of the defendant, and that while he was thus walking on defendant's said railroad near said Washington avenue in said city, he was run against and struck by one of the defendant's locomotives and train of passenger cars which approached him from the rear while the same was being run, conducted and managed by the defendants, its agents and servants and by reason of being so struck and run against, he was bruised, mangled and permanently injured for life. . . .

Plaintiff further avers that on the said 13th day of January, 1905, and long prior thereto there was duly created and in force in said city of Lebanon, Missouri, a certain ordinance providing that no engine or cars should be run in or through said city at a greater rate of speed than six miles per hour, and that the defendant negligently violated this ordinance in that, it did at said time negligently run said locomotive and passenger train at a much greater speed than six miles per hour, to-wit: about 30 or 40 miles per hour in said city and between said Jefferson and Washington avenues. That by such negligence, by and on the part of the defendant in so running its train that the same was the proximate cause and directly contributed to plaintiff's injury as herein set forth to-wit:

Said injuries consisted of bruises on and about the head, face and body and by and on account of same this plaintiff was paralyzed in one-half of his entire body, and his speech greatly impaired and he was made on account of said injuries entirely helpless and was ruined for life both in mind and body and has suffered and is still suffering agonizing pain even nigh unto death.

Plaintiff says at said time of his injury so received as herein set forth he was of the age of years old, was strong, active and healthy man in both mind and body and was in business in the said city of Lebanon, Mo., and earning about two thousand dollars ($ 2000) per annum, but since said injuries he is wholly unable to attend to his business or do any work of any kind whatever.

Plaintiff therefore says and avers that said injuries so received as herein set forth on the said 13th day of January, 1905, was due solely to the negligence, carelessness and wantonness of the defendant, its agents and servants in charge of, running, managing and operating said locomotive and passenger cars on said date, time and place, as herein set forth, to-wit:

First. Said servants in charge of said engine and cars, saw or by the exercise of reasonable care and caution, could and should have seen, the plaintiff in time to have avoided said injury, and negligently failed to do so, and after seeing or being by the exercise of reasonable care and diligence unable to see the imminent danger and peril of the plaintiff, negligently failed to use the proper means and appliances to slow up or stop said engine and cars and by the exercise of reasonable care and caution could have avoided said injury, but did negligently, recklessly, carelessly and wantonly run the same upon and against this plaintiff which was the direct cause, and directly continued to cause and produce said injuries herein complained of.

Second. Defendant was further negligent in not ringing its bell or sounding its whistle or giving the plaintiff any warning of its approach and that it was its duty to so do in approaching said crossings but negligently failed to so ring its bell or give any warning of its approach in violation of the law as made and provided, which negligence directly contributed to and caused said injuries.

Third. Defendant was further negligent in violating the said city ordinance by running its said engine and cars in excess of the rate of speed in said city at the time and place herein set forth and that its negligence in not obeying said ordinance was the direct cause and directly contributed to said injuries.

Wherefore plaintiff avers and charges that each of said negligent acts by and on the part of the defendant as herein set forth was the proximate cause of, and each directly contributed to cause and produce said injuries as herein complained of. Wherefore plaintiff is damaged in the sum of fifteen thousand dollars ($ 15,000) for which he asks judgment with costs.

The answer was a general denial, and a plea of contributory negligence.

The cause was tried before the court and a jury, on the 6th day of February, 1908, resulting in a verdict for plaintiff in the sum of $ 5000, and judgment duly rendered thereon. The defendant in due time filed its motion for a new trial, which was by the court overruled, and defendant excepted and appealed to the Supreme Court, and the case was transferred by that court to...