Pietzuk v. Kansas City Railways Company
| Decision Date | 11 July 1921 |
| Citation | 232 S.W. 987,289 Mo. 135 |
| Parties | JULIUS PIETZUK v. KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Clarence A. Burney Judge.
Reversed and remanded.
Chas N. Sadler and Mont T. Prewitt for appellant.
(1) The court erred in failing and refusing to grant defendant a new trial for the reason that venireman C. (Charles) G. Green did not fully, accurately, and truthfully answer all questions propounded to him on the voir dire examination, particularly concerning any present or previous feeling of bias or prejudice against defendant growing out of litigation against defendant, resulting in prejudice in that defendant was caused to exercise one of its peremptory challenges in removing said venireman, when a truthful disclosure would have furnished cause for trial court to have excused him. Vessels v. Light Co., 219 S.W. 80; Theobald v Transit Co., 191 Mo. 395; Carroll v. United Rys., 157 Mo.App. 247, 264; Gibney v. Transit Co., 204 Mo. 704; State v. Wyatt, 50 Mo. 309; Hughes v. Ry., 60 S.W. 562. (2) The court erred in giving instruction numbered 1 requested by plaintiff. State ex rel. Coal Co. v. Ellison, 270 Mo. 645, 653; Degonia v. Ry., 224 Mo. 565, 589; Northam v. Rys., 176 S.W. 227; McGrath v. Ry., 197 Mo. 105; Davidson v. Transit Co., 211 Mo. 320, 361; State ex rel. Newspaper Assn. v. Ellison, 176 S.W. 11; Roscoe v. Ry., 202 Mo. 576, 588; Bank v. Murdock, 62 Mo. 70; Hamilton v. Crowe, 175 Mo. 634. (3) The court erred in refusing to give to the jury the peremptory instruction directing a verdict in favor of defendant, requested at the close of all the evidence, under the physical-facts doctrine. State v. Bryant, 102 Mo. 24, 32; State v. Turlington, 102 Mo. 642, 663; Daniels v. Ry., 177 Mo.App. 280; Scroggins v. Met., 138 Mo.App. 215, 219. (4) The court erred in refusing to sustain the motion for new trial because of the misconduct upon the part of plaintiff's counsel in making incompetent, prejudicial and improper argument. Beck v. Rys., 129 Mo.App. 7, 23; Rice v. Sally, 176 Mo. 107, 146; Robertson v. Wabash, 152 Mo. 382; Brown v. Ry., 66 Mo. 588; Neff v. City of Cameron, 213 Mo. 350, 369; Williams v. Ry., 123 Mo. 573; Collier v. City of Shelbyville, 219 S.W. 713. (5) The court erred in refusing to sustain the motion for new trial on the grounds that the verdict and judgment are contrary to the greater weight of the evidence and because the jury in arriving at their verdict wholly disregarded the instructions given by the court. Price v. Evans, 49 Mo. 396; Lehnick v. Met., 118 Mo.App. 611; Chitty v. Ry., 148 Mo. 64, 78; Spiro v. Transit Co., 102 Mo.App. 250, 264; Spohn v. Mo. Pac. Ry. Co., 87 Mo. 74; State v. Fannon, 158 Mo. 149; Payne v. Railroad, 136 Mo. 362; Hook v. Railroad, 162 Mo. 569; Fugler v. Bothe, 117 Mo. 475, 501. (6) The verdict is excessive. Rigg v. C. B. & Q., 212 S.W. 878; Hulse v. St. Joseph Ry. Co., 214 S.W. 155; Dominick v. Mining Co., 255 Mo. 463; Campbell v. United Rys., 243 Mo. 141, 159; Stolze v. Transit Co., 188 Mo. 581; Norris v. Ry., 239 Mo. 695, 704; Lyons v. St. Ry., 253 Mo. 143, 163; Bragg v. Street Ry. Co., 192 Mo. 351; Willits v. C. B. & Q., 221 S.W. 65.
W. W. McCaules and Hogsett & Boyle for respondent.
(1) The court did not err in refusing a new trial because of the answers of venireman Chas. G. Green on voir dire examination. (a) The venireman was not challenged by the defendant and there is no objection or exception in the record to any ruling of the trial court relating to the matter. Therefore defendant is in no position to complain. City of Tarkio v. Cook, 120 Mo. 1, 11. (b) The affidavits of its claim agents filed by defendant do not show any prejudice on Green's part. McManama v. United Rys. Co., 175 Mo.App. 43; Kennelly v. K. C. Rys. Co., 214 S.W. 237; Albert v. Ry. Co., 192 Mo.App. 665; Tawney v. Rys. Co., 262 Mo. 602; Shore v. Dunham, 178 S.W. 900; State v. Green, 229 Mo. 642; Hudson v. Ry. Co., 53 Mo. 525; State v. Ivy, 192 S.W. 737; In re Bowman, 7 Mo.App. 568. (c) The question as to the competency of jurors is one addressing itself to the sound discretion of the trial court and that discretion will not be interfered with unless palpably abused. State v. Rasco, 239 Mo. 535; Kennelly v. Rys. Co., 214 S.W. 237; McManama v. Railroad, 175 Mo.App. 50, 51. (2) The court did not err in giving Instruction Number 1 requested by plaintiff. The instruction is not broader than the petition but is strictly and literally limited to the percise negligence alleged therein. Riley v. City of Independence, 258 Mo. 682; Johnson v. Met. St. Ry. Co., 177 Mo.App. 300; Schwanenfeldt v. St. Ry. Co., 187 Mo.App. 592; Ottofy v. Trust Co., 196 S.W. 430; Green v. Standard Oil Co., 199 S.W. 749; Quinley v. Traction Co., 180 Mo.App. 300, 302; Little v. Railroad, 139 Mo.App. 55. (3) The court did not err in refusing the peremptory instruction requested by defendant. (a) The rear end of the car stopped only twenty-five feet from the west edge of the platform, so that plaintiff's estimate of the distance he was carried before he fell was absolutely accurate and in accordance with the physical facts. Costello v. Kansas City, 219 S.W. 391. (b) A court should not take a case from the jury on the "physical facts" theory merely because the varying estimates of witnesses as to distance, made in a moment of extreme excitement, are not mathematically exact. Swigart v. Lusk, 192 S.W. 141; Hays v. Ry., 182 Mo.App. 402, 403; Clark v. Long, 196 S.W. 412. (c) The estimates as to the length of the station platform and the length of the car were given by defendant's witnesses, and the court could not say as a matter of law that these estimates were correct, their credibility being for the jury. Ganey v. Kansas City, 259 Mo. 660; Gardner v. Railroad, 223 Mo. 389. (d) It will hardly do to say that the evidence conclusively shows that plaintiff boarded a moving car, when three witnesses positively testified that it was standing still. (4) There was no improper or prejudicial argument on the part of plaintiff's counsel. (a) The statement objected to was nothing more than a tribute to the resourcefulness and ability of defendant's able counsel who tried the case. The statement was made goodnaturedly and in no spirit of criticism of the defendant, and was evidently so understood by the trial court who heard all the argument. Bishop v. Inv. Co., 229 Mo. 733. (b) The trial court was in much better position to judge the meaning and effect of the statement complained of than this court, for the trial judge heard all of the argument, while only an isolated sentence thereof is presented to this court. The trial court evidently considered defendant's objection to the statement as utterly trivial, as indeed it was. (c) But even giving to the argument the strained construction which defendant strives to place upon it, the argument was not an improper one and did not transcend the limits of legitimate debate. Paul v. Dunham 214 S.W. 265; City of Kennett v. Const. Co., 273 Mo. 280; Huckshold v. Ry. Co., 90 Mo. 558; Ostertag v. Railroad, 261 Mo. 475, 479; Bradley v. City, 90 Mo.App. 424; Turnbow v. Kansas City Rys. Co., 211 S.W. 46; Pope v. Ry., 175 S.W. 955; Gidionsen v. Ry. Co., 129 Mo. 403; Bank v. Camery, 176 S.W. 1077; Whelan v. Chemical Co., 188 Mo.App. 605; Cook v. Neely, 143 Mo.App. 639; Franklin v. Railroad, 188 Mo. 545; Lilly v. K. C. Rys. Co., 209 S.W. 972; Ins. Co. v. Railroad, 174 Mo.App. 549. (d) The defendant did not specifically except to the failure of the court to reprimand plaintiff's counsel, nor did it move to dismiss the jury or to declare a mistrial. So in no event is there anything preserved for appellate review. McKinney v. Laundry Co., 200 S.W. 118; Harriman v. Dunham, 196 S.W. 443; Torreyson v. Ry., 246 Mo. 706; Ostertag v. Railroad, 261 Mo. 479; State v. Chenault, 212 Mo. 137; Peck v. Traction Co., 131 Mo.App. 143; Estes v. Railroad, 111 Mo.App. 5; Payne v. Ry., 129 Mo. 405; State v. Taylor, 134 Mo. 158. (e) When defendant objected to the argument, plaintiff's counsel immediately withdrew the remark objected to, and without objection substituted in place of it another argument to which the defendant made no objection. This leaves no room for complaint on defendant's part. Green v. Standard Oil Co., 199 S.W. 750; Hollenbeck v. Ry. Co., 141 Mo. 98; Grace v. Ry. Co., 212 S.W. 42; Almond v. Modern Woodmen, 133 Mo.App. 390; Cross v. Sedalia, 203 S.W. 648; Sinclair v. Tel. Co., 195 S.W. 558; Wellman v. St. Ry. Co., 219 Mo. 126; Collier v. Moving Co., 147 Mo.App. 700. (5) The verdict and judgment are not contrary to the greater weight of the evidence. (a) This court will not weigh the evidence in a law case. Linderman v. Carmin, 255 Mo. 62; Hutchinson v. Safety Gate Co., 247 Mo. 71; Howell v. Sherwood, 242 Mo. 513; Norris v. Ry. Co., 239 Mo. 695; Moore v. King, 178 S.W. 124. (b) The jury and the trial court have found that plaintiff's case is sustained by the greater weight of the evidence. This concludes the defendant. Authorities supra. (6) The verdict is not excessive. (a) In passing on the size of the verdict this court will consider the decreased purchasing power of money. Hurst v. Railroad Co., 219 S.W. 568; Hulse v. Ry. Co., 214 S.W. 156; Duffy v. Ry. Co., 217 S.W. 883; Hays v. Ry. Co., 183 Mo.App. 608. (b) In the light of the late cases a verdict of $ 15,000 is not excessive for the injuries which the plaintiff was shown by the undisputed evidence to have sustained. Smith v. Ry. Co., 213 S.W. 485, 486; Holzemer v. St. Ry. Co., 261 Mo. 379; Hubbard v. Railroad Co., 193 S.W. 579; Shaw v. Kansas City, 196 S.W. 1094; Miller v. Harpster, 273 Mo. 605; Myers v. City of Independence, 189 S.W. 817.
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