Powell v. Union Pac. R. Co.

• Decision Date: 03 March 1914
• Parties: POWELL v. UNION PAC. R. CO.
• Court: Missouri Supreme Court

164 S.W. 628

255 Mo. 420

POWELL v. UNION PAC. R. CO.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

1. WITNESSES (§ 330)—CROSS-EXAMINATION —SCOPE.

In an action for the death of a passenger from injuries received in a derailment, where the witnesses for the railroad company testified that the track on the whole section had been put in good condition and was inspected daily for defects, plaintiff is entitled, on cross-examination, to bring out that there were defects in the track only a short distance ahead of where the break in the rails causing the derailment occurred; such evidence tending to discredit the witnesses' testimony.

2. DEATH (§ 64)—ACTION—EVIDENCE.

Where, under a foreign statute providing for compensatory damages only, a wife sought to recover, for her own benefit and that of her minor child, damages for the death of her husband, from injuries received in a railroad wreck, evidence of the amount that the husband expended in the support of his family was admissible to show the pecuniary loss; the test not being what the husband had, but what he gave his family.

3. CONTRACTS (§ 56)—CONSIDERATION.

Where a railroad company entered into an agreement with an attorney for him to represent them in cases against the company, and gave him an annual pass in consideration of his agreement to take no cases against the company, the pass was not a gratuity, even though the attorney never tried any cases for the company.

4. APPEAL AND ERROR (§ 692)—PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW—OFFERS.

Reversible error cannot be predicated on the exclusion of a proper question, where there was no offer of proof showing that the answer would have been in favor of the complaining party.

5. APPEAL AND ERROR (§ 1057)—REVIEW— HARMLESS ERROR.

Where, in an action for the death of a passenger as the result of injuries received in a derailment which occurred in midwinter and was caused by a broken rail, the defendant railroad company conclusively established that steel rails are more brittle in cold than in warmer weather, the exclusion of a question to a witness as to that fact was harmless.

6. APPEAL AND ERROR (§ 692)—REVIEW— PREJUDICIAL ERROR.

The exclusion of a question to a witness affords no basis for reversal, where there was no offer of proof, and the witness might well have declined to have answered, on the ground that he was not an expert on the matter.

7. APPEAL AND ERROR (§ 692)—QUESTIONS PRESENTED FOR REVIEW.

The exclusion of a question calling for expert testimony is not prejudicial error, where the record does not show that the witness qualified as an expert.

8. EVIDENCE (§ 553)—HYPOTHETICAL QUESTIONS.

The exclusion of a hypothetical question is not erroneous, where necessary elements were omitted from the question.

9. EVIDENCE (§ 78)—PRESUMPTIONS—FAILURE TO PRODUCE EVIDENCE.

Evidence is to be weighed according to the proof which it was in the power of one side to have produced and the other side to have contradicted; and hence, where a railroad company collected the pieces of a broken rail which caused a derailment, but did not produce them at trial, an adverse inference is warranted against the company.

10. STATUTES (§ 284)—ADMISSIBILITY.

In an action under the Kansas statute for the wrongful death of a passenger traveling on a pass, the exclusion of a statute of that state adopting the common law, as modified by the Constitution, statutes, and judicial decisions, was not erroneous, the action depending upon statute, and there being no showing of Kansas decisions holding that the pass in question was a mere gratuity, and that the deceased was not a passenger.

11. ESTOPPEL (§ 68)—INCONSISTENT PROCEEDINGS.

Plaintiff's husband died from injuries received in a railroad wreck, and, after instituting in Missouri an action under the Kansas statute, providing for compensation for wrongful death, plaintiff instituted in Kansas an action under the Kansas statute for damages for personal injuries to her husband which caused a diminution in the estate. The petition in the second action in no way showed that the husband did not die as a result of the injuries received in the wreck. Held that, even though the Kansas courts had decided that, where the injuries cause death, suit can only be under the death statute, the bringing of the second action did not work any estoppel preventing plaintiff from recovering for the wrongful death.

12. EVIDENCE (§ 208)—ADMISSIONS—WHAT CONSTITUTES.

The filing of the second petition did not constitute an admission that the husband did not die of the injuries received in the wreck; for the admissions sought to be relied on could only be the result of a series of inferences based on a consideration of the decisions of the Kansas courts.

13. TRIAL (§ 191)—INSTRUCTIONS—ASSUMPTION.

In an action by a wife for damages for the wrongful death of her husband claimed to have resulted from injuries received in a railroad wreck, an instruction that if the jury found for plaintiff, to assess her damages at such a sum as would be fair compensation for the death of the husband does not assume that the husband died as a result of the injuries complained of.

14. APPEAL AND ERROR (§ 215)—PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW —NECESSITY.

An instruction cannot be complained of on appeal as misleading and as assuming a fact in controversy, where the matter was not raised below.

15. APPEAL AND ERROR (§ 930)—PRESUMPTIONS.

In an action for damages for wrongful death, it will not be presumed on appeal that, because the instruction on damages failed to define the term "pecuniary compensation," the jury included in their estimate damages for pain and anguish suffered by decedent, as well as by the sorrow suffered by plaintiff on account of the death; for it must be presumed that the jury were intelligent, honest men, attentive to their oaths.

16. TRIAL (§ 255) — INSTRUCTIONS — NECESSITY.

Under Rev. St. 1909, § 1987, providing that, when the evidence is concluded and before argument, either party may move the court to give instructions on any point desired, and that the court may, of its own motion, give like instructions, the court is not bound in a civil action to give instructions, unless requested, and the right to have the jury instructed is waived when none are requested.

17. CARRIERS (§ 316)—CARRIAGE OF PASSENGERS —RES IPSA LOQUITUR.

Where a passenger was injured in a railroad wreck, the presumption is that such wreck was caused by some negligence of the carrier, and the burden of proof is upon the carrier to rebut this presumption of negligence, and establish its due exercise of care.

18. CARRIERS (§ 280)—CARRIAGE OF PASSENGERS —DEGREE OF CARE.

A carrier of passengers is bound to use the highest degree of care practicable among prudent, skillful, and experienced men engaged in the same kind of business.

19. CARRIERS (§ 320)—INJURIES TO PASSENGERS —ACTIONS—JURY QUESTION.

In an action for damages for the wrongful death of a passenger from injuries received in a derailment, the question whether a suspended joint caused the derailment held, under the evidence, for the jury.

20. CARRIERS (§ 318)—CARRIAGE OF PASSENGERS —INJURIES—ACTIONS.

In an action for damages for the death of a passenger from injuries received in a derailment, evidence held sufficient to show that death resulted from such injuries.

21. APPEAL AND ERROR (§ 216)—REVIEW— HARMLESS ERROR.

In an action for damages for the wrongful death of a passenger, the carrier cannot complain on appeal that no instructions were given on the question whether the death resulted from the injuries where it requested none; it being its duty as much as that of plaintiff to request instructions.

22. CONSTITUTIONAL LAW (§ 89)—FREEDOM OF CONTRACT—REGULATION.

Under the police power, the freedom to contract may be regulated by law where the public health, public safety, public morals, or public welfare call for it.

23. CARRIERS (§§ 239, 307)—CARRIAGE OF PASSENGERS—STIPULATIONS.

Common carriers for hire cannot contract against liability for negligence in the carriage of passengers.

24. CARRIERS (§ 307)—CARRIAGE OF PASSENGERS —WHO ARE.

Where a railroad company engaged an attorney to act as its local counsel, and gave him an annual pass in consideration of his agreement not to accept any cases against the company, the attorney, though using the pass on his own business, was a passenger, and the railroad company cannot escape liability for damages for his wrongful death under an agreement that it should not be liable for any injuries sustained by its negligence; such agreement being contrary to public policy.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Marian F. Powell against the Union Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watson, Watson & Alford, of Kansas City, and R. W. Blair, of Topeka, Kan., for appellant. Sherman & Landon and Sebree, Conrad & Wendorff, all of Kansas City, for respondent.

LAMM, J.

Suing in the Jackson circuit court on a cause of action originating in Kansas, and bottomed on a Kansas statute, plaintiff, as administratrix of Frederick Powell deceased, sues for his death from injuries wrongfully received while a passenger on one of defendant's trains. She had a verdict for $7,500 for the benefit of herself as widow and her minor child, Marjory, aged five. Defendant appeals from a judgment entered on such verdict.

Attend to such a summary of the pleadings as will intelligently outline the issues, to wit:

The petition: After alleging her residence in Washington county, Kan.; the death of her husband on the 4th day of October, 1909, intestate; her appointment as administratrix by the probate court of that county, and her assumption of the burden of administration; that he left plaintiff as his widow and an only child, Marjory, of tender years (together with plaintiff his only heirs); that plain...