Pulliam v. Wheelock

• Decision Date: 03 March 1928
• Docket Number: 26373
• Parties: Ben M. Pulliam v. William W. Wheelock and William G. Bierd, Receivers of Chicago & Alton Railroad Company, Appellants
• Court: Missouri Supreme Court

3 S.W.2d 374

319 Mo. 139

Ben M. Pulliam v. William W. Wheelock and William G. Bierd, Receivers of Chicago & Alton Railroad Company, Appellants

No. 26373

Supreme Court of Missouri

March 3, 1928

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed (upon condition).

Charles M. Miller for appellants.

(1) The trial court erred in overruling defendant's application for continuance or resetting, because defendants were, on account of the enforced absence of one of its principal witnesses, Dr. Herman E. Pearse, a leading physician and surgeon, who had examined plaintiff on December 30, 1922 entitled to a continuance or resetting for a few weeks, until Dr. Pearse could recover from an accidental injury, suddenly sustained and for which he was operated on at a hospital the day before the case was called for trial, rendering his condition such that counsel could not even confer with him thereafter or while the trial was on. 4 Ency. Plead. & Prac. 825; 5 Standard Ency. of Procedure, p. 481; Fort Worth Ry. Co. v. Jenkins, 252 S.W. 190; Hall v. Hale, 202 Ill. 331; Pidgeon v. United Rys. Co., 154 Mo.App. 27; Rottman Distilling Co. v. Frank, 88 Mo.App. 50; Tunstel v. Hamilton, 8 Mo. 501; Barnum v. Adams, 31 Mo. 532; Laun v. Ponath, 105 Mo.App. 206; Nichols v. Grocery Co., 66 Mo.App. 322; Shoe Co. v. Hillig, 70 Mo.App. 302; Bank v. Lock Co., 184 S.W. 1176; Handy v. McClelland, 156 Mo.App. 454; Alt v. Grosclose, 61 Mo.App. 412; Putnam Co. v. Mendota Mining Co., 285 S.W. 411; Campbell v. McCaskill, 88 Mo.App. 49; Noah v. Mercantile Co., 208 Mo.App. 149. (2) The trial court erred in refusing defendant's Instruction 8, withdrawing from the jury the alleged issue in regard to a pterygium on the right eye of plaintiff, for the reason there was no evidence showing the pterygium was caused by any alleged negligence of defendants, and the refusal of said instruction was prejudicial to defendants. (3) The verdict and judgment for the alleged injuries received by plaintiff are grossly excessive, and so excessive as to indicate bias, passion and prejudice on the part of the jury against defendants. Brock v. Railroad, 305 Mo. 502; Page v. Payne, 240 S.W. 163; Miller v. Schaff, 228 S.W. 491; Spencer v. Railroad, 297 S.W. 357; Mount v. Coal & Mining Co., 294 Mo. 603; Looff v. Rys. Co., 246 S.W. 578; Gilchrist v. Rys. Co., 254 S.W. 165; Lessenden v. Railroad, 238 Mo. 247; Myers v. Wells, 273 S.W. 110; Tribble v. Railroad, 285 Mo. 603; Boyer v. Mo. Pac. Railroad, 293 S.W. 389; Stahl v. Frisco, 287 S.W. 682; Varley v. Taxicab Co., 240 S.W. 224; Markey v. Railroad Co., 185 Mo. 348; Shannon v. Light Co., 287 S.W. 1031; Hart v. Milwaukee Railroad, 264 S.W. 906; Gordon v. Railroad, 222 Mo. 539; Taylor v. Mo. Pac., 311 Mo. 604; Lovett v. Terminal Co., 295 S.W. 89.

J. V. Jones and Madden, Freeman & Madden for respondent.

(1) The trial court did not err in overruling defendants' application for continuance; moreover, defendants waived all questions pertaining thereto by taking advantage of privileges of physical examination of plaintiff accorded them by the court in lieu of such continuance. (a) The application for continuance was insufficient in law, was not in statutory form, and as a result was properly overruled. Secs. 1389, 1390, R. S. 1919; Jones v. Jones, 188 Mo.App. 220; Gregory v. Hansen, 224 S.W. 82; 13 C. J. 186; Mosher v. Bennett, 31 Mo. 462; Soderberg v. Pierce, 33 Mo.App. 63; Ladd v. Culbertson, 145 Mo.App. 123. (b) Plaintiff offered and agreed to admit that the witness, if present, would testify to any facts defendants chose to set up in affidavit or otherwise; and under Section 1390 such admission operated to deprive defendants of any right to a continuance even had the application been in statutory form. (c) The court, with the consent and at the instance of plaintiff, permitted defendants to have two additional experts examine plaintiff during the trial, in lieu of a continuance; defendants took advantage of this permission granted as aforesaid; and by so doing waived any question of continuance. (d) The evidence of the absent witness would be, at most, cumulative, and, hence, a continuance by reason thereof was properly denied. Cooley v. Railroad, 149 Mo. 487; Cash v. Wysocki, 229 S.W. 430; Chambers v. Chambers, 297 Mo. 512. (e) If counsel, as he states, was unable on the day of the trial to set out the particular facts he expected the absent witness to prove, such inability is a confession of lack of diligence and the application for continuance was properly denied. Blair v. Railroad Co., 89 Mo. 383. (f) The trial court's ruling on an application for a continuance is peculiarly a matter for its discretion; every intendment exists in favor of its action; and, unless it plainly appears that its discretion has been obviously abused to the oppression of the moving party, the exercise of that discretion will not be disturbed on appeal. Bartholow v. Campbell, 56 Mo. 118; Gregory v. Hensen, 224 S.W. 82; Jones v. Jones, 188 Mo.App. 220; Laumeier v. Laumeier, 271 S.W. 483; Gibson v. Insurance Co., 181 Mo.App. 308. (2) The trial court did not err in refusing defendants' Instruction 8. Wood v. Railway Co., 181 Mo. 433; Sharp v. Railway Co., 213 Mo. 531; Fetter v. Fidelity & Cas. Co., 174 Mo. 256; MacDonald v. Railroad, 219 Mo. 468; Smith v. Chemical Works, 251 S.W. 158; Church v. Kansas City, 280 S.W. 1053. (3) In view of plaintiff's unprecedented injuries, the judgment in this cause is just and reasonable, and should be affirmed. Gill v. Railroad Co., 302 Mo. 317; Unterlachner v. Wells, 296 S.W. 763; Bosher v. Railway Co., 15 F.2d 388; Beaumont v. Sterling, 260 S.W. 320; Taylor v. Missouri Pacific, 311 Mo. 604; Lovett v. Kansas City Terminal, 295 S.W. 89; Bond v. Railroad Co., 288 S.W. 777; Smith v. Railroad Co., 213 S.W. 481.

OPINION

Ragland, J.

Plaintiff, while in the employ of the defendants as locomotive engineer, and while so engaged, suffered personal injuries through a head-on collision of two freight trains, caused by the mistake of one of defendants' telegraph operators in transcribing a train order. This action was brought under the Federal Employers' Liability Act to recover damages for the injuries sustained. That both the plaintiff and the defendants were at the time of the occurrence engaged in interstate commerce and that plaintiff's injuries, whatever they are, were caused by the defendants' negligence are tacitly conceded. The trial below spent itself on questions relating to the nature and extent of plaintiff's injuries; appellants' principal contention here is that the damages awarded plaintiff by the jury, $ 50,000 are grossly excessive.

The collision just referred to occurred in the early morning of October 19, 1922. The train of which plaintiff had charge as engineer was moving east at the rate of thirty-five miles an hour, and while so moving it collided with another freight train moving west at the rate of ten miles an hour. Just before the one crashed into the other plaintiff jumped from the cab of his engine. Shortly afterward he was found lying clear of the wreckage, not far from the track. He was quite helpless so far as locomotion was concerned, but appeared to be conscious and entirely rational. He was put on a cot and carried to the caboose of one of the trains; and then taken to Mexico, Missouri, twenty-five or thirty miles distant, where he was placed in a hospital. He remained there until October 25th; on that date he was removed to a hospital in Kansas City, and placed in charge of one of defendants' surgeons there. He was discharged from this latter hospital November 7th.

The plaintiff was forty-four years old and weighed something over 200 pounds. The visible injuries sustained by him were these: A cut over the left eye; a cut over the right eye and one across the right eye, injuring to some extent the eye ball; a cut across the nose; a cut and bruise on the back of the head; and a large bruise on the left side of the body just above the crest of the ilium, showing a discoloration as large as two hands or larger. The cuts across the forehead and nose soon healed, leaving nothing more than slight scars. There was a swelling of the tissues on the back of the head which raised a knot about the size of a hen's egg. This enlargement remained for three or four weeks, and plaintiff still experienced a soreness in that region at the time of the trial, April, 1924. The injury to the tissues where the large discloration was did not readily yield to treatment. It was first thought to be a mere bruise, though a severe one. The first examination made, at the hospital in Mexico, disclosed that the muscles were hardened and rigid, the rigidity extending from the abdomen over the left side to the median line of the back. The tissues were infiltrated; the blood had soaked into them. On plaintiff's arrival at the hospital in Kansas City this injury was diagnosed as "a severe contusion of the muscles on the left side of the lower abdomen, a sprain of the sacroiliac joint, a contusion on the outside of the hip and lower down." The results of the contusions and "sprain," as they appeared to a physician who examined plaintiff about a month before the trial, were described by him as follows:

"I found that his gait was very unnatural and the position of his leg in trying to walk or stand was very unnatural; that it was not only an unnatural condition, but the position of the foot was everted, quite badly everted, and on attempting to move his leg inward to its normal position I found it gave considerable resistance, that is, that foot, or the toe on that side, would not move in as readily as his foot on the other side. On putting the patient on his back and letting that foot drop I found that it dropped...