Rose v. St. Louis-San Francisco Railway Co.

• Decision Date: 15 November 1926
• Docket Number: 25140
• Citation: 289 S.W. 913,315 Mo. 1181
• Parties: Hugh Rose v. St. Louis-San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

289 S.W. 913

315 Mo. 1181

Hugh Rose v. St. Louis-San Francisco Railway Company, Appellant

No. 25140

Supreme Court of Missouri

November 15, 1926

Rehearing Granted, Reported at 315 Mo. 1181 at 1198.

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Affirmed (upon condition).

E. T Miller and Ward, Reeves & Oliver for appellant.

(1) The court erred in refusing the defendant's peremptory instruction at the close of the plaintiff's case and again at the close of the whole case. The cause was submitted to the jury solely upon the humanitarian doctrine, and also upon the theory that plaintiff was not in the regular line of his employment at the time of his injury, and that he occupied the same position as that of a stranger, trespasser or licensee. To make a case it was incumbent upon plaintiff to show that the defendant's employees operating the train and cars actually knew that plaintiff was in a dangerous place, and notwithstanding this fact wilfully or wantonly injured the plaintiff. The evidence most favorable to the plaintiff shows that from the position of Brakeman Crass the latter could not see plaintiff when he started to couple the cars after he reached a point as close as three feet to the car; and that ordinarily the coupling was effected without going between the cars by means of a safety appliance device which could ordinarily be operated without going between the cars. Plaintiff's testimony also shows that after he tried to work the coupling device from a position by the side of the car he then crossed over between the cars and got on the opposite side and then went between the cars to adjust the knuckles on the car. Plaintiff did not transmit any signal or give any notice of any kind to the brakeman that he was crossing between the cars, or that he expected to take up a position between the cars. There was therefore no evidence in the case to go to the jury upon the humanitarian theory. Oatman v. Railroad, 304 Mo. 38; Hall v. Railroad, 219 Mo. 553; Hammontree v. Payne, 246 S.W. 915; See Safety Appliance Acts, Sec. 9967, R. S. 1919; Sec. 8606, U.S. Compiled Statutes 1918. (a) The plaintiff in this case, over the objections and exceptions of defendant, offered a mass of testimony to show that the plaintiff for a long period of time had been in the habit or custom of assisting the switching crew in switching the trains and cars and coupling and uncoupling same. In rebuttal, the plaintiff was permitted to show by witnesses that they had seen the plaintiff and other outsiders assisting in switching operations of the train in the presence of the engineer of the train. The foregoing testimony was incompetent and did not show proper authority or any authority to bind the defendant in this case, and this testimony, especially in view of the remarks and comments of the court in passing thereon, was prejudicial error. Hall v. Railroad, 219 Mo. 553; Oatman v. Railroad, 304 Mo. 38. (b) The foregoing incompetent evidence was nowhere referred to in the instructions of the court to the jury or withdrawn from the jury, and while the instructions permitted a recovery on the humanitarian doctrine, yet we think that the admission of this great mass of testimony, together with the comments and rulings of the court thereon, and especially in view of the argument of counsel for plaintiff to the jury, constitutes reversible error, and that the error of the court in admitting same was not cured by ignoring it and submitting the case to the jury in instructions on a different theory. Wojtylak v. Coal Co., 188 Mo. 285; Meyer v. Lewis, 43 Mo.App. 417; Pryor v. Railroad, 83 Mo.App. 367; Naughton v. Company, 123 Mo.App. 202; Glenn v. Street Ry., 167 Mo.App. 114; Vest v. Kresge Co., 213 S.W. 168; Williams v. Modern Woodmen, 243 S.W. 274. (2) The court committed reversible error in many prejudicial remarks made during the progress of the trial in the presence of the jury. State v. Drew, 213 S.W. 106; Schundt v. Railroad, 149 Mo. 283; State v. Davis, 217 S.W. 91; McElwain v. Dunham, 221 S.W. 774; Landers v. Railroad, 134 Mo.App. 88; Clear v. Van Blarcum, 241 S.W. 81; Rooker v. Railroad, 226 S.W. 70; State v. Davis, 284 Mo. 706; State v. Jones, 197 S.W. 158. (3) The court erred, in permitting counsel, in closing the argument to the jury, to make improper argument to the jury. Monroe v. Railroad, 249 S.W. 644; Beck v. Railroad, 129 Mo.App. 24; 38 Cyc., 1498, 1499. (4) The court erred in giving on behalf of plaintiff Instruction 1. There was no evidence in the case authorizing the submission of the case upon the theory that any of the other employees saw the plaintiff in a place of peril. But this instruction authorized the jury to go outside the evidence and to return a verdict if any of the employees saw the plaintiff. (5) The verdict and judgment for $ 12,000 are excessive. Jones v. Railroad, 287 Mo. 64; Applegate v. Railroad, 252 Mo. 173; Crockett v. Railways Co., 243 S.W. 902.

T. R. Ely and Tom Ely, Jr., for respondent.

(1) The court submitted this case solely upon the humanitarian doctrine. The evidence is that respondent was familiar with signals for moving, switching, coupling and uncoupling cars, and that he received a signal from appellants' witness Crass to uncouple the cars; that he had switched with him numbers of times before and every day during the cotton season that fall; that Crass saw respondent going towards the place he was to couple the cars and saw him when he was within three feet of the coupling and still going in the direction of coupling when witness last saw him. It was therefore a question for the jury to decide as to whether the brakeman had knowledge of respondent's place of peril. It was not necessary that the conductor or any member of the train crew had knowledge of respondent's peril. Hall v. Railroad, 219 Mo. 553. (2) There was no error in the introduction of testimony as to the habit or custom of respondent assisting the switching crew in switching the trains and cars and coupling and uncoupling the same. The evidence followed the petition, but it was not necessary to submit the case upon all the allegations of the petition, and as it was submitted solely upon the humanitarian doctrine there was no error in admitting this testimony. It was competent for the purpose of showing that respondent was familiar with the signals of the trainmen and it was necessary to prove that he was, for if he had not been familiar with the signals he could not have obeyed them. Hall v. Railroad, 219 Mo. 553; Oatman v. Railroad, 304 Mo. 38; Hubbard v. Wabash Ry. Co., 193 S.W. 579. (3) The court did not commit reversible error in his remarks made during the progress of the trial. The language shows that at that stage of the trial it was the court's idea that the appellant was liable in damages because the agents of the company had accepted his work, and that statement was not made upon any question that was afterwards submitted to the jury, and it was clearly not such an expression of opinion by the trial court as would prejudice the jury against the appellant. Where there is a clear case of liability the court will not reverse a case because of remarks by the court, unless they are flagrantly prejudicial to the cause of the appellant, and if the court committed error in this respect he immediately thereafter corrected the error. Hutchison v. Richmond Safety Gate Co., 247 Mo. 71; Copeland v. Ins. Co., 191 Mo.App. 435; Stevens v. Fire Ins. Co., 139 Mo.App. 369; Atkins Bros. v. Landa, 130 Mo.App. 542. (4) There was nothing said in the argument of counsel in closing the case that was improper and not justifiable in view of the argument of counsel for appellant, this trouble was started by counsel for appellant. Brady v. Springfield Traction Co., 140 Mo.App. 421. Where a verdict for plaintiff would have resulted in any event, improper argument of plaintiff's counsel is not reversible error. Kinney v. Met. St. Ry. Co., 261 Mo. 97. The verdict was unanimous and in such circumstance the court will be slow to say the jury was influenced by any improper argument by plaintiff's attorneys. Toreyson v. United Ry. Co., 144 Mo.App. 626; Henly-Waite Co. v. Grannis, 171 Mo.App. 392; Kinney v. St. Ry., 261 Mo. 97; Tuck v. Springfield Traction Co., 140 Mo.App. 335. (5) The verdict is not excessive in view of the expectancy that respondent has.

Atwood, J. All concur, except Graves, J., absent.

OPINION

ATWOOD

This is an appeal from a judgment for $ 12,000 for personal injuries which necessitated the amputation of plaintiff's right arm between the elbow and shoulder.

Plaintiff went to trial on his amended petition which, in addition to the usual formal averments, alleged his employment by defendant on October 4, 1921, at the joint station maintained and operated by the St. Louis Southwestern Railway Company the Paragould & Southeastern Railway Company and this defendant at Arbyrd, Missouri; that as such employee it was his duty to make out switching lists and deliver same to the conductor or other agents in charge of defendant's trains; that on said date on the arrival of defendant's north-bound local freight train No. 856 at Arbyrd, plaintiff delivered a switching list to defendant and defendant's agents, servants and employees, which required the spotting or setting of a box car at a cotton-gin platform on a wye or connecting track; that plaintiff had been permitted, requested, ordered and was accustomed for more than two years previous to assist defendant's agents, servants and employees in handling freight and switching lists, and on numerous occasions at their request had assisted in switching and coupling cars and doing such things as a brakeman usually does; that plaintiff was in the usual and proper course of his employment...