Salmons v. St. Joseph & G. I. Ry. Co.

• Decision Date: 02 July 1917
• Docket Number: No. 18426.,18426.
• Parties: SALMONS v. ST. JOSEPH & G. I. RY. CO.
• Court: Missouri Supreme Court

197 S.W. 35

271 Mo. 395

SALMONS v. ST. JOSEPH & G. I. RY. CO.

No. 18426.

Supreme Court of Missouri, Division No. 1.

July 2, 1917.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

Action by Winniefred R. Salmons against the St. Joseph & Grand Island Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Robert A. Brown and Richard L. Douglas, both of St. Joseph, for appellant. Culver & Phillip, of St. Joseph, for respondent.

BLAIR, J.

Respondent is a railroad brakeman, and was injured by being thrown from a car upon which he was riding in the course of duty. The jury returned a verdict for $12,500. The trial court required a remittitur of $2,500, and rendered judgment for $10,000. The railroad company appealed. The train upon which respondent was working was engaged in interstate commerce. It had reached Stouts, Kan., and was backing in upon a side track preparatory to cutting the train in two for the purpose of doubling a hill or grade east of Stouts. Respondent was ordered to get upon the caboose, in order that he might observe and signal the train's approach to cars already upon the siding. The operation occurred about 5:15 on a December morning. Respondent attached a fusee to the rear of the caboose and assumed his position on top of the car. As the train backed into the siding, he gave a slow or "easy" signal, and the speed was reduced to 5 or 6 miles per hour. In a few moments the conductor, who was upon the ground near the middle of the train, signaled for a stop. This order, the evidence tends to show, was obeyed in such a sudden manner that respondent was thrown violently from the center of the top of the caboose over its rear end and fell upon the track, sustaining the injuries for which he sues. Other facts necessary to a decision are stated in the course of the opinion.

I. Respondent was asked what family he had. Counsel for appellant said: "That is objected to as incompetent." The court, responding to the suggestion that the statute was both penal and compensatory, overruled the objection. Respondent said he had a wife and one child. Other questions concerning other matters were put and answered. Appellant's counsel then offered a second objection, full and specific, to the question concerning respondent's family. Upon hearing this objection, respondent's counsel asked to withdraw the answer as to respondent's family. To this appellant objected. Counsel for respondent stated: "Well, we didn't hear his objection at first; and, when we heard his objection, we want to withdraw it." The court then stated to the jury that the answer was withdrawn, and, at the time, specifically directed the jury not to consider that testimony. Appellant excepted. In respondent's instruction on the measure of damages, the elements of damage are specifically stated, and none concerns anything except the injuries to respondent's person. In an instruction given at appellant's instance, the jury are told that the instructions given "declare the law to govern your action in this case. They are not to be disregarded by you at your pleasure, but they must be considered and obeyed by you in arriving at your verdict, and while your verdict must be found in accordance with such instructions and the evidence in this case, you are," etc. It is contended the judgment must be reversed because the court permitted the question mentioned above to be answered, despite the subsequent withdrawal of the answer and the giving of the instructions quoted.

(a) The motion for new trial contains no complaint of the action of the court. The only grounds of the motion relating to rulings on evidence are that (1) the court admitted irrelevant, incompetent, and immaterial testimony offered by respondent, and (2) rejected competent, relevant, and material testimony offered by appellant. In this case the evidence complained of was actually withdrawn almost as soon as given; three questions and answers intervening. The point that the error in permitting the answer, in the first place, was incurable error, despite the withdrawal of the answer, is not fairly covered by the complaint in the motion that the court admitted incompetent testimony. It is only in exceptional cases that withdrawal of testimony does not meet objections to its admission (Stauffer v. Railroad, 243 Mo. loc. cit. 321, 147 S. W. 1032; Pennsylvania Co. v. Roy, 102 U. S. loc. cit. 459, 26 L. Ed. 141), and a complaint of the admission of evidence cannot be said to raise a question as to the effect of evidence actually excluded. The motion for new trial did not count upon the error now pressed upon our attention.

(b) It may be conceded evidence as to respondent's family was not admissible. In this case, however, the evidence was expressly withdrawn, and then the court immediately directed the jury not to consider it. In an instruction given the elements of damages were specifically enumerated, and in another the jury were told they must obey the instructions of the court as the law of the case. There was no evidence of unfair intent in the asking of the question, no persistence in asking it, and no comment upon the answer, except the oral direction that the jury must not consider it. The instructions on the merits and burden of proof also specifically limited the jury to the evidence in the case, thereby impliedly excluding any consideration of the withdrawn answer to the question objected to. In Stephens v. Railway, 96 Mo. loc. cit. 215, 9 S. W. 592, 9 Am. St. Rep. 336, considering the admission of evidence as to plaintiff's family, this court expressly said:

"We have no doubt but the trial court may exclude improper evidence during the course of the trial, or by an instruction at the close of the evidence, and, when this is done, the fact that such evidence was heard by the jury will not operate as a reversal of the judgment."

The evidence was admitted in that case, though the court directed the jury not to consider it in making up their verdict. It was said in the opinion:

"We do not say that this judgment should be reversed alone on the ground of excessive damages; nor do we say that it should be reversed because of the evidence before noted, had a specific instruction as to the measure of damages been given; but in view of the very general instruction as to damages, and the amount of the verdict, we cannot escape the conclusion that the incompetent evidence had its effect."

In Wojtylak v. Coal Co., 188 Mo. loc. cit. 287, 87 S. W. 506, 513, 514, the court, considering a like question, held that the withdrawal of evidence inadvertently admitted "will ordinarily have the effect of curing the error." It then pointed out the happenings in the trial in connection with the evidence in question, and added:

"While it may not of itself have been a reversible error, the manner of getting it before the jury [was] unfair practice."

In Stauffer v. Railroad, supra, it was held the withdrawal of evidence improperly admitted cures the error ordinarily, and that this is a good working rule, unless exceptional circumstances are present, such as to call "for a reversal as the only cure." In Pennsylvania Co. v. Roy, supra, the United States Supreme Court held that evidence erroneously admitted could be eliminated effectively by a direction in the judge's charge that it must not be considered by the jury. The court, through Mr. Justice Harlan, concluded thus:

"The presumption should not be indulged that the jury were too ignorant to comprehend, or were too unmindful of their duty to respect, instructions as to matters peculiarly within the province of the court to determine. It should rather be, so far as this court is concerned, that the jury were influenced in their verdict only by legal evidence. Any other rule would make it necessary in every trial, where an error in the admission of proof is committed, of which error the court becomes aware before the final submission of the case to the jury, to suspend the trial, discharge the jury, and commence anew. A rule of practice leading to such results cannot meet with approval."

From these decisions and others, and on principle, it must be concluded that this record does not bring the case within the rule upon which appellant relies. There are no exceptional circumstances taking it out of the rule that, ordinarily, the withdrawal of erroneously admitted evidence leaves no ground for reversing the judgment on account of such admission.

(c) The question whether the objection first made to the question was legally sufficient to present a question to the trial court need not be considered. The fact of the debatableness of that question goes, in all events, somewhat to explain the original ruling and the failure to withdraw the answer until the amplified objection was made.

II. It is contended it was error to permit respondent to testify that uncoupling the air hose would apply the brakes. It is urged that there was no evidence any employé was in a position to uncouple the air hose, and the evidence amounted to basing one presumption upon another. No objection was made to the question until after the answer was in. The question...