Salmons v. St. Joseph & Grand Island R. Company
| Decision Date | 02 July 1917 |
| Parties | WINNIFRED R. SALMONS v. St. JOSEPH & GRAND ISLAND RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.
Affirmed.
Robert A. Brown and Richard L. Douglas for appellant.
(1) The verdict of the jury is grossly excessive under all the decisions of this court, and is larger by one-fourth than any verdict ever approved by this court for the entire loss of a leg. Kinney v. Met. St. Ry. Co., 261 Mo. 97; Farrar v. Met. St. Ry. Co., 249 Mo. 210; Lessenden v. Railroad, 238 Mo. 247; Yost v Railroad, 245 Mo. 219; Ostertag v. Railroad, 261 Mo. 457; Applegate v. Railroad, 252 Mo. 173. The verdict is so grossly excessive under all the evidence in the case that it cannot be reconciled with honest motives, and can only be accounted for on the ground of prejudice and passion or misconduct on the part of the jury. Under such circumstances the remittitur of $ 2,500 under compulsion of the trial court does not even palliate the error, and the vice can only be cured by a new trial. Longan v Weltmer, 180 Mo. 322; Chlanda v. Transit Co., 213 Mo. 244; Partello v. Railroad, 217 Mo. 645; Gibney v. Transit Co., 204 Mo. 704; McGraw v O'Neill, 123 Mo.App. 691. (2) The verdict is contrary to the great weight of the evidence in the case on the issue of negligence, and this fact, in connection with the outrageously excessive verdict following the prejudicial errors in admission of evidence and in instructing the jury, renders a new trial imperative. Kinney v. Met. St. Ry., 261 Mo. 116. (3) Respondent was permitted to testify, over the objections and exceptions of the appellant, that he was married, and had a wife and one child. The admission of such evidence has always been held to be reversible error, since it inevitably tends to inflame the sympathies of the jury and tends to swell the verdict beyond the lawful bounds of compensation for the injuries sustained by the plaintiff. Williams v. Railroad, 123 Mo. 573; Dayharsh v. Railroad, 103 Mo. 570; Mahaney v. Railroad, 108 Mo. 191; Stephens v. Railroad, 96 Mo. 207; Torreyson v. United Rys., 144 Mo.App. 626; Railroad Co. v. Musgrove, 89 S. E. (Ga.) 767; Lacorazza v. Cantalupo, 210 F. 875, 127 C. C. A. 459; Railroad v. McMican, 194 F. 393, 114 C. C. A. 311; Railroad v. Roy, 102 U.S. 451. The poisonous effect of this prejudicial and improper evidence cannot be, and in this case obviously was not, counteracted by the instruction to the jury that the evidence was withdrawn and should not be considered. Such error can only be cured by a new trial. Stauffer v. Railroad, 243 Mo. 305; Wojtylak v. Coal Co., 188 Mo. 260; Neff v. Cameron, 213 Mo. 350; Trent v. Printing Co., 141 Mo.App. 437; Self v. White, 169 Mo.App. 709; Glenn v. St. Ry. Co., 167 Mo.App. 109. (4) The court erred in permitting respondent to testify, over the objections and exceptions of the appellant, that it would have been possible to cause the violent stopping of the train, to which he testified, by cutting or disconnecting the air-hose at some point in the train while it was in motion. The only possible evidence of negligence in the case is that presumptively supplied by the fact of the stopping of the train in the manner claimed by respondent, and there is not a scintilla of evidence that any member of the train crew was in a position where it would have been possible to cut or disconnect the air hose in this case, and the introduction of this evidence is a mere attempt to base a presumption on another presumption or speculation not even founded on the evidence. This is erroneous. Fink v. Railroad, 161 Mo.App. 326; Trigg v. Land Co., 187 Mo. 227; Beebe v. Transit Co., 206 Mo. 442; Kane v. Railroad, 251 Mo. 30. (5) Respondent's intruction numbered two given by the court over the objections and exceptions of the appellant is erroneous in two respects. (a) The instruction authorizes and directs the jury to consider matters not shown in evidence in arriving at their verdict, and the magnitude of the verdict which they returned indicates that they obeyed the instruction in this repsect. For this error the cause should be reversed. Keeline v. Sealy, 257 Mo. 498; Crow v. Railroad, 212 Mo. 589; Scheurer v. Rubber Co., 227 Mo. 347; Degonia v. Railroad, 224 Mo. 564; Wellmeyer v. Transit Co., 198 Mo. 527. (b) The instruction is erroneous for the reason that it contains a "judicial hint" that a verdict for $ 25,000 would have the approval of the court. It is well settled that it is not proper in instructing the jury to intimate that they may find a verdict in a sum many times the amount justified by the evidence. Kinney v. St. Ry., 261 Mo. 115; Ostertag v. Railroad, 261 Mo. 457, 479; Lessenden v. Railroad, 238 Mo. 247; Applegate v. Railroad, 252 Mo. 173. (6) Respondent's instruction numbered six on the credibility of the witnesses is erroneous in that it authorized the jury to discount the effect of the testimony of the witnesses on account of matters not shown in evidence. Keeline v. Sealy, 257 Mo. 498.
Culver & Phillip for respondents.
(1) The verdict of the jury was not so grossly excessive as to show passion and prejudice. The evidence clearly establishes the fact to be that this plaintiff must go through life with a useless leg and that he will suffer constantly more or less pain. Kinney v. Metropolitan St. Ry. Co., 261 Mo. 97. (2) The verdict is not contrary to the great weight of the evidence as appellant contends. The rule is that this court will not determine the weight of the evidence where it is conflicting and the trial court has approved the verdict. Nephler v. Woodward, 200 Mo. 185; McNulty v. Railroad, 203 Mo. 479. (3) The court did not err in admitting testimony as to the manner in which the train could have been stopped, including what effect the disconnecting or uncoupling of the air hose would have on the stopping of the train. It was shown by the undisputed evidence that the only way the train could be stopped suddenly and violently was by uncoupling the air or by the act of the engineer in making a sudden or emergency application of the air to the brakes. That it was the application of the air that stopped the train is shown absolutely by the testimony of defendant's conductor. Furthermore, the petition alleges merely that defendant's agents and servants suddenly stopped the train with great violence. It does not allege specifically how it was done. This is sufficient and it was unnecessary to plead the evidence. Appellant says that the instruction should have told the jury to determine the injuries "as shown by the evidence" and not "in connection with all the circumstances and facts in evidence." There is no difference between what is "shown by the evidence," and "the circumstances and facts in evidence." But even if the instruction for damages was likely to be misunderstood, it was the duty of appellant to ask a modification or explanation in an instruction of its own. Fisher v. Transit Co., 198 Mo. 591; Taylor v. Iron Co., 133 Mo. 349; Geisman v. Electric Co., 173 Mo. 654. (4) It is the law that the stopping of a train with extraordinary violence is negligence. Farmer v. Railroad, 178 Mo.App. 579; Allison v. Railroad, 157 Mo.App. 72; Hedrick v. Railroad, 195 Mo. 104.
OPINION
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 $ 2500 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, Kansas, and was backing in upon a sidetrack 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 five or six miles per hour. In a few moments the conductor, who stood 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...
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