Smith v. Kansas City Southern Ry. Co.

Decision Date03 June 1919
Docket NumberNo. 19520.,19520.
Citation279 Mo. 173,213 S.W. 481
PartiesSMITH v. KANSAS CITY SOUTHERN RY. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Robert W. Smith against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cyrus Crane, of Kansas City, for appellant.

A. N. Gossett and T. J. Madden, both of Kansas City, for respondent.

WHITE, C.

The plaintiff, in an action for personal injuries, was awarded a verdict against defendant in the circuit court of Jackson county for $37,500. Defendant's motion for new trial was overruled on condition that the plaintiff remit $12,500 for the verdict. This was accordingly done, judgment entered for $25,000, and the motion overruled. Thereupon the defendant appealed to this court.

The plaintiff was a brakeman in the service of the defendant. He was injured January 10, 1914, at Bates, Ark. He was working on a branch line running from Hetherman, Okl., to Waldron, Ark. When the train, on the day mentioned, arrived at the town of Bates, it contained only three or four cars. At that point there stood on the siding a number of cars comprising a bridge and building outfit consisting of seven to nine cars. These were to be taken into the train on which the plaintiff arrived. Considerable evidence was introduced to show the method by which this was done and to explain the operation of the train at that time. it is not necessary to state this in detail. Briefly, the engine and one or two cars were cut off from the train on the main line, brought on to the siding and attached to the bridge and building cars. The train was then run back on the main line and backed to the cars of the train which had been detached, for the purpose of coupling them on again. It seems that the conductor, a man named Johnson, remained with the section of the train which was left on the main track, while Smith, the plaintiff, was engaged in assisting to couple and line up the new cars that were brought into the train. While this was being done it was discovered that a brake beam was down on a car near the engine. There was evidence tending to show that the fireman, a man named Weller, gave what is termed a "spot" signal, indicating to the conductor that something was wrong that required his attention. The testimony is contradictory as to whether such spot signal was given, and, if it was given, whether the conductor was in position to see it.

The plaintiff testified, and was corroborated by another witness, that he called to the conductor and told him the brake beam was down, and was directed by the conductor to go in and fix it. The fireman, Weller, notified the engineer that the brake beam was down. Weller got a pick and went under the car for the purpose of attempting to repair the brake beam, and plaintiff went under for the purpose of assisting, and while there he saw a pin that goes through what is called a "floating lever" was out of position, and he attempted to fix it. In doing that his head came between the floating lever and what is termed the "needle beam," which is attached to the bottom of a car and runs crosswise. At that time the conductor, Johnson, was coupling up the rear remnant of the train with that section which had been taken in and in doing so found some difficulty which required time, but finally made the coupling. He then made the necessary hose connections for the air, and, using the term applied by the men, "cut in the air." This caused the floating lever where Smith was working to move and strike Smith's head, crushing it between that appliance and what is called the needle beam, causing the injury for which he sues.

The question as to defendant's negligence was as to whether the conductor, Johnson, before cutting in the air, knew, or by the exercise of ordinary care could have known, that the brake beam was down, and also knew, or by the exercise of ordinary care could have known, that some of the men were under the car fixing it. If he did, it was conceded that he was negligent in cutting in the air which would be likely to cause some movement and render the position of the men dangerous.

Also it was a question whether the plaintiff was negligent in placing himself in the position in which he was without first cutting off the air from the car where he was working. The evidence on both of these propositions was conflicting. It seems to be conceded by the appellant that there was sufficient evidence of the defendant's negligence to warrant submission of that issue to the jury. But it is argued that the conduct of the plaintiff shows negligence upon his part so as conclusively to warrant a deduction under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 140, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8065]) from any actual damages found. There was sufficient evidence from which the jury might very properly have found that the plaintiff was not negligent in any respect, but was in the line of his duty, and did not unnecessarily expose himself to a peril which might reasonably have been avoided; that he had a right to rely upon the conductor's observing ordinary care, and believed, and had reason to believe, that such conductor knew of his position. lie swore, and there is other evidence corroborating him, that he had plenty of room, and was in a perfectly safe and proper position if the cars had been allowed to remain without interference; that is, if nothing had been done with respect to the brakes.

I. Error is assigned to the admission of the testimony of E. C. Herron who, it is claimed, testified as an expert when his evidence showed that he was not qualified as an expert. He was a chiropractic doctor, and testified to the condition of plaintiff, Smith, before he was injured and the relation of his hurts to his present condition. He had no license to practice medicine, and had received his education as a chiropractic mainly by correspondence.

Undoubtedly counsel for plaintiff is correct in his position that Herron did not qualify so as to give an opinion regarding the effect of the plaintiff's injuries upon his physical and mental functions. He testified by deposition, which was taken May 20, 1915, at Mena, Ark. This deposition was read at the trial, which did not begin until October. The defendant was represented by counsel at the taking of the deposition and, of course, knew as well when deposition was offered in evidence what it disclosed as to Herron's disqualification as it did after it was read. Yet the deposition in chief was read without objection, and showed the qualification of the witness, his experience and education as: a chiropractor. Witness testified that he was acquainted with the plaintiff long before the injury, and described his fine physical condition prior to that time. He explained the effect upon his movements caused by his Injuries, and described what he seemed to think was the cause of the trouble; it was the displacement of certain vertebrae which affected his nerves. This alleged displacement was shown by one of the defendant's expert witnesses to be absurd and impossible. Herron also described the general condition of plaintiff and the condition of his head where it was injured. Occasionally objections were interposed, and in each case they were sustained or questions withdrawn. At one point in the reading of the deposition defendant's counsel interrupted and pointed out the place to which the 'counsel for plaintiff might skip and continue to read, and that part which then was read gives the witness' theory about the impingement upon the nerves caused by the dislocation of some joints of the spine; also the effect of this supposed condition upon the muscles of the throat and the internal organs. All this without objection. Many objections appear in the course of the examination to the form of the questions. These appear to be entered on the deposition as originally taken, and no exceptions were saved when the answers to such questions were read to the jury. Finally, after the cross-examination of the witness was read at some length, counsel for defendant announced that he was going to move to strike out every portion of the witness' testimony which attempted to give an expert opinion, and would point out specifically the portions which he expected to have stricken out. The record does not show that any such designation was made, and consequently there was no ruling as to the admissibility of any specific evidence which had been offered.

For that reason and for the failure to object in time, the complaint that such testimony was incompetent cannot be heard now. State v. Marcks, 140 Mo. loc. cit. 668, 669, 41 S. W. 973, 43 S. W. 1095; State v. Forsha, 190 Mo. loc. cit. 326, 327, 88 S. W. 746, 4 L. R. A. (N. S.) 576; State v. Bateman, 198 Mo. loc. cit. 233, 234, 94 S. W. 843; Hickman v. Green, 123 Mo. 165, 22 S. W. 455, 27 S. W. 440, 29 L. R. A. 39. In reading the deposition this question occurred:

"I will ask you if there is any part of the human body that is not affected by the brain and nerves?"

This was objected to because the witness was not qualified as an expert The objection was overruled, and the exception saved. Witness answered that there was no part of the body but what was affected by the brain and nerves. The question was repeated, and the objection renewed, whereupon the plaintiff's attorney withdrew the former question and answer, and also withdrew the question which had just been asked.

It hardly seems that the defendant could have been injured by the question and answer, even if it had not been withdrawn, because the witness had in effect answered the same and similar questions more in detail throughout his deposition without objection, and the present question, to which the objection was made, and answer, added nothing to what he had already said. No other...

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