Smith v. Kansas City Southern Railway Company

• Decision Date: 05 July 1919
• Citation: 213 S.W. 481,279 Mo. 173
• Parties: ROBERT W. SMITH v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

213 S.W. 481

279 Mo. 173

ROBERT W. SMITH v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 5, 1919

Appeal from Jackson Circuit Court. -- Hon. Thomas Seehorn, Judge.

Affirmed.

Cyrus Crane for appellant.

(1) The excessive verdict was not cured by the remittitur which the court ordered. The remittitur merely brings the verdict down to the maximum allowed by this court in the personal injury cases and does not preserve the deduction from the gross amount of damages which the jury apparently made or intended to make in the verdict. (a) There was evidence from which the jury could have found that the plaintiff was guilty of contributory negligence. (b) Total amount of damages demanded by plaintiff was $ 75,000. (c) The jury's verdict shows that it made a deduction on account of plaintiff's negligence. (d) The remittitur required by the court does not preserve such deduction. (e) The original verdict was manifestly excessive. (f) The defendant's right to a deduction because of contributory negligence must be strictly observed. Hadley v. Railway, 156 N.W. 765; Railway Co. v. Wright, 207 F. 281, 125 C.C.A. 25; Pennsylvania Co. v. Sheeley, 221 F. 901. (2) The verdict of the jury was excessive under either State or Federal decisions and a new trial should be ordered rather than a remittitur. The United States Supreme Court leaves the amount of damages to the trial and appellate courts. Railway Co. v. Bennett, 233 U.S. 80. Federal court allowances are not more liberal than those of Missouri. Duke v. Railway Co., 172 F. 684; Railway Co. v Lindsey, 201 F. 836; Cain v. Railway Co., 199 F. 211. This court is free to follow its own decisions and therefore, should grant a new trial. Partello v Railway, 217 Mo. 645. Remittitur is only used as a cure where there is no other error in the record. Cook v. Globe Printing Co., 227 Mo. 471. (3) The court erred in admitting expert opinions from witness E. C. Herron because he was not qualified. The qualifications of this witness were for the court, and not for the jury, as the court erroneously held. Fullerton v. Fordyce, 144 Mo. 530; Benjamin v. St. Ry. Co., 50 Mo.App. 608; Bradford v. Railway, 64 Mo.App. 483; Gates v. Railway, 44 Mo.App. 492. This court is not given to treating fake practitioners as experts. Weltmer v. Bishop, 171 Mo. 110. The objection made to the testimony was sufficient. Railway v. Second St. Improvement, 256 Mo. 411; Railway v. Walsh, 197 Mo. 409. (4) The court erred in admitting evidence as to Conductor Johnson's statements made after the accident occured. They were not part of the res gestae, nor admissible as impeaching testimony. Koenig v. Railway Co., 173 Mo. 709; Wojtylak v. Coal Co., 188 Mo. 260; Barker v. Railway, 126 Mo. 143; Price v. Thornton, 10 Mo. 135; Rogers v. McCune, 19 Mo. 558; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Devlin v. Railroad 87 Mo. 545; State v. Hendricks, 172 Mo. 654; Gordon v. Railway Co., 222 Mo. 532. The alleged contradictory statements were not admissible for the purpose of impeachment. Hamburger v. Rinkle, 164 Mo. 407; Roe v. Bank, 167 Mo. 406. (5) Instruction one given on behalf of plaintiff was erroneous. There was no evidence or facts warranting the jury in finding that the conductor, "in the exercise of reasonable and ordinary care could and should have known that plaintiff was under the car."

A. N. Gossett and T. J. Madden for respondent.

WHITE C. Roy, C., absent.

OPINION

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 from 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, Arkansas. He was working on a branch line running from Hetherman, Oklahoma, to Waldron, Arkansas. 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 brakebeam 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 brakebeam was down, and was directed by the conductor to go in and fix it. The fireman, Weller, notified the engineer that the brakebeam was down. Weller got a pick and went under the car for the purpose of attempting to repair the brakebeam, and plaintiff went under for the purpose of assisting, and while there he saw that a pin which 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 remnants 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 brakebeam 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 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. He 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, Arkansas. 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 the 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...