Taylor v. Kansas City Southern Ry. Co., 44778

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; EAGER, P. J., and LEEDY; STORCKMAN
• Citation: Taylor v. Kansas City Southern Ry. Co., 293 S.W.2d 894 (Mo. 1956)
• Decision Date: 08 October 1956
• Docket Number: No. 44778,No. 2,44778,2
• Parties: Alex TAYLOR, Respondent, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Appellant

Page 894

293 S.W.2d 894

Alex TAYLOR, Respondent, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Appellant.

No. 44778.

Supreme Court of Missouri, Division No. 2.

Oct. 8, 1956.

Richard S. Righter, Robert D. Youle, James F. Walsh, Kansas City, Lynn M. Ewing, Nevada, for appellant.

Jo B. Gardner, Monett, for respondent, Alex Taylor.

BOHLING, Commissioner.

This case is under submission on rehearing. The action is under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for negligent personal injury to plaintiff, Alex Taylor. Plaintiff recovered a judgment for $45,000 against his employer, The Kansas City Southern Railway Company. Upon a former trial he recovered $40,179, and, upon appeal, a new trial was granted because of the unfair prejudicial effect of a demonstration before the jury. Taylor v. Kansas City Southern Railway Co., 364 Mo. 693, 266 S.W.2d 732. The defendant, on original submission of the instant appeal, contended error was committed in the admission of certain evidence and in the giving of plaintiff's main instruction; and, also, that the verdict was excessive and should be reduced by remittitur. The issues stressed on rehearing relate to the admission of certain evidence on behalf of the plaintiff and the amount of the verdict and judgment. We adopt in part the statement and rulings, shown in quotations herein, of the opinion of Barrett, Commissioner, on original submission.

'Mr. Taylor lived in Siloam Springs, Arkansas, and worked in the nearby town of Watts, Oklahoma, as a telegraph operator and 'call boy.' He was injured in the early morning hours of January 1, 1952, when he fell down a flight of steps near the depot in Watts, as he was about the business of calling a train crew. The railroad's liability for negligent failure to furnish a safe place to work was submitted upon the hypothesis that the railroad 'maintained a set of steps with railings beside the steps and a light post at the foot of the steps * * * and for a period of several months before said date the light bulb in said light post, if any, had been burned out, and said hand rail, if any, had become weak and rotted, and for a year or more cinders had been permitted to remain on said steps, if any, and, as a result of all these things * * * said steps were obstructed and slippery and a necessary light was not being maintained and kept burning at said steps, and the hand rail along said steps was insufficient to assist and aid in descending said steps.'

'The eight or nine steps adjacent to the depot consisted of railroad ties with wooden handrails on either side. Mr. Taylor said that he hurriedly stepped down with his right foot on either the first or second step and 'my feet flew out from under me. I grabbed at the rail on the right side. I threw my lantern out across the railroad track and grabbed at the hand rail and it broke off * * * and fell right own on top of me.' In a deposition he had previously said that he did not know what caused him to fall. The railroad seizes upon this statement and the fact that the instruction submits three elements or factors as constituting negligence, one of which was an insufficient handrail, and urges that the instruction is prejudicially erroneous in that it fails to require the jury to find that the railroad had either actual or constructive knowledge of the unsafe condition of the handrail. Mr. Taylor and at least one other employee testified that over a period of eighteen months cincers and gravel had washed onto the 'hollowed out' steps, that the light had been out for over a year and, after the event, that the upright posts were rotten and the handrail insecure. Aside from the fact that the three factors of negligence were conjunctively submitted, and their evidentiary support is not questioned, the hypothesized defect as to the handrail was 'of such a nature that the finding of its existence carries with it the clear inference of knowledge of defendant of its prior existence, [and] an instruction omitting such a finding cannot be said to be prejudicially erroneous.' Hatfield v. Thompson, Mo., 252 S.W.2d 534, 543; Schonlau v. Terminal R. Ass'n [of St. Louis], 357 Mo. 1108, 1116, 212 S.W.2d 420, 425. Although attention has been repeatedly called to the fact that it is the better and safer practice to require the finding of knowledge, either actual or constructive, in the particular circumstances of this case the omission may not be said to constitute such prejudicial error as to demand the granting of a new trial. Reese v. Illinois Term. R. Co., Mo., 273 S.W.2d 217, 223.'

Plaintiff, the first witness, and later Mrs. Dana L. Fenno, a neighbor, over objections interposed and motions to strike on the ground the testimony was 'not an issue in the case,' 'improper and prejudicial,' 'not an issue in this case at all', see objections in Connor v. Kansas City Rys. Co., 298 Mo. 18, loc. cit. 21, 250 S.W. 574, loc. cit. 575, testified, briefly outlined, that shortly before Christmas, 1952, following the first trial, which started December 8, 1952, plaintiff had a 'nervous collapse,' lost all reason, was raging, beat his wife, was placed in jail and then in the neuropsychopathic ward in the Hillcrest Memorial hospital in Tulsa. Plaintiff also testified that when he came to himself in the hospital he was confined in a place that had heavy screens and bars on the windows, that the door locked on the outside and had a four-inch window through which they could peek and see how one was getting along, and that he was confined in the hospital from December 17, 1952, until February 19, 1953.

In his brief on rehearing plaintiff states: 'It is our contention now, as it was in our original brief, that this testimony was within the issues. It went to the nature and extent of plaintiff's injuries. One of the issues, as disclosed by the allegations in the petition, was injuries to plaintiff's nervous system.' Point III, A, of plaintiff's original brief reads: 'There is no claim for damages in the petition for nervous collapse and this evidence was not introduced as an element of damages, but rather to show that plaintiff did sustain the injuries alleged.' Plaintiff's petition, so far as material, charged: 'that plaintiff's nerves and central nervous system were greatly injured, shocked and affected; * * * that plaintiff has headaches, suffers from nervousness and inability to obtain proper sleep and rest; that plaintiff suffered from shock and received a concussion and contusion of and to his brain and brain cells; that plaintiff has suffered a change in his personality and is nervous and irritable which has affected his ability to deal with the public and with people * * *.' We agree with the statement in plaintiff's original brief that his petition does not claim damages for a nervous collapse. The pertinent allegations here involved are general in nature. The nervous collapse shown by plaintiff's evidence might but does not inevitably follow the injuries plaintiff pleaded. The record discloses that the amended petition upon which plaintiff went to trial was filed October 8, 1952, and that plaintiff's nervous collapse occurred thereafter. If the evidence was improper and prejudicial, plaintiff was not entitled to have the jury consider it. On original submission we considered the evidence was not within the issues and unfairly prejudicial. We remain of that view as developed hereinafter.

Hall v. Manufactuers' C. & C. Co., 1914, 260 Mo. 351, 372, 168 S.W. 927, 933, Ann.Cas.1916C, 375, held impotency did not necessarily result from the injuries alleged and should have been specifically pleaded. Court en banc considered, with respect to the pleadings, that general damages are those which necessarily and by implication of law result from the injury and special damages are the natural but not the necessary result of the injury pleaded; that conditions or diseases which inevitably follow an injury may be shown under general allegations of the injury; and that special damages must be specifically pleaded to admit of proof of conditions and diseases which do not necessarily result from the injury pleaded; overruling cases approving the admission of evidence under general allegations of conditions and diseases which might naturally and commonly follow an injury. This, to the end that fairness in the trial of causes prevail, and that defendants be given an opportunity to prepare for what they are required to meet at the trial.

The following cases are illustrative of injuries which should have been specifically pleaded: Connor v. Kansas City Rys. Co., 298 Mo. 18, 21-23, 250 S.W. 574, 575, 576[1, 2], traumatic neurosis; Hibbler v. Kansas City Rys. Co. (Banc), 292 Mo. 14, 237 S.W. 1014, 1016[3-5], erysipelas and removal of plaintiff's organs; Chawkley v. Wabash Ry. Co. (Banc), 317 Mo. 782, 297 S.W. 20, 28[16, 17], insane, mentally unbalanced; Provance v. Missouri So. R. Co., Mo.App., 186 S.W. 955, 957, impairment of eyesight. See Hart v. Kansas City Pub. Serv. Co., Mo.App., 154 S.W.2d 600, 604[9-11]; Proctor v. Ruppert, 236 Mo.App. 684, 159 S.W.2d 328, 335[3, 4]; Ziervogel v. Royal Packing Co., Mo.App., 225 S.W.2d 798, 803; Muth v. St. Louis & M. R. R. Co., 87 Mo.App. 422, 433(II).

There was nothing of record at the time the questioned testimony was admitted to connect plaintiff's nervous collapse with the injuries pleaded. Thereafter, Dr. Milford S. Ungerman, of the Hillcrest Memorial hospital, testified on direct examination, in part: 'With specific reference to the nervous aspect of his problem, Mr. Taylor was * * * upon admission to the hospital, exceedingly nervous, tremulous. He was very tense and had a very worried and pitiful expression on his face.' On cross-examination the witness testified that the fact that plaintiff's wife admitted to him she had been out with another man 'was a minor contributing factor' to plaintiff's condition; and asked: 'Do you think that...