Turner v. Missouri-Kansas-Texas R. Co.

• Decision Date: 04 May 1940
• Docket Number: 36124
• Citation: 142 S.W.2d 455,346 Mo. 28
• Parties: Arthur L. Turner v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 455

346 Mo. 28

Arthur L. Turner v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 36124

Supreme Court of Missouri

May 4, 1940

Appeal from Pettis Circuit Court; Hon. Warren L. White Special Judge.

Reversed and remanded.

Carl S. Hoffman and Montgomery, Martin & Montgomery for appellant.

(1) Defendant's demurrer to the evidence should have been sustained. (a) The proof failed to show any specific negligence on the part of defendant and the case is not one in which the res ipsa loquitur doctrine should be applied. 45 C. J. 1211; Preslar v. Mobile & O. Ry Co., 185 S.W. 67; Chicago & E. I. Railroad Co. v Reilly, 72 N.E. 454; M-K-T Railroad Co. v. Sowards, 25 P.2d 646; Case v. C., R. I. & P. Ry. Co., 21 N.W. 30; Thompson v. St. Louis S.W. Ry. Co., 183 S.W. 631. (b) Plaintiff was guilty of contributory negligence as a matter of law in assuming a position in dangerous proximity to defendant's moving train without maintaining any lookout for projections thereon or connected therewith which might strike him, when no excuse existed for him assuming such position. Limb et al. v. K. C., Ft. Smith & M. Ry. Co., 73 Kan. 220, 84 P. 136; Atchison, T. & S. F. Ry. Co. v. Withers, 69 Kan. 620, 77 P. 542; Kern v. K. C. L. & W. Ry. Co., 125 Kan. 506, 264 P. 1067. Plaintiff had reason to anticipate that something might be projecting from the cars in the train and, in order to convict him of contributory negligence, it was not essential that he should have foreseen that he would be injured by a particular thing or in a specific manner. Haselmaier v. Milwaukee Elec. Ry. & L. Co., 201 N.W. 257; Thornton v. Union Elec. L. & P. Co., 230 Mo.App. 637, 72 S.W.2d 161. The fact that the thing causing the injury may have been chargeable to negligence of the defendant did not excuse plaintiff from exercising ordinary care on his own behalf. Clark v. C. & A. Ry. Co., 127 Mo. 197, 29 S.W. 1013; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621. (2) It was error to permit plaintiff's witness Lepper to testify to the possibility of the locking device on the refrigerator car door sticking so that the handle thereof would protrude beyond the door, as such evidence was of no probative value and entered the field of speculation, conjecture and surmise. (3) It was improper to permit the introduction in evidence of the testimony of the witness Wheatley, given at the trial of the earlier case, the deposition of this witness having been taken in the pending case and offered in evidence by plaintiff. Secondary evidence of such type is only admissible in cases of absolute necessity. Welp v. Bogy, 218 Mo.App. 414, 277 S.W. 600; 20 Am. Jur. 587; 22 C. J. 431; State v. Riddle, 179 Mo. 287, 78 S.W. 606. Evidence of such type is never admissible where the witness testifies directly in the case on trial, either by deposition or in person. 20 Am. Jur. 589; 3 Jones's Commentaries on Evidence (2 Ed.), pp. 2176, 2177; Stein v. Swensen, 49 N.W. 55; 22 C. J. 432; McFarland v. U.S. Mut. Acc. Assn., 124 Mo. 204, 27 S.W. 436; State v. Coleman, 199 Mo. 112, 97 S.W. 574; Vest v. S. S. Kresge Co., 213 S.W. 168; Schulz v. Bowers, 210 Mo.App. 574, 223 S.W. 725. In giving a deposition a witness cannot adopt by reference prior testimony by him on the same subject, but must testify from present recollection. 18 C. J. 691. (4) The court erred in refusing defendant's offer of evidence tending to show plaintiff an habitual drunkard, the issue as to his general sobriety having been opened by plaintiff. 22 C. J. 195; Gourley v. Callahan, 190 Mo.App. 666, 176 S.W. 239; Powell v. Frisco Ry. Co., 229 Mo. 247, 129 S.W. 963. (5) Plaintiff's Instruction A is erroneous and improper for the reason that it contains comments on the evidence by the court which amount to a flagrant invasion of the province of the jury. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; 53 A. L. R. 1511; Gannon v. Laclede Gas Light Co., 145 Mo. 515; Glover's Admr. v. Duhle, 19 Mo. 360; Ham v. Barret, 28 Mo. 388; Moies v. Eddy, 28 Mo. 382; Dowell v. Guthrie, 99 Mo. 653; Jones v. Frisco Ry. Co., 287 Mo. 78, 228 S.W. 780; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 752; Laible v. Wells, 317 Mo. 145, 296 S.W. 428; Kennedy v. Phillips, 319 Mo. 573. (6) Plaintiff's Instruction C is erroneous and improper for the reason that it conjunctively joins the several specifications of contributory negligence and requires the jury to find all such specifications well taken, without telling the jury that anyone would bar recovery. Tuepker v. Sovereign Camp, W. O. W., 226 S.W. 1002; Ward v. Stutzman, 212 S.W. 65. This instruction is also improper for the reason that it defines defendant's burden with respect to the establishment of contributory negligence as a defense in language so misleading and confusing as to be unintelligible. Payne v. C. & A. Ry. Co., 129 Mo. 405, 31 S.W. 885. (7) The court erred in striking from defendant's answer the plea of limitations which stands as a bar to the maintenance of this action. Sec. 60-306, R. S. Kan. 1923; Ericson v. Charles, 108 Kan. 205, 194 P. 652; Secs. 869, 874, 960, R. S. 1929; 18 C. J. 1146. (8) The award of $ 33,000 in plaintiff's favor is excessive under the evidence bearing upon plaintiff's injuries and disability, taking into consideration his small earning power. Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; Bond v. St. L.-S. F. Ry. Co., 315 Mo. 987, 288 S.W. 777; Schleappe v. Terminal Railroad Assn., 339 Mo. 562, 98 S.W.2d 616; Moore v. Ry. Co., 268 Mo. 31, 186 S.W. 1035; Harrison v. St. L.-S. F. Ry. Co., 339 Mo. 821, 99 S.W.2d 841; Lessenden v. Mo. Pac. Ry. Co., 238 Mo. 247, 142 S.W. 332; Busch v. L. & N. Ry. Co., 322 Mo. 469, 17 S.W.2d 337.

Frank W. Hayes, Fred F. Wesner and Neibling & Levvis for respondent.

(1) The trial court did not err in overruling the demurrer to the evidence. This as a res ipsa loquitur case, and the proof on the issue of defendant's negligence was ample. Evans v. Railroad Co., 116 S.W.2d 8; Scott v London, etc., Docks Co., 3 H. & C. 596, 159 Reprint 665; Hicks v. Railroad Co., 64 Mo. 430; Blanton v. Dold, 109 Mo. 64; Gibler v. Railroad Co., 148 Mo.App. 478; Burns v. Rys. Co., 176 Mo.App. 330; Crawford v. Stockyards Co., 215 Mo. 394; Kelley v. Ry. Co., 282 S.W. 480; Thompson v. Railroad Co., 243 Mo. 336; Scott v. Davis, 270 S.W. 433; Chapman v. Davis, 287 S.W. 832; Ash v. Printing Co., 199 S.W. 994; Mayne v. Rys. Co., 229 S.W. 386; Noce v. Ry. Co., 85 S.W.2d 637; 45 C. J. 1193, sec. 768; Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416; Delaware & Hudson Co. v. Dix, 188 F. 901; Cole v. Ry. Co., 61 S.W.2d 344; Jenkins v. Kansas City, 91 S.W.2d 98. (a) There was no contributory negligence by plaintiff. Millhauser v. Service Co., 71 S.W.2d 162; Crawford v. Stockyards Co., 215 Mo. 394; Cento v. Building Co., 99 S.W.2d 1; Slack v. Gas Co., 120 S.W.2d 70; Kaemmerer v. Wells, 252 S.W. 730; Smith v. Storage Co., 128 S.W.2d 299. (2) There was no error in the admission of the testimony of the witness Lepper or in the examination of the witness Sullivan concerning the action of the hand lever on a refrigerator car door. Both were expert witnesses, and it was proper to show the capability of the hand lever to stick and remain projecting beyond the outer edge of the open door. Delaware & Hudson Co. v. Dix, 188 F. 901; 22 C. J. 763, sec. 856; 45 C. J. 1252, sec. 817. (3) There was no error in the admission of some of the former trial testimony of the witness Wheatley, as preserved in the court reporter's transcript of testimony given at the first trial of this case. Defendant acknowledged the authenticity of the transcript and used it to supply the testimony of several of its own witnesses; and it was agreed that the witness Wheatley was a nonresident of this State and was not personally present at the instant trial. Sec. 1780, R. S. 1929; Michael v. Matheis, 77 Mo.App. 556; Cabanne v. Walker, 31 Mo. 274; Dessaunier v. Murphy, 33 Mo. 184; Monaghan v. Oil Corporation, 183 N.E. 252; Woodruff v. Garner, 39 Ind. 246; Schoneman v. Fegley, 7 Pa. 433; Deneal v. Allensworth, 2 J. J. Marsh 446; Anderson v. Gaither, 162 So. 877; Strader v. Graham, 7 Ben. Monroe 633; Becker v. Winne, 77 Hun, 458; State v. Howard, 118 Mo. 127; Bruce Lumber Co. v. Hoos, 67 Mo.App. 264; Taylor v. Thomas, 92 A. 740; Habig v. Bastian, 158 So. 508; Atwood v. Atwood, 86 A. 29; Express Company v. Ten Winkel, 96 Pa. 818; Showen v. Ry. Co., 164 Mo.App. 41; Jaccard v. Anderson, 37 Mo. 91; Scoville v. Ry. Co., 94 Mo. 84; Breeder's Admr. v. Feurt, 70 Mo. 624; State v. Butler, 247 Mo. 285; State v. Barnes, 274 Mo. 625; In re Pate, 119 S.W.2d 11; Welp v. Bogy, 277 S.W. 600; Daniels v. Stock, 130 P. 1031; Coughlin v. Haeussler, 50 Mo. 126. (4) The refusal to admit, as surrebuttal, certain questions and answers from a deposition of the plaintiff was not error. The admission of surrebuttal evidence is largely in the discretion of the court; the testimony in question was not proper surrebuttal; and plaintiff had not opened an issue of habitual drunkenness, but defendant had. (5) Plaintiff's Instruction A was properly given in this, a res ipsa loquitur case. Harke v. Haase, 75 S.W.2d 1001; Ward v. Fessler, 252 S.W. 667; Culbertson v. Hill, 87 Mo. 553; State v. Becker, 67 S.W.2d 755; Thompson v. Service Co., 114 S.W.2d 145; In re Fanoni, 152 N.Y.S. 218, aff. 153 N.Y. 1114; Philibert v. Ansehl Co., 119 S.W.2d 797; Vesper v. Ashton, 118 S.W.2d 84; Van Houten v. Service Co., 122 S.W.2d 868; Hartnett v. Stores Co., 85 S.W.2d 644. (6) Plaintiff's Instruction C was not erroneous. It correctly stated the law concerning the nature of contributory negligence that will bar recovery and concerning the burden of proving that defense. Howard v. Estate Co., 267 Mo. 398; Hires v. Grocery Co., 296 S.W. 408; Monroe v....