Walsh v. Terminal R. Ass'n of St. Louis

• Citation: 182 S.W.2d 607,353 Mo. 458
• Decision Date: 09 October 1944
• Docket Number: 38769
• Parties: William P. Walsh v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

182 S.W.2d 607

353 Mo. 458

William P. Walsh v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 38769

Supreme Court of Missouri

October 9, 1944

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed and remanded.

Joseph A. McClain, Jr., and Arnot L. Sheppard for appellant.

(1) The negligence pleaded in his petition is the failure of appellant's switching crew to warn him that the car in which he was working was about to be moved. He failed to make a prima facie case, for the reason that he failed to show either actual or constructive knowledge on the part of the switching crew of his presence in the car in question. Therefore, his evidence failed to show a situation which created a duty upon the switching crew to warn him the car was to be moved. Lovell v. K.C.S.R. Co., 121 Mo.App 466, 97 S.W. 193; Cunningham v. Philadelphia & R.R Co., 249 Pa. 134, 94 A. 467; Campbell v. N.Y., N.H. & H.R. Co., 92 Conn. 322, 102 A. 597. (2) Since Rogers was respondent's own witness, and since his testimony is nowhere contradicted by anyone, respondent is bound by this testimony given by his own witness. Draper v. L. & N.R. Co., 156 S.W.2d 626; Platt v. Platt, 123 S.W.2d 54; Rucker v. Alton R. Co., 123 S.W.2d 24; Lolordo v. Lacy, 88 S.W.2d 353; Smithers v. Barker, 111 S.W.2d 47. (3) This judgment is palpably and unquestionably wrong, and a clear case of injustice. Respondent's evidence is too self-contradictory to be believable. This court has the power to set aside the judgment; and should exercise it in this case. Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1079. (4) The trial court erred in permitting respondent's counsel to prompt his client while the latter was on the witness stand, by making objections and remarks which indicated to respondent just how to answer the questions propounded; and in permitting respondent's counsel to make improper and prejudicial remarks during the course of the trial. Ryan v. Sheffield Car & Equipment Co., 24 S.W.2d 166; Beck v. Railroad, 129 Mo.App. 7; Haake v. G.H. Dulle Milling Co., 168 Mo.App. 177; Henry v. I.C.R. Co., 282 S.W. 423; Mason v. Fourteen Mining Co., 82 Mo.App. 367; Lewellen v. Haynie, 287 S.W. 634; Jackman v. St. L. & H.R. Co., 206 S.W. 244. (5) The closing argument of respondent's counsel was entirely unsupported by any evidence in the record, and was so highly prejudicial and so plainly unwarranted, that the trial court erred in refusing to rebuke counsel for making such inflammatory statements. See authorities under (4), supra. (6) The verdict is so grossly excessive as to indicate that it resulted from passion and prejudice on the part of the jury against appellant. Moreover, it is likely that it was increased by reason of all of the remarks of respondent's counsel, and by the evidence by which he sought to show that respondent was likely to have a recurrence of thrombophlebitis and might die at any moment from an embolism stopping in a vital area. There was so much talk about such a hypothesis, that merely giving the jury an instruction that they could not consider that as an element of damages, could not remove it from their minds. It is like telling one that he must be sure to forget a certain fact, which does nothing except impress it indelibly upon the hearer's mind. Appellant was forced to request such an instruction or waive any right to complain about the effect of the talk and evidence. This court cannot now say that we have no right to complain because we did ask such an instruction. Mattan v. Hoover, 166 S.W.2d 557; Perkins v. Term. Railroad Assn., 340 Mo. 868, 102 S.W.2d 915.

Charles P. Noell for respondent; Douglas H. Jones of counsel.

(1) Defendant had knowledge of plaintiff's position of danger and therefore owed him a duty to warn him. Defendant claims to have looked where to look was to see. Therefore defendant saw plaintiff's position of danger. Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43; McCain v. Trenton Gas & El. Co., 222 Mo.App. 1146, 15 S.W.2d 970; Beck v. C., R.I. & P. Ry. Co., 327 Mo. 658, 37 S.W.2d 917; Logan v. C., B. & Q.R. Co., 300 Mo. 611, 254 S.W. 705; English v. Wabash Ry. Co., 341 Mo. 550, 108 S.W.2d 51; Dutcher v. Wabash R. Co., 241 Mo. 137, 145 S.W. 63; Beal v. St. Louis-S.F. Ry. Co., 256 S.W. 733; Hoelzel v. C., R.I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126; Carner v. St. Louis-S. F. Ry. Co., 338 Mo. 257, 89 S.W.2d 947; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543. (2) Plaintiff proved that a compelling emergency forced him to escape imminent peril. In such case plaintiff was not contributorily negligent. Wilson v. United Railways, 181 S.W. 19; Kleiber v. People's Ry. Co., 107 Mo. 240, 17 S.W. 946; 45 C.J., pp. 962, 963; Clark v. A. & E. Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Hall v. Frisco Ry., 240 S.W. 175; Parker v. Frisco Ry., 41 S.W.2d 386; Detmering v. Frisco Ry., 225 Mo.App. 980, 36 S.W.2d 112; Jenkins v. Kurn, 348 Mo. 942, 156 S.W.2d 668, 61 S.Ct. 934, 313 U.S. 256; Bartlett v. Taylor, 168 S.W.2d 168. (3) Plaintiff is not conclusively bound by testimony of one witness, where there is additional contradictory evidence. Here there was ample evidence to sustain plaintiff's case. Rodan v. St. Louis Transit Co., 207 Mo. 382, 105 S.W. 1061; Draper v. L. & N.R. Co., 398 Mo. 886, 156 S.W.2d 626; Perryman v. Missouri Pac. Ry. Co., 326 Mo. 176, 31 S.W.2d 4; Smith v. K.C.P. & S. Co., 328 Mo. 979, 43 S.W.2d 548; Clancy v. St. Louis Transit Co., 192 Mo. 615, 91 S.W. 509; Beier v. St. Louis Transit Co., 197 Mo. 215, 94 S.W. 876. (4) Plaintiff's verdict is supported by clear, cogent and convincing testimony. This Supreme Court will not weigh conflicting evidence, but will affirm the verdict if supported by substantial evidence. Clark v. A. & E. Bridge Co., 333 Mo. 721, 62 S.W.2d 1079. (5) All pertinent points of witness' statement should be read to jury. Retilla v. Salomon, 274 S.W. 368; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226, 237 S.W. 779; State v. Hutchens, 271 S.W. 528; Peppers v. St. Louis-S.F. Ry. Co., 316 Mo. 1104, 295 S.W. 757. (6) Argument of counsel that witness Rhoden's testimony was tainted was justified. Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552; Kelso v. Ross Constr. Co., 337 Mo. 202, 85 S.W.2d 527; Evans v. Trenton, 112 Mo. 390, 20 S.W. 614; Goucher v. Woodmen Accident Co., 231 Mo.App. 573, 104 S.W.2d 289; Burow v. Redline Service Co., 343 Mo. 605, 122 S.W.2d 919; Rouchene v. Gambel Constr. Co., 338 Mo. 123, 89 S.W.2d 58; Carlisle v. Tilghmon, 174 S.W.2d 798; Donk v. Francis, 174 S.W.2d 840.

OPINION

Bohling, C.

William P. Walsh recovered a judgment for $ 25,000 against the Terminal Railroad Association of St. Louis, a corporation, for personal injuries sustained as the alleged result of defendant's negligent failure to warn plaintiff, who was engaged in unloading a car of electric cable, of a switching movement. Defendant appealed and questions the sufficiency of plaintiff's evidence, the correctness of plaintiff's main instruction; the propriety of remarks of plaintiff's counsel during the trial and in argument, and the amount of the verdict.

I. Defendant contends plaintiff failed to make a case in that: a. Plaintiff failed to show that defendant's switching crew had either actual or constructive knowledge of plaintiff's presence in the car. b. That, in effect, plaintiff, in jumping from the car, was guilty of negligence barring his recovery. c. Plaintiff's testimony was so contradictory and without explanation that it cannot be relied upon to sustain the judgment.

The accident happened July 24, 1942, in the private yards of the General Steel Castings Company at Granite City, Illinois during the construction of an armor plant there by Frazier-Davis Construction Company. Plaintiff, an electrician, was an employee of the Burton Electric Company, a subcontractor. About 1:30 p.m. of plaintiff's first day on this particular job, his foreman instructed him and a man known as "Lou" to stop what they were doing and assist in unloading a car of reels of electric cable. Each reel or spool weighed from 2200 to 2500 pounds, was about three feet wide and stood about four-and-one-half or five feet high, resting upon the floor on wheels at each end of the reel. There were about sixteen or eighteen reels of cable in the car, loaded, three in a row, crosswise of the car. The reels were kept in their proper place by wood blocks, spiked to the floor. The car was on a north and south track and, according to the evidence, Thomas L. Rhoden, who was yardmaster or checker for the Frazier-Davis Construction Company, instructed Joseph J. Ganzenbach, defendant's switch foreman, to move a certain car on another track and "spot" it south of the car containing the electric cable. The movement necessitated "pulling" the car of cable out and placing the other car to the south of it. When plaintiff and Lou arrived at the car of cable, both doors (the east and west center or side doors) were open and two men and truck were waiting. The four men proceeded to kick the blocks from in front of one of the reels of cable and load the reel on the truck at the east door. They were to unload the reel at a point in a building approximately one block from the place of loading, the building itself coming within about forty feet of the car. The cable was to be weighed, and the men in the truck traveled approximately a mile to the scale. When they arrived at the building, the four men unloaded the reel of cable. After unloading the reel, plaintiff and Lou walked to the car. The truck had to travel approximately a mile to reach the car. Plaintiff and Lou proceeded to unblock the reels and had three reels unblocked when the car was struck from the...