Westenhaver v. St. Louis-San Francisco Ry. Co.

• Citation: 102 S.W.2d 661,340 Mo. 511
• Decision Date: 11 March 1937
• Docket Number: 33056
• Parties: H. B. Westenhaver, Appellant, v. St. Louis-San Francisco Railway Company, a Corporation
• Court: United States State Supreme Court of Missouri

102 S.W.2d 661

340 Mo. 511

H. B. Westenhaver, Appellant, v. St. Louis-San Francisco Railway Company, a Corporation

No. 33056

Supreme Court of Missouri

March 11, 1937

Appeal from Jasper Circuit Court; Hon. R. H. Davis, Judge.

Reversed and remanded (with directions).

Cope & Hadsell, E. L. Moore, Cowgill & Popham and John F. Cook for appellant.

(1) Defendant's demurrer at the close of the evidence should not have been sustained. No authorities in addition to those cited in appellant's original brief. (2) The extent and latitude given in the application of the rule that one inference cannot be based upon another inference. American Vt. Lab. v. Glidden Co., 49 S.W.2d 60; Freeman v. K. C. Pub. Serv. Co., 30 S.W.2d 176; State ex rel. v. Haid, 28 S.W.2d 103. (3) Appellant is entitled to the benefit of the rule that the failure of defendant to produce witnesses, who know facts vitally bearing on the issue, when those witnesses are under defendant's control, raises an inference that the testimony of those witnesses, had they been called, would have been unfavorable to the defendant. In addition to cases cited in appellant's original brief; Smith v. K. C Pub. Serv. Co., 56 S.W.2d 842; Crane v. Ry Co., 203 S.W. 640; Dunkerson v. Williams, 242 S.W. 653; Donet v. Prudential Ins. Co., 23 S.W.2d 1107. (4) The opening statement of counsel for defendant does contain admissions making it unnecessary to introduce evidence to prove the matters admitted. (5) Plaintiff's Instruction 1 was not erroneous and the three acts of negligence submitted were not shown by the petition to depend one upon the other. There is no point on this appeal that the court erred in refusing any withdrawal instructions. Summers v. Cordell, 187 S.W. 7; Scott v Railroad Co., 62 S.W.2d 840; Wahl v. Cunningham, 56 S.W.2d 1060; LaBella v. S.W. Bell Tel. Co., 24 S.W.2d 1077; Waters v. Gallemore, 41 S.W.2d 872. The court did not assign as a reason for granting the motion for a new trial that it had erred in the refusal of any instruction and, therefore, the effect of the trial court's ruling is that it overruled any such assignment as to the refusal of instructions as might have been made in the motion for new trial. Sakowski v. Baird, 69 S.W.2d 651; Manthey v. Kellerman Contracting Co., 277 S.W. 927; Smith v. K. C. Pub. Serv. Co., 43 S.W.2d 548; Cole v. Ry. Co., 61 S.W.2d 244. An instruction may be broader than the pleadings if within the range of the evidence, provided either that the evidence sustaining the instruction was not objected to or that the court did not have an opportunity to pass upon the admissibility of the evidence or to correct the error of its injection in the case. Degonia v. St. Louis I. M. & S. Railroad Co., 224 Mo. 564 and other cases reiterating the rule stated in the Degonia case have been overruled and the rule limited. Talbert v. Railroad Co., 15 S.W.2d 764; North Nishnabotna Drainage Dist. v. Morgan, 8 S.W.2d 439. (6) The verdict was not excessive.

J. W. Jamison and Mann, Mann & Miller for respondent.

(1) Defendant's demurrer at the close of the evidence should have been sustained. (a) The theory of the plaintiff as to the negligence and resulting liability of defendant, as shown by the petition and his Instruction 1, is that the oil upon the rails, together with the excessive speed of the engine under "the condition and circumstances then and there existing," that is to say, the concurrence of the oil on the rails, and the failure to warn, and not either alone, constituted a chain of circumstances or connected facts which produced his injury. Therefore, proof of all is required and if plaintiff failed to establish negligence as to either, he is not entitled to recover. Simmons v. Wells, 20 S.W.2d 661; Giles v. Railroad Co., 278 Mo. 350, 212 S.W. 874; Bonnarens v. Railroad Co., 309 Mo. 65, 273 S.W. 1047; Brainard v. Railroad Co., 319 Mo. 890, 5 S.W.2d 18; Kirn v. Harvey, 200 Mo.App. 433, 208 S.W. 479. (b) Appellant is bound in this court by his theory in the court below. Pinnell v. Railroad Co., 263 S.W. 186; Rath v. Knight, 55 S.W.2d 684; Degonia v. Railroad Co., 224 Mo. 588; O'Hara v. Laclede Gas Light Co., 244 Mo. 403. (c) The charge as laid in the petition, with reference to the oil is that "defendant negligently oiled the switch to said unloading track and the rails of said track on which said car was being unloaded, rendering said track greasy, slick and dangerous." There was no proof that the switch and rails of the track were oiled. If the proof warranted the inference that there was oil on both rails of the track, which we deny, there is no proof, and it may not be inferred, that the oil was negligently put on both rails by the defendant, as the specific act of negligence charges. (d) The charge of negligence is that defendant put the oil upon both rails of the track; not that the condition, however caused, had existed sufficiently long to charge defendant with knowledge of the condition and to give it a reasonable opportunity to remove it or notify the switch crew thereof. Even if such latter theory were relied on, it is not supported by the proof. Wilson v. Railroad Co., 5 S.W.2d 22; Haggard v. McGrew Coal Co., 200 S.W. 1075; Near v. Railroad Co., 261 Mo. 91; Schneider v. Pevely Dairy Co., 40 S.W.2d 651; Grindstaff v. Goldberg & S. S. Co., 40 S.W.2d 702; Beebe v. St. Louis Transit Co., 206 Mo. 437; Howard v. Railroad Co., 173 Mo. 531; Stone v. Railroad Co., 293 S.W. 371; Trigg v. Ozark Land & Lbr. Co., 187 Mo. 237; Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 770; Rowden v. Daniels, 151 Mo.App. 26; Coin v. Talge Lounge Co., 222 Mo. 508; Odell v. Natl. Lead Co., 253 S.W. 399; Warner v. Railroad Co., 178 Mo. 134; Harper v. St. Louis Merchants' Bridge T. Co., 187 Mo. 586. (e) If the evidence warranted the jury in finding that there was oil on both rails of the track, that alone would not warrant the jury in finding the defendant guilty of negligence because: In the absence of proof, the presumption is indulged that defendant exercised ordinary care. Haggard v. McGrew Coal Co., 200 S.W. 1074; Coble v. Railroad Co., 38 S.W.2d 1036; Removich v. Bambrick B. C. Co., 264 Mo. 52. Where conflicting presumptions arise from the facts, neither may be indulged. "The one presumption rebuts and neutralizes the other like the conjunction of an acid and an alkali." Yarnell v. Railroad Co., 113 Mo. 579; State ex rel. Mo. Pub. Utilities Co. v. Cox, 298 Mo. 433, 250 S.W. 552. (f) There is an utter absence of proof that the car in which plaintiff was working was struck by an engine and cars traveling at a dangerous and negligent rate of speed. The force of the collision may have been the result of some other cause, such as the failure of the brakes to operate, even though the engine was running at a safe rate of speed or the failure of the couplers to operate or the brakes to hold on the car standing immediately east of the one in question. (g) No negligent failure to warn plaintiff was shown. The duty to warn depends upon whether the car was intentionally moved by defendant or if not intentionally moved, then whether, after the employees of defendant knew or by the exercise of ordinary care could have known that the switching operation in which they were engaged would probably result in moving this car, they had a reasonable time within which to have given an effective warning to plaintiff -- one which would have enabled him thereafter and prior to the movement of the car, to have reached a place of safety. The proof went no farther than to show that no warning was given. American Brewing Assn. v. Talbot, 141 Mo. 683; Wecker v. Grafeman-McIntosh I. Co., 31 S.W.2d 977; Brightwell v. Lusk, 194 Mo.App. 649; Nelson v. Hienz S. Co., 8 S.W.2d 921. (2) The opening statement of counsel for defendant does not constitute an admission of its negligence or of any fact but is the usual and proper statement of what counsel expected the evidence to show. To constitute an admission of fact, rather than a mere statement of what counsel expects the evidence to show, the statement must be deliberate and intentional and for the purpose of dispensing with proof. In re Condemnation of Property for Parks, 263 S.W. 99; Fillingham v. St. Louis T. Co., 102 Mo.App. 579; Wasmer v. Railroad Co., 166 Mo.App. 218; Russ v. Railroad Co., 112 Mo. 50; Dempster v. Ackley, 129 Kan. 256, 282 P. 596; Temple v. Cotton T. Co., 253 N.W. 353; McMurrough v. Alberty, 90 Okla. 4, 215 P. 195; Simmons v. Harris, 108 Okla. 189, 235 P. 510; Chown v. Lennox F. Co., 166 Iowa 1, 147 N.W. 147; 1 Greenleaf on Evidence, L. Ed., sec. 186, p. 297, sec. 205, p. 327. The opening statement of counsel for defendant was not offered in evidence by plaintiff and, in his instructions, plaintiff did not base his right to recover upon any admission of counsel for defendant but required the jury to find the facts necessary to a recovery from the evidence introduced.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This case comes to the writer on reassignment. Appellant, Westenhaver, obtained a verdict in the sum of $ 15,000, against the respondent railroad company, as damages for personal injuries sustained as the result of a collision of two railroad cars, in the city of Monett, Missouri. The trial court sustained a motion for new trial and appellant, plaintiff below, appealed. The order granting a new trial reads:

"Now comes on for hearing defendant's motion for a new trial heretofore filed herein. By consent said motion is taken up and upon being seen, heard and fully understood by the Court the same is sustained, on the grounds that the Court committed an error in submitting plaintiff's instruction marked number one to the jury on the grounds that there is no evidence upon which to base said...