Williams v. Thompson

• Decision Date: 08 September 1952
• Docket Number: No. 2,No. 42800,42800,2
• Citation: 251 S.W.2d 89
• Parties: WILLIAMS v. THOMPSON et al
• Court: Missouri Supreme Court

Page 89

251 S.W.2d 89

WILLIAMS v. THOMPSON et al.

No. 42800.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1952.

William R. Kirby, St. Louis, for appellant.

Thomas J. Cole, Oliver L. Salter, Donald B. Sommers, St. Louis, for respondent.

BARRETT, Commissioner

In this action under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., by George Williams against the Missouri Pacific Railroad ten jurors returned a verdict for the defendant. The plaintiff, a car repairman, employed by the Kansas City Terminal Railroad, was injured in the Kansas City station yards while he was changing a brake shoe on a refrigerator car, the third car from the engine in a Missouri Pacific passenger train. His case was submitted upon the hypothesis of the applicability of the res ipsa loquitur doctrine to the circumstances and the fact that while he was in the act of withdrawing the old brake shoe 'the brakes * * * were suddenly and unexpectedly set' causing the plaintiff's forefinger, at the distal joint, and his left thumb to be caught in the brake's mechanism. Upon his appeal the plaintiff does not question the fact that there was evidence from which the jury could reasonably find that his injuries were not due to any negligence on the part of the railroad or its employees. The questions raised by the plaintiff, and the only questions necessary to a disposition of this case, are whether the trial court prejudicially erred in the admission of evidence, in instructing the jury and in permitting certain argument by respondent's counsel.

In cross-examining the plaintiff defendant's counsel made rather extensive use of his deposition, reading several pages of questions and answers and inquiring of the plaintiff whether he remembered those questions and answers. It is now argued that the deposition was not properly employed or used because the questions and answers referred to were not contradictory of his previous testimony or impeaching. In some instances respondent's counsel had not laid the proper foundation for using the deposition, 26 C.J.S., Depositions, Sec. 92, page 930, and parts of the deposition used did not conflict with the plaintiff's oral testimony. There were, however, some conflicts in the plaintiff's oral testimony and his deposition and in so far as the conflicts existed the court properly permitted use of the deposition. Carp v. Queen Ins. Co., 203 Mo. 295, 345, 101 S.W. 78; Sinclair v. Columbia Tel. Co., Mo.App., 195 S.W. 558. When respondent's counsel first started using the deposition there was no objection by plaintiff's counsel, subsequently when plaintiff's counsel objected that there was no conflict and no impeaching evidence the court sustained the objection, later plaintiff's counsel, instead of properly making an objection to the court, simply interjected and said, 'these are highly improper questions and argumentative, going over the same thing that has been gone over before,' and then for long intervals there was no objection whatever. In short, while there was some improper use of the deposition, there was some proper use of it, and it may not be said that the trial court so abused its discretion in the latitude of the cross-examination as to compel the granting of a new trial. Walker v. St. Louis Public Service Co., Mo.Sup., 243 S.W.2d 92, 99; Murphy v. Fidelity Nat. Bank & Trust Co., 226 Mo.App. 1181, 49 S.W.2d 668.

Mr. Williams' injuries consisted of a lacerated left thumb and the loss of his left index finger at the distal joint. In his petition he alleged that he had lost earnings and would continue to lose earnings by reason of his injuries and that he was entitled to $35,000 damages. He testified that since his injuries he had made three attempts to resume his work as a car repairman but was unable to do so because of his injuries. He said, 'I went back and found out I couldn't handle the job under the conditions of my hand,' and it was his opinion that he could not handle a car inspector's job. Over the objection of plaintiff's counsel the railroad's assistant superintendent of the car department was permitted to testify that he had seen car inspectors working with one or more fingers off. The plaintiff now urges that the court erred in admitting in evidence this testimony. It is urged that there was no showing of similarity of injuries and that this evidence injected a collateral and immaterial issue and was prejudicial. Aside from the fact that plaintiff's counsel permitted another witness, the Kansas City Terminal Railroad's foreman, to testify, without objection, that he had seen car repairmen and car inspectors working with injured hands and that Mr. Williams could do the work of either with his injuries, the court did not prejudicially err in admitting the testimony of the assistant superintendent. The evidence objected to here was not entirely irrelevant, it had some tendency to illustrate an important point at issue, whether the plaintiff could or could not perform the duties of his regular job by reason of his injuries. Compare: Graney v. St. Louis, I. M. & S. Ry. Co., 140 Mo. 89, 41 S.W. 246, 38 L.R.A. 633. The plaintiff testified that he had not entirely recovered from his injuries and for this reason there may have been little value in the evidence. Hill v. Terminal R. R. Ass'n, 358 Mo. 597, 609, 216 S.W.2d 487, 493. Nevertheless, the admission or exclusion of the evidence, in all the circumstances, was within the sound discretion of the trial court and it may not be said upon this record that the court abused its discretion, Counts v. Thompson, 359 Mo. 485, 500, 222 S.W.2d 487, 493, or that the evidence injected into the case such manifold controversial and confusing collateral issues as to constitute prejudicial error. Jones v. Terminal R. R. Ass'n, Mo.Supp., 242 S.W.2d 473, 477.

As we have said, the plaintiff submitted his case upon the hypothesis of the applicability of the res ipsa loquitur doctrine; in part the principal instrustion said, 'and if you further find and believe from the evidence that while plaintiff was removing and replacing the brake shoe mentioned in the evidence, the brakes on said car were suddenly and unexpectedly set causing the plaintiff's fingers on his left hand to be caught and injured * * * then you are instructed that such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find, unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to the defendant's negligence, and if you do find that the defendant was negligent and that such negligence in whole or in part caused injury to Mr. Williams, then your verdict must be in his favor and against the defendant.' On behalf of the defendant the court gave this instruction: 'The Court instructs the jury that the burden of proof is on the plaintiff to show, by the greater weight of the evidence, that he was injured by the negligence of the defendant. You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff's evidence, if you find and believe from all the evidence in the case that the defendant was not negligent, and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be for the defendant.' The plaintiff admits that this instruction 'closely follows' the instruction suggested in Harke v. Haase, 335 Mo. 1104, 1111, 75 S.W.2d 1001, 1004, and approved in Payne v. Carson, Mo.Sup., 224 S.W.2d 60, 62, but insists nevertheless that the propriety of giving the instruction should be re-examined. It is urged that the question that the instruction is lacking in factual hypothesization and is inconsistent and contradictory has not been presented or considered heretofore. The instruction, in part at least, is a burden of proof instruction, cautionary in tenor, and of necessity is abstract rather than factual. It is a converse instruction and a correct and proper statement of the law both as to burden...