Willis v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 08 February 1944
• Docket Number: 38685
• Parties: Chester Melvin Willis v. Atchison, Topeka & Santa Fe Railway Company, Appellant
• Court: Missouri Supreme Court

178 S.W.2d 341

352 Mo. 490

Chester Melvin Willis v. Atchison, Topeka & Santa Fe Railway Company, Appellant

No. 38685

Supreme Court of Missouri

February 8, 1944

Rehearing Denied March 6, 1944.

Appeal from Jackson Circuit Court; Hon. John F. Cook Judge.

Affirmed (subject to remittitur).

Cyrus Crane, John H. Lathrop, James F. Walsh and Sam D Parker for appellant.

(1) The court erred in overruling defendant's Instruction B, in the nature of a demurrer to the evidence, for the reason that all of the evidence showed that plaintiff's injury was caused by the failure of the loading device located inside the freight car. A reasonable inspection of the car by defendant as delivering carrier did not include or permit breaking the seals and inspecting the inside of the car. Even had this been done, the defect could not have been discovered since the gears that failed were entirely enclosed in a housing and were not visible. If, as plaintiff contends, the jerking of the rack when it was first raised indicated the defect in the gears, then consignee, plaintiff's employer, had knowledge of the danger and there was no duty on defendant's part to warn either the consignee or the consignee's employees. Copeland v. C., B. & Q.R. Co., 293 F. 12; Ward v. Kurn, 165 S.W.2d 290; Pass v. Gulf, C. & S.F. Ry. Co., 83 S.W.2d 729; K.C., M. & O. Ry. Co. of Texas v. Pysher, 195 S.W. 981; Doering v. St. Louis & O'Fallon, 63 S.W.2d 450; Davis v. Standard Rice Co., 293 S.W. 593; Martin v. Southern Pacific Co., 46 F.Supp. 954; Sykes v. Frisco, 178 Mo. 693. (2) The court erred in giving plaintiff's Instruction 1, for the reason that said instruction submits to the jury the question of whether defendant made a reasonable inspection of the car; whereas, the petition alleges negligence on the res ipsa loquitur theory only. The instruction therefore submits an issue to the jury outside the scope of and foreign to the issues raised by the pleadings. Kitchen v. Schlueter Mfg. Co., 338 Mo. 1179, 20 S.W.2d 676; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Gandy v. St. Louis-S.F. Ry. Co., 329 Mo. 459, 44 S.W.2d 634; State ex rel. Anderson v. Hostetter, 346 Mo. 249, 140 S.W.2d 21; Horvath v. Chestnut Street Realty Co., 144 S.W.2d 165; Clark v. Heckerman, 346 Mo. 458, 142 S.W.2d 35; Uitz v. Pollard, 159 S.W.2d 687. (3) The court erred in admitting incompetent and prejudicial evidence in that plaintiff's witness Brazil was permitted to testify as to conversations with an employee of the defendant, unidentified both as to name and authority. C.I.T. Corporation v. Byrnes, 38 S.W.2d 750; Stevens Davis Co. v. Sids Petroleum Co., 157 S.W.2d 246; Stenson v. Lancaster, 178 Mo.App. 340, 165 S.W. 1158; Fowler v. M.K. & T.R. Co., 229 Mo.App. 561, 84 S.W.2d 194. (4) The court erred in refusing defendant's motion to declare a mistrial because of improper and prejudicial argument by counsel for plaintiff, in which counsel was permitted to argue to the jury that the defendant moved the car with violence when no such charge was made in the pleadings or supported by competent evidence. Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214; State ex rel. v. Haid, 333 Mo. 1224, 64 S.W.2d 667. (5) The verdict for $ 15,000 was grossly excessive and shows evidence of passion and prejudice on the part of the jury. The judgment for $ 12,000 entered by the trial court, after remittitur, is still clearly excessive and does not and can not eradicate the passion and prejudice of the jury. The trial court erred in not granting a new trial on this account. Brucker v. Gambaro, 9 S.W.2d 918; Powell v. K.C. Railway Co., 226 S.W. 916; Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27; Weaver v. Mobile & Ohio, 343 Mo. 223, 120 S.W.2d 1105; Cole v. St. L. & S.F. Ry., 332 Mo. 999, 61 S.W.2d 344; Spencer v. Q., O. & K.C. Ry. Co., 317 Mo. 492, 297 S.W. 353; Fitzsimmons v. Mo. Pac. R. Co., 294 Mo. 551, 242 S.W. 915.

Raymond E. Martin and Trusty & Pugh for respondent.

(1) The demurrer was properly overruled. Stoutimore v. Atchison, T. & S.F. Ry. Co., 92 S.W.2d 658; Hudson v. Moonier, 102 F.2d 96; 2 Sherman and Redfield, Negligence (Rev. Ed.), p. 688, sec. 279; Quinlin v. American Car, etc., Co., 225 S.W. 440; McDonald v. Morrison Plumbing & Sheet Metal Co., 236 S.W. 418; Bender v. Krager, 276 S.W. 405; Loehring v. Westlake Const. Co., 94 S.W. 797; Allen v. Larabee Flour Mills Corp., 40 S.W.2d 597; Gutridge v. Mo. Pac. Ry. Co., 16 S.W. 943; Slater v. A., T. & S.F. Ry. Co., 24 S.W.2d 660; Forbes v. Hessing, 41 S.W.2d 378; Mulloy v. Beal & McNamara Painting Co., 214 S.W. 405; Doering v. St. L. & O'Fallon Ry. Co., 63 S.W.2d 450; Sykes v. St. L. & S.F.R. Co., 77 S.W. 723; Markley v. Kansas City So. Ry. Co., 90 S.W.2d 409; Folsom v. C., R.I. & P. Ry. Co., 157 Kan. 328; Roddy v. Mo. Pac. Ry. Co., 15 S.W. 1112; St. Louis-S.F. Ry. Co. v. Ewan, 26 F.2d 619; Erie R. Co. v. Murphy, 108 F.2d 817; Lambert v. Jones, 98 S.W.2d 752; Kelly v. Laclede, etc., Co., 155 S.W.2d 90; Bartlett v. Taylor, 174 S.W.2d 844; Railway Co. v. Merrill, 65 Kan. 436; S. Ry. Co. v. Booth, 98 Ga. 20, 25 S.E. 928; Maher v. C., M. & St. P. Ry. Co., 278 F. 431, 21 N.C.C.A. 371; Deister v. K.C.N. Ry. Co., 195 S.W. 499; Whatley v. Railroad Co., 27 F.Supp. 919; Copeland v. C.B. & Q.R. Co., 293 F. 12; K.C.M. & O. Ry. Co. v. Pysher, 195 S.W. 981; Gulf, W.T. & P. Ry. Co. v. Wittnebert, 108 S.W. 150. (2) The court did not err in giving plaintiff's Instruction 1 because of the facts disclosed by the evidence and the theory of trial adopted and followed by both parties and the instruction of defendant numbers 6, 7 and 8, and the rules of law. State ex rel. Anderson v. Hostetter, 140 S.W.2d 21; Baker v. Wagner Elec. Mfg. Co., 270 S.W. 302; Zimmerman v. Salter, 141 S.W.2d 137; State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W.2d 1193; Phillips v. E. St. L. Ry. Co., 226 S.W. 863; Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; State ex rel. Lusk v. Ellison, 271 Mo. 464, 196 S.W. 1088; Bowman v. Moore, 167 S.W.2d 675; Harris v. St. L. & S.F.R. Co., 200 S.W. 111; McHatton v. K.C. Rys. Co., 246 S.W. 651; Berkson v. K.C. Cable Co., 45 S.W. 1119; Mitchell v. Brown, 190 S.W. 354; Gayle v. Mo. C. & F. Co., 76 S.W. 987; Kitchen v. Schlueter Mfg. Co., 20 S.W.2d 676; Black v. Metropolitan St. Ry. Co., 117 S.W. 1142. (3) There was no prejudicial error in peramitting Mr. Brazil to explain what was told him by the first Santa Fe inspector that was sent by defendant from its freight office with Brazil when he took up the bill of lading. Keyes v. C., B. & Q.R. Co., 31 S.W.2d 50; Bennette v. Hader, 87 S.W.2d 413; Laughlin v. K.C.S. Ry. Co., 205 S.W. 3. (4) There was no error in the court's refusal "to declare a mistrial" because of the argument by counsel for plaintiff, and this is disclosed by the facts and the proceedings and authorities. Raymore v. K.C. Pub. Serv. Co., 141 S.W.2d 103; Carroll v. Mo. P. & L. Co., 96 S.W.2d l.c. 1081. (5) The judgment of $ 15,000 reduced by the court to $ 12,000, was not excessive, as show by the facts in the statement and by the authorities hereunder. Byars v. St. Louis Pub. Serv. Co., 66 S.W.2d 894; Baker v. C., B. & Q.R. Co., 39 S.W.2d 535; Hughes v. Schmidt, 30 S.W.2d 468; Hoelzel v. C., R.I. & P.R. Co., 85 S.W.2d 126; Webb v. M., K. & T.R. Co., 116 S.W.2d 27; Keyes v. C., B. & Q.R. Co., 31 S.W.2d 50; Rockenstein v. Rogers, 31 S.W.2d 792; Feltz v. Terminal R. Assn., 81 S.W.2d 616; Emerson v. Mound City, 26 S.W.2d 766; Cole v. Uhlmann Grain Co., 100 S.W.2d 311; Bales v. K.C. Pub. Serv. Co., 40 S.W.2d 665.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for damages for personal injuries sustained on account of the alleged negligence (res ipsa loquitur) of the defendant, when a freight car loading device with an automobile thereon fell upon plaintiff while he was assisting his employer (the consignee) unload a carload of automobiles at defendant's unloading dock in Chanute, Kansas. The cause was submitted upon specific negligence, to wit, negligent inspection and maintenance of the loading device and plaintiff obtained a verdict for $ 15,000. The trial court, on motion for new trial, required a remittitur of $ 3000, and judgment was entered for $ 12,000. Defendant has appealed.

Appellant complains of the refusal of its demurrer to the evidence, of the giving of an instruction, of the admission of evidence, of counsel's argument to the jury, and of an alleged excessive verdict.

Stated most favorably to plaintiff, the evidence tended to show that on December 17, 1940, defendant (terminal carrier) notified plaintiff's employer (the consignee) of the arrival of a sealed Wabash freight car containing four Pontiac automobiles shipped from Pontiac, Michigan. When the car had been "spotted" for unloading, one Brazil, a member of the consignee firm, and two employees, plaintiff and Cox, went to defendant's freight office where Brazil signed a "ticket" on the shipment and got the "freight bill." Defendant's cashier and chief clerk sent one Busby, a general freight clerk, to accompany them to the freight car. Brazil broke the seal on the car and all four opened the doors and entered. The car was equipped with two Evans automobile loaders and the automobiles at each end of the car were in an elevated position, setting at an angle, facing each other and resting upon the respective loaders. The other two automobiles, facing in opposite directions, rested on the floor of the freight car, with the front part of each automobile extending under an automobile on a loader.

Each loading device consisted of a steel frame or rack to which the frame of an automobile was attached by chains. The rack (when loaded and elevated) was supported by two short metal legs at the back and two longer legs near the front. These four legs...