Winkler v. Railroad Co.

• Decision Date: 03 October 1928
• Docket Number: No. 26326.,26326.
• Court: Missouri Supreme Court
• Parties: JOSEPH WINKLER v. PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILROAD COMPANY, Appellant.

10 S.W.2d 649

JOSEPH WINKLER v. PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILROAD COMPANY, Appellant.

No. 26326.

Supreme Court of Missouri, Division One.

October 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

AFFIRMED.

Fordyce, Holliday & White for appellant.

(1) It is reversible error for the court to permit plaintiff's counsel, in argument, to refer to and draw adverse inferences from the failure of defendant to produce a witness, such witness not having been shown to ever have been in the employ or under the control of defendant, or to have been within the jurisdiction of the trial court at the time of the trial. Atkinson v. United Rys. Co., 286 Mo. 641; 2 R.C.L. 412; Hinchman v. Pere Marquette Ry. Co., 136 Mich. 341; 38 C.J. 1491; Cement Co. v. Crankfield, 80 So. 451; Green v. La Claire, 89 Vt. 346; Gulf C. & S.F. Ry. v. Sullivan, 178 S.W. (Tex.) 618; Sears v. Duling, 79 Vt. 334; Manley v. Railroad Co., 191 Ala. 68; Dubose v. Conner, 1 Ala. App. 456; Jones v. Railroad Co., 211 Mass. 552; Brown v. State (Miss.), 34 L.R.A. (N.S.) 811; Gross v. Lake Shore, 69 Mich. 363; Diel v. Mo. Pac., 37 Mo. App. 454; Princeville v. Hitchcock, 101 Ill. App. 591. (2) The Supreme Court will set aside the verdict where it is palpably against the weight of the evidence, or clearly shows that the jury were influenced by passion and prejudice. Baker v. Stonebraker's Admrs., 36 Mo. 345; Price v. Evans, 49 Mo. 393; Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railroad, 87 Mo. 84; Hipsley v. Railroad Co., 88 Mo. 353; Garrett v. Greenwell, 92 Mo. 120.

Foristel, Mudd, Blair & Habenich and Harry S. Rooks for respondent.

(1) Since the record does not show any of the argument of defendant's counsel to the jury, nor all of the argument of plaintiff's counsel and the colloquies between the court and counsel incident to the various arguments, it must be presumed that the trial court did not err in overruling the objection made during closing argument of plaintiff's counsel to the comment on the failure of defendant to adduce the testimony of Robert Sacks as a witness. The comment could have been proper reply to the argument of defendant's counsel and must be presumed to have been. Vette v. Hackman, 292 Mo. 138; Taul v. Saddlery Co., 229 S.W. 420; Northcutt v. Stone Co., 178 Mo. App. 389; Anderson v. Railroad, 161 Mo. 431; McIntire v. Hewitt, 75 Mo. App. 304. (2) The burden is upon the appellant to establish that the trial court committed prejudicial error to overcome the positive presumption that the trial court ruled correctly and did not err. Vette v. Hackman, 292 Mo. 146. The limits of proper argument are largely within the discretion of the trial judge, to be interfered with on appeal only when there has been a plain and unmistakable abuse thereof. Gidionsen v. Union Depot Railroad, 129 Mo. 392; Burdoin v. Town of Trenton, 116 Mo. 373; Huckshold v. Railroad, 90 Mo. 559; Crockett v. Rys. Co., 243 S.W. 908; Hoffman v. Hoffman, 126 Mo. 499; Dillard v. McClure, 64 Mo. App. 492. (4) The only objection at the trial to the comment made by plaintiff's counsel was that the witness (Sacks) "was not under the custody or control of the defendant," and, hence, its failure to produce him could not be commented upon. Appellant is bound on appeal by the limitation of that objection and cannot now urge another. City of St. Louis v. Railroad, 248 Mo. 10; Williams v. Railroad, 188 Mo. 134; Baldwin v. Railways, 231 S.W. 283. The statement of defendant's counsel, in making the objection, that the record showed that Sacks was no longer connected with the hospital was incorrect; the record does not show it. (5) Counsel's right and duty to comment upon the opposite party's failure to adduce evidence is not limited to that testimony which would be given by witnesses shown to be "under the custody or control" of the other party, but extends as well to instances of failure to produce important testimony of material witnesses which apparently should, under all the circumstances, be favorable to the party so failing if that party's version is true and correct. 9 Ency. Evidence, 965; 2 R.C.L. 412, sec. 11; State ex rel. Myer v. Daues, 315 Mo. 186; State v. McCord, 237 Mo. 242; Miller v. Clay Prod. Co., 282 S.W. 141; Kennett v. Const. Co., 273 Mo. 279; State v. Shepherd, 192 S.W. 427; State v. Watson, 1 S.W. (2d) 837; State v. Smith, 300 S.W. 1081; Wilson v. Seed Co., 243 S.W. 390; Hartman v. Hartman, 284 S.W. 488; State v. Finkelstein, 213 S.W. 465; State v. Emory, 79 Mo. 461; Shields v. Fdry. Co., 293 S.W. 77; Kame v. Railroad, 254 Mo. 175; Gilman v. Fleming, 265 S.W. 104; Brandt v. Schuchman, 60 Mo. App. 70; Whitmore v. Exp. Co., 269 S.W. 654; State v. Parker, 172 Mo. 191; Booher v. Trainer, 172 Mo. App. 376; State v. Topolovacki, 213 S.W. 104; State v. Kester, 201 S.W. 62; State v. Linders, 299 Mo. 671; McClanahan v. Railroad, 147 Mo. App. 386; Stagner v. Rich Hill, 119 Mo. App. 281; Tillman v. City, 297 Mo. 74; Dunkerson v. Williams, 242 S.W. 653; State v. Mathews, 98 Mo. 125; State v. Larkin, 250 Mo. 218; State v. Prunty, 276 Mo. 359. (6) Defendant had the right, and it was its duty under the circumstances, to show by evidence, if it could (and argue the matter also), that it could not produce the testimony of Sacks or other facts explaining and excusing his absence. State v. Topolovacki, 213 S.W. 105; Looff v. Railway Co., 246 S.W. 580; State v. King, 214 Mo. 383. (7) Defendant adopted the testimony of claim agent Blevins (who was not a witness to the injury) and ratified his conduct in going to plaintiff for the very purpose of securing evidence for defendant's defense, and who enlisted Robert Sacks in aid thereof. Therefore the failure of defendant to adduce the testimony of said Sacks was a legitimate and proper subject of comment by plaintiff's counsel. Cases under Point 5. This is particularly true since claim agent Blevins was manifestly treated by defendant as its star final witness, saved for the last of defendant's fourteen witnesses, which gave plaintiff no opportunity to procure the testimony of Sacks. He was not equally available to plaintiff as to defendant. (8) Claim agent Blevins' testimony and defendant's conduct, as shown by the evidence and incidents at the trial, justified the inference that Blevins, in interviewing plaintiff, was in reality acting for the benefit of defendant, and that Sacks' aid was enlisted for that same purpose. The record conclusively shows that defendant so far ratified and sanctioned Blevins' conduct and investigation as to accept the benefit of his testimony to the alleged admission he claimed that plaintiff made. In that situation Sacks, as well as Blevins, were so related to the defendant and its defense as to justify comment on failure to produce the testimony of Sacks to the same extent as though it had been shown by direct evidence that defendant had sent Sacks to plaintiff for that very purpose. Kame v. Railroad, 254 Mo. 194, and cases cited under Point 5. (9) There being substantial evidence on behalf of plaintiff to take the case to the jury (which appellant does not dispute), the jury's verdict, approved by the trial judge, who was manifestly in a better position to decide the matter than this court could possibly be, is conclusive on appeal, there being no prejudicial procedural error. Morrow v. Franklin, 289 Mo. 549; State ex rel. Bank v. Sturgis, 276 Mo. 559; Manley v. Wells, 292 S.W. 67; Chapman v. Rys. Co., 233 S.W. 181; Vette v. Hackman, 292 Mo. 138; Burtch v. Wabash Railroad, 236 S.W. 340.

ATWOOD, P.J.

This is an appeal from a ten thousand dollar personal injury judgment for plaintiff, Joseph Winkler. Plaintiff, by his next friend, commenced this action against the Terminal Railroad Association of St. Louis, Missouri, and the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company was subsequently joined as codefendant. During the trial it was announced that plaintiff had reached his legal majority and the action was thereafter prosecuted in his name. The verdict and the judgment rendered thereon were in favor of plaintiff as to the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, and against plaintiff as to the Terminal Railroad Association of St. Louis, Missouri.

Plaintiff went to trial on his amended petition, in which it was alleged that while he was riding on the step of a coach of a train under the control of defendants an employee of defendants kicked at him and caused him to swing his body off and away from the coach so that he was struck by a signal post, knocked to the ground and under the wheels of the train, which ran over his left leg, thereby necessitating the amputation of said leg just below the knee. Defendants' answers were separate general denials.

The undisputed facts in evidence are as follows: On February 10, 1922, at about eight o'clock in the morning, appellant's westbound passenger train, running from Pittsburgh to St. Louis, arrived in East St. Louis, where an engine of the Terminal Railroad Association was attached and the train was hauled through the Terminal yards to the St. Louis Union Station, appellant's employees remaining in charge of all the train except the engine. After leaving East St. Louis the train came across Eads bridge and through a tunnel nearly a mile long. The train left the tunnel at Eighth and Spruce Streets in St. Louis and then proceeded west through the Terminal yards. Plaintiff, then a boy of nineteen years of age, was a messenger in the employ of the Frisco Railroad, his duty being to pick up and deliver mail for the Terminal and Frisco Railroads at various places in St. Louis. When appellant's said train reached signal bridge No. 11 in the Terminal yards near the Union Station, plaintiff was on a step on the south side of one of the coaches, and as this coach passed said signal bridge plaintiff was struck by a signal post, knocked from the step, and his left leg was run...