Winkler v. Terminal Railroad Association of St. Louis, a Corp.
| Decision Date | 08 February 1921 |
| Citation | 227 S.W. 625,206 Mo.App. 224 |
| Parties | SUSANNA WINKLER, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.
AFFIRMED.
Judgment affirmed.
J. L Howell and W. M. Hezel for appellant.
(1) The court erred in permitting plaintiff to amend her amended petition at the close of her case in chief, "to conform to the proof." Because there was no proof of usage and custom shown as prevailing on the hill track, which was not in the Twenty-first street yard. To make a custom effective it must be shown to have been general, uniform, certain and notorious. McMiens v. United Rys. Co., 274 Mo. 326; Paukey v. Railway Co., 180 Mo.App. 185; Shields v. Railway, 87 Mo.App. 637. (2) The court erred in failing to give to the jury the instruction in the nature of a demurrer to the evidence at the close of plaintiff's case in chief, as requested by defendant. The case pleaded must be proven and the case proven must be pleaded. Kendrick v. Harris, 171 Mo.App. 208; Small v Ice & Fuel Co., 179 Mo.App. 461. This was the first train made up on any "hill" track. Therefore, there could have been no usage and custom of cleaners being in cars at that place. McMein v. U. Rys. Co., 274 Mo. 326, 231; Paukey v. Ry. Co., 181 Mo.App. 185, 199; Shields v. Railway, 87 Mo.App. 637. (3) The court erred in failing to give the instruction in the nature of a demurrer to the evidence, at the close of the whole case, as requested by the defendants. Plaintiff's case was in nowise aided by defendant's testimony, and the authorities under point 2 are applicable here. (4) The court erred in giving plaintiff's instruction No. 1. her main instruction. It is broader than the evidence or the pleadings. State ex rel v. Ellison, 270 Mo. 654; Degonia v. Railroad, 224 Mo. 589; Small v. Ice & Fuel Co., 179 Mo.App. 461. (5) The court erred in giving plaintiff's instruction No. 3 the instruction on the measure of damages. a. Because it allows recovery for future pain, though the injury complained of is said by plaintiff's evidence to have caused paralysis of the sensory nerves--that is the absence of sensation or feeling. Quod est demonstrandum. (6) The court erred in permitting Lena Kramm, a lay witness, over objection, testify that plaintiff before the accident, was "always healthy." She was a lay witness and did not state the whole facts upon which her opinion was based. Norris v. Railroad, 239 Mo. 695, 711; Atkinson v. Am. School of Osteopathy, 199 Mo.App. 270. (7) The court erred in permitting, over objection and motion to strike, testimony as to whether signals, by bell or otherwise, were heard by witnesses. There was no allegation in the petition of negligence in failing to give a signal nor any usage or custom of giving signals.
Leonard, Sibley & McRoberts for respondent.
(1) The amendment of the petition during the course of the trial, while unnecessary, was not improperly allowed and did no harm to defendant. Lightner v. Dunham, 195 S.W. 1055; Kinney v. Met. St. Ry. Co., 261 Mo. 97, 169 S.W. 23; Rober v. K. C. Rys. Co., 204 S.W. 739. The track and train in question were in the Twenty-first Street yards, and the custom and usage was shown to prevail throughout not only these yards, but in all other yards about Union Station. Also, defendant took this position at the trial and cannot change its position now on appeal. (2) Defendant's instruction in the nature of a demurrer to the evidence tendered at the close of plaintiff's case was properly refused. Then, defendant, who afterwards put on its own testimony in defense, cannot now complain of the refusal of the court to give this instruction. Stauffer v. Railroad, 243 Mo. 305. (3) Defendant's instruction in the nature of a demurrer to the evidence tendered at the close of the whole case was properly refused. Plaintiff's evidence was even strengthened by the testimony and admissions of defendant's witnesses, and by the attitude of defendant's counsel, and the position taken by him at the trial. (4) Plaintiff's instruction on the merits was not broader than the proof. Were it broader, it would still be harmless. (5) The instruction given on the measure of damages was proper. Plaintiff had suffered pain all the time since she was injured, and was still so suffering at the time of the trial, and her injuries were permanent. (6) The testimony of Lena Kramm was properly admitted. Partello v. Railroad, 217 Mo. 645; Fulton v. Met. St. Ry. Co., 125 Mo.App. 239; Heinback v. Heinbach, 274 Mo. 301. The witness even gave the facts upon which she based her opinion. Then, no proper objection was made by defendant. At worst, the testimony was merely cumulative upon a question not in dispute. This was not reversible error. Porterfield v. Am. Surety Co., 210 S.W. 124; Meredith v. Krauthoff, 191 Mo.App. 149. (8) The negligence of defendant in failing to sound a bell or give other signal or warning was pleaded in count 2 of the petition. Then, no objection was made by defendant to the evidence because not pleaded.
Plaintiff was employed as a janitress by the Pullman Company, and while engaged in cleaning the inside of one of its cars, which was standing in the yards of the defendant Terminal Railroad Association, received serious personal injuries by reason of the alleged negligence and carelessness of defendant's employees in running one of its locomotives against said car, in which plaintiff was working as a car cleaner, thereby causing a great jolt and shock, which threw plaintiff from her feet, head foremost against the door frame of the door leading into the smoker and washroom.
There was a verdict and judgment for plaintiff for $ 6500, which is not complained of as being excessive, so it will be unnecessary to state the extent of plaintiff's injury.
After an unveiling motion for new trial, defendant appeals, assigning error as follows: (1) Error in permitting plaintiff to amend her petition to conform to the proof at the close of her case; (2) failure to sustain demurrer to the evidence at close of plaintiff's case and also at the close of the whole case; (3), error in giving plaintiff's main instructions; (4), error in giving an instruction on the measure of damages, and (5) error in the admission of evidence.
The main part of the petition with the amendment that the court permitted at the close of plaintiff's case in italics is as follows:
Plaintiff further states that on or about the third day of February 1917, and for a long time prior thereto, she was in the employ of the Pullman Company as a janitrees, her duties consisting in cleaning Pullman cars; that on or about said date she was ordered to clean one of the cars belonging to and operated by the Pullman Company, which said car was standing at rest on the tracks in the yards owned and used by defendant at Twenty-first Street near Clark Avenue; that it had at said time and before said time long been the custom and usage for cars to stand on said tracks to be cleaned by employees of the Pullman Company and for said employees of the Pullman Company to be engaged in work on the interior of said cars when said cars were coupled and were switched in the said yards and conveyed to Union Station in the City of St. Louis, Missouri; that while engaged in the duties aforesaid, as defendant knew or should have known from the custom and usage aforesaid, said defendant, by its servants and employees carelessly and negligently ran one of its locomotives upon and against said Pullman car in which plaintiff was working; that the said collision caused a great jolt and shock, which threw plaintiff from her feet," etc.
The facts are these: The defendant owned all of the railroad tracks in and about Union Station, After trains on various roads arrive in the station shed, the defendant takes charge of the cars and moves them to various yards owned and controlled by it, where the cars are cleaned and made ready for another trip, after which the defendant makes up these trains and returns them to the Union Station shed in time for their departure.
One of these yards was known as the Twenty-first street yard, which lay just west of the Union Station. This yard contained paralled tracks running in a general direction north and south, the west 26 of said tracks at the north end lay in a depression about four feet below the east three tracks. At the east end of the yard there were three or four track situated on what it known as "the hill" or "the dumps" which were above the remaining tracks in the yard at their north end, but at the south end were on the same level as the other tracks. All of said tracks at the south end were on the same level and joined the other tracks running east and west owned by defendant and by which cars were switched in and out of said station.
On the 26 tracks referred to which were in the depression, Pullman cars were constantly standing, having been switched there by the defendant from trains arriving at Union Station, and car cleaners were constantly working inside and outside of the cars during the hours of the day. In order to prevent accident by engines moving any of these cars while being cleaned, it was required that a blue flag be displayed at the end of the car when the cleaners were engaged cleaning the outside or the roof of the inside of the cars, but not when the cleaners were cleaning the floors. It frequently happened, especially on trains that were leaving about the noon hour of each day, that the cleaners would not be through cleaning the car at the time it was necessary to move the cars from the yards into...
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