Woods v. St. Louis Merchants' Bridge Terminal Ry. Co.

• Decision Date: 03 July 1928
• Docket Number: No. 26756.,26756.
• Citation: 8 S.W.2d 922
• Parties: WOODS v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.
• Court: Missouri Supreme Court

8 S.W.2d 922

WOODS v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

No. 26756.

Supreme Court of Missouri, Division No. 1.

July 3, 1928.

Motion for Rehearing Denied July 30, 1928.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Ivan F. Woods against the St. Louis Merchants' Bridge Terminal Railway Company and another. From a judgment against named defendant, it appeals. Affirmed.

J. L. Howell and R. E. Blodgett, both of St. Louis, for appellant.

Douglass & Inman, of St. Louis, for respondent.

GANTT, J.

This is a suit under both the Federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665) and the Federal Safety Appliance Act (45 USCA § 1 et seq.; Comp. St. § 8605 et seq.) for damages in the sum of $75,000 for personal injuries against the St. Louis Merchants' Bridge Terminal Railway Company and the Terminal Railroad Association. Plaintiff dismissed as to the Terminal Railroad Association. The Terminal Railway Company answered by a general denial and a plea of assumption of risk. The reply was a general denial. Verdict for $50,000. On motion for a new trial, the trial court ordered a remittitur of $20,000; otherwise the motion would be sustained. Plaintiff remitted, judgment was entered for $30,000, and motion for new trial overruled. Defendant appealed.

On October 2, 1923, and while plaintiff, a switchman, with other members of the switching crew, were making up a train in the yards near the General Motors plant, in St. Louis, he suffered serious injuries. At the time an engine was shoving fourteen cars eastwardly from the lead track onto track 3 for the purpose of leaving the front four cars on said track. Plaintiff was on the brake platform of the front car as they were moving on track 3 for the purpose of setting the brake on said car to hold it when left on said track. This car was equipped with a staff brake on the east end thereof, operated by a wheel which extends about 3 inches above the top of the car, and with a brake platform at the end and about 2 feet below the roof of the car. As the cars were moving on the track, plaintiff set the brake, waited a moment, as was customary, and then undertook to tighten it more, when the brake gave way in the direction he was pulling, throwing him onto the track and in front of the car. Plaintiff's arm was broken by the fall, and his right ankle and foot were crushed by the wheels of the car. Foreman Unger was near by and saw plaintiff fall from the car. He gave an emergency stop signal, and the engineer stopped the cars within a car's length. The fireman, foreman, and the other switchmen immediately went to the scene and found plaintiff beside the track.

It was admitted the defendant was an interstate commerce railroad, and at the time plaintiff was injured he was engaged in interstate commerce. The case was submitted under the Federal Safety Appliance Act. The sufficiency of the pleadings and the correctness of the instructions are not questioned.

I. Haney, the fireman, testified for the plaintiff, in part, as follows:

"Q. When you got down to Mr. Woods, where was he? A. He was laying right alongside the car, on the left side.

"Q. Lying down? A. Yes.

"Q. What was his condition at that time with reference to his injuries; did you observe any? A. I noticed his foot, the only thing I noticed was his foot—his instep was bleeding.

"Q. Could you tell at that time whether or not Mr. Woods was suffering pain? A. Well, he was laying there, and he spoke to the boys there.

"Q. When he spoke to them, was that when you first got up to him? A. Yes, sir.

"Q. What did he say?

"Mr. Blodgett: Object to that; self-serving declaration.

"The Court (Q.): That was as soon as you were able to get down there from where you were? A. Yes, sir.

"Q. Or after some time? A. That is when I got down there.

"The Court: He may answer. (To which action and ruling of the court defendant, by its counsel, then and there duly excepted and still excepts.)

"Mr. Douglass (Q.): What did he say? A. He just asked the boys to look at the brake chain and see if it was all right.

"Q. Was that the first thing you heard him say? A. That is all I heard him say."

Unger, the foreman, on cross-examination, testified, in part, as follows:

"Q. After you went up to Mr. Woods and saw him there, did you hear him make any statement? A. Yes, sir.

"Q. How long was that after you got to him? A. About three seconds.

"Q. What was the statement he made?

"Mr. Blodgett: I object to that as self-serving declaration.

"The Court: Objection overruled. He may answer. (To which action and ruling of the court defendant, by its counsel, then and there duly excepted and still excepts.)

"Mr. Douglass (Q.): What statement did he make? A. He asked me if the chain broke.

"Q. Asked you? A. Yes, sir."

The trial court admitted this testimony as a part of the res gestæ. Appellant contends the testimony is not a part of the res gestæ, and cites the following cases: Jackels v. K. C. Rys. Co. (Mo. App.) 231 S. W. 1023; Gray v. Earls, 298 Mo. 116, 250 S. W. 567; McFarland v. Bishop, 282 Mo. 534, 222 S. W. 143; O'Day v. Annex Realty Co. (Mo. Sup.) 191 S. W. 41; Southern Iron & Equipment Co. v. Smith, (Mo. Sup.) 192 S. W. 754; Townsend v. Schaden, 275 Mo. 227, 204 S. W. 1076.

In the Jackels Case, the circumstances under which the statement was made are not set forth in the opinion, and in the Gray Case the statements were made some time after and not at the scene of the injury. The other cases cited ruled on testimony that was clearly self-serving. These cases do not sustain appellant's contention.

In Landau v. Travelers' Ins. Co., 305 Mo. 563, 267 S. W. 376, we said:

"In the instant case the admissibility of the statements excluded by the trial court depends upon whether they were so spontaneous and so related to the insured's fall as to appear to be a by-product, so to speak, of the reaction of his senses to the physical shock engendered by the fall. If the utterances were thus instinctive or automatic, they fall within a well-recognized exception to the hearsay rule. The reasons for excepting such statements from the prohibition against hearsay are set forth in a standard text as follows:

"`To judicial administration, the automatic is the true. What a declarant asserts, not so much of himself as overborne and forced thereto by overwhelming emotion, the stress of sudden shock or intense pain, the law of evidence assumes to be the fact. That which judicial administration, nervous, as it were, at being deprived of the test of cross-examination, the greatest guaranty for the discovery of truth which the English jurisprudence has as yet been able to devise, fears in connection with such statements is reflection, the opportunity for adjusting facts to self-interest, consciously or unconsciously blending the true and false, coloring, distorting, and perverting that which is real. In an instinctive automatic utterance, where the declarant speaks from his subjective or soul mind rather than from the promptings of that which is habit, really...