Young v. Kansas City Southern Ry. Co., 49840
| Decision Date | 13 January 1964 |
| Docket Number | No. 49840,No. 1,49840,1 |
| Citation | 374 S.W.2d 150 |
| Parties | Frederick H. YOUNG, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Respondent |
| Court | Missouri Supreme Court |
J. John Marshall, Pittsburg, Edward V. Sweeney, Monett, for appellant.
Richard S. Righter, Robert D. Youle, William H. Bates, Ronald G. Schmidt, Kansas City, Lloyd Buehner, Joplin, for respondent; Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.
COIL, Commissioner.
In an action under the Federal Employers' Liability Act, Frederick Young sought damages of $504,476 for injuries he claimed to have sustained as a result of the Kansas City Southern Railway Company's alleged negligence on July 17, 1961. A jury awarded him $5,000 and he has appealed from the ensuing judgment. He contends that the trial court erred in refusing to declare a mistrial and thereby forced him to submit his case despite allegedly improper argument by railroad's counsel; and further that the judgment is grossly inadequate and that the trial court abused its discretion in refusing to grant him a new trial on the ground of inadequacy of verdict. We shall refer to the parties as they were designated in the trial court.
Plaintiff, the rear brakeman on a freight train, was riding in the caboose. A wasp flew in the window, plaintiff arose, killed the wasp, and started toward the front of the car, whereupon the train, traveling 30 to 40 miles per hour, suddenly stopped which caused plaintiff to 'fly through the air' and land on his right hip and side.
The only portions of the arguments of counsel contained in the record are:
'[Plaintiff's counsel]: * * * The conductor, who was sitting back there on the back end of that train with Mr. Young, he is their employee. It would have been interesting to have heard what he would have had to say if they had brought him in.
'[Defendant's counsel]: He was here and equally available to plaintiff. He was in the room.
'THE COURT: Overruled.
'[Plaintiff's counsel]: So that of their employees, the ones that know about it, have control over it, they didn't bring anyone but the engineer, that's the only one they called to the stand. Now they tell us that this conductor was here, perhaps he was; why didn't they put him on the witness stand and let him tell you what happened? Oh, no, they would like to say that we should put him on the stand. What do you think about that? How do I know what their claim agent and what their lawyers have done with this man and what he might say?
'[Defendant's counsel]: We object to this very strenuously.
'THE COURT: Sustained.
* * *
* * *
'[Defendant's counsel]: * * *. Now in his summation to you Mr. Sweeney said it was interesting why we didn't call Conductor Kennedy.
'[Plaintiff's counsel]: Just a moment.
'(Off-the-record discussion between the Court and counsel.)
(Out of the hearing of the jury:)
'[Plaintiff's counsel]: I would like for the record to show that the Court has previously stated that he thinks there should be a mistrial if I insist on it, and I am insisting on it.
'[Plaintiff's counsel]: May the record show that it view of the present state of the record, we request a mistrial in view of what has occurred.
The foregoing excerpts from the transcript are self-explanatory, but analyzing them part by part shows that plaintiff's counsel, as he had a right to do, referred to the failure of defendant to call as a witness its conductor-employee who saw what happened in the caboose. Defendant's counsel objected on the ground that witness was equally available and was in the courtroom. The trial court correctly overruled that objection; whereupon plaintiff's counsel proceeded not only to continue to comment upon the failure of defendant to call the conductor but turned to his advantage defendant's unsuccessful suggestion that plaintiff should have put the witness on the stand. In the final sentence of that portion of his argument plaintiff's counsel said that he didn't know what defendant's claim agent or its lawyers had done to the man and what he might say. Defendant's counsel objected, and it is clear that it was that statement to which he objected, and the court correctly sustained the objection.
Apparently, the rest of plaintiff's counsel's argument proceeded without objectionable incident; at least, the rest of his argument is not before us. Sometime during his final argument defendant's counsel said: 'Now in his summation to you Mr. Sweeney said it was interesting why we didn't call conductor Kennedy.' Whereupon plaintiff's counsel called a halt and an off-the-record discussion took place between court and counsel.
Plaintiff contends, as indicated by his statement in the record, that the trial court stated during that discussion that in his opinion error had been committed and that plaintiff was entitled to a mistrial if his counsel insisted upon it; and plaintiff's counsel did insist upon it. While the record does not show that the court made the statement above noted, we shall assume that he did. On the record, however, we must further conclude that the trial judge changed his mind during the course of the colloquy and finally decided, and so told counsel, that he would instruct the jury to disregard the 'argument' of defendant's counsel with respect to the failure (we assume of plaintiff) to produce the conductor as a witness. And as we understand, the trial court indicated to plaintiff's counsel that he could in his final argument comment further upon defendant's failure to have produced the conductor. Whereupon, still out of the...
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