Young v. Wheelock

• Decision Date: 19 October 1933
• Docket Number: No. 31183.,31183.
• Court: Missouri Supreme Court
• Parties: GLADYS M. YOUNG, as Administratrix of the estate of WARD P. YOUNG, v. W.W. WHEELOCK and WILLIAM G. BIERD, as Receivers of the CHICAGO & ALTON RAILROAD COMPANY, Appellants.

64 S.W.2d 950

GLADYS M. YOUNG, as Administratrix of the estate of WARD P. YOUNG, v. W.W. WHEELOCK and WILLIAM G. BIERD, as Receivers of the CHICAGO & ALTON RAILROAD COMPANY, Appellants.

No. 31183.

Supreme Court of Missouri, Division 1.

October 19, 1933.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.

AFFIRMED.

Charles M. Miller, Jones, Hocker, Sullivan & Gladney and Ralph T. Finley for appellants; Silas H. Strawn of counsel.

(1) The demurrer to the evidence should have been sustained, because by the positive proof of uncontradicted witnesses the death of plaintiff's intestate resulted from the unlawful derailment of defendants' train, and mere inferences of negligence contrary to such positive evidence will not support a verdict for the plaintiff herein. Kane v. Mo. Pac. Ry. Co., 251 Mo. 13; Railroad Co. v. Chamberlain, 77 L. Ed. 503; Railroad Co. v. Temple, 285 U.S. 143; Hamilton v. Frisco, 318 Mo. 123; Railroad Co. v. Ambrose, 280 U.S. 490; Atchison T. & S.F. Ry. Co. v. Toops, 281 U.S. 355. (2) The verdict for the plaintiff is based wholly upon conjecture and speculation, and cannot stand. Railroad Co. v. Coogan, 271 U.S. 474; Lang v. Railroad Co., 255 U.S. 461; Railroad Co. v. Swearingen, 239 U.S. 339; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13; Hamilton v. Frisco, 318 Mo. 123. (3) The rule governing the quantum of proof necessary to warrant submission to the jury applies alike to the issue of proximate cause as well as to the negligence issue. Cases, supra; Railroad Co. v. Tindall, 47 Fed. (2d) 19. (4) The doctrine of presumptive negligence has no application to this case. Patton v. Texas & Pac. Ry. Co., 179 U.S. 658; Gray v. Railroad Co., 24 Fed. (2d) 671; Dierks Lumber & Coal Co. v. Brown, 19 Fed. (2d) 732. (5) The plaintiff's evidence fails to show that defendants' track or roadbed was defective, or that any of the defects mentioned by the witness. Land, proximately caused the derailment. Kane v. Mo. Pac. Ry. Co., 251 Mo. 46. Likewise, the testimony of the witness. Flescher, with reference to the speed of the train, is so insubstantial that it should be disregarded, and the evidence wholly fails to connect the alleged excessive speed as a cause of the derailment. Southern Ry. Co. v. Walters, 284 U.S. 194; Railroad Co. v. Chamberlain, 77 L. Ed. 503; Kelley v. Railroad, 75 Mo. 142. (6) In ruling on the demurrer in this case, the Supreme Court will disregard the opinions and conclusions of the witnesses. Wetten and Harry L. Martin, which were improperly admitted. Davidson v. Railway Co., 207 S.W. 279; Riggs v. Met. St. Ry. Co., 216 Mo. 327; Kane v. Railroad, 251 Mo. 44. Likewise, the court should consider the proper evidence offered by the defendants to corroborate and sustain the witness, Vincent Williamson. Underwood v. Fortune, 9 S.W. (2d) 846; State v. Jablousky. 169 Mo. App. 238, 152 S.W. 390; Adair v. K.C. Terminal Ry. Co., 282 Mo. 133, 220 S.W. 926; Doyle D.G. Co. v. Lewis, 9 Fed. (2d) 918. (7) The defendants' witness, Vincent Williamson, was competent, there being no showing that he was mentally incapacitated. State v. Barker, 294 Mo. 318; State v. Hayward, 62 Minn. 63, 65 N.W. 70; State v. Whitsett, 134 S.W. 560; State v. Herring, 268 Mo. 535. The plaintiff could not accept a portion of the testimony of Vincent Williamson for the purpose of proving him insane, and then contend that he was incompetent to prove other matters. Imboden v. St. Louis Union Trust Co., 111 Mo. App. 232; Ehrhardt v. Stevenson, 128 Mo. App. 481; In re Soulard, 141 Mo. 656; Trautmann v. Trautmann, 300 Mo. 322; Robison v. Dana, 16 Vt. 474. (8) The court erred in permitting the plaintiff to submit her case without any instructions except on the measure of damages. It is true that this court has refused to hold that such a manner of submitting the case is reversible error, but the practice has been repeatedly condemned. Sullivan v. Railroad Co., 12 S.W. (2d) 740; Barr v. Nafziger Baking Co., 328 Mo. 432, 41 S.W. (2d) 559. The only justification for approving such a procedure lies in the presumption that the jury will make its verdict conform to the issues made by the pleadings. Luikart v. Miller, 48 S.W. (2d) 870. However, it has been uniformly held by this court that it is not the province of the jury to pass upon questions of law, and instructions referring the jury to the pleadings for the issues, or submitting issues of law to them, have been repeatedly condemned. Henry v. Railroad Co., 282 S.W. 425; Lally v. Morris, 26 S.W. (2d) 56; Kuhlman v. Water, Light & Transit Co., 307 Mo. 643; Lewis v. Railroad Co., 50 S.W. (2d) 125. (9) The court erred in admitting the opinions and conclusions of the witnesses, Wetten and Martin, because the questions propounded invaded the province of the jury. Unrein v. Oklahoma Hide Co., 295 Mo. 374; State v. Hyde, 234 Mo. 252. The opinions and conclusions of said witnesses were wholly inadmissible. Chawkley v. Wabash Ry. Co., 317 Mo. 809; Detroit So. Ry. Co. v. Lambert, 150 Fed. 555; Railroad Co. v. Davidson, 241 U.S. 344; Norfolk & W. Ry. Co. v. Hall, 44 Fed. (2d) 695; W.J. Lemp Brewing Co. v. Ort, 113 Fed. 482; New York Elec. Equipment Co. v. Blair, 79 Fed. 896. A hypothetical question calling for expert opinion must be based upon facts in evidence, and if based upon experiments, the conditions must be similar to those under consideration. Railroad Co. v. Cannon, 296 Fed. 302; American Bell Tel. Co. v. Natl. Tel. Mfg. Co., 109 Fed. 976; Holzemer v. Met. St. Ry. Co., 261 Mo. 379; Riggs v. Same. 216 Mo. 304. (10) The court erred in excluding the evidence on the part of the defendants to corroborate and sustain the credibility of the witness, Vincent Williamson. 6 Jones Commentaries on Evidence (2 Ed.), p. 4864, sec. 2456; State v. Simmons, 39 S.W. (2d) 774; Wills v. Sullivan. 211 Mo. App. 318; Kirkpatrick v. Wells, 51 S.W. (2d) 36; Patten v. Ins. Co., 11 S.W. (2d) 1101; State v. McDowell, 214 Mo. 334.

Eagleton, Henwood & Waechter for respondent.

(1) Under the pleadings and the evidence as a whole, a case was made for the jury on the issue of negligence and also on the issue of proximate cause, and therefore the demurrer to the evidence was properly overruled. (a) There is substantial evidence of the negligence of defendants and their officers, agents and employees in permitting the use of defective ties, and in permitting the use of rails not spiked sufficiently or securely, and in operating the train in question at an excessive rate of speed. U.P. Ry. Co. v. O'Brien, 161 U.S. 451; C. & N.W. Ry. Co. v. Struthers, 52 Fed. (2d) 88; N. & W. Ry. Co. v. Gillespie, 224 Fed. 316; Railroad Co. v. Duke, 192 Fed. 306; Railroad Co. v. Taylor, 186 Fed. 828; Patton v. So. Ry. Co., 82 Fed. 979; Schlueter v. St. L. Con. Ry. Co., 316 Mo. 1266; Burtch v. Wabash Ry. Co., 236 S.W. 338; Miller v. Schaff, Receiver, 228 S.W. 488; Hach v. St. L.I.M. & S. Ry. Co., 208 Mo. 581; Soeder v. St. L.I.M. & S. Ry. Co., 100 Mo. 673. (b) There is substantial evidence that the negligence of defendants was the proximate cause or a contributing proximate cause of the death of plaintiff's interstate. C. & N.W. Ry. Co. v. Struthers, 52 Fed. (2d) 88; N. & W. Ry. Co. v. Gillespie, 224 Fed. 316; Harrison v. Electric Light Co., 195 Mo. 625. (c) The proximate cause of an injury is ordinarily a question for the jury. M. & St. P. Ry. Co. v. Kellog, 94 U.S. 469 (d) Substantial evidence tending to show that an injury resulted from a cause for which the defendant is liable makes a case for the jury, notwithstanding other evidence tending to show that the injury resulted from a cause for which the defendant is not liable. State ex rel. v. Haid, 28 S.W. (2d) 97; Conner v. Railroad Co., 181 Mo. 397; Settle v. St. L.I.M. & S. Ry. Co., 127 Mo. 336. (2) The opinion evidence of plaintiff's expert witness Martin and defendants' expert witness Wetten (on cross-examination) was competent, relevant and material, and therefore properly admitted. 22 C.J. 498, 516, 522; N. & W. Ry. Co. v. Gillespie, 224 Fed. 316. (3) The evidence offered by defendants for the purpose of corroborating the testimony of their witness Williamson as to collateral, irrelevant and immaterial matters was properly excluded. 40 Cyc. 2784. sec. 3. (4) Defendants are not in a position to complain of the failure of plaintiff to request, or of the failure of the trial court to give, specific instructions on plaintiff's theory of recovery, nor can it be held that the trial court committed error in failing to give such instructions on its own motion. (a) Having made no objection at the time, defendants could not justly complain in their motion for a new trial and cannot justly complain on appeal, of plaintiff's failure to request or of the trial court's failure to give such instructions on its own motion. Sec. 1008, R.S. 1929; Sullivan v. St. L.-S.-F. Co., 12 S.W. (2d) 735. (b) In civil cases parties are not required to submit instructions, nor is the trial court required to give instructions on its own motion. Sec. 969, R.S. 1929; Keppler v. Wells, Receiver, 238 S.W. 425; Luikart v. Miller, 48 S.W. (2d) 867; Barr v. Nafziger Baking Co., 328 Mo. 423; Sullivan v. St. L.-S.F. Ry. Co., 12 S.W. (2d) 735.

HYDE, C.

This is an action under the Federal Employers' Liability Act, Title 45, U.S.C.A. 51-59, for the death of plaintiff's husband, a fireman for defendant receivers. Plaintiff sued as administratrix for the benefit of herself and three minor children. Plaintiff's husband was killed when defendants' St. Louis-Kansas City passenger train was derailed near Independence, the evening of February 15, 1928. This train consisted of six cars and was about 535 feet in length. The engine and tender turned over on the left side of the track. The first four cars went off to the right but did not turn over. The two rear cars did not leave the rails. The negligence charged and submitted to the jury was that defendants' track was permitted to be and remain in a...