124 S.W.2d 1092 | Mo. | 1939
Lead Opinion
Plaintiff was a fireman on one of defendant's local freight trains running west out of Slater, Missouri. He was injured on February 28, 1934, while engaged in making a "drop switch" of an interstate freight car at Marshall, Missouri, by the glass in the clear vision window on his side of the locomotive cab shattering and particles thereof striking him in the eye and face. The front of the cab on the fireman's side had a door of approximately four feet seven inches in height and twelve inches in width. The dimensions are taken from the door, an exhibit, submitted under stipulation for the consideration of this court and do not correspond fully with some of the testimony bearing thereon. This door was also constructed to serve as *1053 a window, having, in so far as here involved, a window space of a little over two feet in height by eight inches in width, commencing approximately eight inches from the top of the door. Within said opening and in a frame hung from the wooden frame at the top of the opening by means of hinges was a glass of approximately five inches in length, known as the clear vision window. Its regular equipment embraced a hook and screw eye, and, by means of braces on the door, it could be adjusted to three positions — closed, partly open and open. It opened outward and upward, and when closed slightly overlapped, a fraction of an inch, the lower glass. A short distance west of Slater plaintiff discovered that the hook of this window was missing and reported the fact to his engineer, Stechman. Plaintiff testified that at the time of the accident they were making a "drop switch" with the engine proceeding west pulling the car; that he was seated about three and one-half feet from the window, looking forward through the clear vision window, which was approximately on a level with his eyes; that the engine had attained a speed of twelve or fourteen miles an hour; that about twenty or twenty-five feet from the switch the engineer put the lever in reverse for the brakeman to uncouple the car; that this caused a sudden jar, the engine to buckle up, and the clear vision window to fly outward; that then when the engineer started forward it caused the clear vision window "to slam `back' and `break.'" A small piece of glass, about the size of a pin head, struck plaintiff's eye and another particle of glass struck him about an inch below the eye. An inspection of the window after the accident revealed the absence of the hook and screw eye. Plaintiff also testified that the wind was blowing from the west and that on the trip to Marshall the wind kept the clear vision window closed.
I. Defendant contends that (a) plaintiff failed to prove any negligent violation of the Federal Boiler Inspection Act and (b) plaintiff failed to offer any substantial evidence that a movement of the engine, such as described, would cause the clear vision window to move as claimed, break and a piece therefrom to strike plaintiff in the eye.
[1] (a) Defendant does not question the absence of the hook and screw eye from the clear vision window. Section 2 of the Federal Boiler Inspection Act makes it ". . . unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb. . . ." [43 Stat. 659; 45 U.S.C.A., sec. 23; consult U.S. Compiled Stats. *1054
1918, secs. 8631 (36 Stat. 913), 8639a (38 Stat. 1192).] The act applies to and includes all parts and appurtenances of a locomotive. [Kidd v. Chicago, R.I. P. Ry. Co.,
[2] (b) With reference to the contention that plaintiff's testimony is unbelievable and contrary to the physical facts. The argument, in effect, is that common knowledge of the scientific factors involved demonstrates the falsity of plaintiff's testimony and, therefore, it amounts to no evidence on the issue. Defendant offered the testimony of several witnesses experienced in the operation of locomotives to the effect that the movement of the locomotive described by plaintiff would not produce the result testified to by plaintiff and mentions in its argument that plaintiff's testimony stands uncorroborated. This goes only to the credibility of the witnesses and the weight and value of their testimony. Mention is also made of the fact that, under plaintiff's testimony, the wind exerted a pressure against the outside of the window and that it is inconceivable how the wind could aid in causing the window to open. This may be; but we do not necessarily understand from the entire record that this pressure was constant and this factor appears to be too variable, for one reason, to be of controlling influence. One of defendant's witnesses testified that in making drop switches he had observed the clear vision window to move out, come back and slam shut, but that the glass did not break. We need not dwell upon the factors involved in a ruling resting solely upon the physical facts; for instance, the tensile strength of the glass; the strain, if any, it was under at the instant; and the force exerted by the movement of the locomotive and, possibly, the wind. Under the record made we think we are not justified in ruling plaintiff's testimony so inconsistent with common knowledge of the scientific factors involved as to be inherently impossible and unbelievable. [Hardin v. Illinois C. Railroad Co., *1055
[3] II. Plaintiff's motion for new trial was sustained "because the court erred in the giving of instructions for defendant and the admission of the evidence of witness Naber."
An appeal from an order granting a new trial sometimes presents legal issues differing from an appeal from a judgment. Speaking of that function of a motion for new trial to obtain relief in the trial court, Castorina v. Herrmann,
Eleven instructions were given by the court on behalf of defendant. The generality of the order granting the new trial (see Sec. 1003, R.S. 1929, Mo. Stat. Ann., p. 1269) does not necessarily call for their discussion seriatim and in detail.
[4] Defendant's Instruction C was a cautionary instruction, being identical in thought with Instruction "D1" (with the last two sentences of said Instruction "D1" omitted) in Schmitt v. St. Louis Transit Co.,
[5] Plaintiff's petition and testimony predicated recovery upon the defective condition of defendant's clear vision window, the shattering of the glass therein and particles thereof striking and injuring plaintiff. Three of defendant's instructions directed a verdict for defendant on the sole or stressed hypothesis, differently phrased, that plaintiff's injury was not caused by glass from the clear vision window and another precluded a verdict for plaintiff unless the finding be that plaintiff's injury was so caused and the breaking of the glass was due to the absence of the hook on said window. Several of defendant's instructions told the jury the burden rested upon plaintiff to prove his case by a preponderance of the credible evidence. One was a general instruction on the subject. Another informed the jury the burden was upon plaintiff to establish that glass from the clear vision window injured plaintiff, and that they should not conjecture or guess as to whether or not plaintiff was so injured. Another precluded a verdict for plaintiff unless plaintiff established specified essential facts by a preponderance of the credible evidence.
Repetition in or elaboration on the same proposition of law in different instructions is not ordinarily sufficient grounds for reversing and remanding a cause upon appeal (Ruth v. Knight (Mo.), 55 S.W.2d 682, 684(6), and cases cited); but such practice is not commended (Oliver v. Morgan (Mo.), 73 S.W.2d 993, 995(4)), and has been condemned (Reeves v. Lutz,
The trial court observed the witnesses and the jury, and after deliberation may have been influenced by the above authorities in considering defendant's instructions prejudicial to plaintiff and warranting the granting of a new trial. If so, the instant record does not justify our interference with the ruling.
One of plaintiff's complaints is that certain of defendant's instructions are negative in form and the converse, in certain respects, of plaintiff's given instructions. Plaintiff here stresses Doody v. California Woolen Mills Co. (Mo.), 216 S.W. 531, 535(9); Best v. Atchison, T. S.F. Ry. Co. (Mo. App.), 76 S.W.2d 442, 444(2); Humphreys v. Chicago, M., St. P. P. Railroad Co. (Mo. App.), 83 S.W.2d 586, 591(17). Kirkpatrick v. American Creosoting Co.,
[6] III. Defendant's witness Naber was a practicing lawyer of Kansas City, Missouri. Plaintiff had instituted an action against the Brotherhood of Locomotive Firemen and Enginemen, whom Mr. Naber represented in his professional capacity. During the pendency of that litigation he made trips (two affirmatively appearing of record) to Slater, plaintiff's home, and vicinity in making investigations, etc., became acquainted with plaintiff, and testified that plaintiff's reputation for truth and veracity was bad.
Ordinarily the impeaching witness is one who resides in the same neighborhood as the party whose reputation is the subject of inquiry. We have said, in connection with the testimony of such a witness who states he is acquainted with the party's general reputation, that the court will not determine, by a preliminary inquiry, his testimonial qualifications (State v. Fairlamb,
From what we have said, the order granting a new trial should be and is affirmed. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur. *1059