*1 appears to was improper “It us clear that court’s action unauthorized.”
Even cannot dismiss a will contest suit issue has joined. McMahon, been McMahon v. [See 208; Practice, 1 Houts & Pleading Mo. sec. 330.]
Defendants, court of position equity to sustain their that a enjoin suit, power prosecution have cited Primeau Primeau, Estate, In re Connor’s Guardianship; Utah, In re Hansen’s al., First National Bank et Petersburg 100 Fla. St. MacDonald 675. question In each of those cases involved was that guardian making of an insane widow under an election the statute widow provisions to take under will her hus- reject band or to given will take property her statute. In that the validity always class of cases the will is con- That in ceded. itself case is a sufficient distinction at bar inapplicable question render the decisions to the now before us. court judgment the trial is reversed cause remanded. Bohling, CC., concur. Cooley foregoing opinion by Westhues, C.,
PER CURIAM: —The adopted opinion judges court. as the All the coucur. A. Arnold Company, The Alton Railroad Corporation,
Ernest
Appellant 1092. . 124 Two, February 21,
Division 1939.* May 3, 1938; Opinion Term, 1938, May *NOTE: filed at motion for filed; 20, 1938; rehearing December motion to motion overruled transfer filed; Term, February September en overruled Banc motion at Court
21, 1939. *2 M. Miller
Charles appellant. *3 Prewitt, Thompson Mont Nipp, T. John C. E.E. R. William respondent. Barnes
BOHLING, alleged C . This action is founded violation (45 A., 22-34); Inspection U. C. Federal Boiler Act secs. *4 $75,000 judgment against in seeking A. the Ernest Arnold a sum of Chicago corporation. a Defendant Company, the & Alton prosecutes sustaining plaintiff’s motion appeal the from an order trial; submissibility the the of new and issues.involve and-the:giving case,-the admissibility of instruc- certain of ’ - defendant. tions on of behalf the freight local trains a on of defendant’s was fireman one Plaintiff February running injured He Slater; was out of Missouri. west .on of an interstate engaged making “drop switch” 1934, while in a vision freight Marshall, by the in Missouri, glass car at the clear shattering particles and On his of .the cab window side locomotive the eye the striking face. The of cab on thereof -in the and front him of, .side, seven inches approximately a door four feet fireman’s had , height The dimensions are taken from in and twelve in inches width. stipulation consider- door, .exhibit, an under for'the the submitted correspond fully with the tes- and ation of -court do .some of bearing also door was constructed to serve as timony thereon. This a involved, space a having, window of window, in so far as here commencing height by eight width, inches feet in in little over two n top door. eight from the of the Within said inches approximately hnng top at the wooden frame and a frame the opening glass hinges five approximately was a opening means of the regular equip- length, window. Its known as the vision inches and, eye, means braces ment embraced a hook and screw on door, adjusted open partly the it to positions closed, could three — open. opened upward, slightly and It and when closed outward glass. A overlapped, inch, lower distance fraction of the short an discovered the hook-of was plaintiff west of Slater this window missing reported engineer, fact Plaintiff the to his Stechman. making a “drop at the of the accident they
testified that time were engine pulling car; with was proceeding switch” west that he window, looking about from the seated and one-half feet for- three through window, approximately the clear vision ward which was on engine eyes; a level a speed with his attained twelve hour; twenty twenty-five or fourteen miles an that about or feet from engineer the switch the put lever reverse for brakeman car; uncouple jar, engine to this caused sudden to up, outward; fly buckle the clear vision window to then engineer when the started forward it caused clear vision window ” “to slam ‘back’ A piece glass, ‘break.’ small about the of a pin head, size plaintiff’s eye particle glass struck and another eye. struck him about inch An inspection below the window of the accident eye. revealed absence of hook and screw Plaintiff also testified that wind blowing from the west and trip kept the'clear, that on to Marshall wind vision window closed. I. (a) Defendant prove any contends that plaintiff' failed
negligent violation Boiler (b) Federal Inspection Act plaintiff any failed to offer substantial evidence that a movement engine, described, such as would cause the clear vision window claimed, move piece break and a therefrom strike eye. in the (a) question Defendant does not the absence of the hook eye
and screw from the clear vision window. Section Federal “, carrier, Inspection Boiler Act .it makes any unlawful for permit use any to be used its line locomotive .unless said tender, boiler,- locomotive, parts appurtenances its and all there *5 operate-in proper of are and safe to condition the service to which active, put, may employed are the same iit the same service unnecessary peril carrier without . such to life or . . limb. .” A., S. sec. Stat. U. C. Compiled consult U. S. Stats. [43 (38 act The (36 913), Stat. 1192).] Stat. 8639a secs. 8631 a locomotive. parts appurtenances of all to and includes applies 1, 24(a), 274 310 Mo. Ry. Co., P. Chicago, I. & v. R. [Kidd negligence non in the sense is hot vel The issue 1079, 1086(a).] 347(1), Assn., Mo. Railroad Aly Terminal of care.
lack negligence 853(1), not a ease. “This is states: (2d) W. 78 S. negligence in or necessary plaintiff prove for ." It was not substantial jury. If adduced a case for make der this and that properly -function appliance that the failed evidence injury, plaintiff’s cause of proximate failure function Cleveland, Henry jury.” also: for the he a ease [See, then made 340; 341(2); (2d) 1072, 1076(2), 61 S. W. etc., Ry. Co., 332 81, 85(1), 64 W. Ry. Co., 334 Mo. S. & E. I. Chicago Robison v. “ ‘Defendant is liable if quoting:- its breach (2d) 661(1), ” Railroad Crain v. C. duty death;’ to-cause the Illinois contributed ; 664(2), (2d) 787(2) Fryer St. Co., 335 47, 51 Ry. Co., 740, 750(1, 2), Louis-S. F. (1,2).] plaintiff’s tes- -(b) reference contention With to the timony physical contrary facts. is unbelievable and to the knowledge argument, effect, in' that common scientific and, testimony plaintiff’s factors falsity involved demonstrates the therefore, it no the issue. Defendant offered amounts to evidence experienced operation of several witnesses effect de- locomotives to the the movement of thé locomotive produce by plain- scribed plaintiff would the result testified to not. argument tiff and mentions in its stands plaintiff’s testimony goes uncorroborated. only credibility'of This to the witnesses weight testimony. value of their Mention made is also that, plaintiff’s testimony, pres- of the fact under the wind exerted a against sure outside of the window and that is inconceivable it causing how the wind aid in open. may could the window to This be; necessarily but dowe understand the entire record that pressure appears was constant and this variable, factor to be too reason, controlling influence. for one to be One of defendant’s that in making drop' witnesses testified switches he observed out, to move vision come back shut, window and slam but that We not dwell glass did not break. need the factors involved solely upon physical resting facts; ruling instance, in a strain, glass; any, if strength it tensile was under at the exerted instant; force the movement and the of the locomotive wind. Under record we possibly, made and, think we are ruling testimony so justified inconsistent with com- factors involved the' scientific knowledge to be inherently mon unbelievable. Illinois C. impossible- and. [Hardin
1055 (2, 3, 6), (2d) 1075 (4, 14), Dempsey 7, Mo. 1169 70 334 W. S. Horton, 379, 384(2), (2d) 621, Mo. 84 W. 337 S. 624(6).]
II. trial “because ’Plaintiff’s motion-for-new' was- sustained giving court erred in for defendant and instructions admission of the evidence-of witness Naber.” appeal-from granting
An. an trial presents order sometimes a-new legal differing appeal judgment. from a Speaking issues from an of that a motion for- trial to in the function of new obtain relief court, Herrmann, 1026, trial Castorina v. 340 Mo. 104 S. 1031(5), (2d) 297, 300(11); W. “When the motion sustained states: is requested granted, relief on in reviewing action, is such consider ing grounds motion upon in the which action stated this is based ‘this court in . upholding will be liberal action. . more the court’s power a grant This trial court trial is because new judicial discretion, may exercise of its which based matters be court) (often known to said be the court in breast of be judge participated cause the trial trial and what took knew place, any exceptions much be bill of preserved of which cannot 636, Ryan (Mo.), or record.” See 276 W. Stafford v. S. also: 1110, 637(2) Hughes, (quoting 679, 692, Ittner 133 34 Mo. “ 1113, may properly affirm such the effect .- court f regarded probably orders for errors that suf have been would icient here been secure a reversal had motion new trial for 406(a), ”) ; Co., 392, overruled’ Rodan Transit 207 Mo. v. St. Louis 1061, 1065(a). 105 S. W. given
Eleven instructions court of defendant. were behalf generality 1003, R. granting (see the new trial Sec. order 1929, Ann., S. their 1269) necessarily Mo. Stat. does p. call discussion seriatim in detail. instruction,
Defendant’s Instruction C be cautionary ing thought identical in “D1” (with with Instruction last two omitted) sentences of said “D1” Instruction in Schmitt v. St. Louis Co., 421, Transit App. 445, 448, 90 S. there W. (l. 424, respectively)
stated 453 and ah c. to be admoni “admirable charge.” Chicago tory Co., Fife v. & A. Mo. 174 [Consult App. 655, 660, However, rulings are there to the 302.] refusing giving that the instructions of a cautionary effect or na largely court; litigants ture rests the discretion trial right they not entitled to such instructions are as matter of (Mo.), with caution. should used Cohen S. [Wolfson 677, 680(11, 12); Ry. Johnson v. Louis & St. S. Mo. Beasley Bank, v. Jefferson App.
406, 412, Hely W. Hinerman, App.
691, 696, 236 S. W. 698(2).] n up recovery predicated petition Plaintiff’s window, the of defendant’s vision on the defective condition striking and particles thereof
shattering glass therein a ver directed instructions injuring plaintiff. Three defendant’s differently hypothesis, sole stressed defendant on the dict for *7 from the clear by glass injury not caused phrased, plaintiff’s was plaintiff unless precluded a verdict for and another vision window the break injury so and finding caused was the of said window. the hook on due the absence ing glass was jury the burden rested told the instructions of defendant’s Sevéral the credible prove by preponderance his of case plaintiff upon in subject. Another instruction on the awas general One evidence. glass plaintiff jury the to establish the formed burden injured they plaintiff, and that should the vision window injured. plaintiff conjecture guess not was so as to whether or not plaintiff plaintiff established precluded a verdict for unless Another by a preponderance facts of the credible evidence. specified essential proposition the same law in Repetition in or elaboration on ground's re ordinarily not sufficient for different instructions is (Ruth Knight upon appeal (Mo.), versing remanding v. a cause and 684(6), practice (2d) cited); 55 S. W. is and but such cases 993, 995(4) ), (Oliver Morgan (Mo.), 73 S. W. (2d) not commended v. 550, 559, (Reeves Lutz, 191 App. and has been condemned v. 764, 765(2); (Mo. 296 S. W. Fantroy App.), 177 S. W. v. Schirmer 235, 238(5); (Mo.), (2d) 357(7), Miller v. 76 S. W. Williams stating: emphasized unduly “It also the burden of court] [the proof by subject”). giving instructions on two and and de- jury,
The trial court observed the witnesses may have liberation been authorities influenced above considering prejudicial defendant’s instructions war- plaintiff and instant, granting ranting so, new trial. If record does justify ruling. interference not our with the plaintiff’s complaints
One of
is
certain of defendant’s instruc
negative
tions are
in form
the converse,
respects,
in certain
plaintiff’s given instructions. Plaintiff here stresses
v.
Doody
Cal
ifornia
Co. (Mo.),
Woolen Mills
S. W.
535(9); Best At
chison,
Ry.
T.
(Mo.
& S. F.
Co.
App.),
verse correctly osition that the refusal of defendant’s instruction- submitting main the converse of instruction is the State’s reversible error; unless, course, clearly submit the State’s instructions Ledbetter, State converse of issue or involved. essential issues 225, 228(3), (2d) 453, 454; Fraley W. State v. reasons, 17, citing stating cases credibility handed down herewith. We understand wit weight testimony nesses jury and value of their is for the resting upon testimony; issues oral instant differs issue involving covering pleaded from issues instructions affirmative de calling fenses for substantial need submit the issue. We pursue authority holding matter. no Plaintiff refers us to (and perceive why) we of no giving reason instruc converse *8 correctly declaring tions law error a necessitating the new trial.
III. lawyer Defendant’s witness Naber a of practicing was City, Kansas Missouri. against Plaintiff had instituted an action the Brotherhood of Locomotive Enginemen, and whom Mr. Firemen Na represented professional ber capacity. in his During pendency the of litigation that trips (two he appearing made affirmatively rec of ord) to Slater, plaintiff’s home, vicinity investigations, and in making etc., acquainted became plaintiff, with and testified
reputation
veracity
for truth and
was bad.
e
Ordinarily th
impeaching witness is
who
one
resides in the same
neighborhood
party
as the
reputation
subject
inquiry.
whose
is the
said,
We have
testimony
connection with the
of such a witness who
acquainted
states he is
party’s general
with
reputation,
that the
court will
determine,
not
a preliminary inquiry, his. testimonial
(State
qualifications
Fairlamb,
137, 152,
895,
121 Mo.
the;
899); because,
thing's
usual order of
those-who
in the
reside
neighborhood may
same
be
to
qualifications
have testimonial
assumed
reputation
covering
neighbors (Ulrich
of their
&
Chicago, B.
Q.
697, 705,
682, 684(3). However,
qualification
testimonial
knowledge
revolves around the witness’
general
dependent
the party’s
reputation, in turn
upon the means and
extent of his information
than
place
rather
his
of residence;
plain
and
place
tiff’s contention based
the witness’
of residence is dis
J., p.
p.
L.,
allowed.
C.
nn.
28 R.
C.
n.
[70
p. 4773,
n.
Evidence,
Jones on
consult
case,
the Ulrich
supra;
19, 32,
McLaughlin,
and State v.