Clark v. Atchison & Eastern Bridge Co.

721 major employer. was a less defendant Whether or not defendant major employer act, under was a therefore was not an issue pleadings. holding concurring under The opinion that major emploj^er was a showed, because the evidence so pleadings is, broadened the issues made therefore, in con controlling prior flict with decisions of this court which hold that pleadings the issues made cannot be broadened in either though structions or evidence even the evidence is admitted without objection. ex rel. National Newspapers’ Association Ellison v. [State Judges, 11; 176 W. al., et S. State ex rel. Central Coal & Coke Co. Ellison, 722; v. 270 Mo. 195 W. Kitchen v. Mfg. Schlueter Co., (2d) 676; 323 20 S. W. Gandy v. St. Louis-San Ry. (2d) 634, Francisco S. W. Co., 638.] stated, reasons both principal For concurring quashed. opinion should be so ordered. All concur. Bridge Company, F. Clark &

Charles Atchison Eastern Appellant. 1079. One, August 24,

Division 1933. String William JE. and W. F. appellant. Guthrie for fellow Boyd respondent. W. Elliott, J. Miles Melvin Duvall and J. STUBGIS, appeals judgment C. The defendant from plain- a in injuries. tiff’s favor for personal appeal This is-the second in this court, action to this as will be seen reference to 324 defendant, judgment 143. On trial was for but granted trial plaintiff court a new trial on account of in- erroneous structions, and this court on defendant’s affirmed such order. jury, resulting The ease was retried to a judg- then a verdict and -which, plaintiff $18,800, ap- ment for from again defendant has pealed.

A rather full statement of the issues and facts involved will be found in opinion our former necessary it will repeat not be much that was there said both as to the law will and the facts. suffice say plaintiff to here severely injured claims to have been overturning reason of the driving, of motor truck which he was due negligence to defendant’s maintaining approach the east bridge, spanning its toll the Missouri opposite River east and west Atchison, Kansas, reasonably in a safe condition for travel thereon. bridge This travel, having was used for both railroad and vehicular bridge, railroad track plaintiff near the center of the crossing bridge Atchison, Kansas, side, from to the Missouri his being truck overturned at approach the eastern or Missouri to the bridge. specific negligence charged is that iron rails of the bridge railroad track at approach higher the eastern to the were than planks rails, forming dangerous "wooden between the obstruc- tion. passing crossing to automobiles over the same. In over the bridge, narrowness, going on account of its west automobiles towards Atchison drove astraddle of the north rail track and of the railroad going those east to the Missouri side drove rail astraddle south bridge this At the east end of track. vehicular traffic turned bridge highway to or from rail- onto a on the north side of the road, passenger going angled so that a east north so as to turned highway. proceed leave the track on the south and east on the railroad necessary, east, therefore, plaintiff, going It was with his truck angle approach bridge, when he came to the east to the to turn and adjacent puss north as to leave track so the railroad onto the angle highway, doing right and in so his two south or wheels had to had across the south rail the railroad track and all four wheels joint in pass angle rail. at an over the north There ivas usually crossed this point rail at the vehicular travel north where bridge. The going leaving approach north rail onto or ap- place at on the evidence favorable to shows that had become proach the rails of railroad track boards between the trucks, groove worn, weight and a down under of loaded sunk north rail was rails, next to with the result that the was.worn flooring. higher some to four inches than level of the board two companions in accident, his Plaintiff’s version of the corroborated per driving miles truck, east at ten to twelve ivas that he was place of rail till came to the usual astraddle of the south he hour crossing angle the turning an north off of railroad track at the the constituting approach highway part a of the rails onto the rails the the turn across bridge; that he down some to make slowed rail; the that the the south highway; that the south wheels crossed rail; two front wheels north that the hind wheel crossed the when left skidding along began the wet slick reached north rail it eastward over, causing the rail and continued so till the truck to do turned con- plaintiff’s injury. appeal, here, On as the the other plaintiff’s jury ceded was that evidence sufficient to make a case primary negligence maintaining to its approach in so the east to this bridge danger- a that the rail railroad track north of the constituted the leaving bridge passing obstruction trucks in the ous present says: highway. north the In its the defendant onto brief here, appeal, question “On the former we do not might from the determined that offered evidence which have question appellant’s highway negligently only was maintained. The ’’ de- applicable of connection. The chief to demurrer is that causal driving con- plaintiff’s fense both fast and reckless at trials the any nected the between with failure to show causal connection negligent height in condition of the north and the accident rail question. questions presented presented appeal

Most of the on this were passed appeal on at the therefore be treated former and must questions must on as the law of ease. Such be treated as settled the for if on of case the trial appeal the reason that the remand in with law as in our court retried same accordance declared certainly opinion, the trial court of former then we cannot convict doing the direct error in so. true former point error in the instruc for decision was whether or not there was that, given position jury, tions but the defendant also took the instructions, en regardless any the defendant was error should judgment thereto titled to a On the evidence and demurrer court, This have a directed verdict returned. been sustained and therefore, length at with the re considerable reviewed the evidence negligence to have primary held sult that not was defendant’s sufficiently shown, evidence also that there was substantial been but negligence and showing between defendant’s the causal connection plaintiff of plaintiff’s injury; did not convict also that the evidence driving contributory excessive negligence as matter law in at an there held: speed negligent manner. This court or or reckless rules, which well light foregoing “In are established an entire State, say that we cannot there jurisprudence of this sufficient to show probative or evidence absence of substantial condition alleged and unsafe defective causal between the connection bridge, near roadway approach of the at the east injury. joint track, railroad rail of the north legitimate in evidence, and the say Neither facts in can we no facts, to leave room are such as from ferences to be drawn such question whether not the upon to differ reasonable minds

727 skidding of the resulting automobile truck injury plaintiff! the and to directly were proximately by and alleged caused the unsafe and de roadway fective condition bridge of the approach the east the joint at or near the in the north rail of the railroad track. Such issue is one of fact which must be submitted to the for deter ; mination and it appellate matters what view the court enter respecting weight tain the evidence, respecting credibility of the the testimony, the witnesses province their for it of the and is the jury, as facts, weigh the constituted triers of the evidence, to the and pass upon credibility testimony. to the of the witnesses of their give . . . appellant’s Nor can we assent contention that verdict should have been directed for defendant for the reason that contributory negligence plaintiff, law, the con a matter of clusively physical alone, physical established facts which facts appellant conclusively are claimed demonstrate high automobile truck must have been driven at a of, speed, to, disregard reckless without attention wanton existing rulings present These must be taken as conditions.” binding subsequent plead the law trial when of the ease and at Austin, ings substantially same. v. and evidence are [Matthews 1021, 366; Becker, 405, 1027, Bradley 317 W. v. 321 Mo. S. Mo. 297 Foundry (Mo. (2d) 10; 11 & 8, S. Wair v. American Car Co. W. Ry. Co., 1048; App.), S. W. Davidson v. St. Louis-San Francisco Louis, 169; City 256 W. 301 Mo. Benton of St.

154 S. W. 473.] pleadings present is not here claimed that now different being fact, issues of either law or and as to evidence the same appeal, (appellant) admits in its statement as at the other (324 appeal and brief that “on the former witness, 143), except evidence of one the evidence largely present from the same witnesses and to the same record is change general any find even as to the effect.” Nor do we essential which says questions But, defendant, evidence of one witness. which considered present this court defendant was entitled in that on “essentially presented from those now were different” limited was granting a new trial defendant from the order was not granting for new trial that the of a motion to contentions questions may arise and be justified. readily grant that new We as, for in- appeal, properly presented to the court on second present admissibility of evidence at the or exclusion stance. on the trial, presented which in fact questions were but as to the instance, as, appeal, by the court on the former considered causal connection between sufficiency to show a of the evidence negligence, contributory injury, negligence and the or as are in wise and now agree presentation then we that their do not argument, As understand it “essentially we defendant’s different.” considering evidence, notwithstanding this court on insists that substantially now, then as held that there substantial the same jury question the the of causal connec evidence sufficient to take to negligence plain injury, as there was that of tion between the and contributory negligence, yet holding only tiff’s our amounts to a left holding effect, yet that there is to that there is some evidence but question open plain for our decision the of whether the evidence in against overwhelming tiff’s favor is not so the con evidence to the trary contrary physical the facts and experience so common and justice require us, may perish,” again grant “that not a new “absolutely trial. The excessive verdict” is also invoked to this same purpose. Spiro Defendant cases as v. cites such St. Louis Transit 684; Ransom, Co., 76 W. App. Whitsett v. 79 Mo. 84; Nugent 258, 260; Co., Spohn v. Pac. Railroad Missouri Milling Co., 131 Mo. S. W. 428. We do not Kauffman question Supreme the correctness of such decisions. Court otherwise, ought well have appeal, on as to have and doubtless does grant spite in power judgment set aside a a new trial of a the jury judgment palpably unquestionably verdict when the is only against weight wrong, injustice, of the of a clear case and not by any We not unsupported the believable evidence. do evidence but however, concede, this falls within the limited class of cases case contrary protected this rule. To hold would be to our former so holding was some— in this case. We there held that there not warranting recovery, but substantial a scintilla —evidence Certainly jury. up in the case to a evidence sufficient to take against granting new trial holding the order of trial court the warranting plain that there was a lack of evidence the contention recovery, trial it tiff’s this court did not maintain that on such new might supporting plaintiff’s or could hold that the evidence case overwhelming against contrary to the palpably the evidence or so so permitted verdict physical facts that it should not be believed and a necessarily remanding that on We held when the case to stand. substantially question de the evidence the another trial on same jury. liability would be fendant’s determining court, The defendant here insists that in wrong against manifestly is verdict for so whether the overwhelming passion it result evidence as to show to be the speculation part jury, can and prejudice pure on the of the evidence, weigh says should which defendant the court could passing not in able do on the demurrer to the evidence. We are not any any right ease to make such distinction. The court has the any law is substantial as a matter of whether there determine but, fact, determining is an on there to sustain issue evidence such will evidence, go substantial it further and determine weight whether the against is favor of or evidence mooted That province jury. merely fact. is the exer judicial cise of power this same and function -which court enables the to say exceptional as a matter of law in eases verdict manifestly unsupported so the believable evidence—so against palpably overwhelming1 contrary to the evidence —that allow7 travesty verdict justice. to stand be a In would reject such case the court properly con evidence which is trary to physical physical laws, facts or to known or which is the result ignorance, or, short, of evident mistake or when the evidence itself, facts, infirmity. other established its inherent discloses doing this, In however, weigh the court does not in the evidence judicial of that sense term. very reply "While has filed brief elaborate followed brief, w7e assignments when examine the motion for new trial error, of properly the matters which are within for review here are a compass. much narrower complaint No made instructions is of the given plaintiff damages, except for the the on one measure of the complaint and no is except made as to refused to one instructions urged that not is here. No demurrer to evidence ivas asked and the either at the close of at the the evidence or close of all 2) assignments (Nos. evidence. The error 1 and that court of overruling erred in for a the defendant’s motion new7trial and judgment g'eneral require arrest of are too and to us to indefinite 13) pred assignments 3 (Nos. examine same. Eleven of error to are rulings admitting rejecting icated on court’s evidence. There only assignment (No. 14), one error which court other of is that the damages. giving plaintiff’s erred in instruction .on the measure of might assign a opinion We well confine our to consideration of these there, range stop argument ments a of and however wide error n may and take. citation of authorities with patience We have considered considerable care and the numer assignments relating ous of to improper error the admission of evi proper opin dence and the exclusion evidence. It would make this assign unduly long purpose and useful ion serve no review7these with only ments in We need to deal reversible errors and w7e detail. assignments. many complained In find in these of the instances none w7ay injury either of the court could have ruled without serious technically rulings, not in its party. either Whether correct or we competent in do not find that court either excluded admitted affecting competent vitally defendant’s case. evidence damages complained Plaintiff’s instruction on measure jury you if plain court that find reads: “The instructs for damages you at such sum as tiff, you assess his and should believe 730 fairly from the evidence will and reasonably

find him compensate for injuries, any, question.” if he on the occasion in The sustained objection to this general gives instruction is that it is too roving a damages. commission to enter speculative the field of conceded, however, approved that this court has instruc similar general tions as correct in scope their up and that it is to the de fendant, if desires, he so excluding to ask instructions elements damage proper not to be limiting considered and otherwise the dam ages to be allowed. [Browning Co., v. Wabash Western Railroad 55, 71, 644; 27 S. Hulsey Quarry W. v. & Co., Const. 326 Mo. 194, (2d) 1018; Keyes Q. Chicago, Ry. W. Co., B. & point against This must be ruled 64.] defendant. strenuously defendant most insists for that the verdict $18,800 by is not unsupported excessive and amount,

evidence as to the outrageously but that it is so excessive amount as remittitur, not to be a curable but demands a new trial.- agree We with and do where verdict is shown passion to be the result of prejudice part jury, judgment then the be presumed entire verdict and will be poison nothing so with the short trial will ex tainted new A jury tract the virus. by passion so dominated and blinded prejudice beyond as to render verdict all amount reason given losing cannot party be held to have a fair trial in other respects. agree We also with defendant’s that this contention adopting theory court in a verdict in the unaffected error amount, trial, having infirmity except no excessive can remittitur, ought ordering proper to be corrected did thereby impair right grant or abandon its new trials where ver passion prejudice. dicts are the it result of and Whenever is shown by likely that the verdict has been induced or the amount affected instructions, improper admission or erroneous exclusion evi court, counsel, dence, jury, and misconduct or or other such error, remittitur, granted. trial, new and not a will a be See our Olian, 689, (2d) 673, 332 Olian v. Mo. 59 S. W. where recent case of only only it is verdict is said that where excessive error we by agree, record that a remittitur will shown be allowed. We therefore, if it shown that the verdict in this case that is is the result engendered any passion prejudice manner, in and this case should a be reversed and new trial ordered. however, submit, nothing

We that there is whatever shown in indicating suggesting jury or that the this record even was actuated prejudice unless it by be the size of the The passion or verdict itself. and nothing without material error was tried whatever occurred case prejudice. nothing There is any or to show passion to excite possessed passion prejudice against was or juror the defendant. trying originally The mere fact that the court case or finding comes to conclusion that a is verdict is far from excessive passion lhat same prejudice. resulted from If the fact of mere being the verdict found without is excessive more sufficient to show passion prejudice, then all excessive verdicts demand new trials. nothing is There in this ease to take it out of the rule that when there is no error in the case and a fair trial been except has had excessive, the verdict is remittitur. that error be cured agree, however, $18,800 case, We that the verdict of- this record, excessive, though under the evidence as shown such by passion as to demonstrate that the was dominated prejudice. require a Where the verdict was so excessive as to amount, remittitur of two-thirds of the this court held that it could Co., Printing and should be cured a remittitur. Cook Globe 332, question thoroughly W. where this dis Co., cussed. also Moore v. 126 S. See Transit W. might

where the verdict was reduced to one-half. Other instances be cited. injuries His received are to his head and face. eyes was

nose mashed and broken and the facial bones below the were His permanently fractured. features are to extent at least dis- some figured eyes depres- in that his nose near the shows a sear and some sion. His nose is nostril is contracted so turned one side and one breathing, having tendency his him interfere with to make taking photo- susceptible a mouth breather more cold. His graphs deformity reproduced in do not show marked the record disfigurement. injuries, plaintiff or As to his testified substance: bones, My my eyes, nose was mashed. cheek The two bones under up were broken slivered. One bone seemed to shoved out be right eye. place my breathing I one and raised have out of my eyes nostril, bother me with tears when I read. practically, and eyeballs they My exposed than were before. considerably are more My breathing My condition nose is mashed down to the left. through only improved has a little. I am more nervous nostril one before, is, moving around, around, kicking than want be say my it jerking ability foot. I could not has affected one my breathing. easily I sleep except take cold more than before I my injury put to injury. bed and few stitches were After eyes shut. my my face and then swelled taken over around eight swelling my eyes then days before the left and was seven or That short I saw double. continued “rather seemed crossed or my my through mouth for two or weeks as I three breathed time.” with I took little nourish- filled blood. and nose was coated mouth eating right my eyes opened with, I all when but was to start ment I eight taken back and forth to the doctor’s office days. was seven or my np about I was to be it six weeks before able around and was I went to work anything I wanted to Then and do do. business running welder My job spot Company. Wire the United Steel work on the recom- n — they I went to welding wires where crossed. healing doctor, process should said that the mendation of who go whether he should do little further before he determined go bring I not back anything my fix it out a little. did to nose and steadily working to that he continued him. The witness further said years, feet, his for near two job, requiring at his hours work on ten time, when he there for a and then went California and worked has suffered no job. old He to Atchison and took back his returned In injury. wages of his on account loss of time or diminution welding sparks from the fact, promotion. has The he received prevent eyes is not nervous as to not his and he so machine do hurt regularly. driving His social activities seem his an automobile plaintiff symptoms has is that have been normal. some evidence There uncertain, very thyroidism, to this is indicating but the evidence as can injury. this most especially connection with The fracture injuries compressed permanent his is “the be said as to given appearance him a facial facial bones has nose and surgery might by plastic A frog type.” treatment described as a face defects, but this is uncertain. remove his facial argument suggestion to the effect defendant’s We have read verdict, an allowing to cure excessive the amount a remittitur that in with to the minimum fixed reference remittitur should be maximum, justify rather than the for the which would the evidence remittitur, compelled make a but is never plaintiff reason except to instead, has no choice a new trial while defendant choose argument after the remittitur. This amount is left pay whatever seeking is relief from sight that it is defendant loses of the fact who a remittitur is alleged verdict and that allowed excessive trial, already impartial has a fair and the defendant cases where had of the entire error, plaintiff entitled to affirmance free from judgment is shown to judgment except to the extent the verdict and be excessive. appellant for failure of plaintiff’s motion to dismiss filing rules this court relative to statement comply with the and on

briefs was with the case consideration overruled. taken justice that the ends of will be best subserved in We conclude by requiring $10,000 price remittitur in the sum of case as the granting trial. a new days that if will within with ordered ten file It is therefore judg- $10,000, a remittitur sum of of this court the clerk $8,800 orig- in the sum of of the date of the ment will be affirmed otherwise, will be the case reversed and remanded. judgment; inal Hyde, CG., concur. Ferguson and by Sturgis, C., adopted foregoing opinion

PER CURIAM: The judges concur. court. All the opinion of the as the St. Louis, Railroad Association v. Terminal Sam Crossno 1092. Appellant. Corporation, August 24, One, 1933. Division Fierce, N. Howell Walter appellant. T. M. J. L. Davis for

Case Details

Case Name: Clark v. Atchison & Eastern Bridge Co.

Court Name: Supreme Court of Missouri

Date Published: Aug 24, 1933

Citation: 62 S.W.2d 1079

Court Abbreviation: Mo.