*1 death of Brookings. Mrs. It is plaintiffs conceded that the adult successor building trustee were tenants in common of the old occupied. the lot it they such $600,000. If so are tenants Partition, speak, building, has been as to effected and in the so.to situation would $300,000 be hold belonging unreasonable to plaintiffs, pending adult such contingency an uncertain as is suggested. judgment
The should reversed and cause remanded with di judgment rection so modify as hold Brookings Mrs. $300,000 is to have and receive one-half entitled paid by the lessee for the cancellation of the Ferguson lease. It is so ordered. Hyde, CC., concur. foregoing opinion by Bradley,
PER C., CURIAM: —The adopted All judges of the court. opinion concur. Guy Thompson, Trustee Missouri Pa Ducoulombier Gustaff Appellant S. W. (2d) 1105. Company, Railroad cific . 124 One, February 8, Division 1939. *2 Neale & Newman McDavid, W. Barrett and F. Cole, M. F.
T. J. appellant. *3 Waltner, Jr., B. Myres Franklin E. Wm. J. Reagan, G. Harrry for respondent. F. P. Sizer injuries damages personal for
HYDE, an action for C . This is cars. Plaintiff caused defendant’s switching movement of own cars, sweeping up loose wheat for between two while track. use near the ends of switch the ties defendant’s $10,000. judgment.. appealed a verdict for Defendant has judg obtained previously This case was tried and Spring by the $7500, ment for which was reversed remanded (2d) Baldwin, 101 S. W. Appeals field Court of v. [Ducoulombier pleadings opinion and for Reference is made to 96.] now, Appeals. in ease Defendant before Court should retrial, again to the evidence contends its demurrr that, decided Appeals correctly have been Court of sustained. The presence discovered, duty unless to look actually was no others, gathering out for own might and warn or for their use ears in defend spilled tracks, moving wheat around before yards. 731, Baldwin, 343 (2d) ant’s [Angelo Mo. W. S. cases cited.] Appeals
The this ‘case remanding Court said: question not the “There was some as to whether position testimony peril, imminent the combined under *4 - plaintiff of these giving testimony and of two "Weed, witness the the plaintiff, as we are most favorable inference on behalf the of required by do, question as to- jury law to we must hold a there was po- a whether not. 'in defendant.’s discovered .brakeman peril;, sition him -of imminent and failed to warn 'his thereafter of gathering wheat, up move ears under'which he was intention'to failing act to notify plaintiff and the brakeman in of' whether the ’’ negligent. the cars impending movement theory the last one trial was Plaintiff’s of defendant’s: just actually signaled him between switchmen the cars before saw. injuries. it'is claimed caused movement which Both though negligence the humanitarian case as parties tried doctrine- instructions both were and all confined to applicable again only consisted theory. of his own Plaintiff’s testimony neighbor. Weed, his nearest Both lived of Dennie close and employee been an Plaintiff had in these yards. yards, defendant’s period many years. a over- in them He had and had'worked yards working injury. Defendant’s prior been to his for some time fro'm were numbered west, east switch which ran and tracks and farthest north, No. 37 (No. north and to south. farthest .was slight- curved mile in south.) were about one These tracks cen- from center ly They apart feet near center. were .to 13% higher-than the yards both ter. The east and were- sides by gravity center, at run so switched in either end that a car would grain east end of the large elevator at the There was a to the center. being into these yards, large quantities wheat were moved yards. occurrence,
Plaintiff testified about the as follows: morning, up “I was I went there and looked for a there in wheat, maybe after, early, little about around six o’clock little I wheat, . swept me little and I went back home. . . After I I went home and ate breakfast went back. ... I was about three track, .12, along tracks from No. No. 12 I look south from there, laying pile, and I see little wheat small out leaked car, up up. I . . . I swept and went there and set- ting setting on one knee. down the two cars you . opening between the two. . "Who . did see? Dennie Weed there. . . . going See come east. was. Now,
“Q. day, any did see Dennie more that- Dennie Weed? Yes, sir. Where Well, see him next time? did go see him back. Which was he when .went back, side which of the car was he on when he back? went A. North.. side, North-, which on when he ? A. On went east Did anybody side. .south see else there besides Dennie on north of the ear? Yes, sir. Who did see there? - A. There was a switchman there on side. . . . north How often have you -switching seen quite, Oh, A.. before while;- little .Q. have seen him there Now,, lots times. did .of he stop when Yes, he went —A. sir,- stopped me; and talked to said, . -. . said, ‘You ‘Yes, luck?’ find a little wheat ’ there, and I look up kept going. -and he Q. Now, . . which direction did he go, know? A. Did West. the switchman first or first, see-Dennie north side ? A. I see just me, -the when he talked away, he walk by. Dennie come long And how was it -the switchman -left until saw Dennie? A. Just like- left, right by. walk Dennie Was there any in *5 No; you west when went in underneath between this car ? A. Q. you engine Now did look east an for huh, A. Uh . both looked ways. Q. you-see Could east? A. No, Q. couldn’t it. see Why n n it, didn’t see Mr.-Ducoulombier? A. The tracks curve. . ... Q. Now, Ducoulombier, say Mr. the brakeman walked on west? moved, were cars Yes, Q. long it before the sir. How
A. fifteen about say maybe it Oh, I ? A. will after he walked west something that; like maybe seconds, thirty twenty, twenty-five, or and knocked jerked west cars gone very far before the wasn’t Q. West. Now ? A. Q. cars moved were the Which over. me struck Ducoulombier, cars in, when the Mr. position were what all time position, the same A. I was hit in you? hit you and up, knee about one up, one knee down scratching that wheat (The that. rail, something like twenty or eighteen inches to the shoulder.) Q. po- Now with step struck his sill reference you in you, approximately saw were that the switchman sition ; Yes, . sir. position? A. same ‘‘ do, right foot, what did your Q. Now car run after the over tracks away; two A. I crawled crawled Mr. Ducoulombier? switch- . . I that same away help. . south see and hollered him, got coming hurt told there and asked me across first men say, . . He was my I had foot cut . one off.’ Q. Well, coupling? A. did he climb over there. . . . know, did, him climb across say that he I didn’t see don’t could Q. coupling. there, other men too? . . Did some . Yes, Q. trying got sir. out there A. am find Q. got A. . This one man first. That man first. you first A. come across there first—when see him? When he Q. eight there. A. from Across where? About seven or cars Q. string me. Did he come across that cars? I couldn’t tell A. south, you, he was there on when I hollered. didn’t see You him come cars at all? A. No, across the other side of the cars. that the pass Was brakeman saw the cars when Yes, sir, were A. between them? it was. fellow? Same Yes, many you? sir. How cars west was he from A. About maybe five six when I him. saw How back were first far these other men A. Them that came on was on the down? Q. Well, Maybe end? far? cars, how about fifteen end it. at the Yes, Down end cars? A. sir. they right up? came they As soon as I hollered come Q. Now, you at me. testify here that that brakeman came up first then afterwards other men caine? Uh huh. quite The brakeman a bit ahead them? A. He was ahead them other fellows. don’t know You what passed by this man that those cars saw him at hurt, y-ou got time what with, connected you? do A. That man? Yes? A. No.” that he “gathering testified a sack of wheat trade ends two'ears” about fifteen ears from string, which contained thirty the west end of the or forty cars *6 ’’ pur same yards for the going east. He all, as lie ‘‘was was ‘ three, lengths, car He went down several plaintiff. pose as was ‘ ’ ‘ ‘‘ ’ ’’ came back wheat; then lengths got my four, sack five car on walking along cars on north side west towards home” ’’ ‘‘ shoulders, each end. ahold of my carrying sack track across of the cars. him on that side ahead of He that he saw a testified, follows: as Weed further me. you? A. West ”Q. east or Was the switchman he, is, how much was that Q. how far ahead
. . . Now a car possibly was,he Well, were? A. where than farther west tracks over remember, I was two just north length, don’t any- switchman do Q. you see the . . . Did they where were. Q. up. Before did give signs him to back thing? A. I seen something Ducoulombier. anything? A. He said him see do getting the 'man that was something and said . . . Hesitated doing when Ducoulombier Q. . Now what was wheat. . . Well, A.’ west? :you walked you saw him second time as Q. how was he And just near his sack full of wheat. pretty he had ties; just out getting wheat? A. Pawin’ it his sack of Q. long stand- up. Now, how was this brakeman finishing . '. . was sit- ing through, there to where Dusoulombier talking cars Well, coming this long on ting up there? A. was was he —how something to him hesitate track here I seen over say Q. up. .' . . man, Ducoulombier, then Mr. he started Q. west; A. . . . didn’t what was said? Started You hear No.. might Well, length, go? A. half a car have how far did he Q.. Now, signal length from me! ... what of a kind .been ear give? signal. Q. A back-up did he A. He giving back-up signal they They move, ? Which move ? A. did the did Q. Now, you go moved west. did then which direction Q. saw that? A. went cars then. end towards.the end A. on. Went of the cars? Where attached to.the Q. engine? A. attached to this Well, Where was it was it, of cars. end of the And on east west where Q. Now, A. cars? West did know end ears. Mr. No. Did Ducoulombier been at that time A. outcry? any hear A. No.” testified, On cross-examination Weed further as follows: ”Q. go? went A. You on down. did the trainman Where Well, you? just went on down. kept How far ahead of just going; kept going, caught him? up too. never with You you? Oh, No. prob- far How was he ahead of length. ably go a ear Where ? A. did he He went engine. Q. Down at west end? Yes. went Then he train? the full A. Yes. see him way? A. didn’t get himself with it or connect engine. Yon get engine, bnt I him at see seen to the yon engine; know then far watched him as to the uncouple the men engine? Did A. Yes. *7 pin, but the pull them engine I didn’t see from the cars? A. on Q. you went then engine Now away the the back from cars. saw cars, string cars? A. of you thé went around the down there and you didn’t Q. where Gus was Now Yes, fifteen back sir. cars' ' you Q. see men Didn’t any hollering No. there? A. hear down No,' I no- squad A. didn’t see in a hurrying down there —bunch? engine was that where body hurrying. Q. You didn’t have idea Q. a lot of didn’t see going? Not the world. You A. least in the way just hurry Q. ? A. No.' engine on men ahead down Q. You at A. all? No. Didn’t Gus was know hurt gave signals? he these gotten up was then when hadn’t where Gus to signals Gus was give left where A. No. Did he before he these And right thén. giving them or afterwards? Started .A. you testify just trial he was a cár ago on this didn’t there while signals A. car away gave ? He was from Gus when he the you ?' he length. say And he' where A. As now was' signals. many feet began Tell me how leaving giving was Gus he signals giving the to back gone he had he commenced crew before to feet, just opening. that train ? A. Four or five from Q. And,you just opening? even with the A. Almost. were signals meant those you giving And him to thé crew that saw Yes, going yon And knew Gus cars were to moved? sir. be Yes, Why you down where sir. was he was didn’t said you ‘Gus, out,’ holler, moving car? A. Trainman’s look the was place to him. A. T the you suppose tell didn’t tell him? Why had knew he was between cars trainman told him that. You the you going knew the have the cars moved and was to Q: you? why just No. A'. never told Gus? didn’t supposed going told trainman to. Gus was yours good his, good friend are a friend of of course protect any danger danger, him would from saw he was you? Q.' Why wouldn’t A. Yes. tell him were the ears didn’t place Q. Why about to move? A. that. Trainman’s to tell him it, didn’t tell him? It it? wouldn’t hurt do would thought the trainman with just would have told went on my wheat.” anyone engine
Weed did not know at the switchman saw except prior a man who had trial. died said that gave only one hand switchman when he signal, could by carry- because view to side was obstructed either was ’ ‘ ’ ‘ ing your each across shoulders. sack ahold of end Weed crossed track at the west end of went on home. He engine moving east on a track farther he left.' He south-as also plaintiff that he not learn that “prob- been until yards.' an ably hour” he left did not fix the.time yards morning. that it except he was was in the Defendant’s to the effect that movement which caused injury by on track aby was caused cars shoved 12 from east switching working yards. crew at the east end crew This could not'see south side the-cars because' on curve in the track. It further switch' -shown that there were car inspectors working gather- near the of' dars'where ing wheat; timé; that there was no switch on track-12 at that ' working-on and that the west 15.- end tracks 14'ánd n says question Plaintiff that the whether made a jury case n “ are Appeal's. settled decision the Court There exceptions appeal rule” “matters decided one will appeal- in thé “if considered settled same ease.” second Thus *8 a mistake of fact appeal, has been made on first decision oh the or the appeal injustice said an rights parties, to correction will' - Co., be made on the v. appeal.” second Alton 340 Railroad [Dunn 1037, Moreover, Mo. 104 W. (2d) S. of--Appeals the Court 311.] - had plaintiff discretion to remand the-ease another trial'where theory,- had tried the ease on an erroneous or even if there -had been a defect plaintiff’s ease, appeared it had from' that the record might to make to correct theory case on-the or available a supply City Co., v. defect. Southern Kansas Railroad [Markley 436, (2d) 409; 338 Mo. 90 S. Myers Light W. v. & Union Electric 622, Power Co., (2d) will, therefore, 334 Mo. 66 S. W. We con 565.] question plaintiff sider the of whether produced substantial evidence on this trial jury to case. make plaintiff’s It is obvious that testimony alone did not make (cid:127)
case, because had did not show the man who talked to anything to with moving yards gath do the ears. Plaintiff was in ering wheat that morning on than more one occasion. We think testimony Weed’s indefinite, unreasonable, is too self contradic tory identify to the occasion when along he the north walked taking home, side of the cars his wheat and movement with the time plaintiff when injured. City was Steele v. Kansas Southern [See Co., 177; Railroad 265 97, Q., Mo. 175 v. & K. S. Kibble O. W. C. Co., 603, 42; Railroad 285 Mo. F. 227 St. S. W. Alexander v. L.-S. Co., Railroad 599, 289 Mo. 233 & A. 44; S. W. Monroe v. C. Railroad Co., 633, 644, 297 Mo. 249 S. 469; W. 257 v. S. W. Clark Atchison Bridge & Co., 721, 1079; Eastern 333 Mo. (2d) 62 S. Carner v. W. Ry. Co., 257, St. L.-S. 947; F. 338 Mo. 89 W. (2d) S. Tate M.- K. (Mo.), 873; & T. 93 (2d) Railroad Co. S. W. Dunn v. Alton Rail Co., 1037, (2d) 311; road Mo. 104 S. W. ex rel. State Kansas (2d) 1195, 105 S. W. City Shain, 340 Mo. Southern v.Co. Railroad must (2d) We Terrell, W. 915; 111 S. Mahl v. 342 Mo. 160.] no testimony there was plaintiff’s
consider in connection this them, that the engine when went coupled to ears an was west. Could only thereafter movement the cars jar movement coupled on the west without have been attached that the While Weed said cars to the east? it mov- only that he on cross-examination west, he also stated uncoupled. not see it west and did ing after the movement away n be, might alone Weed’s effect of Whatever the that circumstance man, to probative show that value to testimony lacks sufficient talked, plaintiff caused whom said very he was when about where be moved. Weed was uncertain statements, most signaled. placed himself, in switchman, length north of about a east and two tracks car beyond open car also said both the switchman n signaled ing, signaled,, plaintiff was, where that he when gave this opening. (He also only when four or five feet Now, back, “Q. came this fellow was about two version: Yes.”) lengths you got car ahead Gus was? where statement, have been even with According to one Weed would (He “Almost”), opening signal, but ac said: when he saw the the cording (He other, it. reached that he to the could have gotten gave these up sig “hadn’t Gus then when to where nals.”) case, In could seen either how Weed have angle through (25 right other side of the train 30 feet at opening wide) an 3 feet switchman’s only when he could hand, right position signaled, at time he because of the (He sack on his much shoulder? even stated how wheat sack.) position know what how could he *9 opening? beyond when switchman at the It seems belief that, if signal, plaintiff, Weed did see and then saw the switchman’s happening. he could have been so about what was Fur unconcerned thermore, according positive statements, to all of his he was closer plaintiff injured anyone to when than else. he was Yet help beyond hear by his calls for that were heard men west end cars, and, according testimony, by plaintiff’s to own the switchman the north who talked to from side of the train. that, impossible plaintiff Thus by seems believe to about, the movement Weed told would not heard have Moreover, that, plaintiff injured, calls. he was the switch- had talked from the to him north side the train him, point and that he a first man to came from eight five to signal cars from him. The that Weed saw switchman when he was the cars “went going on the north side of the full saw “back train” which Weed cars.” have could not Therefore, switchman and followed first man plaintiff been the switchman and who talked to way- him, he-saw all because-Weed walked behind-the switchman ears, that the cars moved to the west end of .said left him. thirty within seconds after weigh in law it does This court cannot evidence a ease but any duty matter of law whether “to determine is have the as of fact.” In doing substantial evidence to sustain an issue this reject (contrary which may properly court evidence is “the to the. physical laws, physical facts or known or which is the result of evident, or, short, itself, ignorance, evidence mistake when the facts, infirmity. or the other established discloses its inherent In. doing this, weigh however, the court does not .judicial Bridge Company, sense of that term.” v. supra.] [Clark We have substantial evidence hold did not to show the, car,s.were case; namely,, an essential fact element of his anyone knowledge authority 'moved or with who had peril imminent plaintiff was in from such position movement. Ferguson Bradley, CC., is reversed. concur. The judgment foregoing .opinion by adopted PER CURIAM:—The Q„ Hyde, judges opinion court. All the concur. City Appellants, Fowler, Lee Dobbins Cora Bond & Mort gage Company, Corporation, The In Life National Lincoln Company Wayne, Indiana, Corporation, Fort surance S. W. (2d) O. Trustee . 124 W. 1111. Norman, One, February Division 1939.