*1 suрported by affirmative this, need in a case as such fendant Kinder, party. See Bloch v. being the other evidence, the burden (2d)W. 932. Mo. 93 S. disability with other his claims The doctor settled agreements companies companies. By settlement insurance by the life of the amounts called for agreed pay him for 75% agreements following “5. clause: The policies. The contained Company agrees referred to hereunder shall the payment^ change in the notwithstanding future circumstances of continue parties contracting hereto; limiting of the and without either foregoing, agreed is understood and that Dr. generality of may engage any occupation business, Wiener in the future way obligation in no Company so shall affect the of the payments provided continue for hereunder.” This clause make against proper right evidence the doctor. Iiis reservation any occupation engаge- in or business the future an ad against hand, mission his interest. other On the after this clause against right was introduced him the doctor would have the to show the terms of if explain the settlements he desired to so do the cir which cumstances under were made.
On cross examination the doctor’s physician was asked whether he
agreed with what was stated in an article
on heart disease written
admittedly high-ranking
an
outstanding
doctor
published
Journal of
American
Mediсal Association. Of course the
may
contents of the article
not be
independent
used as
evidence but
’
the use of the article on cross examination to
learning
test the witness
legitimate. Cooper
v. Atchison, T. & S. F. R. Co.,
All concur. Godsy Guy A. Thompson, Trustee of the Missouri
Sherman v. Company, Pacific Railroad 38628. 179 S. Appellant. No. (2d)W. 44. One, Division March 1944.
Rehearing Denied, April 3, 1944. *2 Cole, Bishop, Thomas L. J. J. D. G. and Patterson, Chastain Chas- tain & appellant. Smith for *3 Cowgill Popham & Kimbrell, Crouch, & James
Crouch G. respondent. Mandell Sam *4 Employers
BRADLEY, C. Action under the Federal Lia 51-60, bility Act, A., personal injury. U. Secs. to recover for C. judgment $10,000 for Verdict for and defendant went appealed. tender, and, injury,
Plaintiff a switch at the time of was work- ing Yards, Bridge defendant’s West Bottoms Kaw Kansas City. west, yards generally The tracks in these extend east and injured opposite moving while between two trains negligence alleged upon directions. The relied of violation required, switching movements, defendant’s rule which engine up, of ringing starting bell clear- before and insufficient ance between the two tracks. generally, alleged
The answer denied that plaintiff did outside work, was bona fide reason employee, and should not recover, negligence injury. and that his own the sole cause general allegation reply was a denial an “defendant at knowledge all being times had full by plaintiff work done fully acquiesced of his rairoad duties and outside therein.” assigned: (1) evidence; Error On the refusal of a demurrer to the (2) given refused; (3) on on instructions the admission of evi- dence; (4) discharge the refusal alleged on the alleged because prejudicial occurrences; (5) an excessive verdict. questions: The demurrer to the evidence raised (1) four Should recovery? outside work bar (2) plaintiff’s negligence Was injury? (3) sole cause of his Was the proxi- violation rule 30 a plaintiff’s injury? mate cause of (4) Was the clearance insuffi- cient ? dispose
We shall question first of on the outside work. *5 Plaintiff’s hours with defendant were from 12:01 m. 8:01 m. to a. a. employed He by also A. J. Stevens Company as a wood finisher day prior injury and on the to his and for three weeks prior, he had for worked Company Stevens from 8:30 a. m. to 4:30 p.'m:., in evi- Defendant introduced hour. per $1.00
for which received which follow: and rules 700 railroad dence ‘‘ to them- safety to insure of mind presence Constant Rule 700: In further- employees. duty of all others, primary is the selves and of Service’ ‘Hours and' objects Federal State the several of ance of such, using from prohibited are by laws laws, affected employees for the them may that duty in a manner unfit off their time while for respective of duties their performance efficient safe, prompt required their to use enjoined They strictly are railroad. ample rest.” obtaining for duty primarily time off ex alert, themselves “Employees must be devote Rule 703. duties to their give undividеd attention service, their clusively to the obey prompt required, and reside wherever during prescribed hours, to pertaining authority in matters ly proper- from the instructions branches the service.” respective their of opera- A., “that no statute, provides S. C. Sec. The federal U. tele- employee dispatcher, train or other who use tor, receives, delivers transmits, or dispatches, reports, graph telephone or required affecting train shall pertaining to movements orders or longer than nine a duty period remain on for permitted to be or offices, towers, twenty-four-hour period places, any all hours ” day. night . . continuously operated statións railroad was employment that with the Plaintiff testified steady; assigned job injured to the where on October that he prior 'time injured 1940) that a short (he ; November master, terminal Campbell, he-had talked H. train with E. make have more work Campbеll (plaintiff) told to that he “had a money”; for job, more that he had an offer of a better and asked Campbell give “he me absence; leave that said'that couldn’t (jobs) suggested I both of leave of and he hold them absence goin'g to for a or not the railroad while see whether business ’’ steady. up work would be pick and the brought says employment was not plaintiff’s Defendant outside authority one who to waive the rules. to the attention plaintiff him fоr a Campbell admitted that talked to and asked right absence, plaintiff leave but denied that he told it would be all work, Campbell no au- to take outside said he had thority rules, permitted waive the that he not have would company plaintiff job “to hold a outside of the railroad had I been ’’ authority implication Campbell aware of that. The clear is that prevent doing plaintiff work, according, plain- outside tiff, Campbell doing knew that he was outside work. The Hence, found we as true for take eviden.ce. Campbell purposes demurrer, knew that was. .the nothing situation, outside it. the. In the did work assignment against we rule defendant.’ *6 A yet dark. while it 6 :45 was m., a. injured about was Plaintiff from cars, up 25 or 30 consisting pulled train, some westbound necessary duty set the It was stopped. the east yards through and to the stock train to move west this switches necessary to set it was For this movement the west. on to yards then west switch and walkеd set the east Plaintiff first two switches. on which the the track north side of shown) on the (distance not signaled switch, west set the train would move and westbound thereafter, shortly time, or come on. About train to the westbound engine, 3 train, consisting ears switch, a the west plaintiff set of the track next north up from the west on the caboose, moved move, this eastbound would the westbound track on which train The engine of the west switch. of the east part stopped train with clear, point, some between two tracks at clearance between the inches, we under- only 6 feet and 5 and as switches, was and west east the east approached the tracks stand, the clearance diminished as switch. The over- approached as the west switch, and increased 2y2 clearance between the hang train, on each hence the was feet directions, point points or moving in some between cars, opposite at only inches. about 17 the two switches signaled and had the west- had set the west switch plaintiff
"When on, engine train walked east on the south side of the bound to come (then standing), headed east to line the east switch when intending yards telephone train had cleared that switch. westbound shanty, between the switches mentiohed and im- was in the switch two track on which was the eastbound train. north of the mediately _ standing train and the walking While east with the eаstbound west- approaching, telephone rang shanty train the switch bound go east, engine pass in front headed decided telephone, east which duty and answer the it was do. Just telephone rang, train, after the the eastbound ringing without bell, up, started soon realized that he could not make engine, the front of the and turned west, around back but was injured point (not given) at some struck and east of the west switch. only occurred, Plaintiff was the witness who testified аs to what he testified:
“Q. you got After performed over there operation switch) you (set the west did know the (eastbound) other train coming Q. up Yes, there? A. I saw it then. stop go Did it on? momentarily. Q. stopped A. It . . Now, . after that train came stopped, you what attempt there to do? A. He stopped did momentarily way I (east) and was on the lining back drag switch (w.est) going (west) to the yards into the stock Q. you go Why there. did back ? My there A. duties were get job (reline back on the switch). Q. there Now, you east (east) along there, moved did attract anything your attention? A. standing train) stopped (engineer
Just after he of eastbound and was momentarily still, go I started to answer phone rang Q. . phone. your duty Absolutely. that? . Was that to do Q. engine you alongside stand- get up How far did of this engi- ? ing up pretty there before it A. I moved close'to moved Q. neer, maybe ? The train east of him. Did the train then start A. *7 Q. engineer ring the slowly, rather . . . yes, started sir. the Did . starting engine motion ? sir. No, bell at all before this into A. . . “Q. circumstances, When those how near up he-started under engine engineer— you gotten past the ? A. I to the front of the Q. exactly. engineer at least to the don’t know When start —I slowly, performing in do, state whether or not the trainmen their duties, engines? frequently cross front of Men do cross in A. Q. engines. you front attempt you What did to do after found engine the I attempted get past motion? A. to engine the to the teleрhone answer I telephone as towards the the started engineer gave (the engine) gun. Q. it the you What do mean? A. steam; Pulled open, gave just the throttle the it that is a railroad get expression; speed. Q. gave gun more it And after he it the to on, you ? attempt trap started what did to do A. the I saw attempted close the were and I turned back get how cars to Q. happened? Something where it wider. A. What struck kept hitting me and me and it me (west) (west) carried down to 24 grabbed switch, and when I there I got pulled my the switch and legs in keep getting them from . cut off. .
“Q. engineer rung.the engine, If the bell before starting the you was there or to keep obstruction anything going back hurrying engine no, the front of the ? A. not, around There was Q. gave gun, you sir. When he her the as it, have termed what speed you ? say would he moved to A. up He slowly, judge started I ’’ hour; 10 per or 15 miles he increased that at the time I was struck. “Q. engine
Cross examination: And this (east- whеn track on 24 bound) move, you I you, started to stopped, you understand or did stopped momentarily on farther? I going walk A. to see what was rang Q. phone go on and the and I started to east. stopped You Q. momentarily? A. sir. Yes, you And heard this ring and phone Yes, you thought get walk east? A. I I it started could around Q. thought you phone. and answer the You would walk around the Q. engine? Yes, front the A. sir. this And was after moving? Yes) Q. 24 had A. you train on started sir. And walked gave along there for a considerable distance before gun? he her the along, going slowly A. he thought I walked first and I I could Q. engine. the you walk the front of How far around did walk engine? A feet, guess, Q. with A. few I the ten or fifteen. From engine you the time the started (east) walked down towards the Q. Yes, A. sir. And that going switch stand? was with the idea
689 slowly enough that though going I engine? A. he around the ’’ phone. go I around front end and answer could you “Q. Now, counsel asked examination: Redirect up starting you this train moving here and then up train moving given her engineer gun, giving her the if he hadn’t safely if the train had gun gotten ? you Yes, could have around A. safely, might have been I slowly gotten could have moved around Q. through. If close, I gone believe I could have pretty but through given gun gotten there? you hadn’t her the could Yes, sir.” A., Liability S. Employers Act, C.
Under Federal U. employee does not 53, contributory negligence part Sec. recovery, damages .by bar “but shall be diminished such negligence em proportion to the amount of attributable prove ployee.” However, plaintiff suing the Act is “bound under negligence part that such defendant or its servants negligence of. Seaboard injury” complained contributed cause Ry. Horton, Airline Co. 58 Ed. 1062. v. S. Ct. L. U.
Or, quite recently as (Jan. 17, 1944) stated, the Act suing under one “required probative is present negligence which and facts from Tennant, the causal relation Admx. reasonably could be inferred.” Ry. v. Co., Peoria & Pekin 64 Union Ct. 409. S. plaintiff
It is manifest that walked east a short distance after the started, equally eastbound train it the is manifest that but had rung bell engine been started, the before would not been far as east as he was when first knew the eastbound train would start, engine rung engine started, the bell and before the been would have it proportionately telephone farther from the when rang, might and not have to answer the We think phone. decided that the evidence is such jury a reasonably that could infer that plaintiff walked east a point where the clearance not sufficient for safety in upon reliance compliance with ring the rule to the bell before starting up engine, the and we think that could reason ably infer from the required evidence rung, that had the been bell as rule, plaintiff the injury. have escaped, questions could The on plaintiff’s contributory negligence proximate .were, cause we think, for the jury. al., Goslin 395, v. Kurn 351 et Mo. 173 W. S. (2d) 79, 84, cited; l. с. Assn., eases there Mech v. Terminal R. 937, 322 Mo. (2d) 510; 18 S. W. Atchison, Ry. Moran v. &T. S. F. Co., 278, 330 Mo. (2d) 48 W. 881; Co., S. v. K. & Rowe M. T. R. 339 Mo. 100 (2d) S. W. 480.
Failure to ring the bell alleged and the insufficient clearance were submitted in the conjunctive, hence, in ruling the demurrer the evidence, will not be necessary to determine the sufficiency evidence alleged insufficient City clearance. Guthrie v. of St. Charles, 347 Mo. 98; 152 (2d) S. W. 91, l. c. Scott v. Mo.
690 v. §38; Orr 834, l. c. (2d) Co., 374, 62 S. W. 333 Pacific R. Mo. Excelsior 608; v. Monsour (2d) 177 S. 352 Mo. W. Co., Shell Oil 324; Whitehead 219, l. c. (2d) (Mo. W. App.), S. Tobacco Co. 263. c. (2d) l. (Mо. 44 W. Fogelman App.), v. 1,No. plaintiff’s instruction on complaints are made Several C, instructions defendant’s the is made on refusal complaint were, 1No. one, except instruction on D, complaints, All the 'and E. In the evidence. demurrer to disposed ruling the effect, De evidence.” “mentioned in the rule 30 Nó. referred to struction about asked Plaintiff was says rule was not introduced. fendant force in full said it was among things, other rule the objected on injured. for defendant Counsel and effect when he was Plaintiff’s ground evidence. rule book was best ‘‘ momentary rule, Except where the as then read the follows: counsel switching backward, are a continuous stop start, forward or engine about to rung is movement, engine when an bell must be :"“Q. in force at that rule move”, and then the record shows Was not re answer was No, sir, rung (the bell that time? wasn’t engineer Q. that). sponsive, given but Did the no attention A. Mr. engine motion? ring starting bell at into all bеfore this plain object rule Chastain: We to that for under under testimony situation the bell would tiff’s own it wasn’t a where 30 was required rung. to be The Overruled.” While rule Court: formally introduced, presence it was read in the court objection, appear coun jury, above it would regarded as Defendant’s sel for defendant the rule in evidence. instructions, C, D, refused E were instructions withdrawal disposed are ruling demurrer to evidence. assigned objection overruling Error defеndant’s plaintiff’s yard clerk evidence to his conversation with the chief Campbell objection and Mr. outside work. *9 ground the based on that clerk showing there was no that the or what Campbell subject binding defendant, said on the would be is, authority that that no showing there was that had to waive compliance with rules 700 703. cites Defendant St. Oatman v. Ry.W. 38, 139; Louis-S. 304 Mo. Co., 263 W. Dickinson S. Stuart v. al., et 290 Mo. W. 516, 446; Jur., 704, 235 35 Am. p. S. 282. Sec.
On Campbell “Q. cross examination testified: Yoii said a while ago you that if had yоu known this man was outside work wouldn’t have permitted' company? him for to work the I A. would given have him investigation an for the being for violation of rules employed places. Q. two Yes, were superior? You his A. sir. Q. And he obliged you was operations to do what him in told those there yards? in obliged the A. He my questions was answer to to investigation. an Q. If’you obey instructions he was to them? I was supposed operate to yards.” those
691 a in- it, question authority to is As we see no wаive rule says contrary to He volved. Plaintiff’s outside work was the rules. it, yard Campbell Campbell chief clerk and that the knew rules, the approved. violating excuse for plaintiff’s is Such competent, not complained we think conversations of were that the authority ground yard Campbell the the clerk and on that chief for rules, competent support the in of excuse to waive but violating the basic evidence “evidence of rules. It is a rule of that legally whatever facts are relevant the issue is admissible logically to may except specific as it of be excluded some rule principle S., p. 864, 31 law.” C. Sec. 158. J. answering discharge In jury: question,
On refusal to the a injuries sexually. his him volunteered that affected damage was stricken on that The pleaded. Such motion such was not time, says, for 30 minutes, trial went on some not over defendant discharge then jury defendant moved to the becausе the volun request The tary statement. court overruled the defendant .and exception. nothing suggest There the saved is the record to that attention of able counsel was diverted the time court at sustained the motion to im strike, sufficiently if matter did not' then request press prompt discharge, counsel is to to reasonable to jury likely conclude that not We to have been affected. do not importance think justify matter of sufficient to 973, 1939, reversаl. R. Mo. A., Secs. S. R. idem. Counsel sought by plaintiff’s to show wife operation that because a recent of- might Objection she not be able to remain in coürt till trial ended. sustained, discharged. and defendant asked that the be' request did not discharge, court rule defendant saved exception rule, no point court’s failure hence there is no Ry. to rule. Gann v. I. & Chicago, al., R. P. Co. et Mo. (2d)
6 S. W. l. c. and cases there cited. Is ? the verdict years excessive Plaintiff old at the time injury good and in health. He was struck in the lower lumbar region; X-rayed taken Hospital; Missouri Pacific under supervision Castels, surgeon Dr. J. E. district for the hospital’; suffering around the back. Plaintiff taped said that he was intense pain right side, spine. back lower He remained in the hospital weeks, for about three and returned home where he was by Dr. Garrity, family treated Edward doctor, gave who “heat internally.” treatments medicine (gun Plaintiff went back finishing to work work) J. the A. Stevens’Company Decеmber, (day given), but said that actually working;
he wasn’t supervising”; “sort he tired so he had “lie down two or rest day”; three times a “had a little office *10 day and chair desk. got and Each the we orders the men would come my and to desk and I thé would outline Company for the J. Stevens done”; that he worked
work spray a (finishing with to work 1941, he went when September, until him; carried that the work was Shop; gun) for ABC Cabinet the the Cabinet he worked for lifting; the that that did all another teaching Supervisor, wаs NYA January, then Shop until gov- by the discontinued finishing; the NYA work was that wood Colonial worked for the 20, 1942, that he then July ernment about company time at the Company, and was with Fixture trial, July 19, 1943.
. morn- that in the pain constantly; he Plaintiff testified that grows more goes day on it great, as the pain the “but ing to brace Garrity, brace, by Dr. “seems prescribed intense”; that it doesn’t my right side, but sprained back muscles and work kind of back”; couldn’t give that he do me relief he was brace; since that he railroad work had been without condition, normal not, lifting and “do he could in his but that pain is so anything lift labor”; stoops “to if he and starts that very nervous lift”; “body very is just I that his weak great can’t ’’ generally upset. just I am get it was difficult for him to around Plaintiff’s wife testified that time; plaintiff’s brace; he all the that without the that wears the br-ace affected; few just he “with a nerves have been that is exhausted house; “his being up”; hours that he can do around the nothing hospital, in the and he is skin like it was ashen color without injury energy”; difficult; sleep is often that since drained of get injury, he up has to two or three and that night, prior times at kidneys urinary organs.” with his he no “trouble Clyde plaintiff’s witness, Dr. Donaldson, testified that he made X-ray pelvis back December that the X-ray second, third, first, transverse showed that and fourth processes off; the lumbar were broken such “would vertebra necessarily injure up back”, nerves and tendons and down permanent disability.” and “I think has a hе Garrity, Dr. plaintiff’s family doctor, Edward testified 17, 1940; first examined plaintiff December 16 or that he then “had a spasm region marked muscle the back the lumbar he has a disturbance in his . . . reflexes. The condition of his my back painful manipulation all indicated examination region trouble was in the later, lumbar the back. A or so day Donaldson, Dr. my suggestion, at X-ray . . plates took the . palliative surgery treatment is in one I mean sense. that that would (cid:127) good. Q. do the . period man no . of two man, If this over a years occurred, accident since this has to have excessive continued body weakness limbs and times lower becomes numb at his legs feel like gone sleep after he sits little feeling body while and he has an exhausted all over the
693 sag down, you body tendency has a just a little exercise and you do attribute judgment opinion, described, what, y0ur injury this condition to? A. I attribute this condition Q. After it recovery very be slow. I think this time will after рermanency about the you say years, has two what do remained ’’ stay just is. injury way it ? A. I think it will shortly examined plaintiff and Dr. Ira H. Lockwood Dr. Castels According their trial, before for defendant. were witnesses injuries by plain- evidence, are so serious as indicated not immediately he was Castels, tiff’s Dr. saw after case. who injured, time X-ray study that the at that showed said first, second, processes of the third a fracture of the transverse necessary right side. It and fourth lumbar vertebra will Drs. to set evidence Castels and out the Lockwood. plaintiff’s injuries applicable such character are as to make 61, Chicago, Ry. Co.,
what v. I. & P. 337 Mo. was said Hoelzel R. 126, l. 85 (2d) persuaded S. 133. We are not that the W. c. verdict Assn., 790, excessive. Feltz 336 See v. Terminal R. Mo. 81 S. W. (2d) 616, 620; Carpenter Ry. Co., c. 130, l. v. Wabash 335 Mo. 1071, l. 1075; (2d) Zichler Co.,
W. c. v. St. Louis Public Service 654, 902, (2d) 659; Rogers, Mo. 59 S. W. l. c. Rockenstein v.
Mo. (2d) judgment 31 S. W. l. c. 802. The should be Osdol, CC., is so ordered. and Van affirmed, Dalton concur.
PER foregoing opinion by Bradley, adopted CURIAM: The isC., opinion as the judges All the court. concur.
Roy Gosney May Corporation, v. Lumber Company, & Coal
William H. May, May business as &Coal Lumber Com pany, Appellants. S. W. (2d) 38784. 179 51. No. One,
Division March 1944.
Rehearing Denied, April 1944.