Gordon v. Kansas City Southern Railway Co., 222 Mo. 516

222 Mo. 516 | Mo. | 1909

Lead Opinion

BURGESS, J.

This is an action for damages for personal injuries, in wkick Harry L. Pangle, now deceased, recovered a verdict for $50,000, but wkick was reduced by tke trial court to $35,000, and judgment entered for that sum. Defendant’s motions for a new trial and in arrest of judgment having been overruled, an appeal was taken to tkis court.

Harry L. Pangle was employed, as switchman by tke defendant company in its railroad yards in tke city of Pittsburg, Kansas. His duty as switchman required Mm to follow the switch engine, and switch and uncouple cars, and to meet trains coming into the yards and make such disposition of them as might he ordered by the yard foreman. Pittsburg was a division pomt on defendant’s line, and engines, cabooses and train crews were changed there. The defendant’s switch-yards extended some distance south of the station. South of the yards the defendant’s line was crossed twice by the Frisco tracks, and further north was the Santa Fe railroad crossing. Incoming’ trains from the south stopped at the first Frisco crossing, if the gate which was there for protection was turned against them, and always stopped before reaching the next Frisco crossing’, further north, without any signals whatever. At the Santa Fe crossing the trains from the south also stopped unless there was a yardman present to signal them to cross. Further north, and at a point where the defendant company’s switches commence, was a box fixed on a post, in which box it was customary to put slips containing directions for the trainmen of the different trains as to what track they should take in coming into the yards.

On the 16th day of April, 1904, the day of the injury complained of, a freight train was due to arrive from the south, its destination being Kansas City, Missouri, and at Pittsburg the train crew, engine and caboose on this train had to be changed. This was known as a “hurry-up-train,” being largely composed of fruit cars, and was required to be operated quickly and sent on to Kansas City. Just before the time the train was bound to arrive, C. TI. Manker, the yard foreman, ordered Pangle to take a caboose down to the south end of the yards to attach to this train, and also ordered him to take the slip out of the box in question containing directions for this tram, and send the train up the main, line, and to cut off the caboose and “clear the switch,” the yard foreman stating to bim at the same time that he was in a hnrry to get the train out. Pangle and his associate, Meeks, as directed by Manker, attached a caboose to an engine and placed this caboose, which was to be attached to the train, at a switch. He then took the slip out of the said box, and proceeded south to meet the train and execute the other orders of the foreman. After the train had crossed the last Frisco crossing, some distance south of the company’s switches, Pangle gave a signal indicating that the train' should keep to the main line, and as the engine passed slowly by him he told the engineer and the head brakeman, who was on the engine, to pull up on the main line, and he then went south to meet and get on the caboose and uncouple it. The train was then moving at a speed of about four miles an hour. In order to cut off the caboose and clear the switch it was necessary to get up on the forward end of the caboose and turn the angle cock to let out the air and pull out the pin that coupled the caboose to the next car. As the caboose came by him he reached out and took hold of an upright iron handrail on the forward end of the car, which handrail was used by any one attempting to get on the steps. This handrail, however, was very loose, and as Pangle grasped it in attempting to get on, it swayed or wabbled backwards some seven or eight inches, causing his foot to miss the step. He then got his left knee on the bottom step, his right foot being dragging on the ground, and as he attempted to pull himself up the handrail flopped forward ten or twelve inches, causing him to lose his hold and to fall between the steps of the caboose and the forward car. He was caught by the truck .frame or brake-beam of the caboose, doubled up and rolled over, and received injuries of the most serious and painful character. His back was broken, as were several of his ribs, and he was bruised and maimed in his entire body. He was taken to a Kansas City hospital, and later to a hospital at Chicago, where he was operated upon by Dr. Seim, an eminent surgeon. He became totally paralyzed from the dorsal region down, needed assistance all the time in the performance of the functions of his body, and at the time of the trial his body had to be propped up and supported on the witness chair. According to counsel, Pangle died of his injuries about a year after the trial.

The testimony on the part of plaintiff showed that the defendant company maintained a repair shop at Pittsburg, and that when a car needed repairing it was placed on the tracks leading to the repair shop and marked with a red tag indicating that it was in “bad order.” Pangle testified that about two or three weeks prior to the date of the injury, he and one Meeks took this same caboose, the number of which was 531, and placed it on the track leading to the repair shop, and that it was then marked with a “bad-order” tag. He noticed at the time that the handrail referred to was loose and shaky, and saw Mark Ditto, an employee of the company, examine and shake said handrail, and as he shook it its movements would loosen the ratchet that held the brake on the end of the caboose. Pangle further testified that after a car which was in bad condition was marked with a “bad-order” tag and placed on the tracks leading to the repair shop, the general rule was that when the car again came out it was in good order, and that on the 16th day of April, 1904, when he attempted to board the caboose in question he did not know its actual condition nor the condition of the handrail, but he “believed it to be all right.” He had not seen this caboose from the time he saw it placed on the repair track until he attempted to mount it on this day. It was further shown by the evidence that during all the time Pangle worked for the defendant company it was the custom in the Pittsburg yards to couple and uncouple cars while the train was in motion, as well as while standing still, and that cars were coupled and uncoupled while moving at a speed of- “six and eight and ten miles, and as high as twelve miles an hour.”

There was no evidence that said caboose received any repairs from the time Pangle saw it on the repair track, in bad condition, until the time he attempted to board it and received the injuries complained of, but there was evidence that it was repaired some time after the 16th day of April, 1904.

Several witnesses, employees of the defendant, testified on defendant’s behalf that they inspected the handrail in question on the day of the injury and found it in good condition. Among these witnesses was C. H. Manker, the yard foreman, who testified that he examined the handrail on this caboose about an hour and a half after the accident, and that he “didn’t find any loose or shaky.” It appears from the testimony, however, that shortly after the accident Manker was at Pangle’s home, and that while there Mrs. Mary J. Pangle, mother of the injured man, asked him how the accident occurred, whereupon Manker replied, “Oh, Harry got hold of that old loose handrail of the caboose, and fell. I have been trying to get them to put that caboose in the shops for a month, and I guess they will put it in now. ’ ’

At the time Pangle was injured he was twenty-nine years of age, and married, and was earning $3.08 per day, or about $90 per month. He had worked for other railroads as brakeman and switchman for about six years, and had been working for the defendant some six months.

The first question presented for our consideration upon this appeal is whether there was sufficient evidence of negligence on the.part of the defendant to take the case to the jury. Defendant insists there was not.

We assume that the burden was upon the plaintiff to prove, first, that the defect in the handrail existed at the time of the injury, and that such defect was the cause of the injury, and, second, knowledge on the part of the defendant, either actual or constructive, for a sufficient length of time prior to the injury to have enabled it, by the exercise of reasonable care, to repair the defect. But it was not necessary to prove these by direct and positive testimony, but they might be established by facts and circumstances, if sufficient.

To hold that there was no evidence of negligence on the part of the defendant would be to ignore the testimony of the plaintiff himself — something we have no right to do. According to his testimony, the handrail of the caboose, which he took hold of in order to get upon the car, was loose, shaky and wabbly, and that it would move backwards and forwards some eight or nine inches, that it was then in exactly the same condition as when he saw it some two weeks before, when the caboose was on the tracks leading to the defendant’s repair shop.

It was the duty of the defendant.to keep its cars, cabooses, and the’handrails thereof in a reasonably safe condition for its employees who had to work with such instrumentalities, and there was evidence to show that it had not done so in this instance, the weight of such evidence being for the jury. So, with respect to defendant’s knowledge of the dangerous condition of the handrail of the caboose, the evidence showed that the defect in the handrail had existed for a sufficient time prior to the injury for the plaintiff to have known it, or by the exercise of reasonable care and diligence to have discovered said defect, and repaired the same before the injury occurred. Both these issues were submitted to the jury by proper instructions, and the issues found in favor of the plaintiff.

It is next insisted that the court admitted testimony of repairs made upon said caboose after the injury occurred, and in so doing committed error. We have been unable to find in the record any evidence of such repairs subsequent to the injury, except such as was brought out by defendant’s counsel in the redirect examination of defendant’s witness, A. F. Marsh, as follows: “Q. Sometime afterwards it [the caboose] was painted and fixed up, wasn’t it? A. Yes, sir. Q. Do you remember when that was? A. No, I don’t.”

Defendant also complains of the action of the court in permitting the cross-examination of defendant’s witness, J. A. Murphy, the car inspector. This witness testified to facts with reference to the condition of the caboose on the day of the injury, and for a month prior thereto. His testimony was based upon entries made in a record in which, as he testified, he kept the number of said car and a record of the repairs made thereon. Part of his testimony, on direct examination, was as follows:

‘ ‘ Q. Have you got here, Mr. Murphy, the book— your inspection book — that you used that day? A. Yes, sir, I have. Q. Let’s see, I believe you said the date was the 16th of April, 1904? A. 16th of April or March. Q. The 16th of April was the date of this accident? A. Here is the record of that train coming in on that day. Q. This book — this little memorandum that you have handed me — you say this was the book that you used in making your inspection as you went along the train? A. Yes, sir; that is the book. Q. Now, where did you put the number of the caboose that was on the train? A. Well, if it was not sent to the shop, I would put it up in the top corner — in the upper left-hand corner of the book. Q. Now, if there was anything wrong about the caboose, 531, that developed on inspection, how did you indicate it on this book? A. It would be put down here in this column, and a circle around the number, and over here on this page you would put what- was found, or what was defective about it, opposite the number, all on this side of the page. Q. Were you working there, Mr. Murphy, in April, before the 16th, as inspector? A. Yes, sir. Q. Now, I wish you would look — I wish you would state first whether or not you have examined the memorandum books of the inspection, as you took it at the time, for the purpose of refreshing your recollection so as to tell whether or not, from the first of March, 1904, you found on inspection of that caboose, 531, any defect in connection with the handrails or this upright — what do you call it? A. Railing post. You say you want me to state if I have looked up these books and refreshed my memory. Q. Yes, sir. A. Well, I glanced over them, yes, sir, for about a month, along about that time previous to this. I have looked over my books, yes, sir, some little. Q. Do you find that there was any defect with the rail or upright post? A. No defect of that nature whatever.”

The authorities all hold that a liberal cross-examination of an adverse or unfriendly witness is permissible, for the purpose of ascertaining his feelings or bias against the party against whom he is testifying, or for testing his memory respecting the facts to which he testifies, although this is not allowable on direct examination. This cross-examination of witness Murphy was for the purpose of testing his memory and the accuracy of his memoranda as to the condition of the caboose on April 16, 1904, and the court in an instruction told the jury that it should not be considered for any other purpose. The witness had given very important testimony against Pangle, predicated upon the record which he testified he had kept, and upon the plainest principle of justice as well as by the rules of evidence it was permissible to test the accuracy of his memoranda. If this car was sent to the repair shop after the accident, and his record, which he testified would show it, did not do so, it would certainly tend strongly to show the jury that he was mistaken when he stated that his record before the accident showed any and all defects found by him on his inspection of the car. On cross-examination, this witness testified that his record showed that the caboose was in the same condition on the 18th day of April as on the 16th of April, when he inspected it. He then testified that the 18th was the last day that his record showed any inspection of this car. He further testified that the car was sent to the repair shop some time after the day of the injury, hut that his record did not show it, and he could not tell when.

In Bank v. Richards, 119 Mo. App. l. c. 24, it is said: “Great liberality should he allowed in the cross-examination of an adverse party, where, as in this case, his evidence is a flat and unequivocal contradiction of the evidence of the opposite party in respect to the principal issue in the case. His conscience may he searched as with a lighted candle, and so long as his cross-examination is confined to the purpose of eliciting the truth relative to the issues in the case, a free hand should he given.” So in the case of Mefford v. Railroad, 121 Mo. App. 647, it is said: ‘ ‘ The cross-examination of the witness was largely in the discretion of the trial court.” The same rule is announced in State v. Boyd, 178 Mo. 2; State v. Nelson, 101 Mo. 464; State v. Smith, 190 Mo. 706. Indeed the authorities are all one way upon this question, none of those cited by the defendant being to the contrary as we understand them.

Defendant also claims that the court erred in the admission of the statement made by O. H. Manker, the yard foreman, to Mary J. Pangle, mother of the injured man, about an hour after the injury occurred. With reference to the injury to her son, she asked Manker how it happened, and he said, “Harry took hold of that old loose handrail of the caboose, and fell. I have been trying to get them to put that caboose in the shops for a month, and I guess they will put it in now.” It appears from the record that this testimony was not offered in chief, or for the purpose of proving negligence on the part of the railroad company, but for the sole purpose of contradicting witness Manker on a material matter upon which he had testified for the defendant.

It is well settled that the statements or admissions of an employee of a railway company with reference to a past event, upon which he was not authorized to speak for his employer, are not admissible in evidence, as not being part of the res gestae. [Koenig v. Union Depot Ry. Co., 173 Mo. 698, and authorities cited.] But that rule has no application here, where the object of the testimony was the impeachment of a witness. Manker had testified for the defendant that about an hour and a half after the accident he examined the handrails on this caboose, that he found them in good condition and that they were not loose or shaky. This testimony tended to prove that the handrails were in good condition at the time of the accident, and it was, of course, offered for that and no other purpose. For the purpose of impeaching this witness he was asked, on cross-examination, if he did not, while at the house of Harry B. Pangle, on the 16th of April, 1901, shortly after the accident, make the statement quoted above to Mrs. Pangle. He denied having done so. Thereupon Mrs. Pangle was called, and being asked if Manker did not make said statement to her, at the time and place mentioned, she answered that he did. According to' the testimony, this statement by witness Manker was made to Mrs. Pangle about an hour after the injury occurred, or half an hour before the time Manker, as he testified, examined the handrails and found them in good condition.

Defendant, however, argues that the witness had not seen the handrail at the time he was supposed to have made the statement to Mrs. Pangle, and that if made, it must have been upon mere hearsay. In answer to this, it need only be said that the record does not show that he told Mrs. Pangle that his statement as to the condition of the handrail was based upon anything that he had heard, but that he made it as if of his own personal knowledge and as a fact.

As we have already intimated, this narration by Manker to Mrs. Pangle of a past event and the conditions causing the injury, not being part of the res gestae, would not be admissible in evidence against the defendant, and the only question is, was it admissible for the purpose of contradicting or impeaching witness Manker ?

In Spohn v. Railroad, 101 Mo. 417, it was held “that an agent who testifies to facts material to the issue may be contradicted by evidence of statements and declarations made by him inconsistent with his testimony, notwithstanding such inconsistent statements were made after the accident in issue and as a mere narrative of it.” The court further said: “But where such statements or declarations relate to facts material to the issue on trial concerning which the agent has testified, he may be contradicted by evidence of them, the same as any other witness, the proper foundation having been first laid for introducing them.”

In the case of Hamilton v. Mining Co., 108 Mo. 365, it was held “that where the defendant’s superintendent on being examined as a witness for defendant, testified that he never gave the plaintiff the order to couple cars, he may on cross-examination, for the purpose of laying foundation for impeaching his testimony, be asked whether he had not after the accident stated to plaintiff that he gave the order.”

In Kenner v. Railroad, 69 Mo. App. 312, the court said: “The conductor testified that the cow came upon the track from behind a pile of cordwood, and when she came upon it she was so near the engine that it was impossible to prevent the collision. He was asked on cross-examination if he had not stated that, the killing of the cow was ‘a piece of carelessness on the part of the engineer.’ The time, place and persons to whom the statement was alleged to have been made were embodied in the question. The objection to the question is without merit. It was asked with a view of contradicting the previous testimony of the witness, which is a matter of common practice.”

Witness Manker had testified to facts material to the issue, and there was, we think, no error in admitting evidence of a statement made by him inconsistent with his said testimony, the proper foundation for the introduction of such evidence having first been laid.

It is insisted by defendant that Pangle was guilty of negligence as a matter of law, and that the court, therefore, committed error in allowing the case to go to the jury. Pangle’s negligence, as defendant states, consisted in his attempting to uncouple the car while the train was in motion, and in attempting to board the car at the front end instead of at the rear end, the latter being the safer and better way of getting on the car.

The train in question was what was called a “hurry-up ’ ’ train, many of the cars being loaded with perishable fruit, and the yard foreman, Manker, was in a hurry to get it out, and so advised Pangle, who was working under his immediate direction. Manker had directed him to go down to the south end of the yards and meet this in-coming train, send it up the main line, and cut off the caboose and clear the switch, and then to attach the other caboose to the train. At the time Mr. Manker gave those directions, he also said to Pangle, “This is a fruit train, and we want to get it out of here in a hurry.” Pangle, obedient to the order, met the train, signaled it up the main line as directed, and when the caboose came along opposite to him, the train being then moving at a speed of about four miles an hour, he took hold of this handrail on the caboose and attempted to get on the steps of the car, and was injured in the manner described. The testimony showed that it was the custom in the defendant’s yards at Pittsburg for its switchmen and employees to board moving trains in switching, coupling and handling the cars. Upon this subject Pangle testified as a witness in his own behalf as follows: “Well, they were both coupled standing still and in motion. In switching a train we never stopped the train to couple on a car., for if we did we never get a train switched. We had to switch a train to keep the cars moving. Q. State what rate of speed was the custom, if there was such there — at what rate of speed were cars going, and cabooses going, when men were operating them and doing work on them? A. Six, eight and ten miles, and as high as twelve miles an hour. Q. Was that the custom in the yards of the defendant at Pittsburg, Kansas, during all the time you worked there ? A. It was the custom all the time I worked.” .

In the case of Brady v. Railroad, 206 Mo. 509, the plaintiff therein testified: “It is customary in the C. & A. yards, and in every yard, to go in on the brake beam to cut off cars where the lever don’t work. Ruggles, the general yard master, was often down there while the men were going in between moving cars to cut them off.” The plaintiff in that case was a switchman, and went in between the cars for the purpose of making a coupling, while the train was moving at a speed of five miles an hour, and was injured. The court held that the question of whether the plaintiff, under the circumstances, was guilty of contributory negligence was for the jury.

In Brunke v. Telephone Co., 115 Mo. App. 36, it was held that “evidence of a custom in doing a certain thing has probative force bearing upon negligence, since custom arises from its adoption by many prudent men, and the law recognizes the value of arriving at the nature or tendency of the given act by considering its effect upon the conduct of others as shown by a general custom;” citing O’Mellia v. Railroad, 115 Mo. 205; White v. Railroad, 84 Mo. App. 411, and other Missouri cases.

When we consider the custom which prevailed in the defendant’s yards at Pittsburg in the matter of coupling and handling cars while in motion, as also the directions given Pangle by the yard foreman in connection with this “hurry-up” train, and which he was endeavoring to carry out, we are unable to see wherein he was guilty of contributory negligence as a matter of law. Indeed, in our view there was scarcely sufficient evidence of contributory negligence in his conduct to entitle the defendant to have the question submitted to the jury.

The defendant further insists that Pangle should have gone to the rear end of the caboose to have gotten on, this being the safer way. Pangle states in his .testimony that the cabooses were generally locked as they came into the station, but that he did not know whether this caboose was locked at the time. He further stated that he did not have time to get on the rear end, go through the caboose, and uncouple it before the train reached the switch. The service which Pangle was called upon to render was to be performed on the front end of the car, at which end he attempted to board it. There was nothing in the conduct of the plaintiff which would justify our holding that he was guilty of contributory negligence as a matter of law. At most, it was only a question for the jury. [Edington v. Railroad, 204 Mo. 61; Charlton v. Railroad, 200 Mo. 413; Murphy v. Railroad, 115 Mo. 111; Brady v. Railroad, supra.]

Nor was Pangle guilty of contributory negligence in not uncoupling the ear by means of the lever at the side of the car, as it was necessary for him to get on the platform of the car in order to put on the brake and stop it, which he was required to do under the directions of the yard foreman.

The point is made that the court erroneously permitted plaintiff’s counsel, upon the cross-examination of witness A. F. Marsh, to show that the latter had been discharged by the defendant for drunkenness. This witness was conductor of the freight train in question, and was afterwards discharged for the reason stated, and at the time he was testifying against the plaintiff he had an application in with the defendant company for reinstatement. The question as to his having been discharged for being drunk was not asked for the purpose of establishing the fact of his having been drunk, but as incidental to the more important questions of his discharge and his application for reinstatement. This witness had given very strong testimony against the plaintiff, and it was not improper, for the purpose of affecting his credibility as a witness, to bring out any facts on cross-examination which tended to show any bias in favor of the party whose witness he was or his interest, if any, in the suit. “The fact that a witness manifests a bias or partiality for the party who calls him is a proper matter for the consideration of the jury in estimating the value of his testimony, and it. is a general rule that on cross-examination any fact may be elicited which tends to show such bias or partiality.” [30 Am. and Eng. Ency. Law (2 Ed.), p. 1088, and authorities cited.]

We concede that evidence showing that a witness was drunk at a certain time, or was in the habit of getting drunk, would, for tire purpose of impeaching him, be inadmissible as the authorities called to our attention by the defendant abundantly show. This witness had been discharged from a responsible-position, and the inquiry as to the cause naturally followed. His answer to such question could in no way affect his credibility as a witness or have any tendency to show a bias in favor of the defendant, and the question was only as a preliminary to the more important question as to his relations with the defendant and his having an application in with the company for reinstatement at the time he was testifying. In any event, we do not think the judgment should be reversed simply on account of the cross-examination of this witness, the admissibility of whose evidence was largely in the discretion of the trial court, and which we think was nonpre judicial.

It is also contended by defendant that the court erred in not dismissing the jury after the statement made by juror Lovelace, one of the regular panel. On being examined as to his qualifications as a juror, he stated in effect that he had read about the case in the newspapers, and thought at the time he read it that the plaintiff ought to have damages, but that the matter passed out of his mind after reading about it and he had thought no more about it. Mr. Lovelace was excused from service on the jury that tried the case; but the defendant insists that the court should have dismissed the entire panel. It is unnecessary to say more with respect to this contention than that there is no merit in it.

There are some other alleged errors of a like character with the preceding one which defendant complains of, and being without merit, we will not discuss them.

The final contention is that the verdict is excessive, and the result of passion and prejudice. That the verdict was a large one is manifest; but the injuries sustained by the plaintiff were dreadful, and rarely if ever surpassed in point of severity, and his suffering during his life thereafter was intense — worse than death. Prior to his injury ‘he was an able-bodied young man, twenty-nine years of age, with several years’ experience in railroad service, and earning about ninety dollars per month. His back and five of his ribs were broken, his pelvis and hip bones mashed, and he was bruised in his entire body. His injuries resulted in total paralysis from the middle of his hack down, so that he had no control whatever of that portion of his body. He could not sit up without being propped with pillows or something to hold his body in position, nor did he have any control of the functions of his body.

Personal injury cases as a rule furnish no guide as to the amount of damages an injured party is entitled to receive in a case of this kind. The jury rendered a verdict in favor of plaintiff assessing his damages at fifty thousand dollars. Of this verdict the trial court required a remittitur of fifteen thousand dollars, and entered up judgment in favor of plaintiff for thirty-five thousand dollars. That court had a better appreciation of the facts as developed at the trial than we can have, and was better qualified to judge as to the size and fairness of the verdict. The court ordered the remittitur and overruled the motion for a new trial, and, under the circumstances, we are not disposed to interfere.

In the recent case of Partello v. Missouri Pacific Ry. Co., 217 Mo. 645, for damages for personal injuries, plaintiff recovered a verdict for $30,000, and judgment was entered accordingly. Afterwards on a motion for a new trial, plaintiff remitted $10,000, and the court let stand the judgment for $20,000. Upon appeal to this court, the judgment was reversed and the cause remanded on the ground that the verdict was excessive and the result of passion and prejudice. But there was no comparison between the injuries in the two cases, those received by the plaintiff in this case being far more severe than those sustained by the plaintiff in the other case.

The judgment is affirmed.

All concur.

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Rehearing

ON REHEARING.

PER CURIAM.

Upon motion for rehearing it is considered and adjudged that the opinion and judgment herein rendered on May 18, 1909, be and the same is hereby modified so that the said judgment shall be affirmed for the sum of twenty-five thousand dollars as of the date of the rendition of said verdict and judgment, and to bear interest from that date, if plaintiff shall within ten days from this date remit the further sum of ten thousand dollars as of the date of the said verdict, otherwise said judgment shall be reversed and remanded for new trial.