LENA JONES, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY and GROVER A. WRIGHT.
108 S. W. (2d) 94
Division One
July 30, 1937.
The other matters claimed as error should not occur upon the retrial, so that we shall not discuss them.
In order to prove her injuries the plaintiff called three doctors as witnesses in her behalf, who testified that as a result of the accident she sustained and was at the time оf the trial suffering from an injury to the right sacroiliac joint and limitation of motion of the right leg. Immediately after the accident she was found to be suffering from a laceration of the scalp, a bruised knee and a seriously sprained ankle. Since the time of the accident, she has complained of backaches and the testimony of her physician was that such pain would continue intermittently.
We arе of the opinion that Howell having admitted liability by his default, discussion is unnecessary in holding that the verdict against him assessing plaintiff‘s damages at $1 should be set aside as it clearly indicates misconduct on the part of the jury. This court has held that there should be no distinction between cases where the jury returns a verdict for nominal damages and those in which the jury awards substantial, though inadequate damages. [Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S. W. (2d) 618.]
The judgment against Hоwell is reversed and the cause remanded for new trial against him on the matter of assessment of the plaintiff‘s damages only, the verdict finding him liable to remain in force. The judgment against the defendant company is reversed and the cause remanded for new trial. All the judges concur.
R. H. Musser and Elliott & Crouse for appellant.
Luther Burns and Culver, Phillip, Kaufmann & Smith for respondents.
FERGUSON, C.—On May 29, 1933, plaintiff‘s husband, John Jones, their daughter Mary Virginia, age thirteen years, and plaintiff were riding in an automobile driven by plaintiff‘s husband. The automobile was struck by one of defendant railway company‘s trains, operated by defendant Grover Wright, as motorman, on the crossing of a public road or highway and the railroad track at Settles Station in Platte County. Plaintiff‘s husband and daughter were killed and plaintiff sustained serious personal injuries. The petition is in three counts. The first count is for damages for the death of plaintiff‘s husband, the second, for the dеath of her minor daughter, and the third, for personal injuries sustained by plaintiff. Each count in identical language, charges the defendants with various acts of negligence including humanitarian negligence. The action was instituted in the Circuit Court of Clinton County where, upon a trial, the verdict of the jury, and judgment thereon, was for defendants; from which judgment plaintiff brings this appeal. The first and second counts each pray damаges in the sum of $10,000 and the third count alleges damages in the amount of $30,000, hence our jurisdiction.
Plaintiff‘s instruction submitted negligence, under the humanitarian rule as the sole ground of recovery by plaintiff and liability of defendants. Her given instructions numbered 1, 2 and 3 apply to the first, second and the third counts of the petition respectively. Except as to the direction to find for plaintiff upon the count submitted by the particular instruсtion the instructions are identical in wording. The jury were told that if they found that defendant Wright (the operator of the “gas electric motorcar” by which the train was drawn) “saw, or in the exercise of ordinary care could have seen, the automobile in a place of imminent danger and peril approaching or on the railroad track . . in time so that by the exercise of ordinary care and with safety to the train,” etc., he “could have thereafter stopped said train before it struck the automobile” but “negligently failed” to do so, etc., the finding should be for plaintiff and against both defendants on the count submitted. (Italics ours.) Purportedly as the converse of these instructions defendants requested and the court gave their Instruction E, as follows: “The jury are instructed that if they believe from the evidence thаt the defendant Grover A. Wright, motorman on the train mentioned in evidence, did not see the automobile with which said train collided or in the exercise of ordinary care on his part could not have seen said auto-
It will be noted that defendants’ instruction directs a verdict in their favor on a finding alone that defendant Wright “did not see the automobile . . . in or going into a place of danger of being struck in time,” etc. It is inconsistent, and in conflict, with рlaintiff‘s instructions requiring a verdict for her if, in connection with the other hypothesized facts, the jury found either: (1) that Wright saw the automobile in time, etc., or (2) that by the exercise of ordinary care he could have seen it, in time, etc. Defendants-respondents say: “The instruction would have been erroneous if there had been any substantial evidence that the engineer could have seen the peril beforе he actually did see it. We would not contend otherwise.” Continuing, respondents’ brief, in defending the instruction, states: “But in this case there is no credible evidence that the engineer could have seen the automobile in a position of peril before he actually did see it.” Respondents use the term “no credible evidence” and the argument advanced seems to go more to the credibility of the еvidence than to its substantiality. If, as is contended by respondents, the evidence, conclusively shows that the motorman actually saw the automobile at the earliest time, at which, by the exercise of ordinary care, under the circumstances, he could have seen it, in a place of imminent peril and danger, there would be no real issue of fact about the matter and the jury could not likely havе been misled or confused by the wording of the instruction. This requires an examination of the evidence as viewed in a light most favorable to plaintiff.
At this crossing the public road runs east and west, the railroad track north and south. The automobile in which plaintiff, her husband and their thirteen year old daughter were riding was a coupe; a closed car with one seat. Plaintiff stated that it was an “old second hand” automоbile when she and her husband purchased it and that they had owned it four or five years. Plaintiff‘s husband was driving; plaintiff was seated on the other side of the one seat and their daughter was sitting between them. The collision occurred “about seven o‘clock in the evening, May 29, 1933,” but “it was yet daylight.” They were traveling east, returning from Platte City to their farm home about two miles east of the crossing. The train was traveling south. The train was composed of a “gas-electric motorcar,” operated by defendant Wright alone, and seven cars, six freight cars and “a combination baggage car and coach” at the rear. Two of the freight cars were loaded, the other four “were empties.” It was one of de-
Plaintiff gave the following account of the collision. As their automobile approached the point in the road wherе the slight upgrade to the railroad track commences it was traveling at a speed of twenty or twenty-five miles an hour but as it “went up the incline toward the railroad track it seemed to slow down.” “We looked before we got up to the track to see if a train was coming, but you couldn‘t see, for the brush and stuff along there, until you got right up to the track.” “Just as we got on the track we looked and saw the train,” “wе said, ‘there is the train‘” and the automobile “stopped on the track.” When they saw the train, just as the automobile got on the track, the front of the train, the motorcar, was then “just above” (north of) or “even with the stockyards;” “I tried to get out and tried to get Mary Virginia out. I think I got partly out. . . . The
It is to be inferred or assumed that a motorman would act promptly to avoid a collision upon seeing an automobile on or going upon the track in front of the train, and granting that defendant Wright did so act when, his motorcar being sixty or eighty feet north of the crossing, he actually saw the automobile going on the track, yet plaintiff‘s testimony, and the other evidence we have nоted in connection therewith, is substantial evidence tending to show that, in the exercise of ordinary care in keeping a lookout, Wright could have seen the automobile on or going on the track when the train was yet 350 to 400 feet or more north of the crossing and continuously thereafter.
Defendants attack the credibility of plaintiff‘s testimony and would have us disregard it and accept the testimony of dеfendant Wright, which we shall presently review, as conclusive. They comment, that if the train was at the point north of the crossing when the automobile went onto the track and stopped, as related by plaintiff, that some ten to twelve seconds of time would have elapsed before the collision, affording ample time, as they argue, for those in the automobile to have escaped. Plaintiff sаid the door of the automobile was “hard to open,” that she was trying to get out and trying to get her daughter out, that she thinks she (plaintiff) was partly out when the train struck the automobile. Plaintiff‘s testimony is not contrary to physical law or the physical facts and its credibility is for the jury.
We come now to the testimony of defendant Wright. As stated he was called as a witness by plaintiff and defendants seem to take the position thаt plaintiff is concluded by his testimony. On cross-examination he gave the following version of the collision: From a quarter of a mile north of the crossing he was continuously “looking ahead,” “watching this crossing;” “I looked left first (to the east) because that box car (used as a station) kinda hides anybody, so I gave that side a quick look, and then I looked this way (to the west, from which direction the automobile was traveling) and as I did that I saw this car . . . within 20 or 25 feet of the track . . . coming up towards the railroad track. It didn‘t look like
Plaintiff was not bound by such part of the testimony of defendant Wright as was contrary to, and contradictory of, plaintiff‘s theory as pleaded in her petition and presented by her testimony and other evidence in the case favorable thereto. It is said, in Lolorado v. Lacy, 337 Mo. 1097, 88 S. W. (2d) 353, “In any case, where a party desires to prove an essential part of his case by his opponent, he is permitted to do so, and he is only bound by the part of his adversary‘s testimony which he himself offers and vouches for as the truth.” “The fact that the motorman was plaintiff‘s witness does not make all that he testified to conclusive upon plaintiff. The facts may be shown to be otherwise by other evidence.” [Smith v. Kansas City Public Service Co., 328 Mo. 979, 991, 43 S. W. (2d) 548, 553.] Therefore while the plaintiff called the motorman as a witness she was not thereby precluded from establishing her case by other testimony contradictory of that given by the motorman. [Maginnis v. Mo. Pac. Ry. Co., 268 Mo. 667, 675, 187 S. W. 1165, 1167; Hoelker v. American Press, 317 Mo. 64, 79, 296 S. W. 1008, 1013.] The following comment is from the Hoelker case, last cited: “Counsel for defendant argue that Nowak‘s testimony that he sounded the horn is conclusive upon the plaintiff. This is upon the ground that Nowak was plaintiff‘s witness, and also that there was no other testimony upon that point entitled to be considered. While plaintiff could not, and did not, attempt to impeach Nowak by showing that he had made contradictory statements elsewhere upon that point, the plaintiff was not precluded from showing, if he could, either by himself or by another witness, that thе horn was not sounded.” While “a party may not directly impeach his own witness . . . it does not follow that he cannot introduce other evidence, if of independent probative force, even though it be contradictory of what the witness said.” [Smith v. Ohio Millers Mut. Fire Ins. Co., 320 Mo. 146, 6 S. W. (2d) 920; Black v. Epstein, 221 Mo. 286, 304, 120 S. W. 754, 760.]
The testimony of the motorman was for the jury. They could believe all or none of it, or accept it in part or reject it in part, as they found it to be true or not сonsidered in relation to the other testimony and the facts and cir-
The review of the evidenсe we have made demonstrates, we think, that there is substantial evidence tending to show that the motorman could have timely seen the peril before he actually did see it. Therefore the giving of defendants’ Instruction E necessarily constituted prejudicial error against plaintiff which requires that the judgment of the circuit court be reversed and the cause remanded. It is so ordered. Hyde and Bradley, CC., concur.
PER CURIAM:—The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.
Division One, July 30, 1937.