261 Mo. 97 | Mo. | 1914
Action for damages for personal injuries. Verdict for $20,000. There was a compulsory remittitur of $500, and a judgment for $15,000, from which tbe defendant bas appealed. Plaintiff’s age is not shown. He bas a wife but no children. He testified that he bad lived in Kansas City twenty-five or thirty years, and bad been in tbe service of tbe defendant about five years as a motorman. He stated that be was experienced in thát work. He was acting as a motorman on defendant’s car No. 123 at tbe time of the’alleged injury at about 9:40 p. m., June 11, 1909. His car was going east on tbe defendant’s line from Kansas City to Independence. Tbe place of tbe accident was in tbe country, about one hundred feet west from Tullis station, and three or four hundred feet east of Smalley station. It is a double track; tbe south track was used for cars bound eastward, and tbe north track for westbound cars. Those tracks
The injury was caused by a collision between plaintiff’s car and a “work-car,” sometimes called the “mogul.” That car was an ordinary box car fitted with a motor, controller and vestibules similar to those on plaintiff’s car. There were doors in. each end and also in the middle of both sides. There were windows on both sides, one near each end, but none in the end. There were five sixteen-candle incandescent lights in a row in the center of the roof inside the car. It had an arc headlight.
Two witnesses for the defendant stated that the ear extended six inches above the end door, but plaintiff testified that it was about eighteen inches above the end door. There were two lanterns lighted and sitting inside of the car on the floor. That car was in charge of Wilbur F. King, who acted as motorman, and with him were Jennings and Walters. That car had preceded plaintiff’s car on the same track. There is no evidence showing that plaintiff was aware of :ts
King testified that he could give no excuse for the absence of that red light. At the trial it was a contested question as to whether the rear door of the work car was open at the time of the accident and as to whether the lights in that car were then visible to the plaintiff. The plaintiff testified that no lights of any kind were visible on the work car or in it either before or after the- collision.
Plaintiff’s witness Diamond, a passenger on plaintiff’s car, stated that from the inside of the car he could see nothing ahead on account of darkness. Mr. Roberts, another passenger, witness for plaintiff, testified that after the accident he went out of the car and forward so that he stood by the side of plaintiff’s car near the front end and saw what appeared to be reflected lights in the work car.
Jennings, one of the crew of the work car and witness for the defendant, said that after the car stopped he was standing leaning out of the door on the north side, looking back at plaintiff’s car, which at first was about two blocks away, and said thát he supposed it would stop and not run into the work car. That when it got fifty or seventy-five feet away he hallooed, “Look out, the car is going to hit us,” and
King testified that he heard Jennings cry out, and, looking forward, saw the headlight of plaintiff’s car through the door of the work car and that the collision immediately followed.
One Sproul, a passenger, testified for the defendant, stating that he was chewing tobacco and that between Smalley and the place of the accident he twice put his head out of the window to spit and saw the light in the work car a block ahead. The evidence shows that it was raining at the time of the collision; there was water upon the windows of the vestibule. The testimony for both sides was to the effect that rain on the windows and on the glass of the headlight served to obscure the vision and light.
King testified:
“Did you have your windows open or closed in front of you? A. I had it open. I started with it closed but I afterwards dropped it.
“Q. After you dropped it did you have any difficulty in running your car on account of the rain? A. No, sir.
“Q. Why did you drop it? A. Because the heavy mist that was falling gathered on the glass.
“Q. Could you have let down one on the side. Did you have a side window that you could let down next to the front window? A. Tes, sir, they were there but they were down when I had started.
“Q. They were down to start with ? A. Tes, sir.
“Q. Now, do you know whether or not the window in the front of No. 123 could be let down the same as yours? A. Tes, sir, that could be let down.”
Mr. Ward, the conductor of plaintiff’s car, testified for defendant: “Q. When there was water on the windows so that you could not see through them what was the proper thing to do under those circum
The plaintiff did not testify as to whether he looked through the open window on the right hand side of the vestibule or through the closed window in front of him. He testified that he was looking constantly straight ahead of him, and that as he left Smalley he saw the headlight of a westbound car at Beaumont, and that such car was from one to four car lengths east of the work car when the collision occurred. The other evidence corroborated his statement as to the westbound car.
Plaintiff testified that he did not see the work car until he was within fifteen or twenty feet of it and that he then threw off the power and threw on the emergency brake, but the collision followed so quickly that his foot was caught and crushed, requiring amputation about five inches below the knee. He was seven weeks in the hospital. The leg heals at times and then breaks out again. The surgeon testified that another operation would be necessary to make the wound heal and prepare the leg for an artificial limb. He was out of employment for about a year. The week before the trial he began work as a night watchman for the city at a salary not shown. He was earning $70 or $75 a month when hurt.
The negligence of defendant and plaintiff’s injuries were alleged in the petition as follows:
“That on the eleventh day of June, 1909, at about 9:38 o’clock p. m. of said day, this plaintiff acting in his capacity as motorman as aforesaid, was running said car from Kansas City, Missouri, to Independence, Missouri.
“That at said time the defendant carelessly and negligently caused, suffered and permitted' its work car, commonly known and hereinafter designated as a mogul car, to remain on said track in front of the car which this plaintiff was operating, without having any lights or illuminations of any kind thereon to warn this plaintiff or give him notice of the danger to which he was subjected by reason of said mogul car being-on said track.
“That at said time on said day, this plaintiff was operating his car at the usual and ordinary rate of speed and when said car as operated by this plaintiff arrived at a point between Smalley avenue and Beaumont stations it collided violently with said mogul ear, as said mogul car was standing on said track as aforesaid.
• “That said collision was caused wholly by reason of the carelessness and negligence of the defendant in causing and allowing said mogul car to stand on said track at said place, without any lights or illuminations being placed on said mogul car and without warning this plaintiff in any manner of the existence of said mogul car on said track at said place.
‘ ‘ That when said car so operated by this plaintiff collided with said mogul car as aforesaid, the front vestibule of the car operated by this plaintiff was crushed and mashed in,.in such a manner that this plaintiff’s foot and limb were mashed, bruised, lacerated and injured to such an extent that it became necessary for plaintiff’s right foot and limb to be amputated at a point about four inches below the knee,
“And this plaintiff says that by reason of the premises he has been compelled to expend and become liable for doctor’s bills, for medicine, for surgeons, for hospital bills and for nurse hire in the sum of seven hundred fifty dollars, and plaintiff says that by reason of the premises he has been damaged in the sum of fifty thousand dollars.”
The answer was a general denial and a plea of contributory negligence.
During the examination of the jurors on their. voir dire, plaintiff’s counsel asked if any one of the . panel was- connected in a business way with the American Fidelity & Accident Insurance Company. To
The supplemental motion for a new trial contains the following: “Because in examining the panel of jurymen preparatory to making the challenges and selecting the twelve jurymen to try the cause, the court over the objections of the defendant permitted Mr. Brewster, attorney for thé plaintiff, to ask the jurymen on their voir dire the following question: ‘Is any gentleman on the panel an officer or connected in a business way with the American Fidelity and Accident Insurance Company?’ To which ruling of the court the defendant then and there excepted and asked that the jury be discharged, which exception, objection and motion to discharge the jury was overruled; that said case was being defended by the American Fidelity and Accident Company, being then and there represented by Mr. Chas. M. Howell, the above question was asked for the purpose of informing the jury and calling attention of the jury to the fact that the case was being defended by an accident insurance company, which would be liable to pay any judgment obtained in the case, and was prejudicial to the defendant.”
Among the instructions the court gave the following for the plaintiff:
“2P. The court instructs the jury that if you find for the plaintiff you may in assessing his damages take into consideration the nature and extent of plaintiff’s .injuries, if any, sued for in this case, and the jury may further take into consideration whether or not said injuries, if any, are of a permanent character. The jury may also take into consideration such physical pain and mental anguish, if any, as you find and believe from the evidence plaintiff will suffer in the future on account of said injuries, if any, sued for in this case, and you may assess his damages at such an amount as you find and believe from the evi
During the argument of counsel for plaintiff to the jury the following occurred:
“I ask you, gentlemen of the jury, tMs question. Suppose that instead of Mr. Kinney being the plaintiff in tMs case, the woman who was a passenger on that car was the plaintiff here; and suppose that it was shown, as it has been shown here, that there were no lights on the back end of the mogul car, and that it stopped dead on that track and that it was a rainy, dark, drizzling night, and that the car .upon which Kinney was riding ran into that car and that woman’s limb was cut off, what would your verdict be in that case? And gentlemen of the jury, let me. ask you, if that was the case here, that Judge Johnson was defending, can’t you hear — can’t you hear the defendant’s witnesses coming on the stand and saying that you could not stop one of these cars within 250 feet?
“Mr. Howell: I object to that because under the law the measure of negligence is different and therefore that argument is improper.
‘ ‘ Mr. R. R. Brewster: I say it is different, and I will tell you where it is different. They were bound to exercise, as to a passenger—
“Mr. Howell (interrupting): I object to any argument along that line. My objection is that it is different, and improper to argue it.
“Mr. R. R. Brewster: I will withdraw it, but I want to say this—
“The Court (interrupting): The objection will be sustained.
“Mr. Johnson: I ask your Honor to censure the counsel for making that Mnd of argument to the jury.
“Mr. Brewster: And I ask you to, if I am in the wrong.
“The Court: The arguments will be withdrawn from the consideration of the jury and the jury will not consider them in arriving at their verdict. . . .
“Mr. Brewster: I don’t know how you feel about it, but here is the plaintiff, who is in the employ of the defendant, their trusted employee, who went about driving this great car, in whose charge they put the lives and limbs of your fellow-citizens, and here he is injured in the performance of his duty; here he is maimed and crippled as he stood at his post, and they are not saying to Kinney, ‘You were injured through the negligence of this company and we will gladly pay you for it,’ but they are saying, ‘Come into court and fight us; fight all our combined power which we have at our command; fight our claim agents, fight our legal department, fight us through the courts and then if you can recover for your crippled leg you can have the money. ’
“Mr. Howell: I object to that, because the argument 'is offered only for the purpose of prejudicing the jury and not the argument of any • facts in this case.
“The Court. Objection overruled.
‘ ‘ To which- ruling and action of the court the defendant then and there at the time duly excepted and still excepts.
“Mr. Brewster: I am not going to let these interruptions interfere with the argument in this case, and you are not going to let them interfere with your mind in following the argument in this case. You perhaps know something of the tricks of the trade—
“Mr. Howell (interrupting): I object to that. I am making proper and legal objections here, all but one of which have been sustained by the court, and I object to the attorney arguing against my objections.
“Mr. Howell: I object to the counsel arguing . about my making objections and criticising me for making objections, calling it tricks of the trade, etc. ' If the attorney will get within the record a little while we will get along better. I want to know what the ruling of the court is on this last objection.
“Mr. Brewster: I would like to know.
“Mr. A. W. Brewster: I would like to know what the objection is?
“The Court: The objection is overruled. I will ask you to be very careful to keep within the record.
“To which ruling and action of the court the defendant then and there at the time duly excepted and still excepts.
“Mr. R. R. Brewster: I will say there were two objections that at least were wrong or the court would not have overruled them, and I will say that I wouldn’t let them interfere—
“Mr. Howell (interrupting): I object to him arguing- about the rulings on objections either way, whether sustained or overruled. It is not a matter of argument to the jury, that is my point.
“The Court: Don’t argue any further about objections.”
I. Appellant has briefed this case on the theory that it was the duty of plaintiff to run his car slow enough so that it would be possible for him to see any obstruction on the track in time to stop before striking it, I.*****07 even though such obstruction had no light or danger signal on it. We leave that question undecided for the reason that the fact is conceded that there was the ordinary arc headlight on plaintiff’s
II. It was not error to admit evidence of the rule and custom of defendant to keep a re¿ light as a danger signal on the rear en<^ Cars a^ though Such rule and custom were not pleaded. Thompson on Negligence, vol. 1, sec. 420', holds that evidence as to a custom is admitted on the question of ordinary care. It was said by this court in Bailey v. Kansas City, 189 Mo. l. c. 514: “If a cause of action is based directly on a violation of a duty imposed alone by a municipal ordinance, the pleading should set forth the specific ordinance in hand, because' courts will not take judicial notice of its existence. [City of Tarkio v. Loyd, 179 Mo. l. c. 605; Inhabitants of Butler v. Robinson, 75 Mo. 192.] But if an ordinance of a city is used as a mere matter of evidence, no good reason is perceived why it should be pleaded; for to plead evidential facts is bad, and, on principle, the rule applies to ordinances. [Robertson v. Railroad, 84 Mo. l. c. 121; Danker v. Goodwin Mfg. Co., 102 Mo. App. l. c. 731.] Now, the case under the fourth amended petition is not based on the violation of a municipal ordinance, but is based on the violation of a duty imposed by general law. Therefore the objection in the form made was properly overruled.”
The petition charges common-law negligence. The existence of the custom was merely an evidentiary fact tending to show lack of ordinary care on the part of defendant. It was not necessary to plead such evidentiary fact.
III. Complaint is made of the action of plaintiff’s counsel in asking the jurors on their voir dire whether they were connected in a business way with the American Fidelity & Casualty Insurance Company. Mr. Howell, the attorney for the company, was in court ostensibly as counsel for the defendant, making a defense- which was really in behalf of his company which was not a party to the suit on the record. It is claimed that it was an injustice to the accident insurance company to call the attention of the jury to the fact that it was making a defense and was liable to pay any judgment that might be rendered in the , case. It was held in Meyer v. Mfg. Co., 67 Mo. App. 389, that such an inquiry was proper.
IV. Exception is taken to the conduct of the plaintiff’s counsel in his argument to the jury. We' have carefully gone through the record in order to assemble all the facts bear-mg on that question, m order that ft may comprehensively decided. The employees of defendant fully supported the plaintiff as to the facts of defendant’s negligence. They testified that the rules and custom of the defendant required a red light as a danger signal on the rear end of all cars at night. They testified as to the absence of such danger signal. The one in charge of the work car testified that he could give no excuse for its absence. These employees testified that it was raining, and that rain on the window glass obscured the vision. Only one witness for defendant was criticised by plaintiff’s counsel, or subject to criticism That was Sproul, who was not an employee of defendant. His evidence as to seeing a light in the work car as he looked ahead about a block was to some extent corroborated by Roberts, plaintiff’s witness, who testified that after the accident, standing behind the
This court has repeatedly refused to sanction a judgment for more than $10,000 for the loss of a leg. [Farrar v. Railroad, 249 Mo. 210; Brady v. Railroad, 206 Mo. 509; Newcomb v. Railroad, 182 Mo. 701.] In the latter case $762 was allowed for the surgeon’s bill in addition to-the $10,000. We are not now holding that in no case could a judgment for more than $10,000 for the loss of a leg be upheld. In this case the plaintiff’s petition asks for $50,000. The plaintiff’s instruction to the jury was to assess the damages in accordance sñth that instruction at nol exceeding $50,000.
In Lessenden v. Railroad, 238 Mo. l. c. 265, Valliant, C. J., speaking of the Partello case, 217 Mo. 645, in which there was an instruction authorizing the recovery of not exceeding $50,000, said: “Yet the trial judge gave that instruction after he had heard the evidence in the case. He doubtless labored under the erroneous impression that it would have been error to have refused it. But whilst the long practice authorizes the giving of such an instruction, and therefore it is not reversible error to do so when counsel ask it, yet when the jury return their verdict and the question of excessive damages arises, the probable effect of the instruction with its particular wording will be taken into account.”
In Applegate v. Railroad, 252 Mo. l. c. 202, it was ■ said: “That form of instruction, whilst it has been held not reversible error, has been criticised as a judicial hint that the court would approve a verdict in the sum mentioned in the petition.”
With the petition calling for $50,000, and with an instruction authorizing it, in spite of the lower stand
The conduct of counsel for the plaintiff in this case was most reprehensible. What can be said in defense of a lawyer who causes a party to be summoned into court and then proceeds to treat him as if he had no rights which a court of justice is bound to respect? After the worst is said' about the defendant, it still remains a fact that its conduct in the preparation and trial of this cause was a model of propriety and fairness as compared with the methods of plaintiff’s counsel. It is our duty, however, not to be swept away by our indignation at such conduct. We believe that, under the evidence in this cause, a verdict for the plaintiff would have resulted-in any event. Such being the case, the conduct of plaintiff’s counsel is not reversible error, as it would have been in a close case. This court has hitherto refused to affirm judgments for damages for more than $10,000 for the loss of a leg. [Farrar v. Railroad, 249 Mo. l. c. 227; Brady v. Railroad, 206 Mo. l. c. 540; Newcomb v. Railroad, 182 Mo. l. c. 727.] We do not hold that in no case should the judgment exceed that amount; but we do hold that a verdict following such misconduct of counsel for plaintiff will not be allowed to stand for more than that amount. If the plaintiff
PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.