156 Mo. App. 580 | Mo. Ct. App. | 1911
This case is here for the third time. There have been three verdicts and one mistrial.
The allegation of the second amended petition on which the cause was tried alleges among other matters that on the 23d day of April, 1904, and for a short time prior thereto, plaintiff with others was in the employ of defendant as a section hand, engaged in the operation of its railroad; the duties of the plaintiff and others employed with him being to assist in the building and repairing of the track and roadbed along its said line of railroad; that in the discharge of their said duties plaintiff, and those engaged with him, was required to propel and ride from place to place on the track of defendant. That plaintiff in his said employment, as well as said other employees, was under the control and direction of
And plaintiff says that the duties so owing to him and his co-employees by said railroad company and its said foreman and boss, as well as the duties of plaintiff’s co-employees towards plaintiff aforesaid, were wholly and knowingly disregarded in such careless, reckless and negligent manner, that plaintiff while so in the discharge of his duties aforesaid was injured.
The issue was tried upon the following charges of negligence, viz.: First: That plaintiff was furnished an old dilapidated hand car, which was out of repair and unsafe, aiid that on account of its condition it became derailed, whereby the plaintiff was injured.
Second: That a certain iron bar carried upon the car was so negligently placed thereon and unsecured» and that by reason of the way it was loaded and carried, and by reason of the failure of the foreman to perform his duties to the plaintiff to prevent the escape of
The plaintiff introduced evidence tending to sustain the said issues and defendant introduced evidence tending to disprove the same. With his other evidence plaintiff introduced witnesses who had been employed on the defendant’s railroad and on other roads as section hands, and proved by them that in their opinion it was not reasonably safe to carry lining bars like the one in question loose on the platform of the car, as the bars were being carried at the time of plaintiff’s injury. Their testimony was objected to because they were not shown to be experts. Plaintiff also introduced a witness over the objections of defendant who had not used the car, and stated that in his opinion the condition of the car would cause the bars to be shaken backward and forward. The witness stated that a reasonably safe way to carry such bars was to secure them to their places, behind and before the wheels of the car; that he did not consider it safe to carry them on the platform, because the jolt of the car shook them and caused them to slide from it. The witness had about one year’s experience in the business. He was asked: “What effect would it have on the car being out of repair with boxing gone from one wheel and loose at the other? A. That would have a tendency to jolt it. Q. What would prevent them from going off? A. Nothing, unless you pushed them back.”
On cross-examination plaintiff stated that he was able a short time after the accident to go out and gather wild gooseberries. He was asked by his counsel: “Did your wife and children go with you?” • Defendant’s counsel objected to the question. There was no ruling by the court. Then he was asked: “Who went with you?” Defendant objected to the question which the court sustained.
A witness by .the name of Clevinger testified, over the defendant’s objections, that he knew the car well both before and after the 23d day of April; that the defendant had bought it about three years before- and that it was an old car at that time. He said: “Ain’t much difference in the condition now and then any more than the car was an old car and hadn’t been repaired to no great extent; that the boxing was loose, but still they wasn’t as bad hardly then as they are now, ... It wabbled always on the track.” He was asked if it would ride the rail. A. “It always would. Always the right front wheel Avould climb the track if you run it with any speed.” He was permitted to state that repairs were made on the car before the time of the injury. He stated further that he saw lining- bars and other tools move on the car while it was in motion.
Another witness testified without objection that the car was in bad condition-before the injury; that he worked on this car both before and after the injury and that it was in bad condition all the time. Defendant objected to proof of its condition after the injury; Other testimony of a similar character was introduced by plaintiff 0Arer defendant’s objections. For a more particular history of the case reference is made to 114 Mo. App. 655 and 134 Mo. App. 80.
The jury returned a verdict for plaintiff in the sum of $2500. From the judgment defendant appealed.
There was much evidence that the hand car had been practically in the same condition for a long time before and after the injury. Sometimes it was better, at other times, worse, but bad at all times. Such being the case, we do not find there was any error in the admission of said testimony.
And we do not believe there was any error in admitting the testimony of the section men as to the proper manner in which to load a hand car and carry bars and other tools. It seems to us that by reason of their experience and observation they were better qualified to speak as to that matter than other persons who were unfamiliar with the business. It is said that experience teaches wisdom.
It is urged that the cause should be reversed because plaintiff’s counsel was permitted to ask him whether his wife and children went with him when he went gooseberry hunting. Although he was not permitted to answer the question, the very question itself assumed that he did have a wife and children. Being an improper question it. ought not to have been asked and causes of this kind have been reversed where it was shown to the jury that plaintiff had a wife and children. While we are bound to recognize the rule that excludes such evidence, yet the writer of this opinion has never had much respect for its soundness, but on the contrary he believes such evidence ought to be admissible on the ground that a man who has been so seriously injured as to interfere with his capacity to earn a living for his wife and children suffers as a consequence additional anguish of mind.
Appellant has again interposed the objection that the plaintiff failed to make out a case for the jury. In our former opinion we discussed that question and held that plaintiff had made out a prima facie case, and as' the evidence is as strong in plaintiff’s favor or somewhat stronger than it was formerly on which we predicated our opinion and as we can see nothing to change the view we then entertained we adhere to what was there said.