172 Mo. App. 318 | Mo. Ct. App. | 1913
Lead Opinion
Suit to recover damages for injuries received on defendant’s tracks “where or near where Gillis street is crossed by First street” in Kansas City, Missouri. At the point in question defendant has four tracks running east and west, two main tracks in the center and an outer switch track on each side of the main tracks. These are parallel to and about one hundred and fifty rods south of the Missouri river. Gillis street extends from the river bank south across defendant’s tracks and on into the city. The city dump was on the river bank at the foot of Gillis street, and a building belonging to the gas company was located north of the railroad tracks and close to Gillis street and also a tar roofing plant. * A fence had been built across Gillis street about eight feet north of and parallel to the north track, but a gate was in this fence through which went a wagon road. Gillis street was not paved, and had no sidewalks; nor were there any residences north of the track in that vicinity. On the tracks in Gillis street was a crossing made of planks about twelve feet, or possibly more, in length; and the usual sign stood there which read “Railroad crossing. Lookout for the cars.” This crossing was used mostly by persons going to the dump at the foot'
The evening in question was dry and clear. Plaintiff claims that he was walking south on Grillis street and started across defendant’s tracks when an eastbound freight train on the south main track was passing and impeded his progress. The engine and one or two cars had passed Grillis street when plaintiff reached the track. He looked east and west to see if any train was approaching on the north main track and, seeing none, he stepped upon the north main track waiting for the freight train to pass and let him continue on his way. Before it got by, however, one of defendant’s switch engines backed up from the east over the north track pushing behind it a train of cars, the front or west one of which struck plaintiff. He testified that he was not aware of his peril until just as the car was on the point of striking him; that being unable to get out of the way he caught hold of the car (which was going four or five miles an hour) to save himself, and was dragged about fifty feet when his right foot caught in some way and his leg was run over and mangled just above the ankle and again crushed several inches above that, all of which necessitated amputation. His arm, shoulder and side were also bruised.
There was no headlight on the rear of the train as it backed west on this occasion, except that the switch foreman was on the north side of the rear car (which was a Union Tank Line oil car), and had in his hand an ordinary railroad lantern. No signal whatever was given of the movement of the train as it approached Grillis street. This switch foreman on the rear car testified that he did not see plaintiff and did
The ease went to the jury, under the second count of the petition, on the humanitarian theory, and the jury were told, by proper instructions, that, if defendant’s agents had reason to expect people at said time and place and either saw or could have seen the plaintiff in peril and failed to exercise ordinary care to avoid striking him, then defendant was guilty of negligence and plaintiff was entitled to recover. The defense in its instructions submitted two theories, first, that plaintiff was not standing on the track when struck, but was endeavoring to climb on one of defendant’s cars at its side in order to ride up town, and fell with his foot under the wheel, and, if so, he could not recover; second, that he was struck and injured at a point west of Grillis street (which would be at a place other than the crossing) and, if so, he could not recover.
The jury found for plaintiff and returned a verdict for $10,000, and judgment for that amount was rendered. In due time defendant filed a motion for new trial. Plaintiff thereupon entered a written remittitur of $2500 and all interest to date of remittitur and the court set aside the $10,000 judgment and, acting on the remittitur, rendered judgment for $7500 to bear interest from the date of the last judgment. The court then took up the motion for new trial and after a hearing thereon entered an order sustaining the same “for the reason that the verdict is against the evidence as to the plaintiff being at the time of his injury at the place where and when it was the duty of defendant’s servants and agents to be on the lookout for him.” Prom this order granting defendant a new trial, plaintiff appealed.
The trouble in reaching a satisfactory determination of this case on appeal grows out of the apparent difficulty in knowing precisely what the learned trial judge meant in the reason given for granting a new trial. Among the points raised by the defense, in addition to those hereinabove mentioned, was the contention that there was no public crossing at Griilis street, that the street having been fenced up immediately north of the track and, being within defendant’s switch yards, and there being no user of the track at this point except in daytime, and the accident happening at night, the defendant was under no duty to be on the lookout for any one at that time and place. So that, when the trial judge gave the reason above shown as his ground for setting the verdict and judgment aside, it was possibly open to two interpretations, i. e., either that the verdict was against the evidence as to the point in Griilis street being a public crossing such as required defendant to keep a lookout when passing over it at night, or that the verdict was against the weight of the evidence as to plaintiff being on the crossing at the time he was struck. If the trial judge meant the former, then his action was erroneous, since the evidence clearly and indisputably showed that the alleged point in Griilis street was a public crossing. The fact that its greatest use was in the daytime by persons hauling dirt and going to and from the gas and roofing plants, and that it was seldom used at night, did not prevent it from being a public crossing. It was in a public street, where people had a right to go; there was in fact, a crossing made of boards in the center of the street to enable persons and vehicles to pass over the rough ties and rails of the railway, and this was recognized by the railroad as a crossing by
What then was the trial court’s meaning1? He said the new trial is granted for the reason that “the verdict is against the evidence as to plaintiff being at the place where and when it was the duty of defendant’s servants and agents to be on the lookout for him.’-’ Now, the only place where defendant had a duty to be on the lookout for him was the crossing. Hence, if the court thought the weight of the evidence showed that the plaintiff was not at this place, then this means that, in the opinion of the court, the plaintiff was not at the crossing. And this is strengthened when it is observed that the court uses the definite article “the” instead of the indefinite article “a.” If the court had said the plaintiff was not at a place where the defendant must look out for him, it could be urged with reason that the court meant that the place where he said he was, was not a place where the defendant had to -watch for him. But when the court
Appellant contends that, as defendant offered no testimony, there is no evidence whatever to show or tend to show that plaintiff was not at the crossing when struck, and therefore, the action of the - trial court in awarding a new trial, on the theory that he Avas elsewhere, was an abuse of discretion and is reAdewable, citing Burk v. M. K. & T. Ry. Co., 144 S. W. 1123, 1. c. 1125; Hopkins v. City of Springfield, 147 S. W. 1099,1. c. 1100.
But, even if no testimony was offered by defendant, if the facts shown are sufficient to cast doubt on plaintiff’s story, or if there are enough inconsistencies in the testimony to raise a question as to plaintiff’s being at the crossing, and the trial court is of the opinion that the weight of the evidence is against his being there when struck, this is sufficient to justify the court’s discretion in granting a new trial. Especially is this true in this case since it is only plaintiff’s unsupported word that tells how the injury occurred and that it took place on the crossing; and the trial court, having seen him and heard him testify, is in far better position to judge of the weight of his testimony than an appellate court. If, therefore, there is anything in the facts or testimony tending to throw doubt on plaintiff’s statement that he was at the crossing, then the opinion of the trial court should be deferred to. Plaintiff testified that he was a stranger in Kansas City; that he had that day come from Leavenworth, and, in a restaurant on Fifth street, a man whom he did not knoAV told him he could find work down on the river; that he went doAvn Fifth street to
“Q. Where did you get on to Grillis street? A. I struck Grillis street there at the railroad track.
“Q. And when you got on to Grillis street, which direction did you go? A. When I got on Grillis street I walked down the wagon track and then a little west ■ — southwest.
“Q. Now you may turn around and tell these gentlemen here of the jury just exactly how this accident happened to you, Mr. McWilliams, after you got up there to Grillis street and saw the railroad track? A. Well, I came up to Grillis street here, I came down on the siding there, and when I came down on the siding I see this train going east, and then I looked down east to the switch and I could see the switch where it goes into the main west line. So I walked up on the main west line, northwest a few feet and I was standing looking at this train going east. It was pulled over the track, over Grillis street, all except three or four cars, and all at once I heard something and looked up and I saw something round, and just as I saw that, why, I jumped and when I jumped it struck me — struck me on the left side, my shoulder and left arm; and I grabbed hold of something and was dragged over back here — I saw a man standing up on this, whatever it was — an oil tank or engine or tender; and as it dragged me on back here a light shone upon this man and I saw the man. And as it dragged me on, I got loose from the train some way and I dragged myself several feet away from the track — directly there was a man came to me, a couple of men and when I saw what*330 was the matter with me, the next thing I knew I was in the City Hospital.”
It will be noticed that he says he struck Gillis street at the railroad track, which of course was at the crossing, and that he walked down the wagon track and then a little west or southwest which would put him west of the crossing. He then, in describing how it happened, says he walked up on the main west line a few feet northwest and was standing looking at the train going east when he was struck. So that by his own admission he went a few feet west or southwest of the crossing and walked northwest before being struck. To say the least, this makes it vague as to the exact point at which he was standing when struck.
He also says that after being struck he was dragged about. fifty feet and then Ms right ankle was run over and mangled and that he dragged himself several feet away from the track and crawled back not very far from where he got hurt. Gaffey, the switch foreman, whom plaintiff put on the stand, testified that he found Mm lying on the ground between one hundred and one hundred and fifty feet west of the west side of Gillis street. Gaffey also testified that he asked plaintiff, when he found Mm, what he was doing there, and plaintiff replied he was up on the bank attending to a call of nature. Gaffey then asked Mm, “How the hell did you get down here and get cut up this way?” And plaintiff replied he really didn’t know. Gaffey swore that, on the tank cars, there was a running board clear around the car projecting out over everything else, so that, if a person was on the track, tMs running board would be the first thing to hit him, and, as it is about five feet from the ground, would hit him in the head. Gaffey also testified plaintiff’s clothes were not torn as if he had been dragged. Gaffey also testified that, as the cars came west over the -crossing, he was on the west end of the car next to the crossing, had Ms lantern and was keeping a lookout,
In our opinion, the admission of plaintiff that he went a little west or southwest after reaching the crossing and then walked northwest (which if true put him away from the crossing) his statement that he was dragged fifty feet from where he was struck coupled with the fact that he was found much further than fifty feet west of the crossing, and, according to the foreman, gave as his reason for being down in there that he was attending to a call of nature, and could not tell him how the injury happened together with the improbability of a man standing between the tracks and being struck by the end of a car and escaping with only his right foot cut off instead of being hopelessly mangled, is enough to show that the evidence as to his being struck at the crossing is not all one way, and this is sufficient to prevent us from interfering with the judgment of the trial court who says the verdict is against the weight of the evidence on that point. For it is the rule that, even though the appellate court may consider the evidence in a case strongly in favor of one party, yet, if the court below, has set aside a verdict in favor of that party because it was against the weight of the evidence, and there is some evidence on which to base that conclusion, the appellate court will not disturb the trial court’s action. [Herndon v. Lewis, 175 Mo. 116, l. c. 125; Ottomeyer v. Pritchett, 178 Mo. 160, l. c. 165; Warner v. Railroad, 178 Mo. 125, 1. c. 129; Haven v. Missouri Railroad Co., 155 Mo. 216.]
It is next urged that defendant cannot be heard to say that plaintiff was not on the crossing when struck because that fact was admitted in the answer, and because, in defendant’s brief on the original hearing in this court, the case is argued from the standpoint
It is true, that, in the brief filed by defendant on the original hearing of this- cause in this court, greater stress was laid upon the point that the crossing was not such as required the defendant to maintain a lookout for it at night, and in- presenting this point one or two statements are made which seem to admit that plaintiff was struck on the crossing. But we think this is rather an admission for argument’s sake only, that is, in arguing the point that by reason of nonuse the crossing did not in fact require a lookout, and in presenting this point, defendant treated plaintiff’s claim of being struck at the crossing as true for the time being.
Viewing the case as we do, we do not feel justified in interfering with the exercise of the trial court’s discretion in granting- a new trial. Especially do we feel thus when to set aside the court’s order and reinstate the verdict is to do. so solely upon the ground that, as a matter of law, we have decided the alleged place of injury is a public crossing. This would entitle plaintiff to a verdict of $7500 notwithstanding the fact that the court, believing plaintiff was away from the crossing and in the dark, thought the weight of the evidence was against the facts entitling him to a verdict. The judge before whom the case was tried was better qualified than we are to say whether the verdict should stand. He has a discretion - to grant one new trial and the appellate court will not interfere with the exercise of that discretion where there is substantial evidence to suirport the trial court’s view.
Concurrence Opinion
concur, hut in doing so, say that, in view of the fact that the trial court submitted the case to the jury and then sustained a motion for a new trial, it should be understood that we have passed only on the propriety of the order granting a new trial; and that it must not he necessarily inferred from this that the trial court’s action, in submitting the case to the jury in the first instance, is approved.