Rigley v. PryorRigley v. Pryor
2. ——: Collision With Hand-car: Fog: Sufficient Evidence. The morning was very foggy, and the six section men on the hand-car could see only twenty or thirty feet ahead; they had proceeded a mile or so when a train, coming from the opposite direction, ran upon the hand-car, knocked it off the track, killed five of the men and injured plaintiff; it was necessary for section men to pass along the track in foggy weather on a hand-car, and such cars were to be expected by the trainmen; it was the usual practice for trains passing through such fogs to sound the bell continuously, blow the whistle frequently and run ten or twelve miles an hour; the train was run at a speed of twenty-five miles; plaintiff testified that he and the crew were listening and looking for trains, and that he could hear the whistle a half mile when it was sounded and had heard it that distance; that he did not hear either the whistle or the bell; the engineer, fireman, conductor and brakemen testified that the bell was rung continuously and the whistle sounded at intervals, but none of them was definite as to just when or how often the whistle was sounded, and the engineer testified that as near as he could recall he sounded the whistle twice in
3. ——: ——: ——: Not Hearing Whistle or Bell: Negative Testimony. Where the morning was foggy, hand-cars on the track were to be expected, it was the usual practice of trainmen at such times to run the train slowly and continuously ring the bell and sound the whistle at frequent intervals, and six men on the hand-car were directly and intensely interested in hearing the whistle and bell, their lives depending on their hearing, the testimony of one of them that he could have heard the whistle a half mile and that he listened and did not hear either the bell or whistle is not ordinary negative evidence, like that of an inattentive witness who is not interested in noticing whether a certain signal is given, but is positive evidence that the bell was not rung or the whistle sounded, and its truth is for the jury to decide.
4. ——: ——: ——: Excessive Speed: Proximate Cause. Where the morning was very foggy, hand-cars on the track were to be expected men on the hand-car could see only twenty or thirty feet ahead, it was the usual practice of trainmen at such times to run the train ten or twelve miles an hour and to continuously ring the bell and sound the whistle at frequent intervals and there is positive testimony that neither was done, the train was being run at a speed of twenty-five miles an hour, and it is inferable from the facts that if the train had been run at the customary speed the hand-car would have reached its destination and been off the track before the train arrived, the inference that the excessive speed was the proximate cause of the collision is justified by the facts; and it is pure assumption that a train running at half the speed would have caused the same injury, for if the train had been running at half the speed the men on the hand-car would have had double time to jump for their lives, and the force of the collision would necessarily have been less.
5. ——: Frequent Bell and Whistle: Instruction. An instruction telling the jury that it was defendant‘s duty “frequently and at short intervals to sound the bell and whistle,” and which also told them that the whistle should have been sounded “as a warning of the approach of said train to those on said hand-car,” was not erroneous for failure to define the word “frequently.”
6. ——: Damages: Contributory Negligence: Assumption of Fact. An instruction on the measure of damages which does not authorize a
7. EVIDENCE: Opinion on Former Appeal. The opinion of the Court of Appeals on the former appeal, reversing the judgment and remanding the case for a new trial, is pure hearsay, and not competent evidence on any theory.
8. INSTRUCTION: Measure of Damages: Loss of Earning Power: Present Cash Value. A loss of earnings is a totally different thing from loss of earning power; and an instruction which tells the jury that they may award as damages “the present cash value of such sum” as they shall find and believe from the evidence will fairly and reasonably compensate plaintiff for his past and future physical and mental pain, his medical expense, and “his pecuniary loss resulting directly from any impairment of his earning power,” does not authorize them to estimate his loss of earnings at the time of the accident by the present standard of earnings when wages are much higher, but directs them to base their estimate upon his present disability, whether permanent or curable; and if the instruction is somewhat vague in directing the jury how to make the estimate for present and future suffering, defendant cannot complain unless it offers an instruction on the subject.
9. EXCESSIVE VERDICT: $12,500: Compelled Remittitur. The plaintiff, fifty-three years of age, traveling with a section crew on a hand-car, when it was struck by defendant‘s train was thrown down an embankment and lodged against a tree; the physician who examined him found a hernia in the region of the stomach and also an inguinal hernia and a lump on the right side of the spine near the kidney; there was blood in his urine, and he was treated for several months; at the time of the trial, five years later, he was nearly cured, and no visible evidence of the inguinal hernia, but some difference of “impulse” was observed on the right side; owing to disuse of the muscles on the left side they had become somewhat atrophied and weak, and there was a nervous condition, made manifest by a profuse unnatural perspiration; it is difficult to believe the injuries are permanent, although painful; he was not allowed to recover anything for loss of earnings, and the pain and suffering he endured and will endure and the impairment of his earning power were all that the jury considered, except his medical expense of $200, Held, that a verdict for $12,500 was excessive, and a remittitur of five thousand is required as a condition of affirmance.
Held, by Walker, J., dissenting, that the custom arbitrarily exercised by appellate courts in reducing the amount of verdicts is to be deprecated, and if a verdict is out of all proportion as a compensation for the injury inflicted, ample opportunity is afforded for an intelligent reduction in the trial court, and if this is not done the appellate court should hesitate to interfere, unless the amount of the verdict is glaringly excessive, in which event the judgment should be reversed and the cause remanded for a new trial.
The plaintiff introduced evidence to show that it was usual for heavy fogs to hang over the track along the river at that point at that time of the year; and that it was the custom for trains passing through the fog at such times to sound the bell continuously, blow the whistle at frequent intervals and run slowly. Running slowly meant ten or twelve miles an hour. Across the river from Kansas City, and about five miles west of Randolph, is what is termed Block 223, whence signals were sent to Randolph indicating trains in the block. While the crew was waiting at Randolph a train was in the block, and they waited until it passed eastward before starting. There were two parallel tracks used by the Burlington, the Rock Island, and the Wabash Railroad companies. The trains on those tracks used the north track going west, and the south track going east; the hand-car was on the south track when met by the train going east. Shortly before the collision a train on the north track going west passed the hand-car.
The plaintiff testified that as they proceeded he and the crew were listening for trains, and heard no bell and no whistle from the train which ran them down. He testified that he could have heard the whistle half a mile and had heard it that distance; that he was listening and was in a position to hear the bell and the whistle. Other evidence was offered by the plaintiff to show that crews on hand-cars going through the fog always listened and watched for trains that might cause them trouble.
The train was running at the rate of about twenty-five miles an hour. The defendant introduced evidence to show that the whistle was blown at intervals of about two or three minutes, and once or twice after the train had passed the Milwaukee bridge, which was about a mile and a quarter west of the place of collision, and that the bell was rung continuously.
On that evidence the jury returned a verdict, judgment was rendered as stated, and the defendant appealed. On a former trial a verdict was returned for $4500, and
I. The appellant asserts that the judgment should be reversed because the plaintiff changed his testimony from what it was at the first trial. On appeal from the first trial (Rigley v. Wabash Ry. Co., 204 S. W. 737), the Kansas City Court of Appeals held that the plaintiff could not recover on two grounds: First, because there was nothing to show that the plaintiff belonged to the crew of that car or why he was on it; he appeared merely to have been there with no suggestion that he was ordered there; his duties as an employee of the railroad company were those of track-walker, and therefore he was not in the line of his duty at the time of his injury. Second, he could not recover because being a track-walker it was his duty to look out for trains.
In his testimony at the last trial the plaintiff said he had been at work for the company for twelve or fourteen years; on the morning of the injury he was engaged at track work—was working on that section repairing the track; that his business consisted of walking the track, but on the morning of the injury he was working as track repairer—a section man; that a track-walker walks the tracks, and he never walks the track on a hand car; he had worked on that particular section for six or seven years, and besides being track-walker he did section work; section work consisted in going out on the track with a gang, laying rails, or doing anything to keep the track up. He further testified that on the morning of the injury he with the crew was going to repair the track near the Milwaukee bridge, and he knew beforehand what was to be done there. The evidence showed that before starting from Randolph the foreman went into the station and talked to the station agent, and that it was customary for the foreman in such case to ascertain about the trains. The plaintiff himself was not permitted to testify as to any orders given him by the foreman, because the fore
The point made by appellant is that the plaintiff changed his testimony from the first trial where he testified that he was a track-walker. On cross-examination at the first trial Rigley, in answer to leading questions of defendant‘s counsel, testified that his business was to walk along the track and see that the track was in good condition, and that was all he did; that he walked up and down the track and looked at the rails and bolts and everything, to see that it was in repair and if it was not in repair he reported it to someone else, it was not his duty to repair it.
In re-direct examination the plaintiff showed he had also testified on the former trial that it was a part of his duty to go down on that hand-car that morning and that he was on duty at that time.
It is claimed that his present testimony so changes what he swore then that he ought not to recover.
This court has held that if a plaintiff on a second trial, without a reasonable explanation, changes his testimony from that given at the first trial as to facts ma
The evidence at the present trial sufficiently shows that while he was a track-walker he had the additional duty to assist in repairing the track; that he did section work also as a part of his regular work. This was shown by witnesses other than the plaintiff. No attempt was made by defendant to show that it was not true, and defendant must have known whether plaintiff‘s duties included section work or not. The question at issue was whether he was in the line of his duty at the time he was injured. The evidence showed without contradiction that he was.
If on the former trial the plaintiff was induced by the skillful cross-examination of defendant‘s attorney to make statements contrary to the facts, he should not be nonsuited for telling the truth about the matter now.
II. Appellant claims the demurrer should have been sustained because there was no proof of actionable negligence on the part of the defendant. The evidence showed without contradiction that there was a heavy fog the morning of the accident, and that such fogs were of frequent occurrence along the river at that point; that it was necessary for section men to pass along the track in foggy weather in a hand-car and that hand-cars were to be expected upon the track; that it was the custom for trains running through such fogs to run slowly, ten or twelve miles an hour, sound a whistle at frequent intervals, and ring the bell continuously. The defendant objected to the word
The appellant now says there is no substantial evidence to show negligence in failing to observe the custom or practice. It is also argued that the noise of the hand-car would prevent to some extent those on it from hearing the bell or whistle, and that the train which passed on the other track immediately before the collision probably made such a noise as to drown the sound of the bell and whistle. The plaintiff testified that he could hear the whistle half a mile when it sounded. He said he and the crew were propelling the hand-car and listening and looking for trains. He did not hear either the whistle or the bell. Appellant introduced witnesses, including the engineer, fireman, conductor and brakeman, to testify that the whistle was sounded and the bell rung. Some of them testified that the bell was rung continuously and that the whistle was sounded at intervals. None of them were very definite as to just when or how often the whistle was sounded. The engineer said he sounded the whistle at intervals of two or three minutes. He was running twenty-five miles an hour. As nearly as he could “recall” he sounded the whistle twice after he crossed the Milwaukee bridge, which was a mile and a quarter from the place of collision. There is no positive evidence on the part of the defendant that the whistle was sounded at all within a half mile of the place of collision. The testimony of the plaintiff is positive that it was not sounded. This is not ordinary negative evidence, such as given by an inattentive witness who is not interested in noticing whether a certain signal is given,—such testimony as is frequently given in railroad cases where a bystander testifies he didn‘t hear a whistle, or a bell. [Dutcher v. Railroad, 241 Mo. l. c. 169.] Here were six men on a hand-car, every one of them directly and intensely inter
Another act of negligence alleged was the excessive speed. The appellant claims the speed of twenty-five miles an hour was not the proximate cause of the collision, because it is not shown that it could have been avoided if the train had been running at a lower rate of speed. It is pure assumption to say that a train running at half the speed would have caused the same injury, or one like it. If the train had been running at half the speed from the time it crossed the river, the hand-car would have been to its destination and off the track. If not, the men on the hand-car would have had double the time in which to jump for their lives after they saw the train appearing in the fog; the force of the collision, if there had been one, would necessarily have been much less. It was a question for the jury as to whether an excessive rate of speed was the cause of the injury.
It is possible that the noise of the hand-car and the confusion of sounds caused by the train which had just passed may have prevented those on the hand-car from hearing the bell, or, if they heard it, from locating its direction; but all that was for the jury to consider in determining whether proper care was exercised.
III. The appellant assigns error to the giving of Instruction A, the principal instruction given on behalf of the plaintiff, which told the jury it was the duty of the defendant “to frequently and at short intervals to sound the bell and whistle on said train.”
The objection is that the instruction did not define the word “frequently” nor tell the jury what was meant by it. The instruction did tell the jury that the whistle should be sounded “as a warning of the approach of said train to those on said hand-car.” It is apparent that the whistle should be sounded frequently enough to serve that purpose. It was for the jury to say whether or not that was done. If the instruction had told the jury that frequently meant every hundred yards, or every quarter of a mile, or anything of that kind, defendant‘s counsel would have been urging more valid objection to the instruction.
IV. In an instruction on the measure of damages the jury were told that if they found the plaintiff failed to exercise ordinary care for his own safety, then the damages, if any were awarded, should be diminished accordingly. Then a further instruction, D, given for the plaintiff, defined contributory negligence as a failure on the part of the plaintiff to exercise ordinary care, any negligent act or omission of plaintiff which concurred with the negligence, if any, of defendants, in causing the injury, and then continued: “You are further instructed, however, that if you should find from the evidence that plaintiff was guilty of contributory negligence, yet the Act of Congress under which this suit is brought, provides and you are instructed, that contributory negligence, unless the sole cause of the injury, does not defeat a recovery altogether, but the damages, if any awarded, shall be diminished by the jury in the proportion which the contributory negligence, if any, of plaintiff bears to the combined negligence, if any, of both plaintiff and defendants, and your finding shall be in accordance herewith.”
The appellant asserts that the use of the words “contributory negligence” assumes that appellants were negligent and eliminates at once the idea that plaintiff‘s negligence could be the sole cause of the accident. The
V. The defendant offered in evidence the opinion of the Kansas City Court of Appeals, as the same is reported, rendered when the case was before that court on appeal from the former trial. In that opinion the Court of Appeals in its analysis of the facts finds that the plaintiff was a track-walker and was not in the discharge of his duty at the time he was injured. Appellant has offered no authority nor any reason why this evidence should be admitted. It is not only pure hearsay, but a conclusion from the facts and not competent evidence on any theory.
VI. The appellant complains of the instruction given for plaintiff on the measure of damages. This instruction, after telling the jury they should take into account the nature of the injuries, bodily pain and mental anguish, if any, suffered by the plaintiff, and such as the jury should find the plaintiff has suffered and would suffer in the future, his medical expenses, not exceeding $200, “impairment of his ability, if any, to work and earn money resulting directly from such injuries,” then directed them to award plaintiff, “the present cash value of such sum in damages as the jury shall find and believe from the evidence will fairly and reasonably compensate him for
The objection to that instruction is the use of the expression “present cash value.” Appellants argue that it allows the jury to estimate plaintiff‘s loss of earnings in 1914 by the present standard of earnings when wages are much higher. An analysis of the instruction shows that the award of damages authorized were on account of (a) physical and mental pain, past and future; (b) medical expenses; (c) impairment of earning power. The jury were not authorized to give plaintiff damages for loss of “earnings,” a totally different thing from loss of earning power.
In awarding damages for impairment of ability to earn money, the jury necessarily must base their estimate upon the present disability, whether it is permanent or curable. They must estimate the probable duration of it, just as in a death claim they estimate the expectancy of life of the person killed, and the pecuniary loss to the widow or children. They must give a lump sum as their measure of the present value of the loss. [8 R. C. L. p. 479; Morton v. S. W. Tel. & Tel. Co., 280 Mo. 360, 217 S. W. 835; Hurlburt v. Bush, 224 S. W. l. c. 327; McWhirt v. C. & A. R. R. Co., 187 S. W. 830, l. c. 836.] It was the rule applied by this court in the case of Greenwell v. C. M. & St. P. Ry. Co., 224 S. W. 404, l. c. 410. The loss of earning power was estimated and compensation allowed at the present value of such compensation.
Should a different rule be applied in estimating compensation for pain and suffering, when it is continuing? If the suffering were wholly in the past it might be well to direct the jury to consider only compensation reasonable at the time the suffering was incurred. But when the estimate must include suffering past, present and future, covering a long period of time before the trial—
If the instruction is somewhat vague in directing how to make the estimate, the appellant cannot complain because it offered no instruction on the subject. [Hurlburt v. Bush, 224 S. W. l. c. 327; Powell v. Railroad, 255 Mo. l. c. 454; Breen v. United Rys. Co., 204 S. W. l. c. 523.]
VII. It is claimed that the verdict is excessive. The evidence shows the plaintiff was fifty-three years old at the time of the trial. He was not allowed to recover anything for loss of earnings. The pain and suffering which he incurred and the impairment of earning capacity was all that could be considered by the jury, except his medical expenses of $200. The evidence showed that he was thrown down an embankment and lodged against a tree. The physician who examined him found a hernia in the region of the stomach and also an inguinal hernia and a discolored lump on the right side of the spine in the region of the kidney. There was blood in the plaintiff‘s urine afterwards. He was treated for several months. At the time of the trial he was nearly cured; there was no evidence visible of the inguinal hernia. The physician, however, stated that he had observed some difference in “impulse,”
PER CURIAM:—The foregoing opinion by White, C., is adopted as the opinion of the court. All of the judges concur, except Walker, J., who concurs in opinion filed.
WALKER, J. (concurring).—I concur in this opinion, except as to the affirmance conditional upon the entry of a remittitur in the amount of the verdict. I deprecate the custom arbitrarily, as I construe it, exercised by appellate courts, in reducing the amount of verdicts. The triers of the fact are much better qualified to pass fairly upon this question than a judge sitting smugly in his chambers with nothing to direct his judgment or influence his conclusion, except the cold record. If this verdict shocked the moral sense, in that it was out of all proportion as a compensation for the injuries inflicted, ample