Plaintiff recovered a judgment of $20,-000 in this suit for personal injuries. An appeal was taken by defendant in due course. No point is made here on the sufficiency of the evidence for submission to the jury. We shall not digest the pleadings, as no point made here concerns them.
Defendant, in the operation of its railroad and for the convenience of shippers and receivers of heavy materials, оwned and maintained a “gantry crane” in its yards at Compton and Spruce Avenues in St. Louis. This device consisted of a steel superstructure which spanned two switch tracks and the adjacent driveways on each side of those tracks. Underneath the horizontal beams of the structure there was a trolley; to this a lift mechanism was attached. A hook was suspended from the lift mechanism and this could be raised and lowered. All movements were operated by electric power, and indeed the whole crane could be moved back and forth on its own short track. The control center was located in a box fixed at or near one corner of the crane; this box contained buttons which, when pressed, would move the trolley east or west across the switch tracks, lower or raise the lift, or move the whole crane along its tracks. When the crane was needed by a trucking company, its employees obtained the key from defendant’s yard clerk; the operation was handled entirely by the employees of the trucker involved in unloading the shipment.
Liability here is predicated upon a supposedly defective condition of the crane *33 and the fact that defendant knew or should have known оf it. Specifically, the control box and certain of its operating parts were claimed to be defective, Plaintiff was an employee of P. J. Hamil Transfer Company, which had for some years hauled heavy pipes from this location, using the crane. Plaintiff had been employed by Hamil since 1952 as a truck driver; his injury occurred on March 28, 1957. He had worked around this crane perhaps a dozen times. On the occasion in question he was there with four other Hamil employees, Jack Taylor, John Wallace, Woody Good and John Simms. Taylor and plaintiff were in the railroad gondola car (often referred to as a coal car), Wallace was on the ground operating the controls, and Good, who had come there late, was standing on the ground by the car, as was Simms also. The car, with sides 4 — 5 feet high, contained one pile of pipe in the north half and one in the south half. The pipe was 21-22 feet long. Plaintiff’s truck had been lined up, north and south, beside the loaded car; four or five lifts of pipe had been transferred to the truck and a different truck had been placed for loading. Each lift consisted of a bundle of pipes perhaps one and one-half to two feet in diameter. The mode of operation was to lower the hook from the crane and center it over the pipe to be loaded, whereupon Taylor and plaintiff (or others, if involved) would place a cable under each end of the next load or “lift,” and attach both ends of each cable to the hook. At a signal from Taylor, the load would then be lifted just enough to take up the slack in the cables аnd to raise the load a foot or less off the floor of the car. The men in the car would then check the balancing of the load and, if all was well, signal for it to be raised and moved over to the truck. Thereupon plaintiff would climb out of the car and assist in guiding the load into the truck.
On this particular occasion there was evidence that the lift of pipe in question came up suddenly and jerkily, and that it swung оver and struck plaintiff who had been standing at the side of the car 4-6 feet from the pipe, talking to Good. It knocked him against the side of the car with a lifting movement, causing rather severe cartilaginous damage to his left knee, as well as various and sundry bruises. The essential claim of plaintiff was and is that the “up” button in the control box stuck when it was pressed in, letting the load of pipe proceed upward in а jerking, swinging movement until Wallace pulled the master switch located on a nearby pole; and that Wallace was thus unable to control the movements in a normal manner. There was evidence, generally, concerning the crane and its motivating parts, as follows: that the control box was weathered and rusty; that the buttons were worn and their markings not identifiable; that on prior occasions a button hаd sometimes stuck, and that this would cause the mechanism to continue that particular movement at maximum speed; that sometimes this could be corrected by beating on the box, at other times not; that the buttons only stuck when pushed all the way in for maximum speed; one witness recalled an incident when “the buttons were sticking” about two months before plaintiff’s injury; some occasional difficulty was also indicated with the brakes on the crane, permitting a movement to continue temporarily; that a load would jerk when the button stuck; that sometimes the pipe would swing when the crane was operating properly; that unequally fixed cables or an improperly centered lift might cause the load to swing if it was moved fast; that the crane had operated without difficulty on the dozen or so occasions when plaintiff hаd taken part in the work; that over the years defendant had made sundry repairs and replacements on the crane, including work in 1956-1957; the records did not show the nature of that work, but there was testimony that on occasions defendant’s electrician had been summoned, and that after plaintiff’s injury he came and released the load by climbing up on the crane and turning a wheel. Different *34 employees had operated the controls from time to time.
With specific referеnce to the time of plaintiff’s injury, Taylor testified: that when he saw the load come up jerking and swinging he yelled to Wallace to “stop”; that Wallace “said the button stuck”; that he then yelled for Wallace to cut the switch and that was done. The statement of Wallace, though objected to, was admitted as res gestae and no point is made of that now. Plaintiff also testified that he, at the time, heard the stаtement of Wallace that the “button stuck.” Good did not hear it; Simms and Wallace were deceased at the time of the trial. Taylor also testified that he went down and looked at the “up” button after plaintiff’s injury, that it was stuck, and that he tried to release it without success. The testimony of Taylor was impeached to a substantial extent by prior statements made and recorded on dicta-phone taрe; this affected particularly his trial testimony that he had gone down after the injury to look at the box, and that there had been prior difficulties because of the sticking of the buttons. It was shown that defendant had no notice of plaintiff’s injury until suit was filed.
In the body of this opinion we shall refer more specifically to certain evidence which was admitted over objections that it was hearsay. We find it unnecessary tо outline plaintiff’s injuries or treatments. The points made here by defendant essentially are: (1) error in giving plaintiff’s Instruction No. 1; (2) error in admitting hearsay testimony; and (3) error in permitting a closing argument to the jury on matters not mentioned in plaintiff’s opening argument. We shall discuss these in a different order.
We consider first the admission of testimony. Plaintiff’s witness Good had not heard the alleged remark of Wallace at the time of plаintiff’s injury; he was permitted to testify, however, that Wallace later told him that the button stuck and caused the accident. Defendant made a timely objection to this testimony on the ground of hearsay. On cross-examination it was shown that this conversation was in the office of plaintiff’s attorney. At the conclusion of Good’s testimony defendant moved for a mistrial because of the admission of this evidence. Thereafter plaintiff testified on direct examination that he heard Wallace say at the time of his injury that “the button stuck”; on further direct examination he was permitted to testify oyer specific objections that he later, and after he had gone back to work, heard Wallace say that “the button stuck in the crane and that’s how the accident happened at the time.” The most specific answer to this effect was brought out by a question from the court, after three objections had been made on the ground of hearsay. Counsel also moved that the answer just quoted be stricken. This was overruled.
We need waste no time or space in establishing the fact that hearsay testimony, unless it be within some recognized exception, is inadmissible. The reason is, of course, that testimony offered as affirmative prоof of the fact asserted should not come from a witness who is not present and subject to cross-examination. Cottonseed Delinting Corp. v. Roberts Bros., Inc., Mo.,
We may dispose of the objections to plaintiff’s Instruction No. 1 rather shortly. In essence counsel says that the instruction merely hypothesized, generally, that the “crane had a defective electrical directional button box,” which defendant knew or should have known оf; and that it wholly omitted all reference to the actual sticking of the button, and the fact that this caused the pipes to jerk and swing and strike plaintiff; that these were contested issues and that, within the doctrine of Hooper v. Conrad,
The last point made concerns the final arguments. In his opening argument plaintiff’s counsel discussed in detail the quеstion of liability, the evidence supporting plaintiff’s theory of negligence, and the credibility of plaintiff’s witnesses. He did not, as such, mention the matter of plaintiff’s injuries or the damages claimed; we regard mere references (both by plaintiff and defendant) to the fact that plaintiff was “hit” by the pipe, or to the “time he got hurt” and similar statements as purely incidental discussions of the facts affecting liability. When counsеl finished his opening argument, he stated that in concluding his argument later he had “some other points” that he wanted to develop. Thereupon the following occurred: “Mr. Ely: Now, before Mr. Gershenson stops, if the Court please, at this time I would like to serve notice that if Mr. Gershenson expects to raise any new points in his final argument that I would object to them at that time because I will not be given an oppоrtunity to answer them, and I ask that he at this time make all of his points. If he has any damages to argue, or anything else, I would like to have opportunity to answer them. The Court: Overruled.” Defendant’s counsel did not, as we construe his argument, touch upon the question of damages or injuries so as to waive that point. In the concluding argument plaintiff’s counsel spent a considerable part of his time in arguing the matter of injuries and damages; on the first two occasions when the subject was thus mentioned counsel for defendant objected, but was overruled. This argument involved the lost wages, medical expense, permanency of injuries, medication, pain and suffering, and the “crippled” condition of plaintiff’s knee; counsel concluded by asking a verdict of $25,000.
We are brought here face to face with the propositiоn discussed in Goldstein v. Fendelman, Mo.,
Under the circumstances, it would be improper to consider defendant’s additional point that the verdict is excessive. For the errors noted herein the judgment is reversed and the cause is remanded for a new trial.