265 Mo. 97 | Mo. | 1915
Action for personal injuries. Plaintiff below, who is appellant here, obtained a verdict, which, upon motion of defendant, was set aside and a new trial granted by the court. From this order
The facts in the case so far as they are pertinent to the questions raised upon this appeal are about as follows:
Plaintiff was, on áiid about the night of October 25, 1910, employed in the water department of Kansas City as an emergency inspector. His duties as such required him to work at night. About midnight of October 25th, or shortly thereafter on the morning of October 26th, plaintiff had started to walk down Second street from Walnut street to Grand avenue, for the purpose of inspecting a hydrant somewhere near Second and Grand, which he says, had been reported on the preceding evening to be leaking. There are on said Second street a number of railroad tracks, which either belong to or are used by the defendant. It is immaterial as to the ownership, though the proof shows that these tracks are used by some three or four other railroads besides the defendant here. Among other tracks on this street there are what are called in the record the “north main track,” on which track plaintiff was hurt, and the ‘ ‘ south main track. ’ ’ These tracks on Second street run in an easterly-and-westerlv direction. In the neighborhood, and north of the north main track, there is a spur track leading to some mercantile establishments situate along Second street; particularly one leading to the premises of Clemons & Company, who appear to be wholesale dealers in fruit and produce. The spur track leading to the' Clemons premises joins the north main track by a switch somewhere near Walnut street. The injury to plaintiff occurred on Second street and between Walnut street and Grand avenue. There is another switch
Plaintiff testifying for himself in substance said, that he reached the city hall on the evening of October 25th, somewhere about five o’clock; that he was suffering from a very severe headache, and after having taken some bromo-seltzer at a neighboring drug store, went into the city hall, sat down in a chair there and slept until twelve o’clock; that he then ate supper at a neighboring restaurant and started to walk to Second and Main streets to see some person there with whom he had an engagement; that he did not find this person in at the midnight hour at which he called, and thereupon he walked east on Second street, toward the corner of Second and Grand avenue, with a view of examining the hydrant which we mention above. His testimony is important, and since the whole case turns upon it, we quote it:
“Q. Now, as you went from Second and Main to Second and Grand, what route did you go? A. I went east from Second and Main down the tracks.
“Q. Down what tracks? A. They call them the • Southern there; the north track I went down.
“Q. The north track of the Southern Railway Company? A. Tes, sir.
<£Q. A hundred feet or so west of Grand? A. Yes, west of Grand.
££Q. Noto at that time Mr. Steele, %ohat fart of the track were you walking on¶ A. I was walking on the north track.
££Q. What part of the north track would you say? A. What part of it?
££Q. Yes, nearer the north rail or nearer the south rail? A. Nearer the north rail.
££Q. But between the rails ? • A. Yes, sir.
££Q. Say when you were between Walnut and Grand any time, did you notice any switch engine anywhere? A. I did, yes.
“Q. Where was it? A. North of me on the private switch there; I suppose it’s called a private switch — Clemons’s.
££Q. On the Clemons’s switch? A. Yes, sir.
££Q. Which way was the engine headed? A. Headed west.
££Q. The engine was headed west? A. Yes.
££Q. How were you walking, leisurely? A. Just leisurely, yes, sir.
££Q. Just walking along slowly. What was the first you knew of the approach of any car or engine or train behind you? A. Well, I don’t know of any, only I heard them down on the Pacific or Chicago & Alton, whistling down there, blowing steam off.
££Q. Tell what happened to you then? A. I don’t know, it just hit me in the back here (indicating).
££Q. WThat hit you? I suppose the car hit me.
££Q. That’s what I want you to tell this jury, about. They don’t know about it, you know. You were walking along there and a car hit you? A. Yes, sir'.
“Q. From behind you? A. Yes, sir.
“Q. And what effect did it have upon you? A. Knocked me down and ran over my leg and I scrambled to get out of the road.
“Q. As you fell, Mr. Steele, are you able to tell what direction you fell in, which way you fell? A. I fell to the north.
“Q. You fell to the north? A. Yes, sir.
“Q. Away from the track? A. Yes, sir.
“Q. State whether you had known of the approach of that car before that? A. No.
“Q. Did you know there was a box car coming on the track behind you? A. I didn’t know it, no.
“Q. Did you hear any bell rung on the engine of that train? A. No, sir, not a thing.
“Q. Was your hearing good at that time? A. It was, yes.”
The above is all that is pertinent in plaintiff’s first examination in chief as to his actions, whereabouts and position when he was hit. As to other matters they are either unimportant or not controverted. On his cross-examination his pertinent testimony as to his position when struck and as to the conditions under which he was struck, was as follows:
“Q. What was there in the way of an obstruction between the two tracks? A. Cinders piled up and it looked kind of rough to me, and, of course, it was night.
“Q. Don’t you know between the tracks and between the rails of the two tracks, all along there, the ground was smooth, no cinders piled up at all? A. No, I don’t know that.
“Q. Do you swear now to this jury there were cinders piled up between the two tracks? A. Well, obstructions; I don’t know what it was now.
“Q. You say a bump there betiueen the two tracks? A. A little, yes.
“Q. Bid you see it? A. Yes, or I wouldn’t have went over on the north track.
“Q. What was it? A. I don’t know what it was.
“Q. Where urns it? A. Just where I got hurt, just stepped over on the north track.
“Q. You had been walking then between the tracks, had you? A. I had been walking between the tracks.
“Q. You had been walking between the tracks? A. Yes, sir.
“Q. You just stepped over on to the north track right at the point where you got hurt? A. Yes, sir.
“Q. And the moment you got on the track you got struck? A. Yes — not the moment.
“Q. Just immediately after? A. Just immediately after.”
Later in the cross-examination of plaintiff he was asked whether when he stepped from his position between the two tracks over on to the north track whereon he was hurt, he looked behind him to see whether the engine or train were approaching, and he replied unequivocally that he did not.
After this examination the plaintiff, as the record discloses, was excused as a witness without any intimation by him or his counsel that he would be used further. After one other witness for plaintiff was heard, the evening adjourning hour having arrived, the court adjourned until Wednesday, May 23, 1911. On the following morning, that is, on the morning of May 24, 1911, after two other witnesses were called and had testified in behalf of plaintiff, the latter again took the stand in his own behalf, upon which the fol
“Q. Mr. Steele, are you able to state — I will ask you this question first: Since you were on the stand yesterday did you go to the scene of the accident on Second street between Walnut and Grand avenue? A. I did, yes, sir.
££Q. In company with myself, and Mr. Kimbrell and Mr. Curtin? A. Yes, sir.
£<Q. Now, I will have you to state, Mr. Steele, approximately the point where you got on the north track of the Kansas City Southern Railway on Second street before you were struck¶ A. At Walnut street.
“Q. You say it was at Walnut street where you got on the north track? A. Yes, sir.
££Q. After the time you got on the north track now, Mr. Steele, what direction did you go? A. East.
££Q. And where did you walk with reference to the north track from that point until you were struck? A. I was in between the rails of the north track, going east.
££Q. Now, where was this obstruction with reference to Walnut street that caused you to turn onto the north track? A. It’s just right at Walnut street, at that switch, at the switch, there’s where I got on the north track.
££Q. Now, at that time, where was this switch engine? A. It was on the side switch at Clemons’s.
££Q. By Clemons’s? A. By Clemons’s.
££Q. Did you pass by that, or meet it rather, as you were going east? A. Yes, sir.
££Q. It was coming west on the side track? A. Just starting out.
“Q. Mr. Steele, in point of time about how long had you- been on this north track loalking until you
“Q. Two minutes or so? A. Yes, or maybe a little longer, about tivo minutes.
“Q. During that time you walked from where to where? A. I walked from Walnut street—
“Q. To where? A. Right this side of Grand avenue where I was hit. ’ ’
The above is all that is pertinent of plaintiff’s second examination in chief, when recalled, as we have noted above. Upon his cross-examination plaintiff testified in substance that after the adjournment on the preceding evening his attorneys had put him in an automobile and had driven with him from Independence, where the trial was had, to Kansas City, and to the place where his injury occurred; that he had not known until he reached that place the object of this -trip. In his cross-examination among other matters pertinent, the following questions were asked him and the following answers made by him:
“Q. Please answer my question, you talked with them about the matter of walking on the north track, didn’t you. A. Yes, sir. •
‘ ‘ Q. They told you that you had made a mistake in your testimony, didn’t they? A. No, they didn’t tell me that I made a mistake.
‘ ‘ Q. They told you that the testimony that you were struck as soon as you stepped on the north track wouldn’t do, didn’t they?» A. I didn’t catch that.
“Q. It’s very simple. They told you that that wouldn’t do, that testimony that you gave that you stepped on the north track and was immediately struck, didn’t they? A. They did.
“Q. They did tell you that? A. Not that it wouldn’t do, no.
“Q. Told you you couldn’t recover if that was true, didn’t they? A. No.
“Q. You had shown them and told them all that before, hadn’t you? A. I was showing them again yesterday, too.
“Q. Showing them again yesterday after they finished the case last night? A. Yes, sir.
<£Q. And they told you you had testified you stepped right in front of the train, didn’t they? A. They did.
££Q. They did, didn’t they? A. That I testified to that?
££ Q. Yes, sir. A. If I testified that, I didn’t mean it.
££Q. I didn’t ask you what you meant, I asked you if they didn’t call your attention to the fact that you had testified to that? A. Yes, sir.
“Q. And they told you that ivhen you did that you made a mistake, didn’t they? A. Made a mistake?
“Q. Yes sir, they told you that, didn’t they? A. No, not as I recollect.
££Q... Not as you recollect. Well, what did they tell you when they said that you testified to the fact you had stepped right on the north track in front of the train? A. What did they tell me?
££Q. What did the attorneys say about that testimony to you? A. They didn’t say nothing that I recollect of.
££Q. That you recollect of ? A. No.
££Q. What did you say about it? A. What did I say?
££Q. Yes, to them? What did they say? A. What was the question now?”
The above excerpts illustrate, we think, fairly the precise nature of the contentions upon which this '"■ase must turn. We may say in passing that the
Plaintiff upon his first examination as a witness did not testify as to having been given liquor by those who found him and took him to the hospital, and his said testimony inferentially negatives the possibility of his knowing this fact, if it occurred. But upon his second appearance apon the stand he testifies that he was given two drinks, either by the train crew or those who put him into the ambulance.
Plaintiff was badly hurt; his injuries necessitating the amputation of his right leg some six inches below the knee; he also lost a toe from the left foot. The jury assessed his damages at $20,000.
We apprehend that the above statement will serve to fairly illustrate the one single question which we have found it necessary to discuss in the below opinion, viz.,'that of the sufficiency of the testimony to take the case to the jury. If it should not fairly do so, other facts will be set out in connection with what we have to say.
The single question mooted in the briefs of appellant, and likewise the only question which specifically arises from a consideration of the reason which moved the learned trial court to grant a new'trial, is that the evidence is not sufficient to take the case to the jury.
Two angles of this view are presented to us: (a) that the testimony of plaintiff when he was first upon the witness stand having shown a state of facts which as a matter of law absolutely precluded recovery, so concludes plaintiff as to forbid recovery, and (b) that there was no sufficient showing that the train or cars of defendant caused plaintiff’s hurt.
The case presented here is sui generis and we have found nowhere in the books by our own researches, nor has the remarkable diligence of learned counsel found for us, any case precisely similar to it. Here the plaintiff testifying in the trial of the case as a witness for himself, solemnly swears a^ leas^ 01ie faet, if not two, which utterly precludes his recovery as a matter . of law. That one fact is (not to becloud and befog the argument with the other), that he (plaintiff) walking between the north track and the south track, in a place of safety, to avoid the roughness of a mere bump, or surface inequality which slightly inconvenienced him in walking, stepped over upon the north track, without stopping, or looking, or listening, and was immediately struck by a moving car or train, knocked down and injured. Under this state of facts, if it be true, and plaintiff swearing for himself swears ’to it, he cannot recover. [Moore v. Railroad, 176 Mo. 528; Hawkins v. Railroad, 135 Mo. App. 524; Van Bach v. Railroad, 171 Mo. 338.]
It is urged with much of ability and vehemence by learned counsel that the rule is that a plaintiff testifying for himself in his own sole suit, is not so far con-' eluded by his sworn testimony as to take from the jury ■ the lawful right to weigh his conflicting statements and reconcile them and pass upon his credibility as they do that of other witnesses in the case. We concedé that ordinarily a party is not absolutely concluded by his testimony in a case where subsequently upon some excuse of mistake, oversight, misunderstanding, or lack of definite recollection he denies the statements forming the admissions. But so long as the admissions made by the party-witness stand they are conclusive and the adversary side may absolutely rely upon them. This prima-facie conclusiveness is destroyed when the litigant corrects his mistake upon some honest and reasonable explanation (Huff v. Railroad, 213 Mo. 495;
In a very careful and correct resume of the present condition of the Missouri ruling upon this question Judge Johnson of the Kansas City Court of Appeals, in the late case of Downs v. Racine-Sattley Co., 175 Mo. App. l. c. 386, said:
“Counsel for defendant invoke the rule ‘that a plaintiff in a civil case is conclusively bound by every declaration and admission against his interest made while testifying before the court and jury’ and point to the following cases as instances of the judicial recognition and application of that rule: State v. Brooks, 99 Mo. l. c. 142; Feary v. Railroad, 162 Mo. 75; State ex rel. v. Lichtman-Goodman & Co., 131 Mo. App. 65; Shirts v. Overjohn, 60 Mo. l. c. 308; Wright v. Town of Butler, 64 Mo. 165.
“In the Feary case the question of the legal effect of statements made by a plaintiff in his testimony against his interest came before the court in an instruction which told the jury that ‘all statements made by him, if any, which are against his own interest must be taken as true, but his statements in his own favor are
“But in more recent cases, of which that of Huff v. Railway, 213 Mo. 495, may be selected for review, such instruction is condemned on the grounds that it not only singles out the plaintiff and comments on his testimony but that it erroneously declares the law. The court rejects the idea that a party testifying as a witness should be conclusively bound by the statements he may make against his interest and announces the better and more just rulé that if a party through ignorance, oversight or mistake makes statements against his interest which are not true, the jury are not bound to give conclusive effect to such statements.
“To the same effect are Meyers v. Railroad, 171 Mo. App. 283; Lehner v. Railroad, 110 Mo. App. 215; Zander v. Transit Co., 206 Mo. l. c. 461; Conner v. Railroad, 181 Mo. 397; Ephland v. Railroad, 137 Mo. l. c. 198; Quinn v. Railroad, 218 Mo. l. c. 556; Norris v. Railroad, 239 Mo. l. c. 719.”
Conceding the law to be thus, and finding therewith no fault, an obviously different condition of facts is presented by this record. Plaintiff, as shown by the cases we cite, supra, had, as the vernacular expresses it, “sworn himself out of court” beyond any manner of doubt. He was finally excused from the witness stand thereafter without any request or even a suggestion that he would be called again as a witness in the case. After court adjourned on the evening of May 23rd,
i£Q. Don’t you know between the tracks and between the rails of the two tracks, all along there, the ground was smooth, no cinders piled up at all? A. No, I don’t know that.
££Q. Do you swear now to this jury there were cinders piled up between the two tracks? A. Well, obstructions; I don’t know what it was now.
££Q. What kind of obstructions? A. Just like a bump, like that, just stepped over on the north track.
££Q. You say a bump there between the two tracks ? A. A little, yes.
££Q. Did you see it? A. Yes, or I wouldn’t have went over on the north track.
££Q. What was it? A. I don’t know what it
was.
££Q. Where was it? A. Just where I got hurt, just stepped over on the north track. ’ ’
Notwithstanding this, when he took the stand the second time he stated unequivocally that the obstruction that caused him to step upon the north main line track was the cross-over switch at Walnut street.
When a party litigant takes the stand as a witness for himself he ought to 'be permitted and he is permitted to protect himself from the human frailties of forgetfulness and mistake precisely as is any other witness. He ought not to be, and he is not, bound down by any cast-iron rule so that he is forever concluded by the least lapse of memory or oversight or mistake which may lead him by inadvertence to a misstatement of fact, which may, as a matter of law, destroy his case utterly. He may correct his errors and mistakes and lapses of memory and leave the jury on the whole case to pass upon his credibility. If he make no correction whatever as we have seen, he is absolutely com
We have nowhere among the many cases cited to us, or among the hundreds which we have examined, found one turning upon facts like these before us here. As stated before, upon its peculiar facts, which we labor to make clear, it seems to be sui generis.-
Pursuing the argument further upon matters analogous, we find it held almost, if not quite, universally, that the judicial admissions of an attorney are absolutely conclusive upon his client, until made matters f°r the determination of the triers of fact by subsequent averment and proof of misunderstanding, or mistake or other sufficient cause. [O’Keefe v. Railroad, 124 Mo. App. l. c. 621;
Neither an-attorney nor his client, the litigant, ought to be allowed to play fast-and-loose with courts. If the trial of a lawsuit is for the purpose of ascertaining the truth and applying the law to that truth, so that the judgment which the law gives -upon a certain state of facts may be rendered in the cause, it would be lamentable indeed if a brazen lack of candor should in the minds of fair and just men stamp the alleged truth found as being rankly suspicious. Courts are, in theory at least, forums established for the discovery and determination of the ultimate facts; so they ought not to be used as hotbeds for the germination and promotion of perjury. No litigant in his own sole case ought to be heard
In the late case of Huff v. Railroad, 213 Mo. l. c. 515 (a case which had no carrying vote here, but the rule in which we approve), it was said, apposite to the facts here:
“If the plaintiff made statements against her interest while testifying (and we must presume she did so, else the instruction would not have been given) which were untrue and made through mistake, oversight or ignorance, and she should at the time have discovered her error and had attempted to correct it, the jury under that instruction would necessarily have been compelled to have disregarded her explanation and find that the statement was true,, even though the mistake was ever so apparent, for the reason the instruction told them that they must take such statements as absolutely true. Such a proposition is monstrous, and it has no foundation upon which to stand either in law or morals.” [Italics ours.]
But when no explanation or excuse for the variance is given, as in the instant case, the matter of the probative effect of such bald contradictions ought to be left to the court to be passed on as a matter of law. What in such case is there for a jury to pass on? Why should the self-serving statements of to-day, favoring interest, have more probative weight than the admissions of yesterday against interest? If there be
Let it be borne in mind also that we are not dealing with the testimony of a witness in the case merely, but with that which is more than the utterances of a mere witness, viz., with a judicial admission, which always and until avoided by explanation, is, prima-facie binding and conclusive. [Morrison v. Riker, 26 Mich. 385; Coit v. Waples, 1 Minn. 134; Raridan v. Railroad, 69 Iowa, 527; Goldwater v. Burnside, 22 Wash. 215; Weider v. Clark, 27 Ill. 251.] We need not reiterate that as to a mere witness no state of facts could ordinarily arise upon any matter of contradictory evidence, that would oust the triers of fact of their privilege in a lawsuit of resolving the truth of such contradiction.
Neither the cases to which our attention has been called, nor any which our own somewhat diligent search has unearthed, throw very much light on this case, owing to its peculiar facts. All of these cases
“Upon the first trial there was no evidence tending to show any express or implied invitation to enter the store from the rear. The plaintiff testified that he had never been in the store from that way before the occasion of his injury, and it appeared from other testimony that it was the intention of the defendants to have the goods inspected and receipted for at the back door, when delivered. Defendants’ counsel contend that the plaintiff is concluded by his former testimony, and that he should not be allowed to recover by reason of evidence flatly contradictory of his former testimony. Decisions of this court in cases brought here by writ of error are conclusive upon the parties, so far as the law is concerned, whenever the same state of facts is presented; but upon different facts other principles may apply. If parties change their testimony, the jury may properly consider the fact; but it is not for this court to say that a party must stand or fall by his former testimony, where there is any legitimate opportunity for a change in the testimony. It may, perhaps, be said that there was no such opportunity here, hut by ordering a new trial this court relegated the subject to the jury.”
In the case of Chilton v. Scruggs, 5 Lea, l. c. 318, a party litigant was denied recovery and held to be estopped by his sworn statements in a former suit, where such party in the last suit had not shown or attempted to show that his former contradictory statements “were made inconsiderately, or without full knowledge of the facts.”
We are likewise in grave doubt whether there was upon the other mooted phase of the case, viz., as to the identity or ownership of the train or cars which struck and hurt plaintiff, any sufficient proof. But as the case must be retried we will not embarrass it by either a discussion or a decision of it at this time.
Let the case be affirmed and remanded for the new trial granted by the court nisi.
