Opinion
No. 21339.
February 6, 1950.
APPEAL FROM THE CIRCUIT COURT, BOONE COUNTY, W. M. DINWIDDIE, J.
Boyle G. Clark, Columbia, Paul M. Peterson, Columbia, William L. Nelson, Columbia, J. H. Miller, St. Louis, of counsel, Clark, Boggs, Peterson Becker, Columbia, of counsel, for appellant.
Ralph L. Alexander, Columbia, Alexander, Ausmus Harris and W. D. Welliver, Columbia, of counsel, for respondent.
Plaintiff obtained a verdict and judgment of $1000 against defendant, for personal injuries sustained while attempting to open a stock car door in order to load hogs therein. Defendant appealed.
Plaintiff testified to the effect that he was employed, by Earl Brueckner and American Packing Company, to load hogs into a stock car for shipment, the car having been furnished by defendant to plaintiff's employers; that two cars were so furnished and were at the loading chute to be loaded; that after they had loaded one of said cars plaintiff and a Mr. Asbury, a fellow worker, went about the matter of loading the other car; that the door, on the opposite side from the chute, was partially open; that they were unable to open or close it in the usual manner; that plaintiff got into the car, with his back to the door jamb and the front of his body toward the edge of the opened door, and pushed; that Asbury was in the car, pulling; that they pushed and pulled with all of their power; that the door suddenly came free and moved so rapidly that plaintiff lost his balance, fell to the ground, and was injured; that the door operated on overhead rollers and in a track at the bottom.
Defendant cross-examined plaintiff fully. Plaintiff stated that he had loaded stock cars for about four years prior to the accident; that he had stated in his deposition that he had loaded this particular car on prior occasions; that "we used a pole to butt the door to a time or two"; that doors on other cars were not as hard to open as on this one; that in St. Louis winches are used to open and close stock car doors; that he had seen doors "hang" like this one and, when opened, roll back suddenly, but not often; that the door did not leave its track when it opened and, afterwards, opened and closed easily; that car doors similar to this one sometimes failed to operate smoothly because of manure, dirt, cinders, ice, or other obstruction in the track; that it had not been freezing on the day of the accident or the day before.
Mr. Asbury, testifying for plaintiff, stated that the door was stuck when they attempted to close it; that he got up in the car and pulled, and plaintiff pushed, in the manner described by plaintiff; that it came loose suddenly and rolled open; and that plaintiff fell out of the car and was injured.
On cross-examination he stated that he did not know what caused the door to stick; that he did not know whether or not it was due to dirt or cinders; that it was not uncommon for such doors to stick from manure, dirt, cinders, etc.
After plaintiff rested defendant moved for a directed verdict, which motion was denied. Thereupon the following occurred.
"Mr. Clark: I offer in evidence the deposition of Earl G. Bradley, taken on the 21st day of October, 1948.
"Mr. Alexander: I object to the introduction of the deposition of Mr. Bradley. He has had the opportunity to have Mr. Bradley on the stand and cross examined him and if there is any impeachment he had ample opportunity to do so, and that could be the only purpose at this time.
"The Court: Let me see the deposition. What is it you are offering?
"Mr. Clark: I am offering the plaintiff's deposition.
"The Court: Are you offering the whole deposition?
"Mr. Clark: The whole deposition.
"The Court: Let me see it. (Receiving same from counsel. Pause.) Objection will be sustained as to the offer of the whole deposition."
Defendant offered no other evidence.
Defendant says that a carrier is not an insurer of the safety of its cars, and it cannot be held liable for defects it either had no opportunity to discover or which a reasonably careful inspection would not have revealed; its liability is only for negligence which results in injury to some third person, who is himself without fault, and who is injured while lawfully in and about a car which has been furnished in a defective or unsafe condition. It cites Markley v. Kansas City Southern Ry. Co., 338 Mo. 436, 90 S.W.2d 409, 411; and Ward v. Kurn, Mo.App., 165 S.W.2d 290. The above is a fair statement of the law.
Defendant contends, in effect, that there was no substantial evidence tending to prove that the door was, in fact, in a defective condition. Its position in this respect seems to be based on the theory that, since stock car doors sometimes stick, because of manure, dirt, cinders, ice, etc., in the track, and that this door may have stuck because of such obstructions, no liability was shown. We cannot so hold, as a matter of law. There was no evidence tending to prove what, in fact, caused the door to stick; but there was testimony to the effect that the doors of this particular car had given trouble on prior occasions; that plaintiff had been compelled to butt them with a pole; and that, on this occasion, it was stuck unusually solid. From the fact that it took unusual force to open or close the door the jury could infer that the door was in a defective condition.
But defendant contends that there was no evidence tending to prove that the door was in a defective condition, as described in evidence, when it was delivered, and that such evidence was a necessary prerequisite to plaintiff's right of recovery. The evidence fails to show when the car was delivered or its condition at the time of delivery. The absence of such evidence, in the case of Markley v. Kansas City Southern Ry. Co., supra, was held to be grounds for reversal. That decision is controlling here.
Although the judgment cannot stand on this record we think evidence on the point above mentioned may reasonably be available, and that justice requires a remand. As to whether or not evidence on the point will support plaintiff's right to recover, we do not pretend to say; but it is reasonable to assume that evidence can be offered, at another trial, on the question of when the car was furnished to plaintiff's employers, and of its condition at that time. See Markley v. Kansas City Southern Ry. Co., supra, 90 S.W.2d 414.
Defendant contends that plaintiff's Instruction "A" is fatally defective in that it does not require the jury to find that the car door was in a defective condition when delivered. The Instruction is as follows:
"The Court instructs the jury that it is the duty of a railroad company to use ordinary care to deliver cars reasonably safe for the use of shippers and their employees while the cars are being loaded or unloaded.
"Therefore, if you find and believe from the evidence that on or about the 27th day of November, 1947, the plaintiff was employed by one Ray Brueckner and the American Packing Company and was, on said date, assisting in loading a railroad stock car in the yards of the defendant at Columbia, Missouri, that had been furnished to the said Ray Brueckner and the American Packing Company by the defendant for the purpose of transporting live-stock over defendant's railroad; and if you further find that the door on said stock car was defective and was not reasonably safe for the use of the said Ray Brueckner and the American Packing Company and their employees and that as a direct result thereof, if you so find, plaintiff, while in the exercise of ordinary care for his own safety, was injured, then your verdict shall be for the plaintiff."
This contention must be sustained. Markley v. Kansas City Southern Ry. Co., supra, 90 S.W.2d 413.
The Instruction is also criticised on the ground that it does not require a finding to the effect that defendant knew, or should have known, of the door's defective condition, if any. The criticism is well made. Markley v. Kansas City Southern Ry. Co., supra. The Instruction virtually imposes on defendant the obligations of an insurer. Such is not the law. Ward v. Kurn, supra, 165 S.W.2d 293. In this connection it may be said that the evidence, in regard to defendant's knowledge of the defective condition, is "skimpy" in this record; but it may well be that more evidence on the point will be available in another trial.
Defendant contends that plaintiff was guilty of contributory negligence, as a matter of law, in that he placed himself in the doorway of the car where he should have known that he would be likely to fall, and be injured, if the door opened suddenly. We cannot sustain this contention. It was for the jury to determine, under all of the evidence, whether or not plaintiff was guilty of contributory negligence such as to bar his right of recovery. Reasonable minds might differ on this question, in view of the state of the record, and of the circumstances of this case. Rooney v. St. Louis San Francisco Ry. Co., 220 Mo.App. 273, 286 S.W. 153, 156.
Defendant predicates error on the action of the trial judge in excluding plaintiff's deposition from evidence. He relies on the ruling in Dawes v. Williams, 328 Mo. 680, 40 S.W.2d 644; McCaslin v. Mullins, Mo.App., 17 S.W.2d 684, 685; Black v. Epstein, 221 Mo. 286, 303, 120 S.W. 754; and other like cases. It is noted that plaintiff, in those cases, offered the depositions of defendants. A plaintiff is entitled to prove his case by offering evidence of statements against interest made by defendant. He is not required to place defendant on the stand for that purpose. However, in the case at bar, plaintiff had been on the stand and defendant not only could have thoroughly cross-examined him, but did so. The deposition, although excluded from evidence, is in the record, and it cannot be said that plaintiff, therein, made statements against interest materially different from those shown in his testimony on direct and cross-examination.
From the record it is apparent that the trial judge would likely have admitted any part of the deposition particularly pertinent; but no such portion thereof was offered. The offer was as to the whole deposition; and the court sustained the objection to the introduction of the whole deposition. Counsel for defendant, at the trial, stated no theory or reason upon which he considered the entire deposition admissible. Plaintiff had testified in full and closed his case; and defendant cross-examined in regard to the contents of the deposition only superficially. He did not state that he offered the deposition as an admission against interest. The sustention of the objection to the admissibility of the whole deposition, under the record here made, was within the sound discretion of the trial judge; and he did not abuse that discretion. St. Louis Union Trust Co. v. Merritt, 158 Mo.App. 648, 139 S.W. 824, 828; Carter v. St. Louis San Francisco Ry. Co., Mo.App., 249 S.W. 124, 126. Defendant was not seriously prejudiced by the ruling of the court.
The judgment should be reversed and the cause remanded for a new trial, for the reasons heretofore stated.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded for a new trial, for the reasons heretofore stated.
All concur.