Opinion
No. 42800.
September 8, 1952.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DIVISION NO. 18, JAMES F. NANGLE, J.
William R. Kirby, St. Louis, for appellant.
Thomas J. Cole, Oliver L. Salter, Donald B. Sommers, St. Louis, for respondent.
In this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by George Williams against the Missouri Pacific Railroad ten jurors returned a verdict for the defendant. The plaintiff, a car repairman, employed by the Kansas City Terminal Railroad, was injured in the Kansas City station yards while he was changing a brake shoe on a refrigerator car, the third car from the engine in a Missouri Pacific passenger train. His case was submitted upon the hypothesis of the applicability of the res ipsa loquitur doctrine to the circumstances and the fact that while he was in the act of withdrawing the old brake shoe "the brakes * * * were suddenly and unexpectedly set" causing the plaintiff's forefinger, at the distal joint, and his left thumb to be caught in the brake's mechanism. Upon this appeal the plaintiff does not question the fact that there was evidence from which the jury could reasonably find that his injuries were not due to any negligence on the part of the railroad or its employees. The questions raised by the plaintiff, and the only questions necessary to a disposition of this case, are whether the trial court prejudicially erred in the admission of evidence, in instructing the jury and in permitting certain argument by respondent's counsel.
In cross-examining the plaintiff defendant's counsel made rather extensive use of his deposition, reading several pages of questions and answers and inquiring of the plaintiff whether he remembered those questions and answers. It is now argued that the deposition was not properly employed or used because the questions and answers referred to were not contradictory of his previous testimony or impeaching. In some instances respondent's counsel had not laid the proper foundation for using the deposition, 26 C.J.S., Depositions, § 92, page 930, and parts of the deposition used did not conflict with the plaintiff's oral testimony. There were, however, some conflicts in the plaintiff's oral testimony and his deposition and in so far as the conflicts existed the court properly permitted use of the deposition. Carp v. Queen Ins. Co., 203 Mo. 295, 345, 101 S.W. 78; Sinclair v. Columbia Tel. Co., Mo.App., 195 S.W. 558. When respondent's counsel first started using the deposition there was no objection by plaintiff's counsel, subsequently when plaintiff's counsel objected that there was no conflict and no impeaching evidence the court sustained the objection, later plaintiff's counsel, instead of properly making an objection to the court, simply interjected and said, "these are highly improper questions and argumentative, going over the same thing that has been gone over before," and then for long intervals there was no objection whatever. In short, while there was some improper use of the deposition, there was some proper use of it, and it may not be said that the trial court so abused its discretion in the latitude of the cross-examination as to compel the granting of a new trial. Walker v. St. Louis Public Service Co., Mo.Sup., 243 S.W.2d 92, 99; Murphy v. Fidelity Nat. Bank Trust Co., 226 Mo.App. 1181, 49 S.W.2d 668.
Mr. Williams' injuries consisted of a lacerated left thumb and the loss of his left index finger at the distal joint. In his petition he alleged that he had lost earnings and would continue to lose earnings by reason of his injuries and that he was entitled to $35,000 damages. He testified that since his injuries he had made three attempts to resume his work as a car repairman but was unable to do so because of his injuries. He said, "I went back and found out I couldn't handle the job under the conditions of my hand," and it was his opinion that he could not handle a car inspector's job. Over the objection of plaintiff's counsel the railroad's assistant superintendent of the car department was permitted to testify that he had seen car inspectors working with one or more fingers off. The plaintiff now urges that the court erred in admitting in evidence this testimony. It is urged that there was no showing of similarity of injuries and that this evidence injected a collateral and immaterial issue and was prejudicial. Aside from the fact that plaintiff's counsel permitted another witness, the Kansas City Terminal Railroad's foreman, to testify, without objection, that he had seen car repairmen and car inspectors working with injured hands and that Mr. Williams could do the work of either with his injuries, the court did not prejudicially err in admitting the testimony of the assistant superintendent. The evidence objected to here was not entirely irrelevant, it had some tendency to illustrate an important point at issue, whether the plaintiff could or could not perform the duties of his regular job by reason of his injuries. Compare: Graney v. St. Louis, I. M. S. Ry. Co., 140 Mo. 89, 41 S.W. 246, 38 L.R.A. 633. The plaintiff testified that he had not entirely recovered from his injuries and for this reason there may have been little value in the evidence. Hill v. Terminal R. R. Ass'n, 358 Mo. 597, 609, 216 S.W.2d 487, 493. Nevertheless, the admission or exclusion of the evidence, in all the circumstances, was within the sound discretion of the trial court and it may not be said upon this record that the court abused its discretion, Counts v. Thompson, 359 Mo. 485, 500, 222 S.W.2d 487, 493, or that the evidence injected into the case such manifold controversial and confusing collateral issues as to constitute prejudicial error. Jones v. Terminal R. R. Ass'n, Mo.Sup., 242 S.W.2d 473, 477.
As we have said, the plaintiff submitted his case upon the hypothesis of the applicability of the res ipsa loquitur doctrine; in part the principal instruction said, "and if you further find and believe from the evidence that while plaintiff was removing and replacing the brake shoe mentioned in the evidence, the brakes on said car were suddenly and unexpectedly set causing the plaintiff's fingers on his left hand to be caught and injured * * * then you are instructed that such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find, unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to the defendant's negligence, and if you do find that the defendant was negligent and that such negligence in whole or in part caused injury to Mr. Williams, then your verdict must be in his favor and against the defendant." On behalf of the defendant the court gave this instruction: "The Court instructs the jury that the burden of proof is on the plaintiff to show, by the greater weight of the evidence, that he was injured by the negligence of the defendant. You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff's evidence, if you find and believe from all the evidence in the case that the defendant was not negligent, and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be for the defendant." The plaintiff admits that this instruction "closely follows" the instruction suggested in Harke v. Haase, 335 Mo. 1104, 1111, 75 S.W.2d 1001, 1004, and approved in Payne v. Carson, Mo. Sup., 224 S.W.2d 60, 62, but insists nevertheless that the propriety of giving the instruction should be re-examined. It is urged that the question that the instruction is lacking in factual hypothesization and is inconsistent and contradictory has not been presented or considered heretofore. The instruction, in part at least, is a burden of proof instruction, cautionary in tenor, and of necessity is abstract rather than factual. It is a converse instruction and a correct and proper statement of the law both as to burden of proof and the requirement of a finding of negligence. "After a plaintiff in a res ipsa case has rested his case in chief, defendant may or may not offer evidence. Assuming the case is one for the jury, when such a case goes to the jury it is at liberty to return a verdict for either plaintiff or defendant." Payne v. Carson, supra. The appellant seizes upon the word "occurrence" in the instruction and urges that without "factual explanation" the word produces a conflict with the principal instruction. But the one word is not to be extracted from its context which plainly is that "You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff's evidence, if you find and believe from all the evidence in the case that the defendant was not negligent * * *." In the first place, the principal instruction, after telling the jury that the hypothesized facts "are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent." concludes in language almost identical with that objected to, "unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to the defendant's negligence." The appellant seeks to demonstrate contradiction and inconsistency by summarizing the five or six things hypothesized in the principal instruction from which the jury was authorized to find negligence; that plaintiff was working on one of the defendant's trains in interstate commerce, engaged in removing a brake shoe, that the train and brakes were under the defendant's control, that the brakes were suddenly and unexpectedly set and injured the plaintiff, and contends that the instruction objected to tells the jury that even though they found the hypothesized facts to be true "that is not enough to justify a verdict for the plaintiff" and is, therefore, contradictory, confusing and misleading. This rather involved argument does not demonstrate the fact claimed or that the instructions are prejudicially contradictory. The two instructions present opposing theories, one a finding of negligence and the other a finding of no negligence, and so they necessarily conflict abstractly but factually they are not repugnant, Mahan v. Baile, 358 Mo. 625, 633, 216 S.W.2d 92, 96, and the court did not prejudicially err in giving the instruction. Harke v. Haase, supra; Payne v. Carson, supra.
Finally, the appellant points to five specific instances in the argument of respondent's counsel and insists that the argument was so prejudicial that he is entitled to a new trial.
At the outset of his argument respondent's counsel said to appellant's counsel, "if you have any other points, I wish you would make them now so I will have a chance to reply to them. Any other points you want to argue, take it out of my time." Appellant's counsel, instead of making an objection to the court or of asking the court to take some action, said, "Now, if Your Honor please, that is highly improper." The statement of respondent's counsel was not a request for an admission and is not comparable to Higgins v. Terminal R. R. Ass'n, Mo.Sup., 241 S.W.2d 380. The statement was not so obviously improper or inflammatory as to demonstrate prejudice, Leaman v. Campbell, 66 Express Truck Lines, 355 Mo. 939, 199 S.W.2d 359, and in the circumstances there was not such an objection and request for action on the part of the court as to compel a review of the trial court's discretion in passing upon the incident. Ternetz v. St. Louis Lime Cement Co., Mo.Sup., 252 S.W. 65.
Early in the argument of respondent's counsel, if all of his argument is set forth in the record, he said, "Now, this case is brought here. Why? Of course, he had a right to bring it here. `Why, it's your home office.' Yes, that's right. Maybe he has read articles in the newspapers about bringing suits here. Anyhow, it's here. He had a perfect right to bring suit in Kansas City either against his own employer or against the Missouri Pacific or against both, or he could have brought it here against both and had service in Kansas City and brought them down here if he cared to have them in it. Of course, I can understand." Despite the fact that appellant's counsel made no objection whatever to this argument it is now insisted that it was so improper and prejudicial as to require a new trial. There are instances, especially when there is no evidence on the subject and no reason for any such evidence and there is also other improper argument and inferences, when argument or cross-examination relative to the plaintiff's election of a forum is so improper and prejudicial as to compel the granting of a new trial. Leaman. v. Campbell, 66 Express Truck Lines, supra; Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 157 A.L.R. 598. However, this same line of argument may result in unfavorable retaliation, as respondent's counsel is well aware. Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675. In this case a witness testified without objection that the Kansas City Terminal had not been sued in Kansas City and on cross-examination the plaintiff said that he knew he could have filed a suit in Kansas City but had not done so even though he once had a Kansas City lawyer. Appellant's counsel, instead of making a proper objection to the court, said, "If Your Honor please, that is immaterial to any issue in the case." Again, it may not be said that the trial court abused its discretion in passing upon the propriety and prejudicial effect of the argument. Hilton v. Thompson, supra.
Respondent's counsel said, "They are not asking for one cent for medical expenses in this case at all; not a penny for medical expenses." Appellant, despite the fact that there was no objection to this specific argument, now contends that it was prejudicial. In addition to the fact of no proper objection to the argument, there was no objection when respondent's counsel developed upon plaintiff's cross-examination that he had not paid any of the doctors' bills, the inference being that they were paid by the Kansas City Terminal Railroad. Subsequently when respondent's counsel said, "There is nothing in the Court's instructions, even if you give a verdict to him, telling you can allow him one penny for that. Of course, I understand why. He has got some deal with the Kansas City Terminal Railway. They are taking care of it," appellant's counsel again said, "that is highly improper. There is no evidence that there is any deal on there." The court said, "The word `deal' will be stricken." There was no further request for action on the part of the trial court and there is now no sufficient basis for objection to the argument.
Respondent's counsel, in his argument, made reference to the Missouri Workmen's Compensation Law, Section 287.010 et seq. RSMo 1949, V.A.M.S., and referred to what that law would allow for the loss of one joint of the minor hand and finally said, "you know what the Workmen's Compensation Commission would allow — about $400.00 for that much of a finger." When appellant's counsel finally made a proper objection the court said, "I will sustain the objection. Disregard that last statement, ladies and gentlemen, please." The argument was improper, as counsel well knew, but the trial court did all that was requested and it may not be said that the court abused its discretion in not going farther in the circumstances. Hilton v. Thompson, supra; Reiling v. Russell, 345 Mo. 517, 523, 134 S.W.2d 33, 36.
Upon the whole record the appellant has not demonstrated such prejudicial error as to compel the granting of a new trial and the judgment is therefore affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.
All concur.