Salmons v. St. Joseph & Grand Island Railroad

BLAIR, J. Respondent is a railroad brakeman and was injured by being thrown from a car upon which he was riding in the course of duty. The jury returned a verdict for $12,500. The trial court required a remittitur of $2500 and rendered judgment for $10,000. The railroad company appealed. The train upon which respondent was working was engaged in interstate commerce. It had reached Stouts, Kansas, and was backing in upon a sidetrack preparatory to cutting the train in two for the purpose of doubling a hill or grade east of Stouts. Respondent was ordered to get upon the caboose in order that he might ob — 401 — serve and signal the train’s approach to cars already upon the siding. The operation occurred about 5:15 on a December morning. Respondent attached a fusee to the rear of the caboose and assumed his position on top of the car. As the train backed into the siding he gave a slow or “easy” signal, and the speed was reduced to five or six miles per hour. In a few moments the conductor, who stood upon the ground near the middle of the train, signaled for a stop. This order, .the evidence tends to show, was obeyed in such a sudden manner that respondent was thrown violently from the center of the top of the caboose over its rear end and fell upon the track, sustaining the injuries for which he sues. Other facts necessary to a decision are stated in the course of the opinion. Withdrawal of Testimony. I. Respondent was- asked what family he had. Counsel for appellant said: “That is objected to as incompetent.” The court, responding to the suggestion that the statute was both penal and compensatoryj overruled the objection. Respondent said he had a wife and one child. Other questions concerning other matters were put and answered. Appellant’s counsel then offered a second objection, full and specific, to the question concerning respondent’s family.. Upon hearing this objection respondent’s counsel asked to withdraw the answer as to respondent’s family. To this appellant objected. Counsel for respondent stated: “Well, we didn’t hear his objection at first; and when we heard his objection, we want to withdraw it.” The court then stated to the jury that the answer was withdrawn and, at the time, specifically directed the jury not to consider that testimony. Appellant excepted. In respondent’s instruction on the measure of damages the elements of damage are specifically stated and none concerns anything except the injuries to respondent’s person. In an instruction given at appellant’s instance the jury are told that the instructions given “declare the law to govern your action in this case. They are not to be disregarded by you at your pleasure, but they must be considered and obeyed by you in arriv — 402 — ing at yonr verdict, and while yonr verdict must he found in accordance with such instructions and the evidence in this case, you are,” etc. It is contended the judgment must he reversed because the court permitted the question mentioned above to be answered, despite the subsequent withdrawal of the answer and the giving of the instructions quoted. Motion for New Trial: Sufficiency. (a) The motion for new trial contains no complaint of the action of the court. The only grounds of the motion relating to rulings on evidence are that (1) the court admitted irrelevant, incompetent and immaterial testimony offered by respondent, and (2) rejected competent, relevant and material testimony offered by appellant. In this case the evi<jence complained of was actually withdrawn almost as soon as given, three questions and answers intervening. The point that the error in permitting the answer, in the first place, was incurable error, despite the withdrawal of the answer, is not fairly covered by the complaint in the motion that the court admitted incompetent testimony. It is only in exceptional eases that withdrawal of testimony does not meet objections to its admission (Stauffer v. Railroad, 243 Mo. l. c. 321; Pennsylvania Co. v. Roy, 102 U. S. l. c. 459), and a complaint of the admission of evidence cannot be said to raise a question as to the effect of evidence actually excluded. The motion for new trial did not count upon the error now pressed upon our attention. Admission and Withdrwal of Erroneous Testimony. (b) It may be conceded evidence as to respondent’s family was not admissible. In this case, however, the evidence was expressly withdrawn, and then the court immediately directed the jury not to consider it. In an instruction given the elements of damages were specifically enumerated, and in another the jury were told they must obey the instructions of the court as the law of the case. There was no evidence of unfair intent in the asking of the question, no persistence in asking it and no comment upon the answer except the oral direction that the jury must not consider — 403 — it. The instructions on the merits and burden of proof also specifically limited the jury to the evidence in the case, thereby impliedly excluding any consideration of the withdrawn answer to the question objected to. In Stephens v. Railroad, 96 Mo. l. c. 215, considering the admission of evidence as to plaintiff’s family, this court expressly said: “We have no doubt but the trial court may exclude improper evidence during the progress of the trial, or by an instruction at the close of the evidence, and when this is done, the fact that such evidence was heard by the jury will not operate as a reversal of the judgment. ” The evidence was admitted in that case, though the court directed the jury not to consider it in making up their verdict. It was said in the opinion: “We do not say that this judgment should be reversed alone on the ground of excessive damages; nor do' we say that it should be reversed because of the evidence before noted, had a specific instruction as to the measure of damages been given; but in view of the very general instruction as to damages, and the amount of the verdict, we cannot escape the conclusion that the incompetent evidence had its effect.” In Wojtylak v. Coal Co., 188 Mo. l. c. 287, the court, considering a like question, held that the withdrawal of evidence inadvertently admitted “will ordinarily have the effect of curing the error. ’ ’ It. then pointed out the happenings in the trial in connection with the evidence in question, and added: “While it may not of itself have been reversible error, the manner of getting it before the jury was unfair practice.” In Stauffer v. Railroad, supra, it was held the withdrawal of evidence, improperly admitted cures the error ordinarily and that this is a good working rule unless exceptional circumstances are present, such as to call “for a reversal as the only cure.” In Pennsylvania Co. v. Roy, supra, the United States Supreme Court held that evidence erroneously admitted could be eliminated effectively by a direction in the judge’s charge that it must not be considered by the jury. The court, through Mr. Justice Harlan, concluded thus: “The presumption should not be indulged that the jury were too igno — 404 — rant to comprehend, or were too unmindful of their duty to respect, instructions as to matters peculiarly within the province of the court to determine. It should rather be, so far as this court is concerned, that the jury were influenced in their verdict only by legal evidence. Any other rule would make it necessary in every trial, where an error in the admission of proof is committed, of which error the court becomes aware before the final submission of the case to the jury, to suspend the trial, discharge the jury and commence anew. A rule of practice leading to such results cannot meet with approval.” From these decisions and others and on principle it must be concluded that this record does not bring the case within the rule upon which appellant relies. There are no exceptional circumstances taking it out of the rule that, ordinarily, the withdrawal of erroneously admitted evidence leaves no ground for reversing the judgment on account of such admission. Insufficient Objection. (c) The question whether the objection first made to the question was legally sufficient to present a question to the trial court need not be considered. The fact of the debatablenéss of that question goes, in all events, somewhat to explain the original ruling and the failure to withdraw the answer until the amplified objection was made. Uncoupling Air-Hose. II. It is contended it was error to permit respondent to testify that uncoupling the air-hose would apply the brakes. It is urged that there was no evidence that any employee was in a position to uncouple the air-hose and the evidence amounted to basing one presumption upon another. No objection was made to the question until after the answer was in. The question was direct and the answer responsive. Respondent testified the uncoupling would set the brakes. Then he was asked: ‘ ‘How quickly?” Appellant then objected to testimony on the point because there was no allegation that anything of that kind was done at the time. This was overruled. Then respondent answered the question. “How quickly?” — 405 — And in doing so said that nnconpling the air-hose' sets all the brakes back of that point and “stops the train right there.” No objection was made to this. Under the rule (1) the objection was too late, and (2) the objection now made was not made at the trial. Again, the objection is not sound. The petition merely charged, generally, that the stop was made “carelessly, negligently and suddenly, with unnecessary violence and in disregard of the usual custom and practice,” and without warning to respondent. Eespondent’s effort was to show that there were but two ways in which the stop could have been made — setting the air-brakes (1) from the engine, or (2) by disconnecting the air-hose. There was evidence the train was uncoupled and moving out of the siding almost as soon as respondent fell. The disconnection of the air-hose was necessary to the uncoupling of the train. The train was equipped throughout with air-brakes, and the evidence is that the air-brakes were working well, and it was shown there was nothing about the grade or length of the train or speed, etc., to prevent an ordinary stop being made. It was perfectly competent for respondent to prove, if he could, that the only things which could account for the violence of the stop were such as to render appellant accountable. The engineer testified he applied the air-brakes, and the conductor testified he “made the cut,” i. e. uncoupled the cars, including the uncoupling of the air-hose. There is no basing of presumption upon presumption, and the allegations of the petition were amply, broad to let in the evidence. III. Complaint is made of the following instruction: Instruction on Damages. “If you find for the plaintiff, in estimating the amount of his damages, you should take into consideration, in connection with all the circumstances and facts in the evidence, the bodily pain and suffer-an<^ mental anguish, if any, endured by him, resulting from the injuries received; the character and extent of his injuries, and whether they are permanent in their nature; the extent, if any, to — 406 — which he has been prevented and disabled by reason of said injuries from working and earning a livelihood; and if, from the evidence, you believe and find that his injuries are reasonably certain to cause him pain and anguish- in the future, and reasonably certain to impair or lessen his ability to work or labor in the future, you should take said facts into consideration also. And if you find for the plaintiff you should find for him in such sum as in your judgment, under all the evidence in the case, will reasonably compensate him for the injuries received, not to exceed the sum of $25,000.” (a) It is urged this instruction permitted the jury to consider facts not shown in evidence. This argument is based upon the clause “you should take into consideration, in connection with all the circumstances and facts in the evidence, the bodily pain,” etc. The contention is that this falls within what was said in Keeline v. Sealy, 257 Mo. l. c. 527. An examination of that case shows that the portion of the opinion relied upon received the sanction of only two of the then judges of this Division. Further, it was not said the instruction was reversibly erroneous because of the feature thought to be analogous to one in the instruction in the instant case. Again, this instruction closes with a direction to the jury to find for the sum they believe to be just “from all the evidence in the case.” Also, other instructions specifically informed the jury the burden was on plaintiff to “prove his case by the greater weight of the credible evidence. ” The point is ruled against appellant. (b) It is insisted it was error to include the phrase “not to exceed the sum of $25,000.” Cases are cited. In this case the court specifically instructed the jury that' ‘ ‘ the mere fact that plaintiff seeks to recover the sum of $25,000 is no evidence whatever of the amount he is entitled to recover, if anything, nor is it any evidence that he is entitled to recover any sum whatsoever.” In addition, it has been consistently held such a clause in an instruction, following the petition, is not reversible error, whatever its effect upon the question of excessive — 407 — ness of damages. [Kinney v. Met. St. Ry. Co., 261 Mo. l. c. 114, et seq.] Instruction Common to Both Sides. (c) The criticisms of instruction 6 for respondent need not he examined. In every material respect in which it is not similar to an instruction asked by appellant it is supplemented and aided by such instruction in such manner that the jury could not have been misled to appellant’s prejudice. Weight of Evidence. IY. It is insisted the verdict is against the great weight of the evidence and that this, in connection with the asserted excessiveness of the verdict and errors in the trial, requires a new trial. The allegations of error mentioned have already been dealt with, and we have found no prejudice to appellant’s rights of which it can now complain. Neither does recor(j show the verdict to be against the weight of the evidence. There is no dispute that respondent, in the course of duty, was upon the car and that he fell or was thrown therefrom and was injured. The evidence tends to show he was standing, at his post, near the middle of the top of the caboose and that the moving train came so suddenly to a stop as to throw him half the length of the car and off the rear end of it. This is his own testimony. Persons in the car at the time testified in the ease. One boy was thrown from a seat upon which he was sleeping. One man testified he had ridden on freight trains a great deal and he never saw such a stop and'shock except once in a wreck. The witnesses characterized the stop as an awful jolt, a hard crash, etc. One occupant of the car saved himself from being thrown from the car by holding to the seat “with both hands.” It is said one of these witnesses should be discredited, because he testified he was thrown to the east when the car, moving westward, stopped suddenly. His testimony gave no suggestion of intentional falsity. He evidently erred in the testimony mentioned. It is quite unreasonable to think he would concoct a story and include such an error. He was clearly a man of intelli — 408 — gence. The natural conclusion from his testimony is that he was lying upon the seat, running along-the side of the caboose, probably trying to sleep, and that he got directions confused after the sudden shock which drove his head against the partition or end of the car. No witness for appellant was in the ear. The engineer and fireman and head brakeman, all at or near the front of the long train, testified there was no shock that they felt. The conductor declared he did not know, being away from the train. In view of all this testimony it is difficult to understand why it is thought the weight of the evidence is with appellant. The point is not of great consequence in view of our conclusions upon other matters with relation to which it is pressed, but it is so insisted upon that we have set out the substance of the vital evidence. Excessive Judgement. , Y. The.judgment for $10,000 is said to be ‘ ‘grossly excessive.” Respondent was injured December 29,1913. From that time until February 21, 1914, he was treated at home by one of appellant’s surgeons. A few days thereafter he was sent to a hospital and stayed there twelve days, and then was at home under the same treatment for a week, until about March 18, 1914. Since this time respondent has walked upon crutches. The injury is to the knee. It has caused respondent much suffering and continues to do so. The testimony of several surgeons is that there is a bony growth in the joint which prevents the leg being straightened. Dr. T. E. Potter, a practitioner of forty years’ experience, testified respondent couldn’t flex his knee; “it comes out about half way, or a little more, and that is as far as it will go; and even by force, you can’t press it out; ” that it was not very painful, but that there was enough pain to prevent success in efforts to flex the knee; that he thought the injury permanent and didn’t believe he could give respondent any relief by an operation; that the case was such that he would not operate; that an operation resulting in a perfectly stiff leg might be performed, but he didn’t know that would be any im — 409 — provement; that the limb is “better than no limb at all” and that it will be a serviceable leg except for the crook in it. Dr. Kenney thought the leg would not get any straighter, but the “trend” would be for respondent to grow accustomed to it and “as years go past it would get a little better;” that he “wouldn’t say he would get entirely free from pain” and that respondent would not have a “good, serviceable leg.” Dr. Byrne thought respondent might be relieved by an operation; didn’t know what the result of such an operation would be; no such operation had been performed in St. Joseph, but that it had been performed by Dr. Murphy of Chicago; that the knee is painful and will continue so as long as there is any motion in it. Dr. Campbell testified the knee was “anchylosed, almost,” very little movement in it; that it was a permanent injury and that, as for an operation, “most cures in that kind of case are imáginary;” that the result of an operation would probably be a “rigid knee joint.” Two of appellant’s surgeons testified the knee would get well if respondent would go to bed and submit to have “extensions,” i. e., weights upon it; that the foreign substances in the joint would be absorbed. There is, therefore, substantial evidence respondent’s leg is held in a bent or crooked position by a foreign bony substance in the joint resulting from his injury; that this is permanent and that an.operation will do him no good; that he has suffered much pain and will continue to suffer. The exact position of the leg is not made entirely clear. It was clear to the jury and the trial court. If it is bent as Dr. Potter’s testimony indicates, and there is no reason to doubt his accuracy, the leg is of no value so far as walking is concerned. In other words, there is substantial evidence that respondent, so far as-the question of damages is concerned, has, for all practical purposes, lost the use of his leg from the knee down. In these circumstances a judgment for $10,000 cannot be said to be excessive, particularly in view of the failure — 410 — of the record to put clearly before us what was so clearly before the jury and trial court. The judgment is affirmed. All concur, except Bond, P. J., not sitting.