Rooker v. Deering Southwesern Railway Co. , 206 Mo. App. 79 ( 1920 )

This is a personal injury suit. The plaintiff recovered a judgment in the trial court, from which defendant appeals. The case is here on the second appeal and a statement of the facts surrounding the injury will be found in 204 S.W. 556.

On the second trial the plaintiff filed an amended petition basing the ground of negligence causing her injury on a sudden jerk forward while she was standing on the platform preparing to alight from the train, which caused her to fall and be thrown and receive the injuries complained of.

There are several errors alleged. The first is that defendant's demurrer to the evidence should have been given. There was a clear cut issue of fact on this and in the former trial, the plaintiff claiming that she stood on the platform of the car waiting for the train to stop, so that she could get off, and while it was running very slowly, it suddenly lunged forward with an extraordinary and unusual jerk and threw her off, the defendant claiming that she fell in an attempt to alight while the train was yet moving. Plaintiff's version makes a question of fact for the jury.

It is contended that the following parts of instruction No. 1 given for plaintiff, is error:

"Then the court charges you that it became and was the duty of defendant to use that high degree of care which a person of ordinary prudence would use under like circumstances to sell and safely carry plaintiff from Caruthersville on its said railroad on said train to the said station of Blazier." Citing Craton v. Huntzinger, 163 Mo. App. l.c. 721, 147 S.W. 512; Hurt v. S.L., I.M. S. Ry. Co., 94 Mo. l.c. 261-262, 7 S.W. 1. It will be seen on reference to those cases that the error condemned in them is not in this instruction. In the Craton case the instruction made the defendant an absolute insurer, while he was only required to use reasonable efforts or such efforts as an ordinarily prudent person under like circumstances would use. In the Hurt case the error found was that the instruction there told the jury that the duty rested on the employees to not only carry passengers to their destination but to see that they were set down safely on the platform, while the law only required that after arriving at destination a reasonable opportunity be given for the passengers to get themselves down safely on the platform. The duty was broader than the law required, but in the instruction in the case at bar, to say what a person of ordinary care would do, is the same as saying such care as would reasonably insure safety. It is further contended that the instruction is broader than the pleading because it told the jury that if the train did not stop a reasonably sufficient length of time at said station to permit plaintiff, using reasonable care, to alight, and that while the car was in motion plaintiff went upon the platform and while standing there was negligently thrown off on account of an unusual jerk, etc., — the contention is not well taken for when the instruction is read as a whole there is no liability predicated on the failure to stop. If there should have been any doubt in the jury's mind as to a failure to stop, it was dispelled by defendant's instructions Nos. 6 and 7, which eliminate the question of stopping from the case.

Error is assigned in the admission of the testimony undertaking to relate what the conductor said about a ticket after plaintiff had gotten up and started down the track, and after the train had backed up to see how badly she was hurt. The testimony was inadmissible as not being a part of the res gestae, but it was with reference to whether she had a ticket or not, and not a conversation relating to the actual cause of action relied upon for a judgment, that is, the jerk of the train and that plaintiff either jumped off or was thrown off. The error is immaterial and nonprejudicial.

The appellant further makes the point that error was made in the admission of certain testimony which was put in by the plaintiff for the purpose of impeaching and discrediting defendant's only witness, who testified that plaintiff had told him that she jumped off the train, and that said evidence went in over the general objection that it did not prove or disprove any issue in the case and was not binding on defendant, and that such testimony being purely of an impeaching character was admitted without the plaintiff first having laid the foundation for an impeachment. On examination of the record we find that this error was made, and that it is prejudicial, and the evidence being incompetent for any purpose at the time it went in (no foundation having been laid for impeachment), a general objection was sufficient.

The general rule, and we cannot see that the evidence in this case would fall without it, is that before a witness can be discredited by impeachment concerning some former statement made out of court, the foundation must have been laid so as to give him a chance to explain. [Jones on Evidence, Vol. 5, sec. 845. See Bowman v. Marceline Coal Co., 168 Mo. App. l.c. 706, 707, 154 S.W. 891; State v. Curtner, 262 Mo. l.c. 218, 170 S.W. 114.]

Error was committed in the admission of the evidence of Mattie Rooker in testifying to what defendant's witness Burnett had said to her out of court, her statement of what he said being of a discrediting nature and no foundation having been laid.

In addition to the above reasons, this case must be reversed on account of the following colloquy which took place between the trial judge and appellant's attorney: In discharging a witness, the court said: "Thats all, madam."

"Mr. Reeves: I want to ask her a question.

Mr. Reeves: I except to the action of the court in refusing to permit me to further cross-examine this witness; he brought out some new matters and I didn't get to ask her.

By the court: If you are thinking you are the only person trying a law suit — the court directs you to proceed with this case a little more rapidly than you have been; I have another suit to try at one o'clock."

"Mr. Reeves: I object, wouldn't be binding on this defendant —

By the court: Overruled.

Mr. Reeves: If you are ruling against me, I want to save my exceptions; the law requires me to do that.

By the court: Mr. Reeves, I've got a notion to fine you for not paying attention —

Mr. Reeves: Note exception."

It is the duty of the trial court to preside but not to take sides or by act, conduct or words to show his feeling in the case, and not to sacrifice the rights of a party for the saving of a little time. [See State v. Davis, ___ Mo. Sup. ___, 217 S.W. l.c. 91.]

For the reasons herein stated the judgment will be reversed and the cause remanded.

Sturgis, P.J., concurs. Bradley, J., concurs in that portion of the opinion dealing with the trial court's statements to appellant's attorney.