Citation Numbers: 142 Mo. App. 585, 121 S.W. 1090, 1909 Mo. App. LEXIS 278
Judges: Goode
Filed Date: 10/19/1909
Status: Precedential
Modified Date: 10/19/2024
(after stating the facts). — 1. Defendant’s counsel objected to the reception of testimony, saying the petition stated no cause of action, and this Avas the only attack on that pleading prior to verdict, except by two irrelevant motions.
It is argued the petition counts only on common-law negligence in the retention of an incompetent servant; but if it does, it states a cause of action, and the objection was rightly overruled.
2. As the averment of retention of a careless engineer was not made good Jby proof, a nonsuit was claimed on the theory that the aid of the statutes was not invoked and .there Avas a failure to prove the petition in its entire scope and meaning. Perhaps the pleader thought plaintiff was not engaged in operating work in the meaning of section 2873 of the statutes, Avhich takes
3. The instructions given and refused have been digested in the statement, and it is apparent from them the case was fairly submitted. If the evidence for plaintiff Avas true, his hurts were due to gross neglect on the part of the engineer, and plaintiff was not at all in fault; for at the time he was attending, to his work in the usual way and had the right to expect the locomotive to stand still until he was warned by bell or whistle it was about to move. The second and third of the refused instructions proceeded, on the notion that the petition counted exclusively on negligence in re
A party calling a witness may vouch for his credibility and be precluded from impeaching it, but he does not absolutely vouch for the truth of his testimony; and no party is concluded by the statements of any one witness in a case, but is entitled to have the jury weigh it in connection with all the evidence adduced. [Helling v. Order of Honor, 20 Mo. App. 309; King v. Insurance Co., 101 Mo. App. 163.] Hence the first of the three refused instructions was unsound. It related to the testimony of the surgeon of defendant’s hospital who was put on the stand by plaintiff, and we overrule the assignment of error in refusing the request. Also overrule the exception to the remark of plaintiff’s counsel in his address to the jury, wherein he said he would not reflect on the testimony of the physician, but would ask whether he was a willing and talkative witness and favorable to the plaintiff. That was a fair comment on the evidence.
An objection to the first instruction granted for plaintiff and, indeed, to his right to have the case submitted to the jury at all, is that he failed to prove any “rule, practice and custom” as alleged, to give warning of the starting of engines in the yards. The idea is that at most a usage or custom was proved, but no written and promulgated rule. All the evidence, including the testimony of the foreman of the yards, was that it had been customary to whistle or ring the bell before starting a locomotive into motion, but it was not proved the company had adopted a formal rule. The purpose of a rule, if prescribed, would have been to regulate the manner of moving engines for the safety of employees, and if a settled custom or usage had been followed with the sanction of the company, this was in effect a rule which
4. We have examined some points made regarding the improper admission of evidence, but do not deem them well taken.
5. Finally it is insisted the verdict was excessive. Study of the testimony regarding the sufferings of plaintiff, the length of time he was disabled, and the reduction of. his earning capacity by half, has convinced us this position is untenable. The verdict was reasonable and the judgment will be affirmed.