Opinion
No. 37798.
June 7, 1943. Rehearing Denied, July 6, 1943.
1. NEGLIGENCE: Railroads: Counts not Inconsistent. There is no inconsistency between a count alleging failure to sound bell or whistle and a count alleging failure to maintain a properly guarded grade crossing.
2. NEGLIGENCE: Railroads: Grade Crossing Collision: Submissible Case. There was substantial evidence of the failure of defendant to sound the statutory warning signals and that the negligence of the driver of the automobile was not the sole cause of the collision. There was a submissible case for the jury.
3. NEGLIGENCE: Railroads: Grade Crossing Collision: Failure to Give Warning Signals. Though the driver of the automobile was negligent, it does not appear that he would not have stopped if the statutory warning signals had been given.
4. NEGLIGENCE: Railroads: Evidence: Noise and Whistle of Train: Refusal of Cross-examination not Prejudicial Error. When plaintiff's witness testified as to hearing the rumble of the train, but no whistle, cross-examination should have been permitted as to whether he had asked another if the train had whistled. But the other testimony of the witness was so indefinite that this did not amount to prejudicial and reversible error.
5. NEGLIGENCE: Railroads: Failure to Guard Crossing. There was sufficient evidence of the danger of the grade crossing and the amount of traffic to make an issue for the jury as to whether defendant should have installed a gate, warning bells, lights or watchman, and evidence that the crossing was not so guarded was properly admitted, though plaintiff subsequently withdrew the issue from the jury.
6. EVIDENCE: Railroads: Testimony as to Noise Made by Other Trains. It was proper to admit testimony of observations made several months later that the noise of other trains could not be heard around the bluff on the road until just before they came to the crossing, as it tended to prove the importance of a whistle as a warning. And defendant further may not complain when it has offered contrary evidence of the same character.
7. TRIAL: Appeal and Error: Improper Remarks by Counsel: Assignments in Motion for New Trial Too Indefinite: Objections not Made. The assignments in the motion for new trial as to improper remarks and conduct during the course of the trial are too indefinite for appellate review. And proper objections were not made to inflammatory statements and evidence as to the revolting nature of the fatal injuries to the child.
8. TRIAL: Evidence: Proof of no Payments by Defendant Reversible Error. It was reversible error for plaintiff to offer evidence that no payments had been received from defendant on account of the death of any of the three persons killed in the grade crossing collision.
9. TRIAL: Evidence: Weight of Positive and Negative Evidence: Refusal of Instruction. It was not error to refuse an instruction that positive testimony as to hearing a whistle is of greater weight than negative testimony of not hearing it.
10. TRIAL: Evidence: Refusal of Instruction as to Speed. It was not error to refuse an instruction that there was no evidence of excessive speed, since there was some evidence to such effect, and defendant was claiming that the speed of the train was a pertinent factor in the defense of sole cause negligence.
Appeal from Circuit Court of City of St. Louis. — Hon. Harry F. Russell, Judge.
REVERSED AND REMANDED.
Everett Paul Griffin and Carl S. Hoffman for appellant.
(1) The court erred in overruling appellant's motions to require respondent to elect on which of the two counts in the petition she would rely. Count I of the petition was under Section 3652, R.S. 1939, for negligence in operation of the train. Count II of the petition was under Section 3653, R.S. 1939, for negligence in condition and maintenance of the crossing. Said counts are utterly inconsistent and the proof of one disproves the other. Drolshagen v. Union Depot R. Co., 186 Mo. 258; McCall v. Atchley, 256 Mo. 39; Snyder v. Toler, 179 Mo. App. 376. (2) The sole proximate cause of the injury to Raymond Arthur White was the negligence of the parents of said child in driving and permitting the automobile to be driven into the train. Scott v. Kurn, 343 Mo. 1210; Chawkley v. Wabash Ry. Co., 317 Mo. 782; Smith v. Mabrey, 154 S.W.2d 770. (3) There was not sufficient evidence to take the case to the jury on the issue of whether or not statutory warning signals were given. Ingram v. Mobile Ohio R. Co., 326 Mo. 163; Saunders v. Prue, 151 S.W.2d 478. (4) The court erred in refusing to permit appellant to examine witness LaBarge with reference to a statement made by him at about the time of the accident which impeached the testimony of this witness given at the trial. Chawkley v. Wabash Ry. Co., 317 Mo. 782; Mann v. St. L.-S.F. Ry. Co., 72 S.W.2d 977. (5) The court erred in admitting evidence over appellant's objections by witnesses Ostmann, Gross and Heitgert that the crossing was not protected by crossing bars, crossing bells, automatic flasher lights, crossing watchmen or other protection. Welsch v. Railroad, 72 Mo. 451; Toeneboehm v. St. L.-S.F.R. Co., 317 Mo. 1096; Homan v. Mo. Pac. R. Co., 334 Mo. 61; State ex rel. Kurn v. Hughes, 153 S.W.2d 46. (6) The court erred in admitting evidence over appellant's objections by witnesses Ostmann and Roth that months after the accident they were on Caulk's Hill road near the railroad and did not hear a train whistle. Baker v. Met. Street Ry. Co., 181 Mo. App. 392; Coale v. Hannibal St. J.R. Co., 60 Mo. 227; Lester v. Kansas City, etc., R. Co., 60 Mo. 265. (7) The court erred in refusing to grant appellant a new trial because of prejudicial conduct of witnesses, evidence and argument by respondent's counsel. (a) In the opening statement to the jury respondent's counsel described in great detail the injuries sustained by deceased and during the course of same turned to respondent and requested her to take the minor children from the court room. (b) Notwithstanding that it was admitted that the baby died as a result of the accident, over objection, the hospital records were admitted which described in great detail the nature of the injuries and the treatment given. (c) Respondent's counsel, in the opening statement to the jury, stated that the purpose of the parents in going to St. Charles was to purchase Christmas gifts for the children. (d) Respondent's counsel, over objection, in the opening statement referred to the fact that the crossing was not protected by crossing gates, watchmen, bells, lights or other signals. (e) Although the suit was for a penalty under the statute, respondent's counsel was permitted to argue that the jury should measure its verdict by the value of a human life. (f) Over objection, respondent was permitted to testify that she had received no payment in the suits brought for the death of the father and mother. Chawkley v. Wabash Ry. Co., 317 Mo. 782; Ullom v. Griffith, 263 S.W. 876; Smith v. St. Louis Southwestern Ry. Co., 31 S.W.2d 105. (8) The court erred in giving to the jury, at the request of respondent, Instruction 8. Kuhlman v. Water, Light Transit Co., 307 Mo. 607; Lesser v. Ry. Co., 85 Mo. App. 326; Cummins v. K.C. Public Serv. Co., 334 Mo. 672; Grier v. K.C., C.C. St. J. Ry. Co., 286 Mo. 523. (9) The court erred in refusing Instruction 8, offered by appellant. Murray v. Mo. Pac. Ry. Co., 101 Mo. 236; Reid v. Schaff, 210 S.W. 85. (10) The court erred in refusing Instruction 16, offered by appellant. Welsch v. Railroad, 72 Mo. 451; Toeneboehm v. St. L.-S.F.R. Co., 317 Mo. 1096; Homan v. Mo. Pac. R. Co., 334 Mo. 61; State ex rel. Kurn v. Hughes, 153 S.W.2d 46; Felber v. Union Electric L. P. Co., 340 Mo. 201; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179; Talbert v. Ry. Co., 314 Mo. 352. (11) The court erred in refusing Instruction 14, offered by appellant. Burge v. Railroad, 244 Mo. 76; Felber v. Union Electric L. P. Co., 340 Mo. 201; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179; Talbert v. Ry. Co., 314 Mo. 352.
B. Sherman Landau for respondent.
(1) There was no inconsistency between the two counts of plaintiff's petition. Count I alleged negligent operation of the train; Count II alleged negligent failure to properly safeguard the crossing. Proof of one would not disprove the other; the two types of negligence could coexist simultaneously. (2) Any claimed inconsistency in the allegations of plaintiff's petition was eliminated by the submission of only one charge to the jury. Pabst v. Armbruster, 91 S.W.2d 652; Danklef v. Armbruster, 91 S.W.2d 660; Stark Bros. Nurseries v. Mayhew, 160 Mo. App. 60, 141 S.W. 433; McDonald v. Met. St. Ry. Co., 219 Mo. 468, 118 S.W. 78, 16 Ann. Cas. 810; Rinehart v. Long, 95 Mo. 396, 8 S.W. 559; Gardner v. Crenshaw, 122 Mo. 79, 27 S.W. 612; Ideal Hinge Co. v. Metallic Mfg. Co., 207 S.W. 273. (3) Negligence on the part of the parents of the deceased child, if such negligence had been shown, may not be imputed to the child. Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20. (4) Defendant's failure to sound the crossing signals required by statute was negligence per se. Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98. (5) The testimony of four witnesses in plaintiff's behalf that their hearing was good, there was no obstruction to sound, that they were sufficiently close to have heard a warning signal if sounded, but that they heard none, was sufficient to take to the jury the issue of defendant's negligent failure to sound statutory warning signals. Evans v. Atchison, T. S.F. Ry. Co., 131 S.W.2d 604; Dodd v. Terminal Railroad Assn., 108 S.W.2d 982. (6) The burden of evidence rested on the railroad to show that its failure to sound the statutory signals did not cause the death. State ex rel. v. Reynolds, 286 Mo. 204, 226 S.W. 564. (7) It must be presumed that the truck would not have been driven into the position where it was struck if the statutory signals had been sounded. Gann v. Chicago, R.I. P.R. Co., 319 Mo. 214, 6 S.W.2d 39. (8) The court properly rejected the defendant's attempt to introduce evidence of the conversation alleged to have occurred between the witness La Barge and one Gregory four or five minutes after the passage of the train, as such conversation was not admissible under the res gestae rule, Woods v. Southern Ry. Co., 73 S.W.2d 374; and, further, because it violated the hearsay rule. (9) Plaintiff was properly permitted to introduce evidence describing the physical characteristics of the grade crossing, even though such evidence disclosed that the crossing was unprotected. Such evidence was merely cumulative, as photographs introduced into evidence without objection fully advised the jury that the crossing was not provided with any protective device. (10) The court properly permitted the witnesses Ostmann and Roth to testify that ordinary running sounds of a train approaching from the west were inaudible to a motorist in the cut north of the grade crossing. This was admissible as describing the physical characteristics at and surrounding the grade crossing, and was also relevant on the issue of sole negligence of the child's father submitted in defendant's Instruction 3. (11) The court properly ruled on the incidents occurring during the course of the trial in accordance with the sound discretion vested in the court. Incidents assigned in this court as prejudicial were not objected or excepted to at the trial, nor were they assigned as error in defendant's motion for new trial. They have, therefore, not been preserved for review in this court. (12) Plaintiff's Instruction 8, on measure of damages, was proper. Defendant did not ask any instructions as to what the jury might consider in exercising the discretion specified by statute. Sec. 3652, R.S. 1939; Gorman v. Franklin, 117 S.W.2d 289. (13) The court properly refused defendant's Instruction 8 on the weight to be accorded the evidence. State ex rel. v. K.C., Ft. S. M. Ry. Co., 70 Mo. App. 634; Milligan v. C., B. Q.R. Co., 79 Mo. App. 393; Johnson v. Springfield Traction Co., 176 Mo. App. 174, 161 S.W. 1193. (14) It is error to instruct the jury as to the weight to be accorded the evidence. Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Conduitt v. Trenton Gas Elec. Co., 326 Mo. 133, 31 S.W.2d 21; Davis v. City of Independence, 330 Mo. 201, 49 S.W.2d 95. (15) The court properly refused defendant's instructions 14 and 16, being withdrawal instructions, as neither the petition nor the assignments of negligence were read to the jury, nor were the assignments of negligence specified in defendant's withdrawal instructions submitted to the jury. Davis v. Buck's Stove Range Co., 329 Mo. 1177, 49 S.W.2d 47; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512. (16) The giving or refusal of a withdrawal instruction is discretionary with the trial court. Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512.
This is the third of three actions under the wrongful death statute, Sec. 3652, R.S. 1939, Mo. R.S.A., sec. 3652, growing out of a collision on December 20, 1939, between appellant's eastbound freight train and a truck driven by Robert Jean White, with whom his wife, Myrtle Ann White and their two-year-old son Raymond Arthur White were riding. The collision occurred on Caulk's Hill road in a rural part of St. Charles county at a grade crossing where a high bluff hid the train until it was close to the highway. The plaintiff recovered judgment in each case for $10,000. The instant action (No. 37,798) is for the death of the infant and is prosecuted by the respondent as his administratrix. The judgment in the action for the mother's death (No. 37,611) was affirmed by this Division in 161 S.W.2d 227. The judgment in the action for the death of the father (No. 37,799) is reversed in an opinion delivered contemporaneously herewith. The facts are fully stated in those cases. We shall set out here only such evidence as is necessary to a discussion of the assignment of error.
The respondent's petition was in two counts. The first was based on the wrongful death penal statute, Sec. 3652, R.S. 1939, Mo. R.S.A., sec. 3652, and alleged, among other things, failure to sound the locomotive whistle or bell at the crossing. The second count was based on the wrongful death compensatory statutes, Secs. 3653-3654, R.S. 1939, Mo. R.S.A., secs. 3653-3654, and charged failure to maintain watchmen, crossing gates, etc. Evidence was introduced by respondent on both counts. At the close of the respondent's case in chief and of the whole case, appellant moved the court to require respondent to elect on which count she would proceed. Both motions were overruled; but respondent nevertheless submitted her case only on the first count, for failure to sound the whistle or ring the bell. Error is assigned here in the overruling of these motions, on the theory that the two causes of action were "utterly inconsistent and the proof of one disproves the other," citing Drolshagen v. Union Depot Co., 186 Mo. 258, 262 (i), 85 S.W. 344(1), and two other cases less in point.
This same contention was overruled in the mother's case, supra, 161 S.W.2d l.c. 229(1). We adhere to that ruling, and are unable to see inconsistency in the facts — which is the ground assigned. A defendant carrier undoubtedly could be guilty at the same time both of a failure to sound the engine bell or whistle and of failure to maintain a proper crossing or crossing gates. Gann v. C., R.I. P. Ry. Co., 319 Mo. 214, 219, 6 S.W.2d 39. In the Drolshagen case cited by appellant it was the inconsistency in the facts that the opinion denounced. The plaintiff in the first two counts of his petition had alleged [829] his son was on a street car and was forcibly ejected; whereas the third and fourth counts alleged the boy was on the street and that the street car ran over him. Conceding the respondent here finally would have had to elect whether she would seek her recovery under the penalty statute or the compensatory statute, she did do that in effect by submitting her case to the jury solely on the first count for failure to sound the bell or whistle. She had the right to state and prove (in good faith) causes of action under both the penal and compensatory sections of the death statutes, in separate counts. There is no merit in the assignment.
The next assignment of error is that the trial court erred in refusing to sustain appellant's demurrers to the evidence because: (1) the sole proximate cause of the infant's death was the negligence of his parents (both the father and mother); (2) there was no substantial evidence of failure to sound the statutory warning signals. On the first contention, it was held as to the mother in the first Borrson case, supra, 161 S.W.2d l.c. 230(2-8), that there was no substantial evidence convicting her even of contributory negligence. In the second Borrson case (No. 37,799) handed down contemporaneously herewith, appellant contended the father was guilty of contributory negligence as a matter of law, and we sustained that contention. But if his negligence was merely contributory, it could not have been the sole cause of the infant's death. Appellant's contentions in the two cases are inconsistent. The second contention here, that there was no substantial evidence of failure to sound the statutory warning signals, was ruled against appellant both in the mother's case, supra, 161 S.W.2d l.c. 231 (9-13) and in the father's case, supra, No. 37,799. The evidence in those cases was similar to that here, and we are satisfied with that ruling.
Appellant's real contention on sole negligence is that the infant's death was not a proximate result of the failure (if any) to sound the crossing signals, because the train was in plain view for a sufficient time to permit the father to stop the truck. His failure to do that, reasons appellant, intervened as the sole cause of the collision. This is the theorized from: (1) the proven relative speeds and distances from the crossing of the train and truck; (2) respondent's expert evidence that the train could have been seen 211.5 feet westward when the truck was 28 feet north of the crossing; (3) and the assumption that both reached the point of collision at the same instant. But we cannot accept the latter fact as conclusively proven, although two of appellant's witnesses so testified. Furthermore, on that hypothesis the train would have traveled its distance in less than two seconds. As held in case No. 37,799, the father unquestionably was guilty of contributory negligence in failing to observe that he was approaching a railroad crossing and to have his truck under control, even though no bell or whistle were sounded. But who can say he would not have done so if these warning signals had been sounded? One of appellant's witnesses, Kolkmeier, testified he had heard an eastbound train whistle from behind the bluff when he was on the highway 337 feet north of the crossing; another, Heitgart, said 200-300 feet; and a third, Bruns, said 30-50 feet. This assignment cannot be sustained.
The third assignment charges error in the trial court's refusal to permit appellant's counsel to cross-examine respondent's witness LaBarge, who from some distance heard the rumble of the freight train and saw it before the collision and after it had stopped. But he did not hear it whistle. Appellant's counsel offered to prove by the witness that just after the train had stopped he asked his companion, Gregory, if the train had whistled. The announced purpose of the offer was to show the witness' doubt and mental uncertainty on that question at the time of the event. On respondent's objection the offer was excluded, and in its brief here appellant assigns error, contending the testimony would have been competent as impeachment, citing Mann v. St. L.-S.F. Ry. Co. (Mo. Div. 2), 72 S.W.2d 977, 981(6) which holds: "A witness may always be impeached by showing that he (the witness) made statements inconsistent with his testimony."
We think the testimony was competent and should have been admitted, but we cannot hold its exclusion was prejudicial and reversible error, because the witness freely admitted at the trial (as shown in another part of appellant's brief) that the whistle may have been sounded without his hearing it, and that he was not positive. During his cross-examination when asked if he was not in considerable doubt as to [830] whether the train had whistled, he answered "Well, as I said, I couldn't say it didn't, and I couldn't say it did whistle, but I never heard it. I couldn't say if it whistled; I would have certainly heard it in a quarter of a mile." This testimony is rather definite on the fact that at the trial the witness thought he did not hear the whistle, if any; and it may be the proffered evidence would in some degree have tended to show the witness was not so certain on that point at the time of the casualty. But it is also subject to the construction that LaBarge asked Gregory whether the train whistled because he (LaBarge) had not heard it. In our opinion, while it would have been better to have permitted the interrogation, yet it would not have shaken the witness' story materially or have affected his credibility. For this reason we overrule the assignment.
The fourth assignment of error complains of the admission of testimony from respondent's witnesses Ostmann, Gross and Heitgart, that the railroad crossing was not protected by a gate, warning bells, lights or watchmen. This evidence was introduced as a part of respondent's case in chief under the second count of her petition, which cause of action was abandoned at the close of all the evidence. Appellant contends the evidence should have been excluded because there was an X crossing sign at the grade crossing and no statute requiring said other devices at "an infrequently travelled road out in the open country." Respondent asserts she had the right to prove the lack of these devices in showing the "physical characteristics" of the crossing, the same facts having been shown in the photographs (same as those used in case No. 37,799) which were admitted in evidence without objection. Then she further argues that under the evidence the grade crossing was unusually dangerous and the highway much traveled, in consequence of which it was a question for the jury whether the special devices mentioned should have been installed, citing: Toeneboehn v. St. L.-S.F. Ry. Co., 317 Mo. 1096, 1110, 298 S.W. 795, 801; Homan v. Mo. Pac. Rd. Co., 334 Mo. 61, 74-5, 64 S.W.2d 617, 622.
We consider the question close. In this series of cases this is the third time the respondent has got the facts before the jury that there were no watchmen, crossing gates, warning bells or flasher lights at the crossing — and then abandoned that issue and submitted her case on another. We do not agree that she had a right to single out, and thereby comment upon, the absence of such devices merely to show the "physical characteristics" of the crossing. Those facts were immaterial and prejudicial unless it was the duty of the appellant railroad in the exercise of due care to maintain the special devices. The doctrine announced in the Toeneboehn and Homan cases, supra, is that where the crossing is extraordinarily hazardous because of the congestion or speed of railroad or highway traffic, or where the view and hearing of the highway traveler are seriously interfered with by intervening objects and the crossing is much used, it is a question for the jury whether the railroad company should adopt special protective measures in the exercise of due care.
In this case the crossing was in a rural section. Sight and sound were clear both east and west on the south side of the crossing, and toward the east from the north side. But from the north side it was difficult to see or hear a train approaching from the west until it got close. And respondent presented substantial evidence showing that appellant had caused a traffic count at the crossing to be made in 1927; that the traffic had trebled since; that Caulk's Hill road was the principal highway from that neighborhood to the county seat, St. Charles; that there were a country school house and some ten families scattered therethrough; that a number of farmers residing in the upland went over that crossing to rented tracts in the Missouri River bottom; that three school busses and a rural mail carrier used it daily; that some fifty men were working on a Government project cutting willows in the river bottom south of the crossing; and that the employees at two W.P.A. rock quarries in the vicinity, and their rock trucks, would pass over the crossing in going to and returning from work. We think this was enough evidence to take the case to the jury on the question whether the special protective measures should have been taken.
The next assignment complains of the admission of testimony from respondent's witnesses Ostmann and Roth, concerning their experiences at the crossing sometime after the casualty, bearing on their ability to hear the sound (not whistle) of trains approaching from the west. Appellant's counsel objected to any experience of the [831] first witness, Ostmann, but said he would not object to any tests made at the crossing. Both witnesses said conditions there were the same when they made their observations as at the time of the casualty. Ostmann related that when he was about 20 feet north of the crossing an eastbound train "shot right in front of me right over the crossing;" and that he did not hear any sound of any kind from the train before he saw it. No roar was audible. Witness Roth said he had been at his mail box and driven south across the track about five feet without hearing any rumble or operating noises of a train, when he looked westward and saw one coming about three telegraph poles away.
In support of its contention on this assignment appellant cites three cases, which are listed in the margin. The Baker case ruled negligence of the operatives of the streetcar which injured a plaintiff could not be proved by showing other accidents involving other cars of the same company manned by the same or other servants. The Coale and Lester cases held the fact that a particular locomotive had set out fires could not be proven by evidence that sparks had escaped from other locomotives of the same company, equipped with the same type of spark arrester. But both these cases have been overruled. The purpose of the testimony of the two witnesses here was not to show that other trains on appellant's railroad had negligently failed to whistle for the Caulk's Hill crossing; but was to show operating noises of such trains could not be heard on the highway behind the hill. That evidence was competent on the actual causative effect of a failure to sound the statutory warning signals — louder noises calculated to give highway travelers better warning of the approach to the train.
Baker v. Met. St. Ry. Co., 181 Mo. App. 392, 394, 168 S.W. 842, 843(2); Coale v. H. St. J. Rd. Co., 60 Mo. 227, 229; Lester v. K.C., St. J. C.B. Rd. Co., 60 Mo. 265, 267.
Hoover v. Mo. Pac. Ry. Co. (Mo. Div. 1), 16 S.W. 480, 482(5); Big River Lead Co. v. St. L., I.M. S. Rd. Co., 123 Mo. App. 394, 397-8, 400, 101 S.W. 636, 637; Campbell v. Mo. Pac. Ry. Co., 121 Mo. 340, 348 (III), 25 S.W. 936, 937(3), 25 L.R.A. 175, 43 Am. St. Rep. 530.
Furthermore, appellant's counsel had previously raised the issue by successfully proving on cross-examination of another of respondent's witnesses (Hemsath) that "a freight train makes a lot of noise . . . the puffing of the engine and the exhaust, and the rattle of the metal on the train and the couplers and the noise of the wheels on the tracks;" and appellant later presented the same character of testimony from its witnesses Bruns, Kolkmeier, Heitgart and Eatherton. The latter testified the operating noise of the trains of another railroad south of the Missouri river could be heard on the north side four miles away. It may be that the noise made by running trains will vary some with the gradient of the track and their speed, length, weight and character (passenger or freight) but it is common knowledge that all make operating noises. And if one of appellant's trains passing Caulk's Hill crossing could not be heard around the bluff on the highway that would be some evidence the same would be true of others under the same general conditions.
The point stressed in appellant's brief is not that the trains were different; but that the "observations" or "experiences" of the witnesses Ostmann and Roth "happened months after the accident in question." The brief concedes evidence of these would have been competent if they had been "tests." Call them what you will, we think the evidence was competent, with no dissimilarity suggested except the difference in time. Even on the question as to the distance in which an eight car passenger train could make an emergency stop (a much closer question), a majority of the court en banc held testimony was competent which detailed witnesses' observations of service stops of other passenger trains of different lengths (11 and 14 cars) at subsequent times and different stations. Moran v. A., T. S.F. Ry. Co., 330 Mo. 278, 291(8), 295 et seq., 48 S.W.2d 881, 886 (12, 13), 888 et seq., certiorari denied, 287 U.S. 621, 77 L.Ed. 539, 53 S.Ct. 21. This assignment is overruled.
The next assignment of error in the brief charges that "the record in this case is replete with most prejudicial conduct of witnesses, evidence, opening statement and argument by respondent's counsel." Then follows an enumeration of alleged prejudicial statements made by respondent's counsel in his opening statement and in argument; courtroom stage setting and dramatics; and incompetent evidence. [832] The only specifications in the motion for new trial that could be thought even remotely to preserve for review the argument and opening statement of respondent's counsel, were Nos. 22 and 25. The former said a new trial should be granted "because of improper remarks made by the counsel for the plaintiff during the course of the trial." The other specification attacked "the action of counsel for plaintiff in constantly injecting improper matters into the case and in asking improper questions and making improper remarks" — all of which forced appellant's counsel to incur the jury's displeasure by making constant objections. In our opinion these assignments were too indefinite to cover the opening statement and argument. The assignments apparently referred only to matters transpiring during the introduction of evidence; but now appellant seeks to make them embrace everything that occurred from the time the jury was sworn until the cause was submitted for their verdict — a wholesale and altogether indefinite charge.
It was held in Polski v. St. Louis, 265 Mo. 458, 461, 175 S.W. 197, 198, that Sec. 964, R.S. 1939, Mo. R.S.A., sec. 964, requiring all motions to be accompanied "by a written specification of the reasons upon which they are founded," applies to motions for new trial in civil actions. This decision has been both followed and disregarded rather waveringly since. But whatever the statutory rule may be, it is clear that there must be some common sense requirement about the definiteness of assignments; otherwise no trial or appellate court could tell what the motion for new trial refers to. We find five decisions dealing with this question as applied to errors in the argument of counsel.
Wampler v. A., T. S.F. Ry. Co., 269 Mo. 464, 472, 476, 485, 190 S.W. 908, 909(1), 911(III), 914; K.C. Disinfecting Co. v. Bates, 273 Mo. 300, 304, 201 S.W. 92, 93; Wynne v. Wagoner Undertaking Co., 274 Mo. 593, 597, 204 S.W. 15; Kilpatrick v. Robert, 278 Mo. 257, 264, 212 S.W. 884, 886; State ex rel. United Rys. Co. v. Reynolds, 278 Mo. 554, 557, 213 S.W. 782, 783; State ex rel. St. L. Basket Box Co. v. Reynolds, 284 Mo. 372, 385, 224 S.W. 401, 404; Greer v. Carpenter, 323 Mo. 878, 882, 19 S.W.2d 1046, 1047; Wilhite v. Armstrong, 328 Mo. 1064, 43 S.W.2d 422, 423.
In Sibert v. Litchfield M. Ry. Co. (Mo. Div. 2), 159 S.W.2d 612, 618(10) an assignment in the motion for new trial "that the verdict of the jury was so excessive as to demonstrate that it was the result of passion and prejudice induced by `argument of plaintiff's counsel during the course of the trial;'" and that the court should have declared a mistrial "on account of improper conduct `and argument of plaintiff's counsel during the course of the trial,'" was held sufficient to preserve the question of improper argument. In Moll v. Pollack, 319 Mo. 744, 767 (XIX), 8 S.W.2d 38, 48(22), appellant complained on appeal of improper argument by respondent's counsel, quoting the argument. The opinion held the assignment untenable because the argument was (italics ours) "not preserved in the bill of exceptions and because the alleged error is not preserved in the motion for new trial." The original record in that case on file in this court shows the exact quoted language was preserved in the bill of exceptions, but that while the motion for new trial did complain of improper argument, yet the language was general and may not have referred to the words quoted in the opinion.
In Arnold v. May Dept. Stores Co., 337 Mo. 727, 741(7), 85 S.W.2d 748, 756(16) an assignment in the brief complained that the lower court erred in permitting plaintiff's counsel to argue certain specified facts which had not been offered in evidence. The opinion says no such assignment was made in the motion for new trial. An inspection of the original record in that case shows the 17th assignment in the motion only charged error in permitting counsel "to argue the law applicable to the evidence." In Stauffer v. Met. St. Ry. Co., 243 Mo. 305, 323, 147 S.W. 1032, 1037(8), the assignment charged error in certain specified remarks of respondent's counsel in argument. The decision said (italics ours): "The motion for new trial pretermits all reference to that incident. That omission closes the door to an appellate court." And in Burns v. R.L. McDonald Mfg. Co., 213 Mo. App. 640, 650, 252 S.W. 984, 988(10) the following is stated: "It is urged that reversible error was committed by plaintiff's counsel in the closing argument. As to one statement now complained of, no mention of it was made in the motion for new trial; hence it is not open for review now." The opinion then goes on to say the other statement [833] complained of was covered by the motion, and disposes of it on the merits.
These decisions disclose a judicial policy requiring a reasonable degree of definiteness in assignments in a motion for new trial which are aimed at erroneous remarks made in opening statements and the argument of counsel. And while that requirement was not observed in the instant case, yet one of the statements made was followed by evidence on the same point, to which objection was made and preserved. In his opening statement respondent's counsel gave the revolting details of the infant's injuries: that "the top of his skull was knocked off, and his brains protruded through that opening in the skull. His jaws was broken — (addressing Mrs. Borrson): Mrs. Borrson, will you kindly take the children out of the courtroom?" Then counsel proceeded to relate the treatment given the infant at the hospital in St. Charles — about putting a pack on the top of his brain saturated with certain drugs, and about the difficulty encountered in setting the jaw bones. Not until that time did appellant's counsel object, saying it was undisputed that the child was killed in the accident. The objection was sustained.
Later the hospital record of St. Joseph's Hospital at St. Charles was introduced, showing that the infant died of a compound fracture of the skull, cerebral evulsions, etc. These were described in detail in the record. It stated "the child is in extremis. Has lost considerable blood;" that the skull fracture was the size of a lemon; that there was a cavity in the brain which easily admitted the index finger. Then the record makes statements about washing the brain and dusting it with powder. If a proper objection had been made to this evidence it would be promptly held there was error in admitting it. There was actually no dispute in the case concerning the fatal nature of the infant's injuries, or about the fact that he was riding in the truck with his father and mother when the train struck it; was thrown a long distance; and was taken on the train to St. Charles and later died in the hospital there.
When the hospital record was produced by the Sister who was keeper thereof, the trial court warned respondent's counsel that any inflammatory statements therein would be prejudicial and reversible error. Then respondent's counsel and the court endeavored to go through the record and the court excluded certain parts. Appellant's counsel was asked what part he objected to. He said he did not object to the fact that it was the record, or that the infant was treated at the hospital and died there; but that any other matter therein about the nature of the injuries and the treatment would be incompetent, hearsay, and could be testified to only by a physician. Then he said he objected to the whole record except the fact that the infant was in the hospital and — "had such injury. The proper way for him to do that is put a physician on the stand. That is hearsay stuff." The trial court expressed the opinion that the first page of the record was admissible. Being asked what part he objected to appellant's counsel answered, the word "expired," and "Religion — M.B." The latter words were cut out but the word "expired" was left in. Then he objected to the sentence "struck by a train while riding in a truck;" and that was omitted. Next, attention was called to the fact that the concluding portion of the record recited the infant was "Admitted 12/ 30/39," when the correct date was 12/ 20/39. Appellant's counsel said he would concede the infant entered the hospital on December 20, and that the date December 30 was erroneous. With his consent the Sister was then excused, taking the hospital record with her.
We find nothing in the court record here on appeal showing that appellant objected to the admission of the part of the hospital record finally culled out, on the ground that it was inflammatory and immaterial. His objection, so far as any was made, rested on the ground that the record would be hearsay and that the proof ought to be made by a physician. There was no proof whether the hospital was a public institution, but that makes no difference under Sec. 9777, R.S. 1939, Mo. R.S.A., sec. 9777. The ground assigned by appellant's counsel had long before been disallowed and the ruling made that such hospital records are competent to show the disease suffered by the patient, in Kirkpatrick v. Wells, 319 Mo. 1040, 1045(IV), 6 S.W.2d 591, 593(4, 5), and Vermillion v. Prudential Ins. Co., 230 Mo. App. 993, 999, 93 S.W.2d 45, 48(1).
Another assignment complains of the following. When the respondent Alice Borrson testified, her counsel was making proof that she had been appointed administratrix [834] by the Probate Court of St. Louis county. Appellant objected, contending that court had no jurisdiction because the infant was a resident of and died in St. Charles county; and that respondent therefore had no legal capacity to prosecute the action. It developed also that she had later been appointed administratrix in St. Charles county, but not until after the bringing of the suit. The objection was overruled. Then appellant's counsel cross-examined her, inquiring: under which appointment she was "seeking to recover the money from the defendant;" whether she hadn't gone to the Probate Court of St. Charles county (rather than St. Louis county) to be appointed as guardian of the minor children in the two other suits; and whether there was any reasonable probability the deceased two year old infant could furnish support or maintenance for his heirs (his elder surviving sisters and brother) during their minority — this relating to the cause of action in the second count of the petition, under the compensatory death statute, which at that stage of the trial had not yet been abandoned.
Thereupon respondent's counsel took over the witness on re-direct examination, and asked her whether she was seeking to recover in this action for her personal benefit or for "these three children." On objection by appellant, counsel for respondent asserted he was rebutting the inference or imputation in the preceding cross-examination that respondent was seeking the recovery for herself. The court overruled the objection. Then respondent's counsel proceeded to ask the witness these two questions: "Now, lets go into the matter of that appointment in St. Charles county as administratrix of Raymond Arthur White (the infant decedent). Has the railroad company ever paid anything to you as administratrix of Raymond Arthur's estate as a result of the appointment in St. Charles county?" An objection was overruled, and the witness answered in the negative. Then the witness was asked if the railroad had ever offered to pay her anything in the above capacity, and again over objection she answered No. Then finally respondent's counsel inquired: "Now, with reference to the action which was brought in behalf of the children and by yourself in the capacity as guardian of the children, for the death, first of the mother, have either you or the children received anything from the railroad company from that action? A. No."
Appellant objected and moved that the jury be discharged "because of that prejudicial influence that Mr. Landau is attempting to bring into this case." This last question was asked, be it remembered, about the deceased mother's case then pending on motion for new trial, and later appealed to this court. The Court said "Let's go back." Thereupon the court and counsel on both sides repaired to the Court's chambers, and upon their return the motion was overruled. We have read and reread respondent's brief to find what valid defense her counsel could make of this last question. The only excuse offered — we say excuse advisedly — is, that it was improper for appellant's counsel to make a collateral attack on respondent's appointment as administratrix in St. Louis county, and to cast the imputation that she was attempting to recover the children's money for herself. Then respondent's brief continues: "To offset the mischief achieved by defendant's improper introduction of this extraneous issue, plaintiff was put to the necessity of removing the unfair and untrue insinuation by showing that the children had not received any payment from the other cases or from the appointment in St. Charles county." But that explanation does not explain. We think the error was reversible.
[9, 10] We find no fault with respondent's measure of recovery instruction, No. 8, nor with the refusal of appellant's instruction No. 8, which would have told the jury that the positive testimony of a witness who said he heard the whistle sound is of greater weight than the negative testimony of an equally credible witness that he did not hear it. There was no error in the refusal of appellant's instruction No. 16, which declared there was no evidence that either a gate or a bell or a watchman was necessary at the crossing. The same is true of appellant's refused instruction No. 14, which would have stated there was no evidence that the train was traveling at an excessive rate of speed. One or two witnesses said it was going very fast; on appellant's own theory its speed was a pertinent factor in determining whether and where the deceased truck driver might have seen it in time to avert the collision; and so far as this record shows, the jury never knew one of [835] respondent's original but abandoned contentions was that it was traveling at a negligently excessive speed. Respondent's counsel did not so claim in his opening statement.
Because of the erroneous redirect examination dealt with in the second, third and fourth paragraphs last preceding, the judgment is reversed and the cause remanded. All concur.