Opinion
No. 21301.
May 8, 1950.
APPEAL FROM THE CIRCUIT COURT, BUCHANAN COUNTY, SAM WILCOX, J.
Brown, Douglas Brown, St. Joseph, R. A. Brown, Jr., St. Joseph, for appellant.
Price Shoemaker, Elmer E. Reital, Culver, Phillip, Kaufmann Smith, W. J. Sherwood, all of St. Joseph, for respondent.
Plaintiff sued defendant for the value of a truck and its cargo, destroyed when struck by defendant's train while parked on the platform of its station for the purpose of unloading freight. Judgment was for plaintiff in the amount of $1573. Defendant appeals.
Plaintiff operated a truck line between St. Joseph, Missouri, and Marysville, Kansas. He had a contract whereby trucks carried freight for defendant, from station to station, along its main line. One of the stations so served was located at Oneida, Kansas. The accident which gave rise to this action occurred when one of plaintiff's drivers, Couch, parked a truck on defendant's platform in such a manner that the front end of the truck was about one foot from the track. The truck was struck by a passing train and it was destroyed.
Plaintiff's theory of his right of recovery is based on his contention that Couch customarily parked his truck at the place where it was parked on this occasion, for convenience in unloading freight; that the truck was parked so that the tractor was within one foot of the rail; that defendant's agent knew of such practice and permitted same; that, on this occasion, after parking, he inquired of defendant's station agent whether any train was expected soon and the agent said: "No. The motor train has gone and the B car too"; and that said driver relied on the agent's statement.
There was evidence to the effect that there was a freight house door in the north and in the south side of the depot; that, by reason of railroad tracks, dirt roads, and certain obstructions, it was very difficult and inconvenient for a trailer truck, such as Couch drove, to get to the north door for the purpose of unloading freight, and that Couch never used that door; that the south door was so located that if and when the rear end of the truck was conveniently near the freight house door, the front end of the tractor would be, as it was on this occasion, within the overhang of any passing train; and that, if one parked a trailer so that the front end was clear of the overhang of a train, then the rear door of the trailer would be some ten feet from the freight house door, thereby making it very difficult to place heavy freight therein; and that all of plaintiff's drivers habitually parked plaintiff's trucks in this manner.
Couch testified to the effect that he had driven one of plaintiff's trucks over this route for a long time and was familiar with the grounds and parking facilities at Oneida station; that he observed that other drivers of plaintiff parked as he did; that there were no signs indicating where to park or not to park; that no agent for defendant ever told him where to park or not to park; that on the day of the accident he had freight for defendant and parked the truck in the usual manner; that the front end of the tractor was within one foot of the track; that he knew it was a main line track and that a train might pass at any time; that Mrs. Rice, the agent, came to the door and he asked her: "Will there be a train through here soon?" to which she replied: "No. The motor has gone and the `B' car too"; that he entered the station and proceeded to transact his business with the agent; that he heard a train whistle; that Mrs. Rice said: "Oh, My God there's the extra"; that he rushed out and tried to stop the train but could not, nor did he have time to move the truck; that the truck and its contents together with the station house, were completely destroyed.
Plaintiff and another of his drivers gave testimony regarding parking facilities at the station and, generally corroborated the testimony of Couch as to the impracticability of parking trailer trucks on the north side of the station. Mr. Haxton, plaintiff's driver, testified to the effect that all of plaintiff's drivers always parked about as Couch parked the truck in question. Plaintiff stated that, a day or two before he entered into the trucking contract, he and two of his drivers were shown the parking facilities by a representative of defendant; that they were shown the south door of the station and looked over the situation there; that he had delivered freight there on one occasion; that when parked for such purpose the tractor would be within a foot or two of the north rail of the track.
Defendant complains of error because its motion for directed verdict was overruled. It contends that no submissible case was made because: "The burden was upon the plaintiff to prove that Mrs. Rice knew, or in the exercise of ordinary care could and should have known, that the train was due to arrive, that she negligently and incorrectly informed the driver that the train was not due or expected to arrive shortly, and the driver was thereby caused to leave the truck where it could be struck." There was substantial evidence from which the jury could have inferred that Mrs. Rice had knowledge that a train would pass the station shortly, and that she knew that the truck was parked so that it might be struck. The driver's testimony was that she came to the door of the station when he parked; and when the whistle sounded Mrs. Rice said: "Oh, My God, there's the extra!"
From the above, and other evidence in the case, the jury could have inferred that Mrs. Rice knew that a train would arrive shortly; that she knew that the truck was parked where it would be struck; that she negligently failed to inform plaintiff's agent of the imminent approach of the train but, on the contrary, told him that no train was expected; and that he relied on said information.
Defendant also contends that plaintiff's agent, Couch, was guilty of contributory negligence as a matter of law in that he parked the truck at a point where a passing train would strike it, with full knowledge that a train might pass at any time. There was evidence to the effect that there was no reasonably suitable place for trucks to park so that heavy freight might be unloaded into the depot, except the point where this truck was parked; that plaintiff's trucks were habitually parked as this one was; that defendant's agent knew of the practice (defendant offered evidence to the effect that the agent had complained about it); and that plaintiff's drivers always, when arriving with freight, inquired of defendant's agent whether or not a train was expected soon; and that said agent always gave the driver information about the arrival of trains. From such testimony the jury might reasonably infer that defendant, through the conduct of its agent, long practiced, had invited plaintiff's driver to rely on such information. Whether or not, under such circumstances, plaintiff's driver was guilty of contributory negligence was a question for the jury, not one for the court.
Defendant offered the testimony of Lynn Allen, a trucker who lived at Oneida. The following appears of record:
"Q. What was the name of the agent? A. Mrs. Rice.
"Q. Had you ever had any words with her as to whether you should or should not park on the platform? A. I have.
"Q. What did she tell you?
"Mr. Sherwood: We object to what she might have told this witness.
"Mr. Brown: They went into custom and asked the other driver of the Hancock line if she had talked to him and if she had warned him about it.
"The Court: I don't believe you made any objection.
"Mr. Brown: I didn't have to. As long as they put it in I have the right to follow on with it.
"The Court: I don't think it is competent as to what he might have been told."
Defendant offered to prove by the witness, if he were permitted to testify, that defendant's station agent had, on several occasions, told him not to park on the platform.
Plaintiff objected "to what she might have told this witness." The objection was sustained and defendant assigns error. Plaintiff had pleaded that it was the usage, custom and practice for drivers of his trucks to park them as this truck was parked; that defendant knew and consented thereto; and that said drivers would ask the agent whether or not any train was expected and would be given information regarding the arrival of trains, upon which information said drivers relied. He offered testimony which tended to prove said allegation. Therefore, under the pleadings, and plaintiff's trial theory, evidence regarding the existence or non-existence of the custom and usage pleaded was relevant. Luechtefeld v. Marglous, Mo.App., 151 S.W.2d 710, 714. Relevant evidence is admissible unless barred by some specific rule of law. Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44, 49.
The testimony offered did not tend to prove or disprove the specific custom and usage pleaded and relied on by plaintiff. The existence or non-existence of such a custom and usage could not have been established by any number of witnesses, testifying to the effect that defendant's station agent had told them that they could not park on the platform. The issue was whether or not there was a usage and custom, known to defendant and acquiesced in by its agent, whereby plaintiff's trucks, (which were under contract with defendant) parked there and received information regarding the approach of trains. Therefore, it was not error to exclude said offered testimony.
It is contended that the court erred in refusing to reprimand counsel for plaintiff, or to discharge the jury on motion of defendant, when said counsel, in his closing argument, repeatedly commented on the failure of defendant to place Mrs. Rice, the station agent, on the witness stand.
It is reversible error for counsel in argument, to draw an unfavorable inference or make an unfavorable comment on the failure of the opposite party to call as a witness one whose testimony is equally accessible and available to both parties. Fitzgerald v. Thompson, 238 Mo.App. 546, 184 S.W.2d 198, 205.
Here, as in Donet v. Prudential Insurance Company of America, Mo.App., 23 S.W.2d 1104, 1106, there is no dispute as to what the rule is. It is a question of whether or not it is applicable under the facts shown here. Since the witness was in the employ of defendant, it was proper for counsel to comment on defendant's failure to produce her, and to suggest an inference that her testimony would have been unfavorable to defendant. Donet v. Prudential Insurance Company of America, supra, 23 S.W.2d loc. cit. 1107; Alexander v. St. Louis-San Francisco Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023, 1028.
Plaintiff's instruction 1 is criticised on the grounds that it was broader than the pleadings. Defendant cites Wild v. Pitcairn, 347 Mo. 915, 149 S.W.2d 800, 804, which holds that an instruction should not be broader than the pleadings. It is said that the vice of the instruction lies in the fact that plaintiff pleaded that defendant's agent "directed" plaintiff's driver to park the truck in a position of danger whereas the instruction requires a finding that said agent merely "permitted" such parking. It is noted that, under paragraph 5 of the petition, it is charged that the agent, "on numerous occasions authorized instructed and directed the plaintiff and his agents * *" to park where the truck was parked at the time of the accident, and that same became a usage and custom. However, in paragraph 7, he pleaded that defendant was guilty of certain specific acts of negligence, among which was, under sub-paragraph (c) thereof: "In permitting said tractor and trailer to be stopped in its position * *." It cannot be said that the instruction is broader than the pleadings. Furthermore, there was evidence, to which no objection was entered, from which the jury could have inferred that defendant's agent permitted the truck to park where it was parked at the time of the accident. See Carr Civil Procedure, Section 215, p. 560; Mo. R.S.A. Section 847.82.
It is also urged that there was no evidence to the effect that defendant's agent, Mrs. Rice, ever directed or permitted any truck to park at the point where it was parked and that, therefore, the instruction is broader than the evidence. No witness said, directly, that the agent "permitted" said parking; but there was evidence to the effect that such had been the practice by plaintiff's drivers over a long period of time. There was also testimony from which, if true, it must reasonably be inferred that the agent knew of said parking, and permitted and approved of same.
It is argued that there was no evidence to the effect that Mrs. Rice told Couch that no train was expected, as was charged in the instruction; that she said none was expected soon. Such contention, in the light of all of the evidence, including the previous course of conduct of the parties, and of the situation there existing, must be denied.
It is urged that there is no evidence tending to prove that Mrs. Rice knew, or had means of knowing, whether or not a train would arrive shortly. Telegraph facilities were available at the station, although defendant's evidence was to the effect that she did not use said facilities for any purpose. She gave every indication of having said knowledge and she had facilities whereby she might have known. Furthermore, the jury could have inferred, from her apparent agitation and exclamation: "Oh, My God, there's the extra!" that she did know, but had forgotten to tell Couch, of the imminent arrival of an extra train.
Finding no error, the judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.
The judgment is affirmed.
DEW, P. J., and BROADDUS, J., concur.
CAVE, J., not participating.