Opinion
No. 42902.
March 8, 1954.
Federal Employers' Liability Act. Plaintiff switchman fell over an unlighted drain box alongside a grade crossing in a switchyard. There was a submissible case of a duty to light. An instruction that also submitted failure to provide a signaling device and a watchman at the crossing was erroneous. And the instruction was too long and complicated. Defendant's rule as to cars on crossings was admissible. Plaintiff's counsel improperly injected hearsay statements. The judgment for plaintiff is reversed and remanded.
1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Unlighted Drain Box: Duty to Light. There was a submissible case that defendant had the duty to light a projecting drain box in a switchyard as part of its duty to furnish a safe place to work.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Unlighted Drain Box: Proximate Cause. There was a jury issue that the unlighted drain box was a proximate cause of plaintiff's injury.
3. NEGLIGENCE: Railroads: Trial: Federal Employers' Liability Act: Erroneous Instruction. It was error to submit, even in the conjunctive, the failure to provide a signaling device or a watchman at a grade crossing, as these were primarily duties owed to the public rather than to plaintiff. And the instruction was unnecessarily long, complicated, argumentative, misleading and confusing.
4. EVIDENCE: Railroads: Railroad Rule Admissible. Defendant's Rule 805 as to cars on crossings was relevant even though it did not cover all situations.
5. TRIAL: Evidence: Improper Injection of Hearsay. It was improper for plaintiff's counsel to attempt to put in evidence hearsay statements that he knew he would not attempt to substantiate by testimony of the witness he purported to quote, and to make hearsay statements after an objection had been sustained, instead of making an offer of proof out of the hearing of the jury.
Appeal from Circuit Court of City of St. Louis; Hon. David J. Murphy, Judge.
REVERSED AND REMANDED.
John C. Lathrop, Sam D. Parker, Richmond C. Coburn and Thomas L. Croft for appellant.
(1) The court erred in overruling the defendant's motion for directed verdict at the close of the entire case. Since the undisputed evidence showed that as a matter of law the usual and customary number of crew men were engaged in the switching operation at the time of the plaintiff's injury, defendant was not guilty of negligence in failing to provide a sufficient crew. Stone v. N.Y.C. St. L.R. Co., 249 S.W.2d 442; Relyea v. Kansas City, F.T.S. G.R. Co., 112 Mo. 86, 20 S.W. 480; Deere v. Southern Pac. Co., 123 F.2d 439, certiorari denied 315 U.S. 819, 62 Sup. Ct. Rep. 916, 85 L.Ed. 1217; Murphy v. Lehigh Valley R. Co., 158 F.2d 481. (2) Duty of the railroad to install a signal at the grade crossing was governed by laws of the State of Kansas where the accident occurred. Southern Pac. Co. v. Haight, 126 F.2d 900; Flagg v. Chi., Great Western Ry. Co., 143 F.2d 90; Thomson v. Stevens, 106 F.2d 739. (3) Under the new Uniform Judicial Notice of Foreign Law Act of Missouri, the courts of this state take judicial notice of statutes of every other state. Sec. 490.080, R.S. Mo. 1949. (4) Under the laws of the State of Kansas, the City of Wellington regulated the installation of signals at the crossing in question. Sec. 14-434, Kan. G.S., 1949. (5) In Kansas so long as the public authorities have not required the installation of a warning device at a railroad crossing, there is no duty on the part of the railroad to warn travelers on the highway of the presence of railroad cars on the crossing. Corkill v. Thompson, 169 Kan. 38, 217 P.2d 273; Bledsoe v. M.K. T. Ry. Co., 149 Kan. 741, 90 P.2d 9; Sheets v. Baldwin, 146 Kan. 596, 73 P.2d 37. (6) The plaintiff failed to make a submissible case that the failure to light the area in question was the proximate cause of the plaintiff's injury where the evidence showed that the plaintiff himself was carrying a lantern at the time of the accident. Stid v. Mo. Pac. R. Co., 236 Mo. 382, 139 S.W. 172. (7) If the injury could not reasonably have been anticipated as the result of the defendant's conduct, there is no proximate causation between the plaintiff's injury and the defendant's acts and there can be no recovery. DcMoss v. Kansas City Rys. Co., 296 Mo. 526, 246 S.W. 566; Stanley v. Union Depot R. Co., 114 Mo. 606, 21 S.W. 832. (8) Under the laws of Kansas defendant could not be expected to anticipate that an automobilist who approached its train standing on a crossing would not have his auto under sufficient control to avoid striking the train. Jones v. A.T. S.F. Ry. Co., 129 Kan. 314, 282 P. 593. (9) The usual test in Missouri of proximate causation is whether the facts show that absent the negligent act, the injuries would not have been sustained. Wood v. St. Louis Pub. Serv. Co., 246 S.W.2d 807. (10) Under the above authorities the proximate cause of the plaintiff's injury was the negligence of the automobile driver who recklessly approached the crossing rather than any negligence of defendant. (11) The giving of plaintiff's Instruction No. 2 and the refusal of defendant's withdrawal Instructions A and B was error. Plaintiff's Instruction No. 2 was so long, prolix, repetitious, general, argumentative, confusing and so unduly emphasized, and assumed facts favorable to the plaintiff that the giving of it constituted error. It is fundamental that an instruction must be clear, concise and simple so that a jury may understand it. Clark v. Atchison Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143. (12) The enormous length of Instruction No. 2 and its argumentative, confusing, repetitious and general form made it impossible for the jury to understand it, and the giving of the instruction was error. Prince v. K.C. Southern Ry. Co., 358 Mo. 393, 214 S.W.2d 707; Ostmann v. Ostmann, 183 S.W.2d 133; Stid v. Mo. Pac. R. Co., 236 Mo. 382, 139 S.W. 172; Roshel v. Litchfield and Madison Ry. Co., 112 S.W.2d 876; Henry v. Disbrow Mining Co., 144 Mo. App. 350, 128 S.W. 841; Castle v. Wilson, 183 S.W. 1106. (13) Instruction No. 2 also erroneously directed a verdict for the plaintiff without hypothesizing the salient facts. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Roshel v. Litchfield Madison Ry. Co., 112 S.W.2d 876. (14) Where a conjunctive instruction joins one charge of negligence which is not supported by the evidence, it is error to refuse to give an instruction withdrawing that charge of negligence from the jury's consideration. Crone v. United Rys. Co. of St. Louis, 236 S.W. 654. (15) Plaintiff's Instruction No. 2 misstated the law in submitting as a ground of negligence the defendant's failure to provide a warning signal at the crossing, and in defining defendant's duty to furnish sufficient help. A conjunctive instruction is erroneous where it incorrectly defines the defendant's duty with reference to one of the submitted charges of negligence. Beahan v. St. Louis Pub. Serv. Co., 237 S.W.2d 105; Mann v. Payne, 349 Mo. 89, 159 S.W.2d 602. (16) There was no statutory duty on the part of defendant to install a signalling device at the crossing in question until required to do so by the City of Wellington. Sec. 14-434, Kansas G.S., 1949. (17) There was also no common-law duty to install such a warning signal. Bledsoe v. M., K. T.R. Co., 149 Kan. 741, 90 P.2d 9; Jones v. A., T. S.F. Ry. Co., 129 Kan. 314, 282 P. 593. (18) Plaintiff's Instruction No. 2 also misstated the law with reference to defendant's duty to provide a sufficient number of employees in the switching crew. Stone v. N.Y.C. St. L.R. Co., 249 S.W.2d 442. (19) Conjunctive instructions should be condemned and as such Instruction No. 2 should be held to be erroneous. The conjunctive instruction has been termed a "shotgun" instruction, and the Missouri courts have said that they tolerate but do not recommend it. Lindquist v. Kan. City Pub. Serv. Co., 305 Mo. 905, 169 S.W.2d 366; Mann v. Payne, 349 Mo. 89, 59 S.W.2d 602. (20) The soundness of the conjunctive instruction has been questioned by one of our ablest appellate judges. Adams v. Thompson, 178 S.W.2d 779. (21) Error was committed in the admission of Rule 805 of the defendant railway. The introduction in evidence of a railroad rule requiring certain safety measures by its employees in circumstances differing from the facts established in the case on trial is error. Tefft v. N.Y., N.H. H.R. Co., 116 Conn. 127, 163 A. 762; Smith v. Boston M.R.R., 88 N.H. 430, 190 A. 697; Nadean v. Trustees of N.Y., N.H. H.R. Co., 310 Mass. 717, 39 N.E.2d 669. (22) The admission of testimony that no member of the train crew was able to guard the north side of defendant's train while switching at the Jefferson Street crossing was erroneous. In an action for injuries caused by a dangerous condition on a railroad, evidence of dangerous conditions elsewhere is not admissible. L. N.R.R. Co. v. Bargainer, 168 Ala. 657, 53 So. 138; Trott v. Chicago, R.I. Pac. R. Co., 115 Iowa 80, 86 N.W. 33; Grand Rapids I.R. Co. v. Huntley, 38 Mich. 540, 31 Am. Rep. 321; Morse v. Minn. St. L.R. Co., 30 Minn. 465, 16 N.W. 358; Briggs v. East Broad Top R. Coal Co., 206 Pa. 564, 56 A. 36. (23) The trial court erred in refusing to grant a mistrial on numerous occasions because of the misconduct of plaintiff's counsel. The granting of a mistrial or a new trial because of misconduct of counsel is generally a matter of discretion by the trial court but it is not wholly discretionary and is reviewable on appeal. Wood v. St. Louis Pub. Serv. Co., 246 S.W.2d 807. (24) It is prejudicial error for counsel in effect to testify to a material point in the case in the absence of evidence from a witness. Holliday v. Jackson, 21 Mo. App. 660. (25) It is prejudicial error for counsel to imply in the presence of the jury that objections made by the other side were made for the purpose of excluding facts from the jury. Ryan v. Sheffield Car Equip. Co., 24 S.W.2d 166; Pacific Fire Ins. Co. v. Fain, 54 S.W.2d 226; McMahan v. City of Abilene, 8 S.W.2d 554; Western Union Telegraph Co. v. Wingate, 6 Tex. Civ. App. 394, 25 S.W. 439; In re Martin's Will. 104 A. 100. (26) It was error for plaintiff's counsel to inquire why the defendant had not put a doctor on the stand who treated the plaintiff even though the doctor was a company doctor. Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 418; Holtzen v. Mo. Pac. Ry. Co., 159 Mo. App. 370, 140 S.W. 767; Hayworth v. K.C. Southern Ry. Co., 94 Mo. App. 215, 68 S.W. 111. (27) It was error for plaintiff's counsel to argue to the jury what the contents of a statement signed by the plaintiff shortly after the accident would have disclosed in the absence of such statement having been admitted in evidence. Ryan v. Sheffield Car Equip. Co., 24 S.W.2d 166; Holliday v. Jackson, 21 Mo. App. 660. (28) The fact that the defendant's objections were generally sustained to the numerous acts of misconduct committed by plaintiff's counsel in the presence of the jury did not remove their effect from the jury. State v. Davis, 256 S.W. 125. (29) A deliberate course of improper conduct demonstrated by repeated offenses indulged in by counsel enhances the possibility of a prejudicial effect. McClendon v. Bank of Advance, 188 Mo. App. 417, 174 S.W. 203. (30) The grossly excessive verdict of $126,000 resulted from passion and prejudice aroused in the jury as the cumulative effect of a calculated course of conduct by plaintiff's counsel and may be cured only by a new trial. If reason for the creation of passion and prejudice in the jury has occurred during the trial, the judgment will be reversed outright rather than cut by remittitur on the theory that the entire verdict is tainted. Polizzi v. Nedrow, 247 S.W.2d 809; Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481; Clark v. Atchison Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618.
Francis H. Monck, Claude E. McElwee for respondent; Hensen, Monck Murray and Melrin L. Griffith of counsel.
(1) The court did not err in overruling the defendant's motion for a directed verdict at the close of the entire case. Montgomery Ward Co. v. Lindsey, 104 F.2d 882; 65 C.J.S., Sec. 252, p. 1130, 1132; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 250; Baltimore O.R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 9-10; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 1064; Tennant v. Peoria P.U.R. Co., 321 U.S. 29, 64 S.Ct. 400; Blair v. Baltimore O.R. Co., 323 U.S. 600, 65 S.Ct. 545; Lavender v. Kurn, 66 S.Ct. 740; Boston M.R.R. Co. v. Meech. 156 F.2d 109; Butz v. U.P.R. Co., 233 P.2d 332; Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413; Joyee v. M.-K.-T.R. Co., 189 S.W.2d 568; Curtis v. A.T. S.F. Ry. Co., 253 S.W.2d 789; Luthy v. Terminal R. Assn. of St. Louis, 243 S.W.2d 332; Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018; Duff v. Bemidji Motor Service Co., 299 N.W. 196; Wagner v. International Ry. Co., 133 N.E. 437: Ellis v. Union Pac. Ry. Co., 329 U.S. 649, 67 S.Ct. 598. (2) Distinguished: Stone v. N.Y.C. St. L.R. Co., 249, S.W.2d 442; Relyea v. Kansas City F.T.S. G.R. Co., 112 Mo. 86, 20 S.W. 480; Murphy v. Lehigh Valley R. Co., 158 F.2d 481; Deere v. Southern Pacific Co., 123 F.2d 438; Corkill v. Thompson, 169 Kan. 38, 217 P.2d 273; Bledsoe v. M.-K.-T.R. Co., 149 Kan. 741, 90 P.2d 9; Sheets v. Baldwin, 146 Kan. 596, 73 P.2d 37; Stid v. Mo. Pac. R. Co., 236 Mo. 382, 139 S.W. 172: DeMoss v. K.C. Rys. Co., 246 S.W. 566; Federal Employers Liability Act, 45 U.S.C.A., Sec. 51. (3) The trial court did not err in giving plaintiff's Instruction Number 2 or in refusing defendant's Instructions "A" and "B". Jarrett v. St. Francis County Finance Co., 185 S.W.2d 855; Lindquist v. Kan. City Pub. Serv. Co., 169 S.W.2d 366: Jensen v. Kansas City, 238 S.W.2d 305; Blair v. Baltimore Ohio R. Co., supra, 547; Martin v. Graham Ship-By-Truck Co., 176 S.W.2d 842. (4) Distinguished: Prince v. K.C. Southern Ry. Co., 214 S.W.2d 707; Roshel v. Litchfield and Madison Ry. Co., 112 S.W.2d 876; Crone v. United Rys. Co. of St. Louis, 236 S.W. 654; Norton v. Johnson, 226 S.W.2d 689; Beahan v. St. Louis Pub. Serv. Co., 237 S.W.2d 105. (5) The trial court did not err in the admission of evidence. Tefft v. New York. N.H. H.R. Co., 116 Conn. 127, 163 A. 762. (6) Defendant's various attempts to have the trial court declare a mistrial were unwarranted and the effect, if any, of these incidents was due to their repetition and not to any misconduct of plaintiff's counsel. Bobos v. Krey Packing Co., 19 S.W.2d 630, 323 Mo. 224; Hancock v. U.P.R. Co., 231 S.W.2d 225; 3rd Wigmore On Evidence, Vol. 8, Sec. 2384; Blankenbacker v. St. L. S.F.R. Co., 187 S.W. 840; McPherson v. Harvey, 183 S.W. 653; Weissman v. Wells, 267 S.W. 400. (7) Distinguished: Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481; Wood v. St. Louis Pub. Serv. Co., 246 S.W.2d 807; Holliday v. Jackson, 21 Mo. App. 660.
Action for damages for personal injuries under the Federal Employers' Liability Act. (USCA 51-60.) Verdict and judgment for plaintiff for $126,000.00 reduced by remittitur of $51,000.00 to $75,000.00; and defendant has appealed. Defendant contends it was entitled to a directed verdict and also alleges error in instructions, admission of evidence, and failure to grant a mistrial because of misconduct of plaintiff's counsel.
Plaintiff was acting as foreman of a switching crew at Wellington, Kansas, when injured by falling over the drain box, or catch basin of a sewer, which projected about 6 inches above the ground. Plaintiff was in charge of a switching movement about 11:00 P.M. which had brought a cut of 12 or 14 cars from a mill. Some of these were loaded cars to be sent out and others empty cars to be placed on the mill tracks in accordance with the switch list given to plaintiff by the yardmaster. Defendant's main line ran east and west through Wellington, a city of about 10,000 population. Where plaintiff was working there were three tracks and the cars, being switched, were on the third or south track with the engine on the east end pulling them east. The main street of Wellington was Washington Street, over which U.S. Highway 81 (a Gulf of Mexico to Canada Highway) was routed: and it carried considerable traffic. The next street west was Jefferson Street, which also had much traffic, being often used by trucks to miss the main street traffic. Defendant's station was between these two streets on the north side of the main line track. These two streets were about 280 feet apart. Plaintiff's cut of cars blocked Jefferson Street and the engine partially blocked Washington Street. The track to the mill curved off to the southwest with the switch about 36 feet south of Jefferson Street.
Plaintiff stayed by this switch and operated it. There were four other men in the crew. The engineer and fireman stayed in the engine. The pin puller or head brakeman worked near the front of the [368] train and cut off cars as plaintiff directed. The field man, or rear brakeman, rode the cars that were kicked off and stopped them by use of the hand brake. This was the usual switching crew and the number provided for in the contract between defendant and the union representing yardmen. There was a considerable grade down-hill to the southwest on the mill switch track, so that it was necessary to use the hand brakes on any cars detached to keep them from rolling to the southwest. The three switchmen worked on the south side of the track because the engineer was on that side and could see their signals when given from that side. The pin puller also protected Washington Street when it was blocked and plaintiff protected Jefferson Street to keep northbound traffic from running into the cars. There was no one to protect on the north side against southbound traffic. There were three other street crossings between the switch and the mill, but there was no evidence to show conditions or amount of traffic on them.
There were no warning lights, bells or signaling devices at either street to warn of the presence or approach of cars on the tracks. A watchman was stationed at Washington Street from 6:00 A.M. to 10:00 P.M., but there was none at Jefferson Street at any time. Plaintiff's evidence showed that traffic from the south on Jefferson Street approached the crossing on a downgrade; that, from 200 to 250 feet south of the crossing, a motor vehicle driver could see over the tops of the cars and the lights of the business district beyond; and that, because of these conditions, northbound drivers on Jefferson Street would not see cars, blocking the crossing, until "right on them." Defendant had built an underground sewer south of the tracks to take care of the surface water, keeping it off the tracks; and in the curb. about ten feet south of the south track, on each side of Jefferson Street, it had built large concrete drain boxes, or catch basins, to take the water from the street into the sewer. Plaintiff's evidence was that the drain box on the west side, nearest the switch where plaintiff was working, was 4 feet 3 inches long, 2 feet wide, and 16¾ inches high (above the street) and extended 6¾ inches above the top of the curb and 6 inches above the ground on the west. It was also shown that it was necessary for the switchmen to work in this area and farther to the south to give signals that could be seen by the engineer. There were no lights of any kind there or nearby and it was very dark the night plaintiff was injured.
While plaintiff was at the switch, directing an uncoupling, he told the field man to get up on a car and set the brake. The field man, going up the side of the car, saw an automobile coming north on Jefferson Street at a high rate of speed and called to plaintiff to look out for the automobile. Plaintiff thought the driver did not see the cars and ran as fast as he could toward the street trying to attract the driver's attention with his lantern. In doing so, he tripped over the top of the drain box, fell into the street and was injured.
Plaintiff's petition contained nine separate specific charges of negligence, but those concerning negligent construction, maintenance, inspection, unsafe method of work and failure to warn, were abandoned (so far as this appeal is concerned) by not being submitted. (Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Smith v. St. Louis Public Service Co., Mo. Sup., 259 S.W.2d 692.) The grounds submitted were failure to have a light to reveal the projecting drain box, failure to provide any signaling device at the Jefferson Street crossing, and failure to provide a sufficient number of employees in the switching crew so that an employee could be stationed as a watchman at the crossing. While as hereinafter shown, these were seemingly submitted as separate specific grounds of recovery, they could have all entered into the consideration of the safety of plaintiff's place of work. Certainly, failure to light the place so as to reveal the obstruction in the area where plaintiff, and the others, had to work was sufficient to make a jury issue of failure to furnish plaintiff a safe place to work under the conditions shown by the evidence. Therefore, from the facts submitted, we construe plaintiff's instruction 2 as submitting that [369] issue, which was one of the grounds pleaded and was stated as the duty of defendant in instruction No. 1. Rights created by the Federal Employers' Liability Act "are federal rights protected by federal rather than local rules of law" but "those federal rules have been largely fashioned from the common law"; and "at common law the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain." (Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.) As further stated in the Bailey case concerning the duty to furnish a safe place to work: "That rule is deeply engrained in federal jurisprudence" and this duty "is a duty which becomes `more imperative' as the risk increases"; and is "a continning one, from which the carrier is not relieved by the fact that the employee's work at the place in question is fleeting or infrequent."
Defendant's contention as to this matter is that failure to have a light was not the proximate cause of plaintiff's fall because plaintiff was carrying an electric lantern which normally would have revealed the drain box. Defendant argues it was the approach of the automobile that caused plaintiff to fail to see the drain box and that this would have been true even if the area had been lighted. Defendant also argues that this result could not have been anticipated and that the reckless approach of the driver of the automobile was an intervening direct and proximate cause of plaintiff's fall. Defendant cites Stid v. Mo. Pac. R. Co., 236 Mo. 382, 139 S.W. 172; De Moss v. Kansas City Railways Co., 296 Mo. 526, 246 S.W. 566; Jones v. Atchison, Topeka Santa Fe R. Co., 129 Kan. 314, 282 P. 593; Stanley v. Union Depot R. Co., 114 Mo. 606, 21 S.W. 832; Wood v. St. Louis Public Service Co., 362 Mo. 1103, 246 S.W.2d 807. In the Stid case, the plaintiff went over an embankment not because of lack of light but because of his momentum from getting off a moving engine. The other cases are ruled on foreseeability and intervening cause, except the Wood case, which is cited because it states that "the usual test as to causal connection is whether the facts show that, absent the negligent act, the injuries would not have been sustained." Proximate cause is ordinarily a jury question. (Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950 and cases cited; Curtis v. Fruin-Colnon Contracting Co., Mo. Sup., 253 S.W.2d 158.) Our view is that reasonable minds might differ as to defendant's contention and that proximate cause was for the jury in this case because of the conditions shown by the evidence and the kind of work plaintiff was required to do in this area both in signaling and in protecting the crossing. In a similar case, Curtis v. Atchison. T. S.F.R. Co., Mo. Sup., 253 S.W.2d 789, we said: "The combination of having this obstruction between the tracks and darkness justified a finding by a jury that it created an unsafe place to work and negligence on the part of the defendant." (See also Luthy v. Terminal R. Assn., Mo. Sup., 243 S.W.2d 332 and cases cited.) We hold that defendant's motion for a directed verdict was properly overruled.
However, we must sustain defendant's contention that it was prejudicial error to give instruction No. 2 offered by plaintiff. This instruction purported to submit in the conjunctive, as three separate grounds of negligence, failure to light the area, failure to provide any signaling device at the Jefferson Street crossing to warn operators of automobiles, and failure to furnish a sufficient number of employees in the switching crew so that an employee, other than plaintiff, could be stationed at Jefferson Street for warning purposes. This latter ground really amounts to a charge of failure to have a watchman. Defendant requested withdrawal instructions as to the two latter charges. There are several reasons why instruction No. 2 is erroneous. In the first place, the way this instruction is written it gives the impression that defendant was required to do all three of these things when any of them should have been sufficient to make plaintiff's place of work safe from the conditions of which complaint is made. Furthermore, failure to have a signaling device or [370] watchman were more in the nature of circumstances in the situation to be considered in determining whether plaintiff was furnished a safe place to work, in the absence of light, rather than independent grounds of negligence. These matters also seem to have had more relevancy to the ground of unsafe method of work which plaintiff did not submit. Moreover, when considered as duties, these were primarily duties owed to the public rather than to plaintiff. (See Karr v. Chicago, R.I. P.R. Co., 341 Mo. 536, 108 S.W.2d 44.) In other words, without this protection, motorists were in danger (under conditions shown by the evidence but not hypothesized in the instruction) of running into cars on the crossing, but plaintiff was not in danger of being run over by an automobile while in his place of work. Certainly instruction 2 confuses the matter of defendant's duty to the public with its duty to plaintiff in such a way that a jury could not understand what issues were properly for their decision.
We also must condemn instruction No. 2 for the reasons stated in Prince v. Kansas City Southern R. Co., 358 Mo. 393, 214 S.W.2d 707, as "Unnecessarily long, complicated, argumentative, misleading and confusing"; and in Stid v. Missouri Pac. R. Co., 236 Mo. 382, 139 S.W. 172, as "leaving a jury to become confounded in a labyrinth of immaterial detail." (See also Roshel v. Litchfield M.R. Co., Mo. App., 112 S.W.2d 876.) Instruction No. 2 was more than twice as long as the one we criticized in the Prince case and is too long to set out in this opinion. It repeats many matters several times, such as referring to part of the sewer projecting above the ground eight times, referring to plaintiff tripping over it five times (and this was a hotly contested issue because plaintiff had made a report stating he stepped or stumbled off the curb), referring four times both to plaintiff running and to peril of a collision of the approaching automobile with the cars, and referring three times to darkness. It also emphasized danger to life, limb and property of others and authorized the finding that an emergency was created. These were not the real issues to be decided in determining whether defendant was negligent and tended with the other matters mentioned to make the instruction "an argument for plaintiff rather than an explanation of the legal issues." (See Prince case, 214 S.W.2d, l.c. 710.) Emergency could have a bearing in this case only on contributory negligence of plaintiff, which is not a defense in this kind of a case and was not even claimed or pleaded by defendant; and thus its inclusion injected a false issue. (As to the emergency doctrine see Rohde v. St. Louis Public Service Co., Mo. Sup., 249 S.W.2d 417.) We, therefore, hold instruction No. 2 prejudicially erroneous.
Since this case must be retried we think it advisable to rule that we find no merit in defendant's allegations of error as to admission of evidence. Defendant's Rule 805, as to cars on crossings, was relevant even though it did not cover all situations. The other matters of which defendant complained tended to show material circumstances of the entire situation involved. [5] As to defendant's complaint of misconduct of plaintiff's counsel, most of these matters are not likely to occur on retrial. However, we think we should point out two of them which at least when considered together, would have warranted the granting of a new trial by the trial court. In his opening statement, plaintiff's counsel said that the doctor who operated on plaintiff "told him he would need a new operation and he will never be able to work." Upon objection that this was improper hearsay unless plaintiff brought in the doctor, plaintiff's counsel said: "I don't intend producing the doctor." It was certainly improper for plaintiff's counsel to in effect attempt to put in evidence statements that he knew he would not attempt to substantiate by testimony of the witness he purported to quote. Likewise, it was improper for plaintiff's counsel, after the Court had sustained an objection to a question concerning the cause of a witness (another switchman) leaving defendant's employ, and after being warned to make an offer of proof, then deliberately to state in [371] another question that this man's reason for leaving was the incident in which plaintiff was injured, instead of making an offer of proof out of the hearing of the jury. The Court's rulings should be respected and obeyed.
The judgment is reversed and the cause remanded. All concur.