Opinion
No. 43188.
May 11, 1953. Motion for Rehearing or to Transfer to Banc Overruled, June 8, 1953.
Second appeal of an action under the Federal Employers' Liability Act. Plaintiff baggage handler was injured by the unusual movement of an elevator. There was a submissible res ipsa loquitur case. This doctrine has not been destroyed by the discovery provisions of the new Civil Code. A photograph did not show that plaintiff's testimony was contrary to physical facts. Medical testimony was not erroneous. The term "discogenic syndrome" was not inflammatory. It was reversible error to prevent cross-examination of plaintiff to show that he had not claimed a back injury at a prior trial. There was no error in instructions given or refused. The trial court had discretion to refuse an instruction relating to life expectancy and future earnings. Reversed and remanded.
1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Unusual Movement of Elevator: Res Ipsa Loquitur: Submissible Case. The evidence of the unusual movements of defendant's station baggage elevator made a submissible res ipsa loquitur case.
2. NEGLIGENCE: Discovery: Res Ipsa Loquitur Doctrine Not Destroyed. The discovery provisions of the new Civil Code have not destroyed the res ipsa loquitur doctrine.
3. EVIDENCE: Plaintiff's Testimony Not Contrary to Physical Facts. A photographic exhibit does not show that plaintiff's testimony was contrary to physical facts.
4. EVIDENCE: Physicians and Surgeons: Medical Testimony Not Improper. The record does not show that medical testimony complained of was improper.
5. TRIAL: Use of Medical Term Not Inflammatory. The use of the term "discogenic syndrome" by a medical witness was not so inflammatory as to require a new trial.
6. EVIDENCE: Scope of Cross-Examination of Plaintiff Erroneously Limited. It was reversible error to prevent defendant from cross-examining plaintiff in the attempt to show that plaintiff had not claimed a back injury at a prior trial.
7. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Unusual Movement of Elevator: Res Ipsa Loquitur: Instructions Not Erroneous. There was no prejudicial error in instructions given or refused.
8. DAMAGES: Refusal of Cautionary Instruction Not Error. The trial court had discretion to refuse a cautionary instruction relating to life expectancy and future earnings.
Appeal from Circuit Court of City of St. Louis; Hon. Harry F. Russell, Judge.
REVERSED AND REMANDED.
Warner Fuller and Arnot L. Sheppard for appellant.
(1) It is only when plaintiff does not have and cannot reasonably acquire sufficient information to determine what the pertinent facts are, that he will be permitted to resort to res ipsa loquitur. Venditti v. St. Louis Pub. Serv. Co., 360 Mo. 42, 226 S.W.2d 599; Klebe v. Parker Distilling Co., 207 Mo. 480, 105 S.W. 1057; Removich v. Bambrick Brothers Construction Co., 264 Mo. 43, 173 S.W. 686. (2) The rule can never be applied except where the circumstances show such an unusual occurrence as would warrant a jury in inferring that the misadventure would not have happened except for defendant's negligence. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557. (3) Because this rule of evidence is one of necessity rather than choice, it is to be used stingily rather than prodigally. Klebe v. Parker Distilling Co., 207 Mo. 480, 105 S.W. 1057; Removich v. Bambrick Brothers Construction Co., 264 Mo. 43, 173 S.W. 686. (4) Upon analysis it will be found that the sole reason for the existence of the doctrine of res ipsa loquitur is that under certain conditions it was impracticable for plaintiff to know or ascertain the facts pertinent to his injury whereby he was unable to plead any specific negligence of defendant which directly produced plaintiff's injury. It developed, therefore, as a rule of necessity, not convenience, to avoid injustice to plaintiffs. Klebe v. Parker Distilling Co., 207 Mo. 480, 105 S.W. 1057. (5) Plaintiffs now have the right to file interrogatories by which defendants are compelled, practically speaking, to make factual investigations for plaintiffs' counsel, including the making of engineering surveys, the combing of hundreds of records for minute data on the operation of trains, the divulging of their witness' names, and practically all other pertinent data. Sec. 510.020, R.S. 1949. (6) Prior to the change in our state code it was impossible to compel a deponent to produce records at the taking of his deposition. That is no longer the situation. He may be compelled to bring with him any record which is competent, relevant and material to the issues involved; showing repairs to any instrumentality, its defects, its age, the character of its service over a period of months or years, and any other pertinent data. Sec. 492.280, R.S. 1949. (7) In addition to the broad subpoena powers in connection with the taking of "fishing" depositions, and in addition to the sweeping rights to interrogate, plaintiffs now may go to the scene of the casualty with engineering witnesses and do virtually anything which pleases their fancies; photograph the scene; pry into all of defendant's records and copy them or make photostatic reproductions of them. Sec. 510.030, R.S. 1949. (8) And then after exercising all of these rights, and acquiring all of the information defendant could have obtained, plaintiff goes into court, declares that he does not know and cannot reasonably ascertain the facts pertinent to his injury, and behind the false front of res ipsa loquitur demands a judgment against defendant without a syllable of proof that defendant was in any way guilty of specific negligence, but solely upon an exception to the general rule which exists only because plaintiff formerly had no means of acquiring sufficient information to know the relevant facts. This he will not be permitted to do because his knowledge, or means of knowledge, is equal or superior to defendant's. Venditti v. St. Louis Pub. Serv. Co., 360 Mo. 42, 226 S.W.2d 599; Byers v. Essex Investment Co., 281 Mo. 375, 219 S.W. 570; 65 C.J.S., pp. 1000, 1001, 1004, Secs. 220 (5) and 220(6); Pronnecke v. Westliche Post Pub. Co., 220 Mo. App. 640, 291 S.W. 139; Bradshaw v. Lusk, 195 Mo. App. 201, 190 S.W. 400; Ferguson v. Fulton Iron Works, 259 S.W. 811; Klebe v. Parker Distilling Co., 207 Mo. 480. (9) It would be no answer to this argument to say that if followed it would practically destroy the res ipsa loquitur rule. Of course it would. That is the purpose of making the argument. When the reason for the existence of an exception to a general rule of law ceases to exist, then the exception to the rule ceases to exist and the general rule applies. Venditti v. St. Louis Pub. Serv. Co., 360 Mo. 42, 226 S.W.2d 599; Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 425; Klebe v. Parker Distilling Co., 207 Mo. 480, 105 S.W. 1057. (10) There is no evidence that defendant's knowledge or ability to acquire knowledge of the facts relating to the descent of the elevator at the particular moment was superior to that of plaintiff. Unless it was, res ipsa loquitur cannot be applicable. Meade v. Missouri Water Steam Supply Co., 318 Mo. 350, 300 S.W. 515; Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 425; Klebe v. Parker Distilling Co., 207 Mo. 480, 105 S.W. 1057; Cases cited under (8), supra; E.I. DuPont de Nemours Co. v. Cudd (10), 176 F.2d 855, 857, 858. (11) Plaintiff cannot invoke res ipsa loquitur merely by showing his ignorance of the facts relating to his injury. He must go further and offer all evidence reasonably within his power to produce. 65 C.J.S., p. 1004, Sec. 220 (6); Venditti v. St. Louis Pub. Serv. Co., 360 Mo. 42, 226 S.W.2d 599; Bradshaw v. Lusk, 195 Mo. App. 201, 190 S.W. 400; Pronnecke v. Westliche Post Publishing Co., 220 Mo. App. 640, 291 S.W. 139; Klebe v. Parker Distilling Co., 207 Mo. 480; Meade v. Missouri Water Steam Supply Co., 318 Mo. 350, 300 S.W. 515; Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 425; Bahr v. Lombard, Ayres Co., 53 N.J.L. 233, 239, 241; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274, 277. (12) There is no evidence showing or tending to show that the movements of the elevator were unusual, out of the ordinary or eccentric. Elevators are made to go up and down. That this one did what it was manufactured to do certainly cannot be said to prove an unusual or extraordinary movement. Unless the movement was unusual plaintiff has not proved one of the elements necessary to the applicability of the res ipsa loquitur doctrine. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Pauley v. B. O.R. Co., 215 S.W.2d 78. (13) It is inevitable that in order to show the unusualness, abnormality or eccentricity of the movements of an elevator, plaintiff must show that no one intentionally started the elevator in operation. Otherwise, plaintiff could not show that the mere ascending and descending were unusual, abnormal or eccentric. In the absence of such a showing the doctrine may not be invoked. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13, 17; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo. App. 312, 118 S.W.2d 509; Illinois Steel Co. v. Zolnowski, 118 Ill. App. 209, 216, and cases cited; 65 C.J.S., p. 1009, Negligence, Sec. 220. (14) If an elevator descends and ascends in a physically normal manner as a result of someone's intentionally putting it in motion by the usual methods, there is no unusual, abnormal or eccentric movement involved even though the movement may have been commenced prematurely by someone. State ex rel. Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4, 5. (15) Plaintiff must not only show that the elevator moved from a cause other than the intention of someone, but he must go further and reasonably exclude all other causes for its movements than defendants' negligence. Failure to do so, as here, is a failure to make a submissible case, because an inference of non-negligence is just as tenable as an inference of negligence. Pauley v. B. O.R. Co., 215 S.W.2d 78; Grindstaff v. Goldberg Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13, 18; State ex rel. Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4, 5; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Removich v. Bambrick Brothers Construction Co., 264 Mo. 43, 49, 173 S.W. 686; Cothron v. Cudahy Packing Co., 98 Mo. App. 343; Polokoff v. Sanell, 52 S.W.2d 443; Moriarty v. Schwarzchild, 132 Mo. App. 650, 112 S.W.2d 1034; Hamilton v. Kansas City Southern R. Co., 123 Mo. App. 619. (16) That there are authorities to the contrary is not being overlooked. Maxie v. G.M. O.R. Co., 358 Mo. 1100, 219 S.W.2d 322; Cruce v. G.M. O.R. Co., 358 Mo. 589, 216 S.W.2d 78; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo. App. 312, 118 S.W.2d 509; Estes v. Estes, 127 S.W.2d 78. (17) Moreover, the controlling decision of this court en banc is to the effect that the plaintiff must reasonably exclude all other causes than defendant's negligence in order to get away from the rule respecting two equally reasonable inferences creating nothing but speculation. State ex rel. Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4. (18) This division of this court must follow the latest controlling decisions of this court en banc; and cannot itself overrule such a decision and then follow its own decision. State ex rel. Shell Petroleum Co. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673; State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836; Cremer v. May, 223 Mo. App. 57, 8 S.W.2d 110. (19) For another reason plaintiff's evidence must reasonably exclude all other causes than defendant's negligence, viz., the risk of nonpersuasion is upon him, not upon defendant. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557. (20) Therefore, unless plaintiff has reasonably excluded all other causes of injury than defendant's negligence, the question is left to speculation and conjecture, which are never enough to sustain a verdict, whether the case shall be based upon res ipsa loquitur or specific negligence. Fitzjohn v. Ozark Mountain Distilling Co., 359 Mo. 154, 221 S.W.2d 146; Removich v. Bambrick Brothers Construction Co., 264 Mo. 43; Sleater v. John R. Thompson, 173 S.W.2d 591; Niklas v. Metz, 359 Mo. 601, 222 S.W.2d 795; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872. (21) Plaintiff claimed that his hands were injured when the bottom crossbar above mentioned moved up and caught them between the floor of the passenger platform and the crossbar. This claim is contrary to physical facts, cannot be accepted by this court, and does not make a jury question. Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74; Bauer v. Wood, 236 Mo. App. 266, 154 S.W.2d 356. (22) The court erred in permitting Dr. Barnes to answer a question based upon the hypothesis that a portion of plaintiff's right leg was completely insensitive; whereas the evidence went no further than to show that plaintiff had suffered a partial loss of sensation at that point. Root v. K.C.S.R. Co., 195 Mo. 348, 92 S.W. 621; Streeter v. Washington Fidelity National Ins. Co., 229 Mo. App. 33, 68 S.W.2d 889; Henson v. St. Louis-San Francisco R. Co., 301 Mo. 415, 256 S.W. 771. (23) During his direct examination Dr. Barnes was asked his opinion as to what type of injury had occurred to the section of the fourth segment of the spinal cord. His answer was that "it may be due to some bone displacement in the spine, which might or might not be shown by X-ray. It might be due to a pinched nerve, which comes from the spinal cord at that level." Defendant's motion to strike on the ground that the answer was too highly speculative, was erroneously overruled. Kimmie v. Terminal Railroad Assn. of St. Louis, 334 Mo. 596, 66 S.W.2d 561. (24) Cruce v. G.M. O.R. Co., 358 Mo. 589, 238 S.W.2d 674, 678, is not contrary to the Kimmie Case, but is distinguishable. (25) Dr. Prenger went entirely outside the pleadings in an attempt to testify that plaintiff's trouble stemmed from a ruptured intervertebral disc, and the court erred in refusing to strike out the evidence and to declare a mistrial because of the prejudicial effect of this evidence. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Hogan v. K.C.P.S. Co., 322 Mo. 1103, 19 S.W.2d 707; State ex rel. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673. (26) During the cross-examination of plaintiff, defendant sought to impeach him on the subject of what he had claimed his injuries were at the former trial, specifically that he did not complain at that trial of an injury to his back. The trial court erroneously sustained plaintiff's objections to this testimony. Kroger Grocery Baking Co. v. Stewart, 164 F.2d 841; State v. Richards, 334 Mo. 485, 67 S.W.2d 58. (27) Great latitude is allowed in the cross-examination of a witness whose testimony varies from that upon a former trial. State v. Steele, 226 Mo. 583, 126 S.W. 406. (28) Obviously the latitude given in the cross-examination of a party is no less than that given in the case of an ordinary witness. "* * * As a general thing any pertinent inquiry having some reasonable bearing on the issues in the case, or tending to impeach or discredit the witness, is proper on cross-examination." Kidd v. Kidd, 216 S.W.2d 942. (29) Instruction No. 1 given at plaintiff's request is erroneous. The first paragraph is too general. It requires no finding of any facts showing that plaintiff's place was not reasonably safe or that it could have been made reasonably safe by the exercise of legal care. It is no more than a roving commission to the jury and, therefore, erroneous. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Green v. Guynes, 235 S.W.2d 298; Munoz v. American Car Foundry Co., 220 Mo. App. 902, 296 S.W. 228; Allen v. Mo. Pac. R. Co., 294 S.W. 80. (30) This portion of the instruction is no more than an abstract statement of legal principles. Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158. (31) Because it is no more than the abstract statement of certain legal principles, it is confusing and misleading. Copeland v. Terminal Railroad Assn. of St. Louis, 353 Mo. 433, 182 S.W.2d 600; Schipper v. Brashear Truck Co., 132 S.W.2d 993. (32) The evidence fails to show any such misadventure as would permit plaintiff to invoke res ipsa loquitur. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; McCloskey v. Koplar, 329 Mo. 327, 46 S.W.2d 557. (33) The instruction hypothesizes that the elevator "started downward with a sudden and unexpected jerk and movement". There is no evidence to support this predicate. The instruction is, therefore, erroneously broader than the evidence. State ex rel. v. Ellison, 270 Mo. 645, 199 S.W. 722; Hogan v. K.C.P.S. Co., 322 Mo. 1103, 19 S.W.2d 707; State ex rel. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673. (34) Instruction No. 4, given at plaintiff's request, told the jury that Instruction No. 3 submitted the issue of what is known as the burden of proof; but that if the jury found from the greater weight of the evidence in favor of plaintiff on the propositions and issues submitted by Instruction No. 1, then plaintiff had met and carried the burden of proof. This instruction is in direct conflict with Instruction No. 3, given at the request of defendant, which lays down the scale for the measurement of the weight of the evidence. Instruction No. 4 does not require the use of the scale provided by Instruction No. 3, and necessarily is in conflict with it. This is true despite the holdings in: Davis v. K.C.P.S. Co., 361 Mo. 61, 233 S.W.2d 679; Venditti v. St. Louis Pub. Ser. Co., 360 Mo. 42, 240 S.W.2d 921; Rasp v. Baumbach, 223 S.W.2d 472. (35) Instruction No. 2, requested by defendant, properly declared the law. It informed the jury that plaintiff was not entitled to a verdict if the jury believed that the elevator was caused to ascend or descend by the intentional act of someone. This is a correct statement of the law. The mere physical movement of an elevator in response to an intentional act of someone is not abnormal, and, absent such a movement, res ipsa loquitur cannot apply. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo. App. 312, 118 S.W.2d 509. (36) The court erroneously refused to give to the jury Instruction No. 3, which would have correctly told the jury what facts must be found in order that plaintiff might recover under the safe place doctrine. Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60. (37) Plaintiff cannot be permitted to submit his case to a jury upon a particular theory, and at the same time prevent defendant from submitting the same theory. Royal v. Thompson, 212 S.W.2d 921, 922, and cases cited. (38) By its requested but refused Instruction No. 6 defendant sought to submit its theory that plaintiff unnecessarily grasped a part of the elevator gate or guard, by informing the jury that if it found that the proximate cause of plaintiff's injury was his unnecessarily grasping the gate, then the verdict should be for defendant. It had a right to submit its theory of defense and was wrongfully deprived of that right by the court's refusal to give Instruction No. 6. Brinkman Realty Co. v. Deidesheimer, 201 S.W.2d 503; Quigley v. St. Louis Pub. Serv. Co., 201 S.W.2d 169; Broderick v. Brennan, 170 S.W.2d 686. (39) Instruction No. 13, requested by defendant but refused by the court, would have properly informed the jury that it should take into consideration in connection with any damages allowed plaintiff, the fact that plaintiff might not have reached the age of his expectancy, might not have worked during such years, and that his earnings during that period of time might not have remained what they were when injured. Thompson v. Camp (6), 163 F.2d 396, 403, 404, certiorari denied, 333 U.S. 831, 92 L.Ed. 1116).
Inman, Dyer, Gray Dreher and Charles E. Gray for respondent.
(1) While riding on an elevator which was owned, maintained, and controlled by the defendant, plaintiff, an employee of the defendant, was caused to fall forward and become caught on a safety gate due to an unusual jerking movement of the elevator in its descent. At the time, the elevator was being operated by an employee of the defendant. The plaintiff did not see what his fellow employee did in starting the elevator. While plaintiff was disengaging himself, the elevator suddenly and unexpectedly arose, crushing the plaintiff between the floor of the elevator and an upper floor. Under these facts, plaintiff's case was properly pleaded and submitted under the res ipsa loquitur doctrine. Williams v. St. Louis Pub. Serv. Co., 363 Mo. 625, 253 S.W.2d 97; Jones v. Terminal R.R. Assn. of St. Louis, 242 S.W.2d 473; Meade v. Mo. Water Steam Supply Co., 318 Mo. 350, 300 S.W. 515; Cruce v. G.M. O.R. Co., 358 Mo. 589, 216 S.W.2d 78; Maxie v. G.M. O.R. Co., 356 Mo. 633, 202 S.W.2d 904. (2) Under the same general evidence, the question as to the submissibility of the case under the res ipsa loquitur doctrine was presented and decided by this Division of the Supreme Court. This court held that the matter was properly submitted under the res ipsa loquitur doctrine. Jones v. Terminal R.R. Assn. of St. Louis, 242 S.W.2d 473. Therefore, the previous decision is now the law of the case and applies on this appeal. Lonnecker v. Borris, 245 S.W.2d 53; Maxie v. G.M. O.R. Co., 358 Mo. 1100, 219 S.W.2d 322; Walsh v. Terminal R. Assn. of St. Louis, 355 Mo. 377, 196 S.W.2d 192. (3) The mere fact that the plaintiff may be able to determine the cause of the unusual occurrence by resorting to the discovery proceedings afforded by the laws of this state does not compel him to resort to these discovery proceedings in order that he might prove the specific cause of the accident in question, and thus waive his rights under the res ipsa loquitur doctrine. He may avail himself of all of the discovery proceedings solely for the purpose of using the evidence discovered for cross-examination purposes. The plaintiff is not bound upon evidence revealed when the discovery proceedings are resorted to for this evidence comes from the defendant. By requiring otherwise would of necessity require the plaintiff to vouch for the credibility of the defendant's records and testimony of its employees and officials. Such is not the law of this state or any other state. Venditti v. St. Louis Pub. Serv. Co., 240 S.W.2d 921, 924-925. (4) The evidence clearly showed here that the elevator in question was owned, controlled, and maintained by the defendant. The plaintiff had no knowledge of the mechanical functioning of the elevator. The defendant has superior knowledge of the cause of the unusual movement. Therefore, the doctrine of res ipsa loquitur was properly applied. Jones v. Terminal R.R. Assn. of St. Louis, 242 S.W.2d 473; Maxie v. G.M. O.R. Co., 202 S.W.2d 904; Cruce v. G.M. O.R. Co., 358 Mo. 589, 216 S.W.2d 78. (5) The mere fact that the unusual and jerking movement of the elevator in question may have been caused by the intentional or negligent act of a fellow employee does not prohibit invoking the doctrine of res ipsa loquitur. Jones v. Terminal R.R. Assn. of St. Louis, 242 S.W.2d 473; Long v. Union Pacific R. Co., 10th Cir., 192 F.2d 788, 790. (6) The plaintiff's evidence showed that the bottom bar of the gate which plaintiff caught as he was falling forward continued to rise until his hands were caught between this bar and the floor of the passenger platform. The plaintiff's testimony was not contrary to physical facts, but only contrary to parts of the defendant's evidence. (7) The record clearly indicates that in answering a hypothetical question Dr. Barnes had reference to the effect that there was a partial lack of sensation to a portion of plaintiff's right leg and not to a completely insensitive leg as contended by defendant. This was thoroughly supported by the evidence, therefore, the admission of this testimony was not prejudicial to defendant. (8) In testifying, it was made quite clear that Dr. Barnes was testifying solely from a neurological standpoint. He testified that the damage was to the nerve roots in the low back area, and that this damage might be due either to some bone displacement which may or may not have been shown by X-rays, or could be due to a pinched nerve. This testimony was proper for the jury to consider, especially when followed by other medical testimony stating the exact damage and showing the causal connection between the accident and the injuries sustained. Kimmie v. Terminal R. Assn. of St. Louis, 334 Mo. 596, 66 S.W.2d 561; Cruce v. G.M. O.R. Co., 358 Mo. 589, 238 S.W.2d 674. (9) The pleadings were broad enough to permit the introduction of evidence of a ruptured disc. However, Dr. Prenger did not express an opinion that the disability present in this case stemmed from a ruptured intervertebral disc, and no error prejudicial to the defendant was committed during the period of time Dr. Prenger was testifying. Bales v. Kansas City Pub. Serv. Co., 328 Mo. 171, 40 S.W.2d 665; Long v. Fulkerson, 74 S.W.2d 879. (10) The court properly sustained objection to a statement made by counsel for defendant to the effect that at the former trial plaintiff didn't complain of his back. The statement was argumentative, called for conclusion, and assumed facts, and was therefore improper. Lonnecker v. Borris, 245 S.W.2d 53. (11) The introductory clause of Instruction No. 1 constituted a proper declaration of the law applicable to this cause, and as such constitutes no reversible error. Bales v. Kansas City P.S. Co., 40 S.W.2d 665; Haynie v. Jones, 127 S.W.2d 105; Drake v. Kansas City P.S. Co., 63 S.W.2d 75. (12) Instruction No. 4 instructed the jury that if they found and believed from the greater weight of the credible evidence in favor of the plaintiff on the propositions and issues submitted under the primary instruction, then plaintiff had met and carried the burden of proof. Such instruction is correct. Williams v. St. L. Pub. Serv. Co., 363 Mo. 625, 253 S.W.2d 97; Warning v. Thompson, 249 S.W.2d 335; Davis v. K.C. Pub. Serv. Co., 361 Mo. 61, 233 S.W.2d 679. (13) Refused Instruction No. 2 offered by the defendant was in direct conflict with the res ipsa loquitur doctrine and thus erroneous. Jones v. Terminal R.R. Assn. of St. Louis, 242 S.W.2d 473; Meade v. Mo. Water Steam Supply Co., 318 Mo. 350, 300 S.W. 515. (14) The court committed no error in refusing to give Instruction No. 3. The giving of this instruction was held to constitute reversible error on the prior appeal. Jones v. Terminal R.R. Assn. of St. Louis, 242 S.W.2d 473. (15) The court committed no error in refusing to give Instruction No. 6. Copeland v. Term. R. Assn. of St. Louis, 182 S.W.2d 600; Federal Employers' Liability Act, 45 U.S.C.A., Sec. 53. (16) Refused Instruction No. 13 was not supported by the evidence, and the court did not abuse its discretion in refusing the instruction. Louisville N.R. Co. v. Botts, 8th Cir., 173 F.2d 164, 170; O'Donnell v. Elgin, J. E. Ry. Co., 7th Cir., 193 F.2d 348, 354.
Action under Federal Employers' Liability Act, 45 U.S.C.A., § 51 et seq., for damages for personal injuries sustained by plaintiff while employed by defendant as a mail and baggage handler at Union Station in St. Louis. Verdict and judgment for plaintiff for $16,500, and defendant appeals. On the former appeal ( 242 S.W.2d 473) judgment for defendant was reversed because of error in the instructions, and the cause remanded.
The injuries for which plaintiff sues allegedly resulted from an unusual, violent and sudden jerk of defendant's elevator on which he was descending, and [645] the sudden, unexpected and unusual ascent thereof while plaintiff was hanging helplessly from the station platform and entrapped by a safety gate which he grabbed to avoid falling. The facts are stated in the opinion on the former appeal, which by reference we adopt, there being no material difference therein on either trial. The issue of the submissibility of plaintiff's case as one under the res ipsa loquitur doctrine was there adjudicated, the holding being that he was entitled to so submit it. The evidence on that issue was the same at the subsequent trial, but defendant nevertheless again urges that no such case was made under the evidence. We are entirely satisfied with our former holding on that issue, and so adhere to it.
Taking up defendant's assignments in the order in which they appear in the briefs, we come to that most vehemently pressed on oral argument, i.e., that the effect of the liberalized and expanded discovery provisions of the new Code of Civil Procedure (RSMo 1949, § 510.020, § 510.030, § 492.280, VAMS) is such as to render a plaintiff's knowledge or means of knowledge touching the facts out of which his injury arises equal, or superior, to that of a defendant; in other words, such provisions have destroyed the reason for the res ipsa rule, and hence the doctrine itself should be held to have been destroyed. This precise contention was ruled in the very recent case of Warner v. Terminal R.R. Assn., No. 43,093, decided April 13, 1953, by Division I, 363 Mo. 1082, 257 S.W.2d 75. We are in accord with and follow the views there expressed in determining that issue adversely to the contention here made.
It is charged that plaintiff's testimony is contrary to physical facts in at least one vital respect, namely, that it appears from one of defendant's photographic exhibits that the construction of the elevator guard or gate is such that its bottom bar (which plaintiff testified he grasped when he lost his balance) lacked 13 inches of extending high enough to catch his hands between the elevator platform and the steel I-beam, or bottom of the passenger platform, as he testified. We are unwilling to say upon an inspection of the photograph that the jury was not at liberty to disregard the oral testimony of defendant's witness as to the correctness of that measurement, as testified by him.
Complaint is made respecting the examination of one of plaintiff's medical experts, Dr. Francis M. Barnes, Jr. The first of these is that the witness was permitted to answer a question based on the hypothesis that a portion of plaintiff's right leg was completely insensitive to pain, whereas, plaintiff's own testimony went no further than to show that he had suffered only partial loss of sensation at that point. The language of the offending question was: "* * * that there was this lack of sensation in his right leg area." The point of difference is whether the italicized language meant entire and complete want of sensation, or whether, as we think sufficiently appears from the whole of the doctor's examination, and as the jury understood, the matter thus assumed was that of diminished or reduced, as distinguished from totally absent, sensation. The other matter complained of is the failure of the court to strike an answer of this witness in which he stated that the type of nerve injury found in the section of the fourth segment of plaintiff's spinal cord from which the nerve or nerves going down into the inside of his leg originate "may be due to some bone displacement in the spine, which might or might not be shown by X-ray. It might be due to a pinched nerve, which comes from the spinal cord at that level." Without extending this opinion by reproducing other relevant parts of the doctor's testimony, it may be said that they would satisfactorily establish that what the witness was referring to in the portion here attacked were pathological changes resulting in the damage he found, and not to causal connection between the accident and the injury sued for, as in Kimmie v. Terminal R.R. Assn., 334 Mo. 596, 605, 66 S.W.2d 561, 565.
The next point grows out of the following answer given by Dr. Prenger, another of plaintiff's medical experts, to [646] a question calling for his opinion as to the cause of the disturbance of plaintiff's central nervous mechanism to which the witness had just testified: "My opinion would be that the cause is pressure, and the pressure is most likely a discogenic syndrome." It is claimed that this answer is so highly prejudicial as to have necessitated the declaration of a mistrial as requested by defendant, this upon the theory that such "evidence was clearly without the plaintiff's case as pleaded." When the objection was made, the trial court by prompt inquiry (made out of the presence and hearing of the jury) elicited from the witness the fact that discogenic syndrome is "a new terminology that is used for any irritation of the nerve roots that might be in and around the disc area," but not necessarily implying a ruptured disc. Following this clarification, the witness was thus admonished by plaintiff's counsel: "Any further testimony should not refer to a disc." Defendant's objection and motion to declare a mistrial were renewed and overruled. We are of the opinion that this showing does not warrant the inference that the use of the term "discogenic syndrome" was so inflammatory and prejudicial as to amount to placing before the jury the idea that a ruptured intervertebral disc was involved.
The next assignment is that, to defendant's prejudice, the court improperly limited the scope of the cross-examination of plaintiff. On his direct examination plaintiff complained of injury to his back (corroborated to some extent by his medical evidence), and on cross-examination defendant's counsel sought to elicit an admission that at the former trial he had made no such complaint. The ruling complained of stems from the following:
"Q. And, at the former trial, you complained of your legs, your right leg especially and your left leg somewhat; but, you didn't complain of your back.
"Mr. Gray [plaintiff's counsel]: I object to the use of the testimony at the former trial in this manner, unless there are specific questions and answers he wants to ask."
The objection was sustained, and a colloquy ensued between the court and counsel (out of the presence and hearing of the jury) from which the following appears: That the more specific ground of plaintiff's objection was that of "generalizing on what is in the record;" that defendant's insistence was upon its right to prove a negative — a significant omission in plaintiff's testimony on the former trial, and that the court's view was thus expressed: "What the record shows, it shows. * * * What it doesn't show, it doesn't show. You gentlemen can stipulate he made no complaints, if you choose to." Plaintiff's counsel replied that he could not so stipulate; that he would have to check the record because he did not recall, and observed, "Maybe it wasn't asked him; I don't know." Whereupon plaintiff's objection was again sustained.
We do not seriously regard plaintiff's contention that the matter first quoted above was not a question, but a mere statement of fact. There is not the slightest difficulty in concluding that it indicates a direct query, even if it is not in the form of a question. Nor is it bad as being argumentative, or assuming facts, as condemned in Lonnecker v. Borris, (Mo.) 245 S.W.2d 53, 56. The vital issue of the extent of a plaintiff's injuries is one upon which there should be wide latitude in the matter of cross-examination. Self-impeachment is perhaps the most devastating form to be encountered. It is no answer to say that because defendant might have introduced the previous record, either by way of impeachment or as an admission against interest (and without laying a foundation therefor), and that it failed to do so, the error was cured, or rendered harmless. What could be plainer than that defendant was entitled to show (if it could) by admissions, elicited upon cross-examination of the plaintiff himself, of inconsistent testimony given by him at the two trials? The omission on the part of plaintiff to make claim of back injury upon the first trial would, in the absence of a satisfactory and convincing [647] explanation, be highly significant in the light of his present claim. And in any view that may be taken of the matter, it is obvious that the restriction thus placed upon the defendant's right of cross-examination was so severe and unwarranted as to render the questioned ruling prejudicially erroneous.
Numerous complaints are directed at the instructions, but none of them are of such a nature as to require extensive discussion. For example, it is urged that the court should have given defendant's refused instruction No. 3. This is the very instruction for the giving of which the judgment in favor of defendant on the first trial was reversed. The same contentions now urged were there made, considered and determined, and this is enough to say on the subject. What was said in Winters v. Terminal R.R. Assn., 363 Mo. 606, 252 S.W.2d 380, 387, effectively disposes of the objections raised to paragraph one of plaintiff's main instruction (summarized in the opinion on the former appeal, 242 S.W.2d 473, 478) as being too general, confusing and misleading, stating mere abstract legal principles, failing to require findings of constitutive facts of negligence, and giving the jury a roving commission. It has been held that instructions similar to plaintiff's No. 4 on sustaining the burden of proof (also challenged) are not so prejudicially erroneous as to require the granting of a new trial. Warning v. Thompson, (Mo.) 249 S.W.2d 335, 343; Winters v. Terminal R.R. Assn., supra; Venditti v. St. Louis Public Service Co., 362 Mo. 339, 240 S.W.2d 921, 927.
Under the holding on the former submission with respect to the inapplicability of the fellow servant rule in an action under FELA, and the further holding that an employe's negligent intentional act is no defense to an action against an employer for injuries to another employe, and does not render the res ipsa doctrine inapplicable, it is apparent that no error was committed in refusing defendant's instruction under which it would have been absolved if the jury found "that at the time of the injury to plaintiff, the elevator was caused to go down, up and down again, by the intentional act of someone who pulled the chain which set the elevator in motion."
Defendant's refused instruction No. 6 would have directed a verdict upon the finding "that plaintiff was injured as a direct result of taking hold of any part of the elevator gate without any necessity for so doing." Defendant seeks to justify the instruction on the ground that under its defense of no abnormal or unusual movement of the elevator, there could not have been any necessity for the plaintiff to have grasped the elevator guard or gate as it rose. Apart from failure to negative any negligence on defendant's part, the instruction would have been misleading as in practical effect authorizing a verdict for defendant even though plaintiff's negligence merely contributed with that of defendant, and hence in violation of the act under which the action was brought, 45 U.S.C.A., § 53.
Defendant complains of the refusal of its instruction No. 13, which told the jury that if it should find in favor of plaintiff, then in determining his damages it should "take into consideration the fact that not all persons live to the age of expectancy, and that this is particularly true in the case of hazardous occupations, if you believe the plaintiff's occupation was hazardous. If you take into consideration also the fact that Mr. Jones might not have worked during all the years of his expected life, and that his earnings might not have remained stationary and therefore the reasonably to be expected earnings might have varied or diminished in the future." The instruction is a counterpart of that under consideration in Louisville N.R. Co. v. Botts, 173 F.2d 164, 169-170, a case determined by the United States Court of Appeals for this, the 8th Circuit. While it was there held that the giving or refusal of the instruction in the situation there presented was wholly for the trial court's discretion, in reaching that conclusion it took occasion to say that the matters enumerated in the instruction "are such commonplace facts, of daily consciousness, that they do not need to be [648] made a matter of judicial flat." The case of Thompson v. Camp (6), 163 F.2d 396, 403-404, upon which defendant in the case at bar relies, was distinguished, and what was said in that connection is here applicable.
For the error in unduly restricting the cross-examination of plaintiff, the judgment is reversed and the cause remanded. All concur.