Summary
In Mooney v. Terminal R. Ass'n, 353 Mo. 1080, 186 S.W.2d 450, a death case, we affirmed a judgment for $35,000 as damages and $10,000 for pain and suffering.
Summary of this case from Curtis v. Atchison, Topeka & Santa Fe Railway Co.Opinion
No. 39202.
March 5, 1945. Rehearing Denied or Motion to Transfer to Banc Overruled, April 2, 1945.
1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Rule Stated: Instruction Properly Refused. Under the Federal Employers' Liability Act there is liability if the agents and servants of the defendant railroad were negligent and if such negligence in whole or in part contributed to the injury. Defendant's instruction was properly refused.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Issues of Negligence Properly Submitted: Duty of Engineer to Stop or Warn. The issues of negligence, including whether the negligence of the deceased was the sole cause of his death, were properly submitted. Though there was some variation from the testimony at the former trial, there was substantial evidence on the duty of the engineer to stop or blow his whistle when deceased was in imminent peril and oblivious.
3. TRIAL: Witnesses: Argument Against Own Hostile Witnesses Proper. Plaintiff was forced to make her case through hostile witnesses employed by defendant. It was not error to argue to the jury against some of the testimony of such witnesses.
4. TRIAL: Improperly Addressing Juror: Reprimand Sufficient. It was improper for plaintiff's counsel to engage in an argument with the jury, referring to them as "my friends", and calling one of them by name, but a prompt reprimand instead of declaring a mistrial was within the discretion of the trial court.
5. DAMAGES: Verdict not Excessive. A death verdict of $55,000, which included $10,000 for conscious pain and suffering by the deceased, was not excessive when reduced by remittitur to $45,000.
Appeal from Circuit Court of City of St. Louis. — Hon. Edward M. Ruddy, Judge.
AFFIRMED.
Joseph A. McClain, Jr., and Arnot L. Sheppard for appellant.
(1) Decedent's own negligence was the sole proximate cause of his injury. He had been warned of the movement to be made, but nevertheless stepped directly in front of the moving locomotive. No negligence of appellant appears. Ebell v. Oregon-Washington R. N. Co., 221 P. 1062; Hines v. Kersheimer's Admx., 249 S.W. 1001; Loring v. K.C., F.S. M.R. Co., 128 Mo. 349; Pere Marquette R. Co. v. Haskins, 62 F.2d 806; Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91, 73 L.Ed. 224; Ingram v. M. O.R. Co., 30 S.W.2d 989. (2) The Missouri humanitarian doctrine does not furnish a ground for recovery in this case. This action is under Federal Employers' Liability Act, and, therefore, liability vel non must be determined under legal principles accepted and followed by the federal courts. Cox v. M.-K.-T.R. Co., 335 Mo. 1226, 76 S.W.2d 411. (3) The federal courts accept and apply the last clear chance doctrine; but not the Missouri humanitarian doctrine. Denver City Tramway Co. v. Cobb, 164 F. 41; Hart v. Northern P.R. Co., 196 F. 180; Iowa Central R. Co. v. Walker, 203 F. 685; Marshall v. Hines, 281 F. 165; Miller v. Canadian Northern R. Co., 281 F. 664; Wheelock v. Gray, 13 F.2d 972; Miller v. Union Pacific R. Co., 63 F.2d 574; Allnutt v. Mo. Pac. R. Co., 8 F.2d 604; Robbins v. Pa. R. Co., 245 F. 435; Linde Air Products Co. v. Cameron, 82 F.2d 22; Kansas City So. R. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80, 72 L.Ed. 259; Toledo, St. L. W.R. Co. v. Allen, 276 U.S. 166, 72 L.Ed. 513; St. L.-S.F.R. Co. v. Schumacher, 152 U.S. 77, 38 L.Ed. 361; Chunn v. City Suburban Ry., 207 U.S. 302, 52 L.Ed. 219. (4) Comparative negligence as a governing principle of the Federal Employers' Liability Act in no way affects the federal last clear chance doctrine as applicable to cases brought under that act. Seiffert v. Hines, Director General, 108 Neb. 62, 187 N.W. 108; Stanley v. C., R.I. P.R. Co., 113 Neb. 280, 202 N.W. 864; Parsons v. Berry, 130 Neb. 264, 264 N.W. 742; Wolfgang v. Omaha Council Bluffs St. Ry. Co., 126 Neb. 600, 262 N.W. 537; McLaughlin v. Long, 2 D.L.R. 186; Johnston v. McMorran, 4 D.L.R. 335; Raines v. Southern R. Co., 169 N.C. 189, 85 S.E. 294. (5) Both the humanitarian and last clear chance doctrines blot "out all that preceded, whether primary or contributory negligence, and measures defendant's liability solely on its ability and failure to avert the injury under the then existing circumstances." Todd v. St. L.-S.F.R. Co., 37 S.W.2d 557; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809. (6) "Contributory negligence is an issue wholly foreign to a case submitted purely under the humanitarian rule"; so foreign, in truth, that an instruction which submitted contributory negligence as a defense only unless the jury found for plaintiff under the humanitarian rule, was held to constitute reversible error. Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Silliman v. Munger Laundry Co., 44 S.W.2d 159. (7) The federal cases base the application of the last clear chance doctrine on the principle of proximate cause. P.R. Co. v. Swartze, 17 F.2d 869. (8) Conceding for the purpose of argument only that the Missouri humanitarian doctrine is applicable to this case, the facts are wholly insufficient to make a prima facie case under that doctrine. The uncontradicted evidence discloses that decedent stepped upon the track "just as the engine hit him." Smithers v. Barker, 111 S.W.2d 47; Knight v. Wabash R. Co., 85 S.W.2d 392; Costello v. Pitcairn, 116 S.W.2d 257; Lotta v. K.C. Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296. (9) Respondent is not aided on the merits in making a submissible case under the Missouri humanitarian doctrine by the fact that the evidence shows that decedent was within the range of vision of the engineer while the movement was being made. Neither the jury in the trial court nor this court had or has a right to reach the conclusion that the engineer actually saw decedent in time to have avoided injuring him, in the face of the undisputed testimony that he did not see decedent, even though decedent was in his range of physical vision. Draper v. L. N.R. Co., 156 S.W.2d 626; Pennsylvania R. Co. v. Chamberlain, 228 U.S. 333, 77 L.Ed. 819; Southern Ry. Co. v. Walters, 284 U.S. 190, 76 L.Ed. 239. (10) The closing argument of respondent's counsel was reversibly erroneous. Draper v. L. N.R. Co., 156 S.W.2d 626; Fathman v. Tumulty, 34 Mo. App. 236; Smith v. Western Union Tel. Co., 55 Mo. App. 626; Kirkpatrick v. Wells, 319 Mo. 1040, 6 S.W.2d 591; Jackman v. St. L. H.R. Co., 206 S.W. 244; Davis v. Wells, 27 S.W.2d 714; Potashnick v. Pearline, 43 S.W.2d 790; Carpenter v. Kurn, 136 S.W.2d 997; N.Y.C.R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 417, 73 L.Ed. 706; M., St. P. S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. (11) The verdict is so excessive as to show it resulted from passion and prejudice against appellant. Hancock v. K.C. Terminal Ry. Co., 339 Mo. 1237, 100 S.W.2d 570; Sheehan v. Term. Railroad Assn., 344 Mo. 586, 127 S.W.2d 657; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585. (12) The unfair argument coupled with the excessiveness of the verdict calls for a new trial rather than a remittitur. M., St. P. S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. Wilbur C. Schwartz and Chelsea O. Inman for respondent.
(1) Since the evidence and issues were substantially the same in the last trial as on the former trial, the opinion of this Court rendered in the first appeal is the law of the case. Morris v. E.I. DuPont, etc., Co., 139 S.W.2d 984. (2) Under the law of the case as decided by this court plaintiff made a submissible case of negligence on the part of defendant's engineer in failing to stop the locomotive and avoid killing decedent, hence any negligence of decedent was not the sole cause of his death. Mooney v. Terminal R. Assn., 176 S.W.2d 605; Union Pacific R. Co. v. Hadley, Admr., 246 U.S. 330; Brock v. M. O.R. Co., 330 Mo. 918, 51 S.W.2d 100, certiorari denied 287 U.S. 638; Illinois Central R. Co. v. Skaggs, 240 U.S. 66; Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42; Chicago G.W.R. Co. v. Schendel, 267 U.S. 287; Spokane E.I.R. Co. v. Campbell, 241 U.S. 497. (3) The evidence also made a submissible case of negligence on the part of the engineer in failing to sound a timely warning with the whistle of the locomotive. C.L. St. P.R. Co. v. Kane, 33 F.2d 866, certiorari denied 280 U.S. 588, 50 S.Ct. 37; Beck v. C., R.I. P.R. Co., 327 Mo. 658, 37 S.W.2d 917; Hinzeman v. Railroad, 199 Mo. l.c. 65, 94 S.W. 973. (4) The court correctly decided in the former opinion that any negligence on the part of decedent did not bar a recovery however late such negligence may have been or however directly connected with the injury. Union Pacific R. Co. v. Hadley, Admr., 246 U.S. 330; Mooney v. Terminal R. Assn., 176 S.W.2d 605. (5) The court, in its former opinion, correctly held that a negligent violation of what in Missouri is called the humanitarian doctrine is also actionable negligence under the Federal Employers' Liability Act; that under the Federal Employers' Liability Act a plaintiff is not limited to a recovery under the last chance doctrine. Mooney v. Terminal R. Assn., supra; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444; Owens v. Union Pacific R. Co., 319 U.S. 715, 63 S.Ct. 1271. (6) Plaintiff did not plead a cause of action under the last chance doctrine in this case and, therefore, did not limit her field of recovery. On the contrary, she pleaded and proved negligence on the part of defendant's engineer in failing to stop the engine or to give a timely warning with the whistle of the locomotive although he saw, or by the exercise of ordinary care could have seen, decedent in a position of imminent peril and oblivious to his peril in time thereafter to have prevented decedent's injury by said means. Said negligence was under the evidence and applicable law a question for the jury. Mooney v. Terminal R. Assn., supra; Moran v. A.T. S.F.R. Co., 330 Mo. 278, 48 S.W.2d 881. (7) The Federal courts do not limit a recovery under the last chance doctrine to discovered peril where, as in this case, there is a duty to keep a lookout. K.C. So. R. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80; Chunn v. City Suburban R. Co., 207 U.S. 302, 38 S.Ct. 63; Tutweiler v. Lowery, 279 F. 479. (8) The rule that yard employees are not entitled to have the enginemen look out for them has no application where there is a duty to keep a lookout arising from rule or custom observed for their protection. Mayfield v. K.C. So. R. Co., 337 Mo. 79, 85 S.W.2d 116; Clark v. Terminal R. Assn., 111 S.W.2d 168; Wyatt v. N.Y.O. W.R. Co., 45 F.2d 705; Montgomery v. B. O.R. Co., 22 F.2d 359; Smith v. C., B. Q.R. Co., 321 Mo. 940, 15 S.W.2d 794; Hunt v. C., B. Q.R. Co., 303 Mo. 107, 259 S.W. 481; Hughes v. M.R. B.T. Ry. Co., 309 Mo. 560, 274 S.W. 703; Rigley v. Pryor, 290 Mo. 10, 233 S.W. 828; Norfolk W.R. Co. v. Earnest, 229 U.S. 114; B. O.R. Co. v. Robertson, 300 F. 314; Lehigh Valley R. Co. v. Doktor, 290 F. 760; Lehigh Valley R. Co. v. Mangan, 278 F. 85; Director General v. Templin, 268 F. 483; Grosvenor v. N.Y.C.R. Co., 343 Mo. 611, 123 S.W.2d 173; Armstrong v. M. O.R. Co., 331 Mo. 1224, 55 S.W.2d 460. (9) Since the evidence in this case made a submissible case under the decisions of the Federal courts, it is of no consequence that the elements submitted also make a case under the Missouri humanitarian doctrine. There is no impairment of uniformity essential in actions under the Federal Act. Any failure to exercise ordinary care constitutes negligence and whether under a given set of circumstances such care was exercised is necessarily a question for the jury. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444; Owens v. Union Pacific R. Co., 319 U.S. 715, 63 S.Ct. 1271; Bailey v. Central Vt. Ry. Co., 63 S.Ct. 1062. (10) There was no reversible error in the closing argument of respondent's counsel. Counsel was entitled to question the truth or correctness of any statement made by any of his witnesses, since the jury could accept part of the testimony of a witness and reject other parts and could draw all reasonable inferences from the testimony. Therefore, counsel in his argument had the right to argue such evidence and such inferences. Rollison v. Wabash R. Co., 252 Mo. 525, 160 S.W. 994; Beckerman v. Jewelry Co., 175 Mo. App. 279; Schumacher v. K.C. Breweries Co., 247 Mo. 141, 152 S.W. 13; Maginnis v. Mo. Pac. R. Co., 268 Mo. 667, 187 S.W. 1165; Gould v. Railroad, 315 Mo. 713, 290 S.W. 135; Smithers v. Barker, 111 S.W.2d 47; Frye v. St. Joseph, etc., Power Co., 99 S.W.2d 540. (11) The argument did not amount to impeachment, which can be accomplished only by attacking the general reputation of the witness for veracity or by showing a prior contradictory statement. Vernon v. Rife, 294 S.W. 747; Roberts v. K.C. Ry. Co., 228 S.W. 902; Coats v. Old, 167 S.W.2d 652. (12) Since the witnesses Luthy and Fuller were at the time of the trial still in the employ of the defendant, counsel was entitled to remind the jury that they could take that into consideration in weighing their testimony because "the relation of the witnesses to the parties" is always a matter for the consideration of the jury in determining the credibility of their testimony and of the weight to be given it. Crews v. Wilson, 281 S.W. 44. (13) The court sustained the objection, ordered the remark stricken from the record, instructed the jury to disregard it, and reprimanded counsel. If the remark was improper, no prejudice could have resulted in view of the positive action of the court. Kamer v. M.K. T. Ry. Co., 326 Mo. 792, 32 S.W.2d 1075; Sallee v. St. L.-S.F. Ry. Co., 12 S.W.2d 476; Huskey v. Met. Life Ins. Co., 94 S.W.2d 1075; Donk v. Francis, 351 Mo. 1053, 174 S.W.2d 840. (14) Control of argument and appropriate measures to remove any possible prejudice are generally within the discretion of the trial court. By overruling the motion for a new trial the court found there was no prejudice, and the appellate court cannot substitute its judgment on the cold record for the discretion of the trial court. Asadorian v. Sayman, 282 S.W. 507; Huckshold v. Ry. Co., 90 Mo. 548, 2 S.W. 794; Cullen v. Johnson, 325 Mo. 353, 29 S.W.2d 39; Jones v. Kansas City, 76 S.W.2d 340; Burrow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919. (15) The verdict for $45,000 actual damages and $10,000 for conscious pain and suffering is supported by the evidence and does not indicate any passion or prejudice against the defendant. The present cash value of the pecuniary loss to the widow and minor children approximated $45,000. The appellate court will view the evidence in its light most favorable to respondent. Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126; Jones v. Pennsylvania R. Co., 182 S.W.2d 157. So viewed the verdict was within reason. Gill v. B. O.R. Co., 302 Mo. 317, 259 S.W. 93. (16) In addition to the loss of cash contributions, plaintiff was entitled to recover for the deprivation of the care, training and instruction decedent would have given the minor children during their minority. Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 57 L.Ed. 417; Norfolk W.R. Co. v. Holbrook, 235 U.S. 625, 59 L.Ed. 392; Moran v. A., T. S.F.R. Co., 330 Mo. 278, 48 S.W.2d 881. (17) The judgment of $35,000, for actual damages after remittitur ordered by the trial court is less than the actual damages established by the evidence and is consistent with awards in decided cases. Sheehan v. N.Y., N.H. H.R. Co., 18 F. Supp. 635; Looney v. Norfolk W.R. Co., 135 S.E. 262; Mo. Pac. R. Co. v. Bushey, 180 Ark. 19, 20 S.W.2d 614; Hines v. Mills, 218 S.W. 777; Stott v. Thompson, 294 Ill. App. 450, 14 N.E.2d 246; Gulf, C. S.F.R. Co. v. Carpenter, 201 S.W. 270; Sheehan v. Terminal R. Assn., 127 S.W. 657; Moran v. A.T. S.F.R. Co., 330 Mo. 278, 48 S.W.2d 881; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Johnson v. Southern Ry. Co., 175 S.W.2d 802; Taylor v. Southern Ry. Co., 259 Ill. App. 271; Goodman v. Chicago, B. Q.R. Co., 389 Ill. App. 320; Oglesby v. St. L.-S.F. Ry. Co., 318 Mo. 79, 1 S.W.2d 172; Case v. St. L.-S. F. Ry. Co., 30 S.W.2d 1069; Benner v. Terminal Railroad Assn., 156 S.W.2d 677; Williamson v. St. L.-S.F. Ry. Co., 74 S.W.2d 583. (18) Damages for conscious pain and suffering are exclusively within the province of the jury and cannot be altered by the appellate court unless so high as to shock the judicial conscience. Johnson v. Southern Ry. Co., 175 S.W.2d 802. (19) The award of $10,000 in the case at bar for conscious pain and suffering is in harmony with the awards approved by this court in similar cases. Talbert v. Chicago, R.I. P. Co., 321 Mo. 1080, 15 S.W.2d 761; Noce v. St. L.-S.F. Ry. Co., 337 Mo. 686, 85 S.W.2d 637.
Gertrude Mooney, administratrix of the estate of her deceased husband, Neil P. Mooney, obtained a verdict in the sum of $55,000 against appellant, Terminal Railroad Association. The trial court required a remittitur of $10,000 and entered a judgment for $45,000. The Terminal Railroad Association appealed.
This is the second appeal in this case. The opinion on the first appeal will be found reported in 176 S.W.2d 605, 352 Mo. 245. The judgment was reversed and the cause remanded for retrial because of improper argument to the jury by plaintiff's counsel. Plaintiff's cause of action was based on the Federal Employers' Liability Act, 45 U.S.C.A., sec. 51, etc. The deceased, plaintiff's husband, lost his life on November 28, 1939, at about 4:30 P.M., while working as a switchman in the Terminal yards at St. Louis, Missouri. The deceased was a member of a five man train crew which included a switch foreman, engineer, fireman and two switchmen. The deceased was referred to as a field switchman. About 4:00 P.M., November 28, the crew began its work of switching cars in the yards at Seventh street. The deceased lost his life when an engine ran over him while the crew was attempting to make what is ordinarily understood as a flying switch. Tracks designated as numbers four and five ran in easterly and westerly directions at that point. Track number four was south of track number five and was connected therewith by a track called a crossover. The switch movement in which Mooney lost his life may be briefly described as follows: The engine, facing [452] west with a boxcar attached to the front end, was moved to track number four about one hundred feet west of the crossover, between tracks four and five. The crew intended to place the boxcar on track number four east of the crossover switch and against cars standing thereon. The deceased and the switch foreman had alighted from the engine on the north side of track number four and west of the switch. It was the duty of the deceased to take his place at track four east of the switch, about where the boxcar was to be set, and to block it so as to keep it from rolling back over the switch. There was a slight down grade westward. Deceased received his instructions from Luthy, the foreman, and started toward his position. To get there it was necessary for him to cross over the track at some point east of the engine. Luthy signaled the engineer to make the flying switch. When the engine had attained proper speed permitting the boxcar following it to roll of its own momentum to its destination, the speed was checked to permit Bauer, who was riding at the front of the engine, to lift the pin from the coupling. Bauer did so and the speed of the engine was then accelerated so as to leave the car and pass onto the crossover track. Luthy was to throw the switch so the boxcar would continue east on track number four, but as the engine was passing Luthy at the switch he noticed that Mooney was walking toward the crossover switch at track number five. Luthy testified he sensed danger and realized that if Mooney continued on his course the engine would strike him. He made no attempt to throw the switch for the boxcar but, as he testified, devoted all his attention to trying to give the engineer a signal for an emergency stop and to attracting the attention of Mooney so that he would not be hit by the engine. Luthy testified he gave the engineer the washout signal. We quote the following from his evidence:
"Q. Now, you hollered at Mr. Fuller, the engineer, didn't you, as he went by? A. I done a lot of yelling; yes, sir: I hollered to Mr. Fuller and also Mr. Mooney, to attract the attention of either one of them.
"Q. Mr. Mooney was 162 feet, well, approximately 160 feet down east of you; isn't that right? A. Yes, sir.
"Q. Mr. Fuller, the engineer was 10 feet, or 8 or 10 feet away from you, passing by in the engine; isn't that right? A. Yes, sir."
The engineer testified that he did not see Mooney but saw a signal given by Luthy when the engine was near the crossover switch at track number five and that he stopped within a space of twenty-five feet. Mooney had then been struck by the engine and it had passed over him. He died at a hospital at about 8:30 that evening. There was evidence that the engine was stopped at about the proper place it would have been stopped had the flying switch been completed.
Appellant's principal point upon this appeal is that the case was submitted to the jury under the Missouri Humanitarian Doctrine and that the federal courts do not recognize our humanitarian doctrine but apply the last chance rule. Appellant's position may be best understood by setting forth an instruction it requested but which the trial court refused. It reads as follows:
"You are instructed that although you may believe from the evidence herein that both Mooney and the railroad company were negligent at some time during the switching movement, you cannot find a verdict in favor of Mrs. Mooney unless you find that before her deceased husband was struck, he had stopped being negligent, and that after he stopped, if you so find, the defendant railroad company had an opportunity, by the exercise of ordinary care on its part, to avoid striking him.
"In this connection you are further instructed that unless the negligence, if any, of Mooney stopped a sufficient length of time before he was injured, to give the railroad company a later opportunity to avoid striking him, by the use of due care on its part, then your verdict must be for the railroad company."
Respondent insists that the case must be governed by the federal statute and that the distinction between the humanitarian doctrine and the last chance rule has no bearing on the case. We are of the opinion that respondent's position is correct. We so held on the former appeal. See Mooney v. Terminal R. Assn. of St. Louis, 352 Mo. 245, 176 S.W.2d 605, l.c. 607, etc., where the question was discussed at length. Appellant, however, earnestly insists that the opinion is not in harmony with the federal cases. We have again examined the question and we adhere to our [453] former ruling. It, therefore, will not be necessary to review the question again. We approve the discussion on this point in the former opinion where the federal cases were analyzed.
That appellant may understand what this court deems the rule to be we will attempt to state it as applicable to the present case. It was conceded that Mooney when fatally injured came within the protection of the federal act under discussion. The vital questions, therefore, before the trial court and jury were whether the defendant's agents and servants were negligent and if so whether such negligence in whole or in part contributed to Mooney's injury. An affirmative answer to both questions establishes liability. Whether the facts as proven fit the pattern of the humanitarian doctrine as recognized by the Missouri courts or whether the facts fit the pattern of the last chance rule has nothing to do with the case. The federal act does not make any exception, nor should one be read into the law by the courts. The law provides that appellant shall be liable for Mooney's death if it resulted, "in whole or in part from the negligence of" its employees. Appellant's refused instruction clearly stated the rule to be that even though the negligence of the defendant's employees may have contributed to Mooney's death, yet if Mooney's negligence continued up to the time the engine struck him then defendant was not liable. That is not the law and this court's ruling on that point in the former opinion is correct and is hereby reaffirmed. See also Moran v. Atchison, T. S.F.R. Co., 330 Mo. 278, 48 S.W.2d 881, l.c. 882 2d. The question of whether Mooney's negligence could have been interposed in mitigation of the damages was not made a point in this case and need not be discussed.
Appellant in its brief states:
"It may be said at the outset that appellant's position is that it was guilty of no negligence of any kind, that decedent was guilty of negligence; not contributory negligence, but sole negligence, and that his sole negligence was the direct and proximate cause of his death."
The question of whether deceased's negligence was the sole cause of his death was submitted to the jury by an instruction requested by the defendant. The jury found against defendant on that issue and that finding is binding on us. The question of whether there was substantial evidence to support the verdict was presented on the former appeal and decided adversely to appellant. See 352 Mo. 245, 176 S.W.2d 610 (11, 12). The evidence in the second trial was substantially the same as in the first. We notice, however, that on the first trial Luthy testified that he noticed the engineer looking eastward as the engine was passing the switch stand where Luthy was stationed. At the second trial he did not so testify. That, however, does not materially affect the merits of the case. The engineer testified that he did look east. Note his evidence:
"Q. Well, at the time you passed, at the time you passed Mr. Luthy, which way were you looking? A. I was looking east to see if I was on a clear track."
Luthy testified that as the engine passed him he sensed the danger to Mooney and tried to signal the engineer to stop. We also desire to call attention to the fact that the engineer stated he saw Mooney when Mooney was near Luthy before the switch movement was begun. The engineer then knew that Mooney must at some time cross the track east of the engine to get to his proper place for the purpose of blocking the boxcar. Again the engineer testified as follows:
"Mr. Schwartz: Now, Mr. Fuller, I will ask you to state if it was custom in the Seventh Street Yard, on the occasion in question, if you saw somebody approaching the track, about to get on the track, to blow the whistle? A. It is, if you happen to see any obstruction.
"Q. If you saw somebody about to get on the tracks, would you blow the whistle? A. If I seen any obstruction or any party getting near the track, I would.
"Q. That was custom. I will ask you to state if there has been any change in that in the last twenty years? A. None I know of.
"Q. That has been the custom and practice ever since you have been an engineer; is that right? A. Yes, sir.
"Q. How long have you been an engineer, Mr. Fuller? A. Well, I have been an engineer close to 28 years."
The variance in the evidence of Luthy does not change the situation. There was substantial evidence to support the verdict on the theory that the engineer either saw and knew, or by the exercise of ordinary care on his part could have seen and [454] known, that Mooney was in eminent peril and oblivious thereto and that the engineer could thereafter have avoided the injury by stopping the engine or by a timely sounding of the whistle of the locomotive. That was the theory submitted by plaintiff's instruction.
The judgment for plaintiff on the former appeal was reversed and the case remanded solely on the ground that plaintiff's counsel made an improper argument to the jury. Appellant earnestly insists that plaintiff's counsel failed to give heed to the admonition in the former opinion with reference to prejudicial arguments. It is urged that plaintiff's counsel in his argument to the jury at the last trial was guilty of making vicious, unfair and prejudicial statements which again require a reversal of the judgment. This court has had this question under consideration on a number of occasions as evidenced by the following cases: Mooney v. Terminal R. Assn. of St. Louis, 176 S.W.2d 605, l.c. 612, 352 Mo. 245; McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633, l.c. 639 (9); Hungate v. Hudson, number 39092, 353 Mo. 944, 185 S.W.2d 646. We have scrutinized the argument with a critical eye. Appellant urges that plaintiff's counsel, Mr. Schwartz, asked the jury to disbelieve plaintiff's witnesses and also urges that the argument was a vicious, unfair attack upon his own witnesses. In deciding this point we must consider the circumstances of the case. Plaintiff to prove her case was forced to use the members of the train crew as her witnesses, all employees of the defendant and none of whom had worked with Mooney prior to the day of the accident. The engineer testified he did not see Mooney near the track nor the signal given by Luthy until after or about the time the engine struck Mooney. How he could have failed to see either Mooney or Luthy's signal is difficult to understand. This was legitimate matter for argument. Plaintiff was entitled to the most favorable legitimate inferences to be deduced from the evidence. In the circumstances plaintiff's counsel was authorized to draw these inferences from the evidence and to comment on the evidence in conflict therewith even though such evidence came from his own witnesses. See Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, l.c. 50 (1, 2), where the rule is stated as follows:
"A plaintiff is not conclusively bound by all of the most unfavorable testimony of his witnesses `where there are other facts and circumstances in the case from which the jury may draw a contrary inference.' Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 764, 773; see, also, Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548."
See also Maginnis v. Mo. Pac. R. Co., 268 Mo. 667, 187 S.W. 1165, l.c. 1167 (4).
Again appellant urges that Schwartz went beyond the rule of proper argument when he informed the jury that Mooney was looking for a block to hold the car in place at the time he was struck by the engine. A number of witnesses, including employees of the defendant, testified that it would be necessary to use a block of some kind to place on the track against the wheel of the boxcar. No witness testified that Mooney had a block. So it was not unreasonable to infer from the evidence that Mooney was looking for a block at the time the engine struck him. At the last trial no witness testified that Mooney was looking for a block. In the opinion on the former appeal the statement was made that a witness did so testify. Schwartz was mistaken when he said to the jury that someone had so testified in the last trial. A juror expressed doubt on this subject in answer to a question, by Schwartz, addressed to the jurors. This juror, we notice, did not sign the verdict. When appellant objected the trial court made the following comment:
"The jury have heard the testimony and they will consider it as they understood and remember it to be."
On two occasions the court sustained appellant's objections. One of these was when Schwartz addressed his remarks to juror Huntington, who was the juror who had expressed doubt that Mooney was looking for a block. Counsel said:
"Now, my friends . . . I wish I could remove that doubt in your mind, Mr. Huntington (Juror No. 12) about that block or chock, but I have lived this case, I know the facts in this case that are not in evidence here. There is no doubt in my mind at all . . ."
At this point counsel was interrupted by an objection. The court ruled:
"The objection sustained and the remark stricken from the record and the jury are instructed to disregard it. Keep within the rules."
Defendant's counsel then asked the court to declare a mistrial and to rebuke plaintiff's counsel. The court reprimanded counsel but refused to declare a mistrial. Declaring a mistrial for improper argument rests largely within the discretion of the trial [455] court. 46 C.J. 410, sec. 468; Kamer v. Missouri-Kansas-Texas R. Co., 326 Mo. 792, 32 S.W.2d 1075, l.c. 1086 (17, 18); Warnke v. Leschen Sons Rope Co., 178 S.W. 76, l.c. 79 (4). Making personal reference to jurors, such as calling them by name and referring to them as "my friends", is highly improper and should not be tolerated. Of course, informing the jury that counsel knows something about the case not revealed by the evidence is always improper. However, in view of the prompt ruling by the trial court sustaining the objection, instructing the jury to disregard the statement and reprimanding counsel, we do not feel justified in interfering with the ruling of the trial court in refusing to grant a mistrial.
We now come to the question of whether the verdict is excessive. As stated above, the verdict was for $55,000. Plaintiff was awarded $10,000 as damages on the first count of the petition for conscious pain and suffering to which Mooney was subjected. The sum of $45,000 was awarded on the second count wherein plaintiff sought actual damages for herself and her two minor children, whose respective ages were four years and six months at the time of Mooney's death. The trial court reduced the $45,000 verdict to $35,000 by requiring a remittitur. In the first opinion something was said about the verdict of $35,000, but the question of whether it was excessive was not determined. The judgment was reversed and the cause remanded. We must determine the question now because it was preserved for our review. We have examined the following cases and have compared the amounts of the verdicts with the verdict in the present case and have also considered the situations of the parties. In Moran v. Atchison, T. S.F.R. Co., 330 Mo. 278, 48 S.W.2d 881, there was a verdict for $30,000 which was sustained. Deceased's age was thirty-one, his widow was twenty-seven and one daughter was twenty-two months. In Hancock v. Kansas City Terminal R. Co., 339 Mo. 1237, 100 S.W.2d 570, l.c. 580 (5-7), there was a verdict for $50,000, the full amount sued for. The case was reversed because of improper argument. In Sheehan v. Terminal R. Assn. of St. Louis, 344 Mo. 586, 127 S.W.2d 657, the verdict was for $44,352.10. Deceased was forty-nine years of age and left a widow and an eleven month old daughter. After a remittitur the judgment was affirmed for $34,000. In Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585, l.c. 591 (10, 11), there was a verdict for $35,000, which was affirmed after a remittitur of $5,000. The deceased was thirty-three years of age and left a widow and six minor children, ages from two to fourteen years. The court commented in that case saying the financial contribution of the deceased was not the sole measure of recovery. The above cases were all decided during the years 1932 to 1939. We have also noticed and taken into consideration comments made by this court en banc in the case of Talbert v. Chicago, R.I. P.R. Co., 321 Mo. 1080, 15 S.W.2d 762, l.c. 766 (8). In the case before us Mooney and his wife were both thirty years of age. The children's ages were mentioned above. Deceased had in former years earned as high as $180.00 per month. At the time of his death and for several years prior thereto he worked for the defendant as a switchman. For about a year prior to his death he was earning $7.00 per day, but due to the slack in business and his seniority number he worked only about five days per month. He had other work, however, and his total earnings amounted to about $90.00 per month. With the passing of time his seniority would have improved and with business conditions getting better, all of which was shown by evidence in the record, he would now have been earning in excess of $200.00 per month as a switchman. Mooney's health was good prior to his injury. In considering the amount of the verdict we must take the evidence as most favorable to plaintiff. Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 116 S.W.2d 27, l.c. 30 (7, 8) and cases there cited. The question of the amount of damages is primarily for a jury. It is apparent from the above cases that the appellate courts do attempt the difficult task of trying to harmonize verdicts. However, unless a verdict is grossly excessive or inadequate courts should not interfere. In this case the trial court seriously considered the question of whether the verdict was excessive. This is evidenced by the order of remittitur. Taking into consideration the above cases, the economic conditions existing at the time those cases were decided and the conditions that now prevail, the age of Mooney at the time of his death, his life expectancy and the widow and two small children, we cannot say that $35,000 is so excessive as to authorize our interference. O'Donnell v. Baltimore [456] Ohio R. Co., 324 Mo. 1097, l.c. 1113, 26 S.W.2d 929, l.c. 936 (22).
With reference to the verdict of $10,000, on the count representing pain and suffering endured by Mooney, the evidence shows that Mooney was conscious up to the time of his death and that he suffered extreme pain and anguish. In order to disturb that verdict we would be forced to overrule the opinion by this court en banc in the case of Talbert v. Chicago, R.I. P.R. Co., supra. See also Noce v. St. Louis-San Francisco R. Co., 337 Mo. 689, 85 S.W.2d 637, l.c. 643 (9, 10). Under the rulings of those cases the verdict was not excessive.
The judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.