ON MOTION TO TRANSFER TO COURT EN BANC. Plaintiff, as ground for transfer to Banc, reargues matters heretofore argued in the briefs and on motion for rehearing. As to these (including the contention that there could be a case of duty to plaintiff to keep a lookout on a switching movement in the part of defendant's yards involved) we reaffirm the rulings made.
[5] The motion further seeks a modification of the opinion so that the cause will be remanded for a new trial. Plaintiff says: "In its opinion the Court definitely holds that plaintiff's judgment should be sustained if plaintiff's own witness (the defendant's [633] fireman) had not denied specifically that he did not actually see plaintiff's peril. This suggestion can be easily complied with. All plaintiff has to do to win his case and hold his judgment would be to not call the defendant's engineer (or fireman) if the Court adheres to the rule that in this particular case plaintiff is bound by all the statements of the adverse hostile witness." In considering this part of the motion, we have carefully read the depositions of the engineer (who also said he did not see plaintiff before he was struck and further stated that he had not looked toward the fireman before he called to him to stop) and of the fireman (also the other depositions) which plaintiff offered in connection with their testimony. However, these do not show substantial evidence to go to the jury upon the theory of an actual discovery of the plaintiff in a position of peril in time to prevent his injury; and certainly not on the fantastic theory (now advanced) that they could have done something to save him after plaintiff saw the engine only a foot from him and yelled. Plaintiff's trouble is a failure of proof to establish any theory of liability. Of course, on any primary negligence he would be barred by his own contributory negligence.
[6] Plaintiff's case was originally based upon the theory that plaintiff was at a place where he was an invitee so that there was a duty, on defendant's employees making switching movements in these yards, to keep a lookout for him. The situation, when the whole case was closed, was that plaintiff had failed to make a case on the invitee theory. Likewise, there was no evidence whatever, direct or circumstantial, to show that defendant's fireman ever actually saw plaintiff on the track. Thereafter, plaintiff was permitted to reopen the case and call the fireman to attempt to prove this essential fact (of actual discovery) by him. The fireman very positively said he never did see plaintiff until after he had been run over by the engine, and his direct examination shows that plaintiff's counsel expected him to so testify. (The direct examination as to this was as follows: "Q. Now, as I understand it, you pulled from what was known as Napother yards north on track No. 2 and that you finally discovered Draper south of the scale house after he was injured on that pull? A. You mean when he was injured? Q. Yes. A. I found him just *Page 898 a little north of the scale house. When I saw him first he was about ten feet from there. Q. Well, when you first saw Draper was after he was injured, I understood? A. Sir? Q. When you first saw Draper he was lying beside the track after he was injured? A. That is right. He was lying — Q. That is right. Now, I understood that that was just a little south of the scale house? A. Yes, sir.") Thereafter, the fireman further testified that he was looking north as the train went north to clear the switch in the Strawberry yards. (The direct examination as to this was, as follows: "Q. When you left the south end of the yards on that occasion to go north, you were sitting in this cab window on the west side, or the left-hand side of the cut? A. Yes, sir. Q. Is that right? A. Yes, sir. Q. Looking north? A. Looking north. Q. And that you continued to ride in that position and looked north until you heard groaning or moaning under the cars? A. Yes, sir. Q. Is that right? A. Right.") Plaintiff claims this part of his testimony made a case for the jury, because the fireman's testimony as to the direction of his looking (which was stated even more positively in the fireman's deposition) was sufficient circumstantial evidence to warrant a finding that the fireman did see plaintiff on the track in a position of peril in time to have thereafter avoided his injury under the last chance rule of Kentucky.
The trouble with this contention is that the only witness plaintiff called to prove this fact, by such circumstantial evidence, gave positive direct testimony that he never did see him on the track. Our rule as to such a situation has always been, as stated by Judge LAMM in Rodan v. St. Louis Transit Co.,207 Mo. 392, l.c. 408, 105 S.W. 1061, that: "If A put B on the stand and prove by him a certain state of facts, this does not preclude A from putting C, D or E on the stand and proving a different state of facts; but if A puts B on the stand as his only witness to prove a fact, and does prove it, then he is precluded from impeaching B, or from otherwise inviting the jury to disregard B's testimony. He may not avoid his dilemma in that way." [See also Manchester Bank v. Harrington (Mo.), 199 S.W. 242; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190; Schroer v. Brooks, 204 Mo. App. 567, 224 S.W. 53; Cook v. St. Joseph Ry., L., H. P. Co., 232 Mo. App. 313, 106 S.W.2d 38; Polkowski v. St. Louis Public Service Co., 229 Mo. [634] App. 24,68 S.W.2d 884; Raw v. Maddox, 230 Mo. App. 515, 93 S.W.2d 282.] The application of the rule, as to impeaching one's own witness, has been limited and under some circumstances cross-examination of such witness permitted. [Smith v. Ohio Millers' Mutual Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 920; Burnam v. Chicago, Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858; Schipper v. Brashear Truck Co. (Mo.), 132 S.W.2d 993, 125 A.L.R. 674; Monsour v. Excelsior Tobacco Co. (Mo.), 144 S.W.2d 62.] Nevertheless, since a plaintiff has the *Page 899 burden of proof, if he puts on only one witness to prove a fact and his positive statement on direct testimony is that the fact is definitely one way, then the plaintiff cannot have the jury disregard his only direct evidence on the point and find that the fact is exactly the opposite on the basis of inferences from circumstances also stated in the testimony of this same witness. This is not so much a matter of being bound by what his witness says as it is a failure of proof of an essential fact.
We would be compelled to hold that there was such a failure of proof even if we considered that the direct and circumstantial evidence given by this witness was of equal weight and is directly contradictory. (We have shown in the opinion why it is not, and find that the depositions show even more clearly the situation of the second curve of the "run around track" to go around the scale house.) Such circumstantial evidence from the testimony of the fireman would not be substantial evidence to prove timely actual discovery by him over his direct positive testimony (both at the trial and in his deposition) to the contrary. This is true because of the rule of circumstantial evidence that where facts, proved by the party having the burden of proof, give no more than an equal basis to two inconsistent inferences as to an essential fact, such party has failed by his proof to remove his case beyond the realm of speculation and conjecture as to the existence of this essential fact. [Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Cochran v. Thompson (Mo.), 148 S.W.2d 532; Voorhees v. C., R.I. P.R. Co., 325 Mo. 835, 30 S.W.2d 22; Rashall v. St. L., I.M. S. Ry. Co., 249 Mo. 509, 155 S.W. 426; Fritz v. St. L., I.M. S. Ry. Co., 243 Mo. 62, 148 S.W. 74; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 52 Sup. Ct. 391, 77 L. Ed. 819.] In short, plaintiff could not thus prove, by inferences from facts shown by this fireman's testimony alone, that he actually saw plaintiff in time to prevent his injury when the fireman's positive, direct testimony was that he did not see him. To hold otherwise, under the circumstances of this case, would allow the jury to find that the fireman actually saw plaintiff on evidence that at most only tends to show he could have seen him. We, therefore, hold that plaintiff is not entitled to the modification sought because we must hold that the fireman's testimony (even taking all that appears in his deposition together with his testimony at the trial) could not amount to substantial evidence to prove that he actually saw plaintiff in a position of peril on the track, south of the scale house, in time to prevent striking him.
The motion to transfer to the Court en Banc is overruled.Bradley and Dalton, CC., concur.