11 S.W. 559 (Mo. 1889), Griffith v. The Missouri Pacific Railway Company

Citation:11 S.W. 559, 98 Mo. 168
Opinion Judge:Brace, J.
Party Name:Griffith v. The Missouri Pacific Railway Company, Appellant
Attorney:Thos. J. Portis, Wm. S. Shirk and Thos. G. Portis for appellant. Fyke & Calvird and J. LaDue for respondent.
Judge Panel:Brace, J. Sherwood, J., absent; Barclay, J., concurs in the result.
Case Date:April 01, 1889
Court:Supreme Court of Missouri

Page 559

11 S.W. 559 (Mo. 1889)

98 Mo. 168



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

April 1, 1889

Page 560

Appeal from Henry Circuit Court. -- Hon. J. B. Gantt, Judge.


Thos. J. Portis, Wm. S. Shirk and Thos. G. Portis for appellant.

(1) The demurrer to the evidence should have been sustained. Plaintiff's own undisputed evidence shows that he was guilty of contributory negligence, directly tending to produce the accident. After he had safely alighted from the train, and while passing from one train to another, he walked into the creek with his own lighted lantern in his hand. Having been safely landed from his train, he was bound to look where he went. As he had already furnished himself with a light, it was not incumbent on defendant to furnish him a light from one train to another. By the exercise of reasonable or ordinary care he would have avoided the injury. Henry v. Railroad, 76 Mo. 288; Lenix v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80. Plaintiff was guilty of negligence, if he did not see the creek, provided he could have seen it by exercising ordinary care. His light did not go out until after he fell into the creek, for he says, "I saw by the light of my lantern I was in a creek." Buesching v. Gas Light Co., 73 Mo. 219; Thomp. on Neg., sec. 4, p. 1149 and cas. cit.; Murch v. Railroad, 29 N.H. 9; Mackey v. Railroad, 27 Barb. 528; Hassinger v. Railroad, 48 Mich. 209. (2) The advice and direction of the conductor to get off the train, on which plaintiff then was, cannot be said to be the proximate cause of his injury. He was not driven from the train. He left of his own free will, and for his own purposes, as he himself testified. He might have remained if he chose. He was safely landed, and of his own volition walked into the creek, in attempting to pass from one train to the other. This voluntary action on the part of the plaintiff and his consequent injury cannot in any legal sense be said to have been occasioned by the defendant. Henry v. Railroad, 76 Mo. 293. (3) It was error to permit the plaintiff to testify, that the creek or water way, into which he fell, had since been covered over, and it was error for the trial court to refuse to strike it out after the witness so testified. Ely v. Railroad, 77 Mo. 34; Salters v. Railroad, 3 Hun. 348; Payne v. Railroad, 9 Hun. 526; Dougan v. Trans. Co., 56 N.Y. 1; Dall v. Railroad, 73 N.Y. 468; Hudson v. Railroad, 8 A. & E. R. R. Cas. 464; Chicago v. Powers, 42 Ill. 169; Stoher v. Railroad, 91 Mo. 504. (4) It was likewise error for the lower court to permit the witness Hart, to testify as to the condition of the ground and the creek or ditch, in 1881, three years before the accident occurred. Railroad v. Eubanks, 31 A. & E. R. R. Cas. 176. (5) The damages are grossly excessive. The plaintiff has fully recovered, except that his left leg is slightly shorter, as is the case in all fractures of that member, and his knee is partially stiff. A verdict of nine thousand dollars, for such an injury, clearly indicates that the jury were actuated by passion or prejudice. (a) The damages under the evidence can only be compensatory. There were no circumstances of wilfulness or wantonness, malice or a desire to injure. Brown v. Road Co., 89 Mo. 152; Perkins v. Railroad, 55 Mo. 201. (b) The verdict cannot be supported on the ground that it was given as compensation for permanent injury. A partially stiffened knee is too slight an injury...

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