Mahaney v. St. Louis & H. Ry. Co.

• Decision Date: 02 February 1892
• Parties: Mahaney v. The St. Louis & Hannibal Railroad Company, Appellant
• Court: Missouri Supreme Court

18 S.W. 895

108 Mo. 191

Mahaney v. The St. Louis & Hannibal Railroad Company, Appellant

Supreme Court of Missouri, Second Division

February 2, 1892

Appeal fro Hannibal Court of Common Pleas. -- Hon. Thos. H. Bacon Judge.

Reversed and remanded.

James H. Orr and Elijah Robinson for appellant.

(1) Daniel Archdeacon, on his voir dire, said that his relation to plaintiff would influence his verdict, and he should therefore, have been excused by the court. Railroad v Adler, 56 Ill. 344; Davenport Co. v. Davenport, 13 Iowa 229. (2) The court erred in permitting plaintiff to prove that he was a poor man, a married man and the number of his children, their ages, etc. This testimony had no legitimate bearing on the issues made by the pleadings, and was calculated to work to the prejudice of the defendant by arousing the sympathies of the jurors in favor of the plaintiff. Railroad v. Bayfield, 37 Mich. 205; Railroad v. Boches, 55 Ill. 379; Railroad v. Butler, 57 Pa. St. 335; Beord v. Skeldon, 13 Ill. 54; Railroad v. Moranda, 93 Ill. 302; Railroad v. Gower, 85 Tenn. 465; Joliet v. Conway, 119 Ill. 489; Railroad v. Lyde, 57 Texas, 505; Hunt v. Railroad, 26 La. 363; Railroad v. Roy, 1 Am. & Eng. R. R. Cases, 225; Railroad v. Bush, 101 Ind. 582; Overholt v. Vieths, 93 Mo. 422; Stephens v. Railroad, 96 Mo. 214. (3) The closing argument of plaintiff's attorney was calculated to prejudice the minds of the jurors, especially in view of the testimony that had been introduced by plaintiff as to his condition in life, and that he was a married man with two small children, etc. Brown v. Swineford, 44 Wis. 282; People v. Mitchell, 62 Cal. 411; Ins. Co. v. Cheever, 36 Oh. St. 201; People v. Quinn, 123 Ill. 347; People v. McDonald, 126 Ill. 153; State v. Lee, 66 Mo. 165; State v. Jackson, 95 Mo. 654. (4) The court erred in permitting the doctor to testify as to the danger attending such operations as the amputation of plaintiff's leg, and the per cent. of such operations that prove fatal. This testimony did not throw any light on any question which the jurors were called upon to consider, and was calculated to create a prejudice. Miley v. Railroad, 8 N. Y. (S. C.) 455. (5) The defendant should have been permitted to impeach the witness Craig. (6) Plaintiff's instruction, numbered 2, should not have been given. It was simply an abstract proposition of law, and even if correct was not applicable to any fact in evidence. It partook of the nature of a lecture more than of an instruction, and would have been more appropriate in an argument for the plaintiff than in the court's instructions. It was calculated to mislead the jury. Haegele v. Stove Co., 29 Mo.App. 486. (7) The third instruction given for plaintiff is subject to two objections: First. It assumed that the defendant's track was defective. This was one of the principal issues in the case, and an instruction which assumed the existence of that fact was very prejudicial to the defendant and clearly erroneous. Stoher v. Railroad, 91 Mo. 509; Stocker v. Green, 94 Mo. 280; Kramer v. Mason, 96 Mo. 559; Liggett v. Morgan, 98 Mo. 39; Robertson v. Drane, 100 Mo. 273. Second. If the track was defective, and plaintiff had knowledge of that fact, then he assumed the risk, regardless of what his opinion may have been as to whether the defect increased the danger. Reeves' Domestic Rel., p. 465, note; Hayden v. Smithville, 29 Conn. 548; Cooley on Torts, p. 551; Hulett v. Railroad, 67 Mo. 239. The sixth instruction is subject to the same objection. (8) Instruction, numbered 7, withdrew from the jury entirely the consideration of the question of negligence on the part of the plaintiff. Clay v. Railroad, 17 Mo.App. 629. (9) Defendant's instruction, numbered 4, should have been given. If the defendant's track was defective, and if plaintiff knew of such defect and entered into and continued in the defendant's service notwithstanding such defective track, then he unquestionably assumed the risks incident to such defective track. Noland v. Shickle, 3 Mo.App. 300; Cummins v. Collins, 61 Mo. 520; Devitt v. Railroad, 50 Mo. 305; Smith v. Railroad, 69 Mo. 32; Porter v. Railroad, 71 Mo. 66. (10) Defendant's instructions, numbered 15 and 27, should have been given. (11) The court erred in permitting the plaintiff to prove that the track in question had been repaired or changed more than six months after the accident. Parker v. Portland Co., 69 Me. 173; Dougan v. Trans. Co., 56 N.Y. 1; Baird v. Daly, 68 N.Y. 547; Dale v. Railroad, 73 N.Y. 468; Reed v. Railroad, 45 N.Y. 574; Salters v. Canal Co., 3 Hun, 338; Hudson v. Railroad, 59 Iowa 581; Morse v. Railroad, 30 Minn. 465; Malley v. Carpet Co., 51 Conn. 524; Ely v. Railroad, 77 Mo. 34; Hipsley v. Railroad, 88 Mo. 354.

Harrison & Mahan for respondent.

(1) The juror, Daniel Archdeacon, was competent. It is a mixed question of law and fact, and the finding of the trial court ought not to be disturbed. All doubts should be resolved in favor of the finding. McCarthy v. Railroad, 92 Mo 506; State v. Cunningham, 100 Mo. 382; Montgomery v. Railroad, 90 Mo. 446; State ex rel. v. Bank, 80 Mo. 626; Hudson v. Railroad, 53 Mo. 525. (2) When this case was tried the right to show the number and ages of plaintiff's children had been more than once affirmed in this state. It had been the law for more than twenty years. It is now conceded that Stephens v. Railroad, 96 Mo. 214, settles the doctrine the other way. But respondent confidently asserts that his instruction, numbered 8, cures the error. It is as follows: "If the jury find for the plaintiff, they will assess his damages at such sum as they believe from the evidence he has sustained, taking into consideration the pain and anguish, mental and physical, the loss of his leg and other injuries sustained, not to exceed $ 10,000." This is a specific instruction as to measure of damages, and confines the compensation to injuries sustained. Stephens v. Railroad, 96 Mo. 214; Dayharsh v. Railroad, 103 Mo. 577. (3) The bill of exceptions shows that no objection was made or exception saved to the alleged improper remarks of counsel, and for that reason no such question is before the court. State v. Carter, 98 Mo. 181; Sidekum v. Railroad, 93 Mo. 407; State v. West, 95 Mo. 142; 1 Thompson on Trials, p. 745. The alleged improper remarks, if any were made, should have been preserved in the record. This was not done. They were simply recited in motion for new trial, and sworn to by one of appellant's counsel. This is absolutely no proof of the fact that the alleged remarks were made. State v. McDaniel, 94 Mo. 302; State v. Bulling, 15 S.W. 367; Norton v. Railroad, 40 Mo.App. 643; State v. Forsythe, 89 Mo. 667; Skaggs v. Given, 29 Mo.App. 612; State v. Carter, 98 Mo. 181. (4) There was no error in permitting the attending physician to testify as to probable results of the injury, its nature, and the mode and effect of medical and surgical treatment. Abbott's Trial Evidence, p. 600; Railroad v. Baddely, 5 Am. Rep. 71; Briant v. Trimmer, 47 N.Y. 96; Matson v. Railroad, 35 N.Y. 487; Barber v. Merriam, 11 Allen, 322; Railroad v. Wright, 16 N.E. 152; Peterson v. Railroad, 39 N.W. 486; Railroad v. Criste, 19 N.E. 310; Thompson v. Ish, 99 Mo. 174. (5) The appellant did not lay a sufficient foundation for the impeachment of Craig. There was neither time, place, person or circumstances sufficiently stated. Bohart v. Buchanan, 50 Mo. 201; Baker v. Shaw, 35 Mo.App. 611; State v. Foye, 53 Mo. 336. (6) Respondent's instructions presented the case fully, fairly and impartially, and have been approved repeatedly in this state. Porter v. Railroad, 71 Mo. 66; Siela v. Railroad, 82 Mo. 430; Whalen v. Railroad, 60 Mo. 320; Lewis v. Railroad, 59 Mo. 495. The instructions do not assume the existence of any fact. They are to be taken together, and when so read they present every element of the case even more favorably to appellant than necessary. Ridenhour v. Railroad, 102 Mo. 270; Whalen v. Railroad, 60 Mo. 323. The court fully and elaborately presented respondent's negligence in defendant's instructions, numbered 28 and 30, and in the court's instruction, numbered 11. The court did not commit error in giving the instruction, numbered 7. Sidekum v. Railroad, 93 Mo. 406; McKeon v. Railroad, 43 Mo. 405. It is the duty of appellant to plead and prove contributory negligence, and ask instructions on such defense. Hudson v. Railroad, 101 Mo. 29; Huckshold v. Railroad, 90 Mo. 548; Donovan v. Railroad, 89 Mo. 147. (8) The court gave thirteen instructions asked by appellant, and refused thirty-six; and in addition gave for appellant four instructions of its own motion. It is believed that the instructions given for appellant fully presented every element of defense. Crenshaw v. Summer, 56 Mo. 517; Norton v. Railroad, 40 Mo.App. 646. A multiplicity of instructions has often been condemned in other states. Haney v. Caldwell, 43 Ark. 184; Irgram v. State, 62 Miss. 142; Hamilton v. People, 29 Mich. 173. The instructions given are, as a whole, harmonious and consistent with each other, and fully present the law. Karle v. Railroad, 55 Mo. 476; McKeon v. Railroad, 43 Mo. 405; Boller v. Cohen, 42 Mo.App. 97. (9) One witness in respondent's behalf testified that the track had been changed from two to three months after the accident. Appellant proved by its general manager, E. C. Case; its track foreman, John Kersey; its master mechanic, Richard Whalen, and two other witnesses, that the track had been changed six months after the accident. Even if there was error appellant cannot complain. Railroad v. Wiebe, 36 Am. & Eng. R. R. Cases, 642; Shaw v. Bryan, 39 Mo.App. 523. Such evidence did not "originate an inference or implied admission of negligence." There was abundant evidence to show the...