Hickman v. Missouri Pac. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Citation4 S.W. 127,91 Mo. 433
PartiesHickman et al. v. The Missouri Pacific Railway Company, Appellant
Decision Date21 March 1887

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Affirmed.

Bennett Pike for appellant.

(1) The court committed error in giving the instructions asked by plaintiffs. Tucker v. Heniker, 41 N.H. 317; Fox v. Glastenbury, 29 Conn. 204; Chicago v McCarty, 75 Ill. 602; Chicago v. McGiven, 78 Ill. 347; City of Wyandotte v. White, 12 Kan. 191; Garrett v. Railroad, 19 Gray, 504; Railroad v Houston, 95 U.S. 697. (2) The court committed error in refusing to give instruction numbered four asked by defendant, and in modifying said instruction, and giving it, as modified, to the jury. Strauss v. Railroad, 76 Mo. 185; Sevier v. Railroad, 18 Am. & Eng. R. R. Cas. 245. (3) The verdict was excessive. Sawyer v. Railroad, 37 Mo. 240; Railroad v. Welch, 52 Ill. 188.

S. B. Jones and Boyle, Adams & McKeighan for respondents.

(1) The court committed no error in giving the instructions asked by the respondents. Strauss v. Railroad, 75 Mo. 185; Doss v. Railroad, 59 Mo. 37; Waller v. Railroad, 83 Mo. 608; Strauss v. Railroad, 86 Mo. 421; Leslie v. Railroad, 88 Mo. 50. (2) The court committed no error in refusing to give instruction numbered four asked by appellant, and modifying it as given. Strauss v. Railroad, 75 Mo. 185; Waller v. Railroad, 83 Mo. 608; Doss v. Railroad, 59 Mo. 27. (3) The verdict was not excessive. It is the province of the jury (in this case a selected one on motion of appellant) to assess the damages, and where the damages are unliquidated, and the amount is referred to a jury, the court will not, ordinarily, interfere with the verdict. 2 Thomp. on Neg. 1266, 1267; 44 Iowa 322; 1 Suth. on Dam. 810; Robinson v. Railroad, 48 Cal. 409; Porter v. Railroad, 71 Mo. 67; Harrold v. Railroad, 24 Hun, 184; Frick v. Railroad, 75 Mo. 595. Before a court will interfere with a verdict it must appear at first blush that the damages are flagrantly excessive, or that the jury have been influenced by passion or prejudice. Kennedy v. Railroad, 36 Mo. 351.

Brace J. Norton, C. J., absent.

OPINION

Brace, J.

This suit was instituted in the circuit court of the city of St. Louis, for damages for personal injuries sustained by the plaintiff, Isabella Hickman, while alighting from one of appellant's passenger trains at Wilkerson, Missouri. The case was tried by a special jury, summoned for that purpose on application of the defendant, who found a verdict for plaintiff, and assessed the damages at five thousand and five hundred dollars. From the judgment rendered thereon the defendant appeals.

It is contended for the appellant, that the court committed error in giving the second instruction asked for by the plaintiff; in refusing to give instruction numbered four, asked by defendant, and in modifying said instruction, and giving it as modified to the jury; and that the verdict is excessive; and for these reasons a reversal of this cause is asked. The second instruction for plaintiff is as follows:

"The court instructs the jury that it was the duty of defendant's servants and employes, on the occasion in question, to stop the train long enough for plaintiff, by the exercise of ordinary care and diligence, considering her age, sex, and physical condition, to get off the train safely before it was started, or suffered to start; and if the jury believe, from the evidence, that the plaintiff, as soon as the train stopped, got up from her seat and walked at once, and as fast as she reasonably could, out on the platform, and down the step on the car, without stopping on the way, then she did all the law required of her, so far as diligence on her part in getting off the train was concerned; and if, under such circumstances, the defendant's servants or employes started the train while she was proceeding to alight, still using due and reasonable haste in getting off the train, such starting of said train was an act of negligence on the part of defendant, and a breach of its duty to plaintiff as a passenger on its road."

Instruction number four, for defendant, as modified by the court, and then given, is as follows:

"If the jury find, from the evidence, that the train was stopped at Wilkerson station a sufficient length of time for the female plaintiff to conveniently alight, considering her age and physical condition, and without any fault of defendant's servants in charge of said train, she failed to do so, and the conductor, not knowing, and having no reason to suspect, that plaintiff was attempting to alight, or was in the act of alighting, caused the train to start while she was so alighting, or attempting to alight, then defendant is not liable."

The modification consisted in the insertion, after the word "alight," in the fourth line, the words "considering her age and physical condition," in italics. It is contended that the use of the words, "considering her age, sex, and physical condition," in the second instruction given for plaintiff, implies that less than an ordinary degree of care and diligence was required of her in getting off the train. We do not think such an implication arises from a fair construction of the instruction. In the sentence in which that phrase is used the court was instructing the jury as to the duty of defendant to stop its train long enough for the plaintiff "to get off, safely, before it was started, or suffered to start." The qualification, if any, contained in the words, "considering her age, sex, and physical condition," is applicable to the words immediately succeeding, rather than to...

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5 cases
  • Jackson v. St. Louis, I. M. & S. Ry. Co.
    • United States
    • Missouri Court of Appeals
    • February 28, 1888
    ...Hutchinson on Carriers, sec. 612; Thompson's Carriers of Passengers, sec. 16, pp. 225 and 226; Straus v. Rail road, 75 Mo. 185; Hickman v. Railroad, 91 Mo. 433. If defendant could have prevented the accident by the utmost human sagacity and foresight, it is liable. Thompson's Carriers of Pa......
  • Cohn v. City of Kansas
    • United States
    • Missouri Supreme Court
    • December 22, 1891
    ...situation or under similar circumstances. Barton v. Railroad, 52 Mo. 253; Kelley v. Railroad, 18 Mo.App. 151; S. C., 95 Mo. 279; Hickman v. Railroad, 91 Mo. 433. In the following cases this question is discussed and the distinction drawn: Briggs v. Taylor, 28 Vt. 180; Reynolds v. Burlington......
  • Saeger v. Wabash Railroad Co.
    • United States
    • Kansas Court of Appeals
    • May 25, 1908
    ... ... WABASH RAILROAD COMPANY, Plaintiff in Error Court of Appeals of Missouri, Kansas CityMay 25, 1908 ...           Error ... to Schuyler Circuit Court.--Hon. Nat ... liable. Straus v. Railroad, 75 Mo. 185; Bell v ... Railroad, 125 Mo.App. 660; Hickman v. Railroad, ... 91 Mo. 433; Tobriner v. Railway, 147 U.S. 571; ... Cobb v. Railway, 149 Mo. 135 ... ...
  • Railway Company v. Tankersley
    • United States
    • Arkansas Supreme Court
    • December 6, 1890
    ...Neb. 43; 14 N.W. 541; 45 N.W. 91. 4. Defendant's first instruction should have been given; likewise the seventh. The eighth is sustained by 91 Mo. 433. A. McKennon and J. E. Cravens for appellee. 1. We contend the evidence shows that the train did not stop long enough for appellee to alight......
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