49 S.W. 868 (Mo. 1899), Chitty v. St. Louis, Iron Mountain and Southern Railway Company

Citation:49 S.W. 868, 148 Mo. 64
Opinion Judge:MARSHALL, J.
Party Name:Chitty v. St. Louis, Iron Mountain and Southern Railway Company, Appellant
Attorney:Martin L. Clardy and R. Graham Frost for appellant. Wilson Cramer for respondent.
Judge Panel:MARSHALL, J. As to 3d paragraph Brace, P. J., and Valliant, J., concur; Robinson, J., expresses no opinion. As to 4th paragraph Brace, P. J., concurs; Robinson, J., and Valliant, J., express no opinion.
Case Date:February 15, 1899
Court:Supreme Court of Missouri

Page 868

49 S.W. 868 (Mo. 1899)

148 Mo. 64



St. Louis, Iron Mountain and Southern Railway Company, Appellant

Supreme Court of Missouri, First Division

February 15, 1899

Appeal from Scott Circuit Court. -- Hon. H. C. Riley, Judge.

Reversed and remanded.

Martin L. Clardy and R. Graham Frost for appellant.

(1) The court erred in giving instruction number 1 for plaintiff. This instruction was vague and ambiguous and calculated to mislead the jury. Under this instruction the jury might have found all the facts therein stated to be true and although they might have further believed that plaintiff was injured by jumping from the car, as defendant's witnesses testified, still this instruction would have required them to find for the plaintiff. George v. Railroad, 40 Mo.App. 433; Donahue v. Railroad, 83 Mo. 560; Legg v. Johnson, 23 Mo.App. 590; Becraft v. Grist, 52 Mo.App. 586; Stanley v. Railroad, 114 Mo. 606; James v. Railroad, 107 Mo. 480. (2) The court erred in giving instruction number 2 for the plaintiff. This instruction assumes the negligence of defendant. It introduces an issue not tendered in the petition, viz.: whether the plaintiff had reasonable cause to apprehend the collision and was injured in attempting to escape therefrom. This instruction being taken in connection with instruction number 1 was calculated to mislead the jury to believe that they were authorized to find for the plaintiff although they might also believe the theory of the defendant, viz.: That the plaintiff was injured not by the collision but by jumping from the caboose in his attempt to escape. Melvin v. Railroad, 89 Mo. 106; Kenney v. Railroad, 70 Mo. 252; Woods v. Campbell, 110 Mo. 572; Yarnell v. Railroad, 113 Mo. 570; Waldheir v. Railroad, 71 Mo. 514; Ely v. Railroad, 77 Mo. 34; Current v. Railroad, 86 Mo. 62; Price v. Railroad, 72 Mo. 414; Haynes v. Trenton, 108 Mo. 123; Schlereth v. Railroad, 96 Mo. 509; Wilburn v. Railroad, 36 Mo. 203; Spillane v. Railroad, 111 Mo. 555; Sawyers v. Railroad, 37 Mo. 250; Fullerton v. Fordyce, 121 Mo. 1. This instruction did not submit to the jury whether the plaintiff believed there was impending danger. Ephland v. Railroad, 57 Mo.App. 159. (3) The court erred in giving these two instructions covering the whole case in this, that they permitted the jury to ignore the defense of defendant. Brownlow v. Wollard, 66 Mo.App. 636; Evers v. Shumaker, 57 Mo.App. 459; Bank v. Murdock, 62 Mo. 70; Crews v. Lackland, 67 Mo. 619; Cameron v. Hart, 57 Mo.App. 146; Bank v. Hatch, 98 Mo. 379; Sawyer v. Railroad, 37 Mo. 263; Clark v. Hammer Co., 27 Mo. 70; Wood Machine Co. v. Bobst, 52 Mo.App. 433. (4) The court erred in giving instruction number 3 for the plaintiff on the measure of damage in this, that the instruction assumes the existence of injuries and further that the instruction expressed the opinion of the court that the verdict of $ 20,000 would not be too much. Ryan v. Ace, 27 Ga. 87; Glasscock v. Shell, 57 Tex. 224; Willis & Bro. v. McNeill, 57 Tex. 478; Fordyce v. Nix, 23 S.W. 967; Fullerton v. Fordyce, 121 Mo. 13; Railroad v. Irvin, 18 A. & E. Ry. Cases, 294. (5) The court erred in not sustaining defendant's motion for a new trial on the ground that the verdict was excessive in amount and the result of prejudice and passion without regard to the evidence. Rodney case, 127 Mo. 676; Waldhier case, 87 Mo. 37; Berkson v. Railroad, 144 Mo. 229; Hollenback v. Railroad, 141 Mo. 112; Sawyer v. Railroad, 57 Mo. 240; Adams v. Railroad, 100 Mo. 555; Furnish v. Railroad, 102 Mo. 438; Hurt v. Railroad, 94 Mo. 255; Gurley v. Railroad, 104 Mo. 211; Nichols v. Crystal Plate Glass Co., 126 Mo. 55; Goetz v. Ambs, 22 Mo. 172; Whitsitt v. Ransom, 79 Mo. 260; Garrett v. Greenwell, 92 Mo. 125; Caruth v. Richeson, 96 Mo. 192; Carroll v. Railroad, 107 Mo. 653; State v. Railroad, 31 S.W. 263; Lilly v. Menke, 126 Mo. 212.

Wilson Cramer for respondent.

(1) That plaintiff was injured in the manner stated in his petition, by having his leg caught between the sliding door, which flew shut in consequence of the collision, and the door jamb, and fell out of the caboose, is established by the evidence. (2) Having been placed in a position of peril by the act of defendant, plaintiff is not chargeable with negligence even if he had jumped, in attempting to escape, and the court properly gave instruction number 2. Kleiber v. Railroad, 107 Mo. 240; Bischoff v. Railroad, 121 Mo. 216; McPeak v. Railroad, 128 Mo. 650. (3) This instruction number 2, also properly lays down the rule as to the care to be exercised by one of plaintiff's age. Burger v. Railroad, 112 Mo. 238. (4) A plea of contributory negligence should set out the facts constituting the supposed contributory negligence, and this is not done in the answer of defendant. The plea is insufficient. Hudson v. Railroad, 101 Mo. 29. (5) Instructions numbered 2 and 4 asked by defendant, which are predicated on the assumption that plaintiff was injured by jumping, were properly refused. They have no evidence for their support. No one has testified to the fact, and the proof shows that there was deep mud at the place where plaintiff was lying when picked up. (6) Plaintiff, a passenger, was placed in a position of danger by the negligent act of defendant, and had the right to make an attempt to escape. It logically follows that his doing so can not be set up as a defense, and the court properly refused instructions numbered 2 and 4 on this ground. (7) Instruction number 3, given for plaintiff, does not assume the existence of injuries, and the criticism of the instruction given in the Fullerton case, cited by appellant, has no application. It is like the one directly approved in the case of Rosenkranz v. Railroad, 108 Mo. 15, with the exception that the objection urged to that one is obviated by a different wording in this. Nor is it faulty, as claimed, in limiting plaintiff's recovery to $ 20,000, the amount sued for. It is the uniform practice to instruct the jury that their finding can not exceed the amount claimed in the petition, and a failure to do so is error. Crews v. Lackland, 67 Mo. 619; Wagner v. Printing Co., 45 Mo. App.14. (8) Plaintiff's instruction number 3 states correctly the rule as to the measure of damages. Rosenkranz v. Railroad, 108 Mo. 9; Schmitz v. Railroad, 119 Mo. 277. (9) The labored and lengthy argument of appellant's counsel that plaintiff can not allege one act of negligence and recover upon another can have no application to the case at bar. But one act of negligence is complained of and shown, the running together of two trains, and the allegations of plaintiff's petition as to the manner of his getting hurt are fully sustained by the evidence. (10) The amount allowed by the jury, though held to be excessive under the evidence, is not proof of passion or prejudice on the part of the jury. Burdict v. Railroad, 123 Mo. 221. (11) While the practice of requiring a remittitur as a condition to affirmance in cases where the damages were thought to be excessive, which formerly obtained in this court, has been abandoned, the trial court has the right and ought to exercise the power of requiring a remittitur when, in its judgment, the damages allowed are too large. Furnish v. Railroad, 102 Mo. 438; Burdict v. Railroad, 123 Mo. 252; Railroad v. Herbert, 116 U.S. 642; Cattle Co. v. Mann, 130 U.S. 74; Davis v. Railroad, 32 P. 646; Railroad v. Tomlinson, 33 P. 710; Winter v. Shondy, 36 P. 1049. (12) The action of the trial court in reducing the amount of the verdict to an amount which seemed to it proper ought to be final, especially since this court, under its present practice, will no longer require a remittitur. Loyd v. Railroad, 53 Mo. 513; Furnish v. Railroad, 102 Mo. 454; Dowd v. Air Brake Co., 132 Mo. 579. (13) An additional reason why this court should not undertake to readjudicate the question of the excessiveness of the verdict is that the amount of damages is a question of fact, not reviewable on appeal. Railroad v. Fraloff, 100 U.S. 31; Ins. Co. v. Ward, 11 S.Ct. 725; Railroad v. Winters, 143 U.S. 60; Boggess v. Railroad, 118 Mo. 340; Berkson v. Railroad, 144 Mo. 211.

MARSHALL, J. As to 3d paragraph Brace,...

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