Chitty v. St. Louis, Iron Mountain & Southern Railway Company
| Decision Date | 13 January 1902 |
| Citation | 65 S.W. 959,166 Mo. 435 |
| Parties | CHITTY v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed upon condition.
Martin L. Clardy, Louis F. Dinning and James F. Green for appellant.
(1) The plaintiff in his petition pleaded one cause of action and was permitted to recover upon another and different cause of action. Yarnell v. Railroad, 113 Mo. 570; Chitty v. Railroad, 148 Mo. 64; Waldheir v. Railroad, 71 Mo. 514; Mason v. Railroad, 75 Mo.App. 1; Hite v. Railroad, 130 Mo. 136; Milling Co. v Transit Co., 122 Mo. 277; Melvin v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572. (2) The plaintiff, having alleged in his petition a specific act of negligence as a right of recovery, to-wit, a collision of trains, can not recover upon evidence showing an attempt to jump to escape or avoid an apprehended collision. McCarty v. Hotel, 144 Mo. 397; McManamee v. Railroad, 135 Mo. 440; Chitty v. Railroad, 148 Mo. 75. (3) The court committed error in modifying instruction 6 by striking out the clause, "from his seat." Chitty v Railroad, 148 Mo. 76, par. 2. (4) The damages awarded are excessive, unwarranted and indicate prejudice and passion on part of the jury. Chitty v. Railroad, supra; Rodney v Railroad, 127 Mo. 68; Waldheir v. Railroad, 87 Mo. 37, 49 P. 478; Berksen v. K. C. Cable Co., 144 Mo. 229; Hollenbeck 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; S. C., 32 S.W. 33; Lily v. Menke, 126 Mo. 212; Slette v. Railroad, 53 Minn. 341; Peri v. Railroad, 87 Hun (N.Y.) 499.
Wilson Cramer for respondent.
(1) Instruction 1, given on behalf of plaintiff, limits his right to recover to the facts stated in the petition, and is identical with the one given at the first trial and approved by this court on the former appeal. (2) In view of the ruling of this court on the instruction given at the first trial, relative to an attempt to escape, no instruction on that subject was asked or given at the last trial. (3) The issue presented to the jury by the instructions is clean cut as to whether plaintiff was injured in the manner stated in the petition, or by jumping from the car, as contended by defendant. (4) Instruction 2 on the measure of damages is the same as the one given on the former trial, and correctly lays down the rule in cases of minor plaintiffs. Rosenkranz v. Railroad, 108 Mo. 15; Schmitz v. Railroad, 119 Mo. 277. (5) The damages are not excessive. The accident occurred on April 3, 1893. Plaintiff was taken to the hospital in St. Louis on April 5 and kept there till January 20, 1894, nine months and fifteen days. He was confined to his bed for six weeks. It was three months before he could get about on crutches, and for five months afterwards he was compelled to use them. He suffered pain continuously for seven months and has since suffered off and on for two or three weeks at a time. His ankle is stiff and the leg enlarged at the seat of fracture. Soon after his return from the hospital his leg began to fester and discharge matter, and this has continued periodically every four or six weeks ever since up to the trial in March, 1900, nearly seven years. During all this time his limb has required constant bandaging. Dr. Ryder, who examined him in March, 1900, found a cicatrix on the inner side of the leg five by five inches with an open sore in the center, one inch by one and three-fourths inch, which he says is permanent and has the effect of impairing plaintiff's general health. (6) The fact that this is the second verdict, rendered seven years after the accident on proof of plaintiff's condition at that time, and four years after the first trial, that the case was tried before another judge and in a different county from the one in which the first trial was had, should be considered by this court in passing on the question of the excessiveness of the verdict. Fullerton v. Fordyce, 144 Mo. 534. (7) Passion and prejudice will not be presumed from the amount of the verdict alone. Griffith v. Railroad, 98 Mo. 176. (8) Nor is the amount allowed by the jury proof of passion or prejudice. Benedict v. Railroad, 123 Mo. 242; Berkson v. Railroad, 144 Mo. 222. (9) Plaintiff's injuries were not the result of an accident, but were caused by the careless, wanton recklessness of the agents of defendant, who owed plaintiff the duty of safe transportation to his destination.
I.
This the second appeal in this case. When the case was here before, the judgment of the circuit court in plaintiff's favor for $ 15,000 damages was reversed for the errors in law then pointed out. [Chitty v. Railroad, 148 Mo. 64, 49 S.W. 868. ] Afterwards, the defendant obtained a change of venue from Scott to Stoddard county, where the case was tried anew and again resulted in a verdict and judgment for the plaintiff for $ 15,000, and defendant has again appealed.
On the former appeal it was held that a party can not count upon one cause of action and recover upon another, even though such cause of action would warrant a recovery if properly pleaded. And because the plaintiff in this case predicated his right to recover upon a collision between two trains of the defendant, it was held that an instruction was erroneous, which authorized a verdict in his favor if he received injuries while attempting to escape from the train when he had reasonable cause to apprehend a collision and when the danger thereof was, and he believed it was, imminent and impending, and, e converso, that it was error to refuse an instruction asked by defendant, that if he was so injured, and not from the collision as his petition charged, the verdict must be for the defendant. It was further then held that the petition stated a cause of action, that there was evidence sufficient to support the allegations of the petition and that the first instruction given upon the theory of the petition was proper.
Upon the trial anew, the errors pointed out when the case was here before were avoided. The plaintiff adhered strictly to the allegations and theory of his petition, and at his instance the court limited his right to recover solely to the cause of action pleaded. The court gave two instructions asked by defendant to the effect that the plaintiff could not recover if he received his injuries by jumping from the train and not from the collision of the two trains, thus emphasizing the instructions given for the plaintiff, limiting his right to recover to the collision. The case was, therefore, tried in accordance with the principles of law announced by this court on former appeal.
There is sufficient testimony to support the allegations of the petition and the theory of the plaintiff. There is also evidence to support the defendant's contention that the plaintiff received his injuries by jumping from the train before the collision occurred. The plaintiff testified that he was a passenger on the defendant's freight train, riding in the caboose. This train was standing on the main track at Delta, on April 5 1893, headed north. Another freight train was backed against it and struck the caboose car with so much force as to drive the whole train, consisting of five or six cars, six feet up the track, to demolish the platform and displace the trucks of the caboose and to knock the south end of the caboose to the west so that the center of the caboose was over the west rail of the track. Before the collision, Samuel Lane, a passenger, was on the rear platform of the caboose. When the colliding train was forty or fifty feet from the caboose, Lane gave the warning of the impending collision and jumped off the platform. Thereupon, Davenport, the conductor, immediately jumped out of the side door on the east of the caboose, and was followed at once by Isham Hanbaugh and James Higginbotham, two stockmen, who were also passengers on the caboose. This left only the plaintiff, a boy of fourteen years of age, and a man named Kellum, in the caboose. The plaintiff heard the warning to look out -- there was going to be a wreck, and he looked out of the rear door of the caboose and saw the approaching train and started toward the door on the east side of the caboose with the intention of jumping as the conductor and the other passengers had done. But before he reached the door the collision occurred, the caboose was knocked towards the west, and he was thrown towards the east, head foremost, and through the side door, but after his whole body, except his right leg, had passed through the door, the sliding door on the east side of the caboose was suddenly shut and caught his right leg between the door and the jamb, and as the door rebounded his leg was released and he fell from the car into the ditch at the side of the train. In this account of the accident, and especially as to his leg being caught between the door and the jamb, the plaintiff is corroborated by the testimony of D. M. Dunn, who said he saw the door strike his leg, and by other witnesses who saw his leg just after the accident, and who said his leg was crushed and bruised on both sides of the leg, thereby supporting the contention that it was caught between the door and the jamb. On the other hand, the conductor and Hughes, a brakeman, who was on the third car from the caboose setting the brakes, testified that the...
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