Hurt v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 20 February 1888
• Citation: 7 S.W. 1,94 Mo. 255
• Parties: Hurt v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

7 S.W. 1

94 Mo. 255

Hurt v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

February 20, 1888

Appeal from Madison Circuit Court. -- Hon. James D. Fox, Judge.

Reversed and remanded.

Bennett Pike, Wm. Carter and Henry G. Herbel for appellant.

(1) The court erred in admitting illegal and incompetent evidence offered by plaintiff. Belch v. Railroad, 18 Mo.App 8; Birney v. Railroad, 20 Mo.App. 470; Railroad v. Beebe, 14 Neb. 472; City of Parsons v Lindsay, 26 Kan. 430; Railroad v. Ball, 5 Ohio St. 571; Farrand v. Railroad, 21 Wis. 441. (2) The court committed error in rejecting legal and competent evidence offered by defendant. Allard v. Lamerande, 29 Wis. 502; Barker v. Barker, 14 Wis. 142; 2 Pom Eq. Jur., sec. 936, also note 3 to sec. 940, and note 1 to sec. 942; Webb v. Armstrong, 6 Humph. 379; Morrison v. Deaderick, 10 Humph. 342; Hunt v. Lyle, 8 Yerg. 142. (3) The court erred in giving the instructions asked by plaintiff. Strauss v. Railroad, 75 Mo. 185; Sevier v. Railroad, 18 Am. & Eng. Ry. Cases, 245; S. C., 61 Miss.; Zimmermann v. Railroad, 71 Mo. 484; Yarnell v. Railroad, 75 Mo. 583; Goodwin v. Railroad, 75 Mo. 75. (4) The instructions given for plaintiff and defendant were contradictory. Stephenson v. Hancock, 72 Mo. 614; Price v. Railroad, 77 Mo. 508. (5) The court committed error in permitting the counsel of plaintiff to make statements to the jury not warranted by the law or the evidence, and that were calculated to mislead the jury. State v. Lee, 66 Mo. 166; Brown v. Swineford, 44 Wis. 282; Tucker v. Henwicker, 41 N.H. 322. (6) The verdict was excessive and evidently the result of prejudice and passion. Dunn v. Railroad, 21 Mo.App. 205; Railroad v. Barker, 33 Ark. 350; Railroad v. Brown, Adm'r, 26 Kan. 443; Rose v. Railroad, 39 Iowa 246; Nagle v. Railroad, 75 Mo. 653; Leiterman v. Railroad, 22 Mo.App. 351.

Edwards, Whybark, Emerson, Cahoon & Cahoon for respondent.

(1) Carriers of passengers for hire are bound to observe the utmost care and caution, and they are responsible to their passengers for such injuries, received by them in the course of their transportation, as might have been avoided or guarded against by the exercise of extraordinary vigilance, aided by the highest skill. Story on Bailments, sec. 601; 2 Red. on Railways [5 Ed.] 216; Railroad v. Roy, 102 U.S. 451; Jamison v. Railroad, 55 Cal. 593; Fairchild v. Stage Co., 13 Cal. 599; Lemon v. Chanslor, 68 Mo. 340; Taylor v. Railroad, 48 N.H. 30, 304; McPadden v. Railroad, 44 N.Y. 478; Packet Co. v. True, 88 Ill. 608; Railroad v. George, 19 Ill. 510; Frink v. Potter, 17 Ill. 406; Thomp. Car. Pass. 200; Warren v. Railroad, 8 Allen, 233; Eaton v. Railroad, 11 Allen, 505; Simmons v. New Bedford, V. & N. S. Co.. 97 Mass. 368. (2) Carriers are bound to manage their vehicles in such a manner as to secure the safety of their passengers. And, therefore, a railway company is liable for negligence in suddenly starting a train after it has once stopped, without allowing a reasonable time for passengers to get off or on. Curtis v. Railroad, 27 Wis. 158; Doss v. Railroad, 59 Mo. 27; Keating v. Railroad, 49 N.Y. 673; Mitchell v. Railroad, 30 Ga. 22; Railroad v. Hendricks, 26 Ind. 228; Gillis v. Railroad, 59 Pa. St. 143; Rose v. Railroad, L. R. 2 Exch. Div. 248; Robson v. Railroad, L. R. 2 Q. B. Div. 248; Railroad v. Kendrick, 40 Miss. 374; Lemon v. Chanslor, 68 Mo. 354; Straus v. Railroad, 86 Mo. 428. (3) The responsibility of a railroad company for the safety of its passengers does not depend on the kind of cars in which they are carried, or on the fact of the payment of fare by the passenger. Lemon v. Chanslor, 68 Mo. 357; Shiells v. Blackburne, 1 H. Bl. R. 115, 158; 2 Mees. & W. 143; Railroad v. Derby, 16 How. 468; Railroad v. Lockwood, 17 Wall. 357, 378, 384; Railroad v. Mahling, 30 Ill. 9; Steamer v. King, 16 16 How. [U.S.] 469; Jacobus v. Railroad, 20 Minn. 125; Watson v. Railroad, 24 Upper Canada [Q. B.] 98; Carroll v. Railroad, 1 Duer, 571. (4) Where a railroad company admits passengers into a caboose car, attached to a freight train, to be transported as passengers, it incurs the same liability for the safety of the passengers as though they were in the regular passenger coaches at the time of the incurring of the injury. Edgerton v. Railroad, 39 N. Y. [12 Tiffany] 227; Carroll v. Railroad, 1 Duer, 578; Railroad v. Mahling, 30 Ill. 9; Tuller v. Talbott, 23 Ill. 357; Railroad v. Thompson, 56 Ill. 138; Railroad v. Derby, 14 How. 486; Steamer v. King, 16 How. 469; Lemon v. Chanslor, 68 Mo. 354. (5) Plaintiff's answer as to how much he thought he was damaged was not error. Straus v. Railroad, 86 Mo. 432; Winkler v. Railroad, 21 Mo.App. 109; Tate v. Railroad, 64 Mo. 153; 9 Mo. 10; Brown v. Emerson, 18 Mo. 103; Owen v. O'Reiley, 20 Mo. 603. (6) The second instruction for the plaintiff correctly declared the law. Kelley v. Railroad, 70 Mo. 609; Waller v. Railroad, 83 Mo. 615; Frick v. Railroad, 75 Mo. 544; Higgins v. Railroad, 36 Mo. 418; Brown v. Railroad, 66 Mo. 588. The respondent's eighth instruction was proper. Lemon v. Chanslor, 68 Mo. 354, and authorities cited. (7) The verdict is not excessive. Frick v. Railroad, 75 Mo. 54.

OPINION

Sherwood, J.

Action by plaintiff for injuries received by his minor son, a boy, about five years old, who was shaken from the front platform of a caboose and run over by a car of the defendant, in consequence of the caboose being struck by the train, from which it was detached, backing suddenly. The result of the accident was that one of the boy's legs had to be amputated just below the knee, as well as the toes of the other foot. The plaintiff, his wife, and four children, aged respectively, one, five, seven, and ten years, took passage in the caboose of the defendant from Knob Lick to Fredericktown, their point of destination. When that point was reached, the conductor announced the station, the cars stopped, and other passengers got out, and while the plaintiff was on the front platform and in the act of getting off with his wife and children, the collision occurred, with the consequences above stated. It seems that this collision or jar of the cars took place, as the result of the trainmen making what is called a "running switch," and this was made after a signal had been given to "back up."

As is usual in such cases, there was great conflict in the testimony -- that of the plaintiff showing, that not sufficient time was given after the train stopped to permit himself and family to alight, and that the employes were guilty of carelessness in backing the train; that of the defendant showing the exercise of care and the giving of ample time for alighting -- the different witnesses on either side fixing at from one-half minute to some four or five minutes, that the caboose remained at a standstill. The result of the trial was a verdict for the plaintiff for forty-five hundred dollars. As the evidence was conflicting, the only points for discussion will be in reference to the admissibility of the testimony, the instructions, and the amount of the verdict.

Of these in their order: While the plaintiff was testifying, his counsel drew his attention to the amount of his damage in the following way: "Now, then, having stated his incapacity for work, tell the jury as near as you can what, considering, first, the loss of his work until the twenty-first year of his age, and the trouble and expense you have been at in caring for the child, and in the caring for him in the future, the amount you are damaged by reason of the injuries. State if you can how much you think you are damaged." Objection was made by the defendant's counsel to the witness making such statement as requested, upon the ground that such estimate of the witness would be merely speculative and not the proper measure of damages; but the objection was overruled and the witness answered: "Well, from the loss of the child's work, and what I have lost myself, I claim damages, five thousand dollars."

I. The objection was well taken, and should have prevailed. A witness not testifying as an expert, testifying merely as to matters with which the jury may well be supposed to be as conversant as himself, and as capable of drawing a correct conclusion, is not allowed to give an opinion. 1 Phil. Evid., (Cow. & H. Notes) 781; Ramadge v. Ryan, 9 Bing. 335. The books are full of illustrations of this doctrine. Blair v. Railroad, 20 Wis. 262, is a case directly in point. A member of a mercantile firm had been injured by the negligence of a railroad company, the injury causing his enforced absence from the firm. It was ruled that his partner, testifying as a witness, could not be allowed to state his opinion as to the amount of damage the firm had sustained by reason of that absence. To the same point is Lincoln v. Railroad, 23 Wend. 425. Whenever the testimony sought to be elicited amounts to but matters of opinion as to the future, not of a present fact, it is inadmissible. Burt v. Wigglesworth, 117 Mass. 302.

Here, the testimony drawn out of the witness as to the amount of his damage, was merely speculative in its character, and the response that he made to his counsel was but a substitution of the judgment of the witness for the judgment of the jury, and virtually put him in their place. If the opinion sought is based on no evidence, it should be rejected, and if properly founded on evidence, that evidence ought to be laid before the jury, the law presuming that they are equally as capable to draw therefrom the correct inferences. Best Evid. (Chamberlayne) 497. A result similar to the one here announced, as to an opinion of a non-expert witness respecting damages, has been reached in Belch v. Railroad, 18 Mo.App. 80.

II. Now as...