Saxton v. The Missouri Pacific Railway Co.

• Decision Date: 02 March 1903
• Parties: E. M. SAXTON, Appellant and Defendant in Error, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Respondent and Plaintiff in Error
• Court: Kansas Court of Appeals

72 S.W. 717

98 Mo.App. 494

E. M. SAXTON, Appellant and Defendant in Error, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Respondent and Plaintiff in Error

Court of Appeals of Missouri, Kansas City

March 2, 1903

Appeal from Cass Circuit Court.--Hon. W. L. Jarrott, Judge.

AFFIRMED.

Judgment affirmed.

Jas. T Burney and A. A. Whitsitt, for appellant.

(1) Instruction C was vicious and was properly refused at the trial. The granting of a new trial because of such refusal was error. Chappell v. Allen, 38 Mo. 213; Raysdon v. Trumbo, 52 Mo. 35; Siegrist v Arnot, 10 Mo.App. 197; Ehrlich v. Ins. Co., 15 Mo.App. 579; Clay v. Railroad, 17 Mo.App. 629; State v. Holmes, 17 Mo. 379; Shaffner v Leahy, 21 Mo.App. 110; Weil v. Schwartz, 21 Mo.App. 372; Hackman v. Maguire, 20 Mo.App. 286; Judd v. Railroad, 23 Mo.App. 56; Bank v. Metcalf, 29 Mo.App. 384; McClure v. Ritchey, 30 Mo.App. 445; Ackley v. Railroad, 30 Mo.App. 657; Copp v. Hardy, 32 Mo.App. 588; Compton v. Baker, 34 Mo.App. 133; Woolen Mills v. Meyers, 43 Mo.App. 124; Steinwender v. Creath, 44 Mo.App. 356; Dobbs v. Cates, 60 Mo.App. 658; Chaney v. Ins. Co., 62 Mo.App. 45; Noyes v. Cunningham, 51 Mo.App. 194; Bowlin v. Creel, 63 Mo.App. 229; Bank v. Murdock, 62 Mo. 70; Mead v. Brotherton, 30 Mo. 201; Meyer v. Railroad, 40 Mo. 151; Kendig v. Railroad, 79 Mo. 207; Choteau v. Iron Works, 83 Mo. 73; Barr v. Kansas City, 105 Mo. 550; State v. Cantlin, 118 Mo. 100; Kaiser v. Ins. Co., 7 Mo.App. 197; Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 Mo. 91; Meyer v. Railway, 45 Mo. 137; Spohn v. Railway, 87 Mo. 74; Railway v. Stock Yards, 120 Mo. 541; State v. Williams, 136 Mo. 293; Jones v. Jones, 57 Mo. 138; Smith v. State, 53 Mo. 267. (2) Every fact must be conceded in plaintiff's behalf, which his evidence tends reasonably to establish. Cherry v. Railroad, 52 Mo.App. 499; Field v. Railway, 46 Mo.App. 449; Frank v. St. Louis, 110 Mo. 516; Patton v. Bragg, 113 Mo. 595; Thomas v. Railroad, 30 Mo.App. 86; Zwisler v. Storts, 30 Mo.App. 163; Culverhouse v. Worts, 32 Mo.App. 419; Twohey v. Fruin, 96 Mo. 104; Alcorn v. Railroad, 108 Mo. 81; Buck v. Railway, 108 Mo. 179; Brown v. Kimmell, 67 Mo. 430; Kelly v. Railroad, 70 Mo. 604; Baum v. Fryrear, 85 Mo. 151; Sage v. Reeve, 17 Mo.App. 210; Peck v. Railroad, 31 Mo.App. 123; Smith v. Tel. Co. 57 Mo.App. 259. (3) The practice of singling out in instructions specific acts, and asking the court to say as a matter of law that if these acts were established there could be no recovery, is not permissible. Meyer v. Railroad, 45 Mo. 137; Judd v. Railroad, 23 Mo.App. 61; McFadin v. Catron, 120 Mo. 252; Kennedy v. Railroad, 79 Mo. 207; Hayden v. Parsons, 70 Mo.App. 493; State v. Valle, 164 Mo. 530. (4) A trial court has no right to direct a jury, what inferences are to be drawn from certain facts. Izler v. Railroad, 35 S.E. 583. (5) Instructions which undertake to inform the jury that certain facts are not conclusive evidence of one of the ultimate facts in issue, are erroneous. Railroad v. Lamson, 90 Ills. App. 18. One is not entitled to an instruction separating part of the evidence from the rest. Harris v. City of Ansonia, 73 Conn. 359.

R. T. Railey for respondent.

(1) The petition, in the clearest manner possible, in direct terms, charges that our alleged negligence in failing to hold the train until the plaintiff got off, was not the proximate cause of plaintiff's injuries. Henry v. Railway, 76 Mo. 293; Mathiason v. Mayer, 90 Mo. 585. (2) The rule in this State, is now well settled, that pleadings shall be strictly construed against the pleader. Snyder v. Free, 114 Mo. 367; Overton v. Overton, 131 Mo. 566; Young v. Schofield, 132 Mo. 661; Boles v. Bennington, 136 Mo. 529; Leete v. Bank, 141 Mo. 581; Sidway v. M. L. & L. S. Co., 163 Mo. 372. (3) It is equally as well settled in this State, that plaintiff is bound by the allegations of his petition. Bruce v. Sims, 34 Mo. 251; Speck v. Riggin, 40 Mo. 406; Bank v. Armstrong, 62 Mo. 65; Chapman v. Callahan, 66 Mo. 312; Donnan v. Pub. Co., 70 Mo. 175; Kuhn v. Weil, 73 Mo. 215; Weil v. Posten, 77 Mo. 287; Wilson v. Albert, 89 Mo. 546; Bensieck v. Cook, 110 Mo. 182. (4) It is now likewise thoroughly settled in this jurisdiction, that where the petition charges general negligence, which is followed--as in this case--by a specific charge of negligence, alleged to have been the proximate cause of injury, plaintiff, in his proof, should be confined to such specific charge alone. Waldhier v. Railway, 71 Mo. 518; Hite v. Railway, 130 Mo. 136; McManamee v. Railway, 135 Mo. 447; Huston v. Tyler, 140 Mo. 263; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railway, 148 Mo. 74; Bartley v. Railway, 148 Mo. 139; Feary v. Railway, 162 Mo. 96; Pryor v. Railway, 85 Mo.App. 378.

OPINION

SMITH, P. J.

--The plaintiff, a man far advanced in years, his age being three score and twelve, who was presumably under some physical disability, for he was a pensioner of the United States, on July 14, 1896, accompanied by his daughter-in-law and her infant child came from Louisburg, in the State of Kansas, to Harrisonville, in this State, where the latter intended to take passage on defendant's Joplin train for Webb City. Plaintiff purchased a ticket entitling his daughter-in-law to passage on said train to the last named station. On the arrival of the train at Harrisonville he accompanied her into the chair car and there remained until the train started, and while it was yet moving very slowly he undertook to step off and in doing so fell upon the platform in such a way that one of the wheels of a car passed over his foot and crushed it so that amputation became necessary. A few days before the expiration of the three-years period of limitation he brought this action.

There was a trial to a jury which resulted in a verdict for plaintiff. The defendant filed a motion to set aside the verdict, urging a number of grounds therefor, amongst which was one to the effect that the court erred in refusing defendant's instruction C, which was as follows:

"Although Mrs. Saxton, at the time she got upon the platform of defendant's rear coach, may have said: 'Father, are you going home this evening?' and although he may have said, 'Yes,' yet you are instructed, that there was nothing in said conversation, to impart notice to the defendant's brakeman, that plaintiff was not going to take passage upon said train, or that he intended to seat his daughter-in-law, and return after so doing." The court sustained the motion on that ground and ordered the verdict to be set aside. From this order the plaintiff appealed. The other grounds of the motion were by the court denied and to obtain a review of this action of the court the defendant sued out a writ of error.

The plaintiff as appellant and the defendant as plaintiff in error have by consent brought before us the entire record so that the errors complained of on both sides of the case may be considered as if it were here on cross-appeals.

In recurring to the plaintiff's complaint that the court erred in setting aside the verdict on the ground that it had improperly refused defendant's instruction C, it may be stated that it is not negligence for a railway passenger carrier to start its train before a person who has entered such train with the intention, merely, "to speed a departing guest" or to assist one who is sick or infirm in getting a seat has had time to alight therefrom, unless he had communicated this fact to its servant in charge thereof. In such cases, the duty is dependent upon the knowledge of the carrier and the negligence upon the non-performance of the ascertained duty; without the presence of these constituent ingredients there can be no liability. Yarnell v. Railway, 113 Mo. 570, and authorities there cited; Deming v. Railway 80 Mo.App. 152, and cases there cited. In order to make out a cause of this kind it devolves upon the plaintiff to show that the brakeman was informed by the plaintiff when he entered the car that he intended to return. Yarnell v. Railway, ante; Hurt v. Railway, 94 Mo. 255; Strauss v. Railway, 75 Mo. 185.

It is obviously proper for a court by an instruction to declare to the jury the legal effect of the evidence. But the difficulty with the defendant's said instruction is that it does not go far enough. The evidence discloses that at the conclusion of the query and the answer, set forth in said instruction, that the brakeman who was present and standing at the entrance of the chair car helped the plaintiff's daughter-in-law reach the platform of the car and then motioned the plaintiff to follow, with the remark "to hurry up." The plaintiff was clearly entitled to have all these utterances, with the circumstances under which they were made, placed before the jury. Such evidence was doubtless sufficient to justify the inference that the brakeman heard and understood the utterances of the plaintiff and his daughter-in-law and was thereby apprised that the plaintiff did not intend to take passage on the train but intended to return. This would have constituted notice. To single out a part of what was said and done at the time the plaintiff and his daughter-in-law entered the train was subject to the objection as singling out specific facts in such way as to give them undue prominence. All of the facts involved in the issues should have been mentioned so as to make the instruction cover the entire case. Meyer v. Railway, 45 Mo. 137; McFadin v. Catron, 120 Mo. 252; State v. Hibler, 149 Mo. 478, 51 S.W. 85; State v. Rutherford, 152 Mo. 124, 53 S.W. 417. The conclusion, therefore, is that the court erred in ordering the verdict to be set aside on account of its action in refusing defendant's instruction C.

Turning now to the defendant's complaint in respect to the...