8 S.W. 350 (Mo. 1888), Owens v. Kansas City, St. Joseph & Council Bluffs Railroad Co.

Citation:8 S.W. 350, 95 Mo. 169
Opinion Judge:Black, J.
Party Name:Owens et al. v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant
Attorney:Strong & Mosman, J. D. Shewalter and R. P. C. Wilson for appellant. Wallace & Chiles, Woodson & Woodson, Green & Burnes, Anderson & Carmack and S. C. Woodson for respondents.
Judge Panel:Black, J. Ray and Sherwood, JJ., dissent.
Case Date:May 21, 1888
Court:Supreme Court of Missouri

Page 350

8 S.W. 350 (Mo. 1888)

95 Mo. 169

Owens et al.

v.

The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri

May 21, 1888

Appeal from Lafayette Circuit Court. -- Hon. J. P. Strother, Judge.

Affirmed.

Strong & Mosman, J. D. Shewalter and R. P. C. Wilson for appellant.

(1) Appellant's application for an order directing the plaintiff to be examined by medical experts was timely and reasonable and should have been sustained. Schroeder v. Railroad, 47 Ia. 379; White v. Railroad, 61 Wis. 536; Hatfield v. Railroad, 33 Minn. 130; Railroad v. Thul, 29 Kas. 466; Shepard v. Railroad, 85 Mo. 629. (2) The court committed error in its rulings on the evidence. Mrs. Owens was not competent to testify as an expert. No one but a medical expert is qualified to testify as to the character, or the effects or consequences resulting from the injuries she received. Harris v. Railroad, 3 Bosw. 77; Bois v. McAllister, 12 Me. 308; Williams v. State, 64 Md. 284; People v. Olmstead, 30 Mich. 434; Grattan v. Co., 80 N.Y. 301; State v. Porter, 34 Ia. 131; Branson v. Turner, 77 Mo. 495; White v. Stoner, 18 Mo.App. 548. (3) On a petition for an assault committed by defendant's agents, and pulling plaintiff from the train, evidence or an instruction on negligence on the part of the defendant, in failing to stop a sufficient length of time at the depot, is error. Plaintiff cannot sue for an assault, and recover for a failure to stop a sufficient length of time at the depot. Price v. Railroad, 72 Mo. 414; Edens v. Railroad, 72 Mo. 213; Buffington v. Railroad, 64 Mo. 246; Waldhier v. Railroad, 71 Mo. 514; Field v. Railroad, 76 Mo. 614. (4) The third instruction given on plaintiffs' motion, incorrectly stated the law, and was not justified by the facts. State v. Palmer, 88 Mo. 568; Fath v. Hake, 16 Mo.App. 527; Huston v. Forsythe, 56 Mo. 416. (5) Plaintiffs' fourth and eighth instructions are so nearly alike that we will consider them together. Both of said instructions are erroneous, for the following reasons: (a) Plaintiffs were not entitled, under the circumstances of this case, to ask instructions which conceded that the testimony of Mrs. Owens and her two physicians was untrue. One cannot, when the case made by his own testimony is overthrown by the evidence of the opposite party, ask a recovery on the hypothesis that such opposing testimony is true. (b) Said instruction should not have been given, because, if it be conceded that the testimony of plaintiff and her physicians is not true, there was no evidence on which to base them. (c) Said fourth instruction was erroneous, because it referred the jury to the petition to ascertain the particular way and manner in which Mrs. Owens was pulled from the train. Remler v. Chanute, 15 Mo.App. 196; Butcher v. Death, 15 Mo. 271. (d) Said fourth instruction is erroneous in that it does not require the act of defendant's servant to have been one within the general scope of his employment. (e) Said eighth instruction was erroneous in permitting a recovery without any finding of negligence. Under it the jury were authorized to find a verdict for plaintiff, in case of a sheer accident, resulting in Mrs. Owens being pulled from the train. (f) Both said instructions were very misleading, and highly prejudicial to the defendant's case. In them, the court indulged in an unfair and unjust, though plausible, characterization of the defendant's claim in respect to the damages, which was nothing more nor less than a speech. Scoville v. Glasner, 79 Mo. 450. There was no evidence to authorize submitting to the jury the question, whether the act done by the brakeman was within the "scope" or "the line of his employment." Marion v. Railroad, 59 Iowa 428; Towanda v. Herman, 86 Pa. St. 418; Railroad v. McLain, 91 Pa. St. 442; Brown v. Railroad, 67 Mo. 122. Said instructions were fatally defective in failing to give clear, distinct, and specific explanation to the jury in respect to what was meant by the words that the defendant was "responsible for all the ill effects which naturally and necessarily followed the injuries in the condition of health in which plaintiff was at that time." Dyer v. Bannock, 2 Mo.App. 432; Boogher v. Neece, 75 Mo. 383; Wiser v. Chesley, 53 Mo. 547; Speak v. Dry Goods Co., 22 Mo.App. 122; Nichols v. Winfrey, 79 Mo. 533; Digby v. Ins. Co., 3 Mo.App. 603; Morgan v. Durfee, 69 Mo. 469; Young v. Ridenbaugh, 67 Mo. 574; Legg v. Johnson, 23 Mo.App. 590; Belt v. Goode, 31 Mo. 128; Stewart v. Clinton, 79 Mo. 603; Kitteringham v. Railroad, 62 Iowa 285. Said instructions announced an erroneous rule, as the measure of the damages to which plaintiff was entitled, under the facts hypothecated in them. State v. Murphy, 33 Ia. 276; 11 Am. Dec. 125; Brown v. Railroad, 66 Mo. 597; Perkins v. Railroad, 55 Mo. 213; Whalen v. Church, 62 Mo. 326; Morgan v. Durfee, 69 Mo. 479; Frances v. Transfer Co., 5 Mo.App. 7; Marshall v. Railroad, 78 Mo. 610; Wells v. Sanger, 21 Mo. 354; Railroad v. Armo, 91 U.S. 489. It was error to give the fifth instruction, because the same was irrelevant under the issues made by the pleadings, and actually misled the jury, to defendant's prejudice. Staples v. Canton, 69 Mo. 594; Stewart v. Clinton, 79 Mo. 603.

Wallace & Chiles, Woodson & Woodson, Green & Burnes, Anderson & Carmack and S. C. Woodson for respondents.

(1) The evidence clearly made out a strong case for respondents which made it the duty of the court to submit the issues to the jury. Covey v. Railroad, 86 Mo. 642; Siela v. Railroad, 82 Mo. 435; Hipsley v. Railroad, 88 Mo. 353; Kenney v. Railroad, 80 Mo. 578; Gregory v. Chambers, 78 Mo. 298-9; Meyers v. Trust Co., 82 Mo. 241; Bryan v. Wear, 4 Mo. 106; McAfee v. Bryan, 11 Mo. 365; Steamboat v. Matthews, 28 Mo. 248; Bradford v. Rudolph, 45 Mo. 426; Kelly v. Railroad, 70 Mo. 604. (2) It is the duty of a common carrier to safely carry its passengers, to points of destination, as far as human care and foresight will go. Hutchinson on Carriers, secs. 500, 501, 502, 503, 650, and cases cited; Cooley on Torts, 642, 633, 645, and cases cited; 2 Rorer on Railroads, 820, 821, 822, and cases cited; Patterson's Railway Accident Law, 232, and cases cited; Waller v. Railroad, 83 Mo. 615, 616; Lemon v. Chanslor, 68 Mo. 357, 368; Railroad v. Derby, 14 How. 468; Sawyer v. Railroad, 37 Mo. 246; Christie v. Griggs, 2 Campbell, 79; Derwort v. Loomer, 21 Conn. 246; Knight v. Railroad, 56 Me. 234; Farish v. Reigle, 11 Grat. 697; Taylor v. Railroad, 48 N.H. 229, 304; Sherlock v. Alling, 44 Ind. 184; Railroad v. Horst, 93 U.S. 291; White v. Railroad, 136 Mass. 321. (3) A common carrier -- a railroad company -- is liable to a passenger for an assault made by a servant assisting in the management of the train upon which the passenger is being carried, even though the assault may have been wilful. Hutchinson on Carriers, secs. 596, 597, 598; Stewart v. Railroad, 90 N.Y. 588; Wood on Master and Servant [2 Ed.] sec. 295, p. 560, sec. 307, p. 577; Maleck v. Railroad, 57 Mo. 18; Harriman v. Stowe, 57 Mo. 98; Wood on Master and Ser. [2 Ed.] sec. 295, p. 560, and cases cited; Sherley v. Billings, 8 Bush (Ky.) 152. (4) It is the duty of a common carrier of passengers, a railroad company, to stop its train at the point of destination of the passenger a sufficient length of time to afford the passenger a reasonable opportunity to alight therefrom in safety, and a failure to do so is negligence. 2 Rorer on Railroads, 965, 966, 967, and cases cited; Hutch. on Car., sec. 612, and cases cited; Patterson's Railway Accident Law, sec. 258, and cases cited; Hickman v. Railroad, 91 Mo. 435; Straus v. Railroad, 75 Mo. 190; Waller v. Railroad, 83 Mo. 615; Straus v. Railroad, 86 Mo. 426; Clotworthy v. Railroad, 80 Mo. 223. (5) "The fact that the order is proper, and only contemplated a proper execution on the part of the servant, is of no account. Having clothed the servant with authority to do an act at all, the master is bound at his peril to see that it is properly executed, and is liable alike for mistakes of judgment, or infirmity of temper, on the part of his servant." Wood on Mast. and Serv., secs. 293, 303, p. 571 [2 Ed.] and cases cited; Garretzen v. Duenckel, 50 Mo. 104; Cousins v. Railroad, 66 Mo. 576; Brown v. Railroad, 66 Mo. 541; Snyder v. Railroad, 60 Mo. 416; Harriman v. Stowe, 57 Mo. 98; Minter v. Railroad, 41 Mo. 507-8. (6) If the allegation in the petition was that the act resulting in the injury sued for was wilfully done, it would be sustained by evidence that it was negligently done. Conway v. Reed, 66 Mo. 347; Neilon v. Railroad, 85 Mo. 605; Graham v. Railroad, 66 Mo. 538. (7) The attending physician is always a competent witness when introduced by his patient. Carrington v. St. Louis, 89 Mo. 209; Groll v. Tower, 85 Mo. 249; Squires v. Chillicothe, 89 Mo. 230; Blair v. Railroad, 89 Mo. 337; Roger's Expert Testimony, 72, 74, and cases cited. (8) The liability of a railroad company for a violent ejection of a passenger from its train is not diminished by the fact that the passenger was at the time suffering from a disease which aggravated the injuries received or rendered them more difficult to cure. Brown v. Railroad, 66 Mo. 588; 3 Suth. on Dam. 269; Patterson Railway Accident Law, sec. 278, p. 292. (9) It is not reversible error for a witness to state an opinion when the facts upon which such opinion is based are also stated. Strauss v. Railroad, 86 Mo. 422. (10) The refusal of defendant's application to have a commission of surgeons appointed to make...

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