Spohn v. Missouri Pacific Ry. Co.

• Citation: 87 Mo. 74
• Parties: SPOHN v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Decision Date: 31 October 1885
• Court: United States State Supreme Court of Missouri

87 Mo. 74

SPOHN

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

H. S. Priest and E. A. Andrews for appellant.

(1) The petition does not state a cause of action. Not one single or aggressive act upon the part of any one toward the respondent is charged in the petition, no assault, no attempt or effort to make an assault and no imminent danger or peril of an assault. (2) Conceding the truth of the facts as stated by respondent, so utterly improbable as they are, so entirely barren of motive and provocation, the demurrer to the evidence should have been sustained, because the respondent's leaping from the train was not the natural, usual, and probable consequence of the fault charged, but was extraordinary and not likely to be foreseen. Putman v. Ry., 55 N. Y. 108; Henry v. Ry., 76 Mo. 288; Haley v. Ry., 21 Ia. 15. (3) The court erred in allowing respondent to answer, against appellant's objection, the question “for what reason did you jump from the train?” The question was one for the jury to answer under the pleadings and to determine the motive which impelled respondent to jump from the train from all the facts and circumstances proven. White v. Maxey, 64 Mo. 652. (4) Respondent's instructions numbered two and three, announce inconsistent doctrine. Besides, these instructions make the liability depend upon the personal impressions of respondent. These impressions must, in law, have been such as would have influenced a reasonable man under the same circumstances to the same course of conduct adopted by respondent. Clotworthy v. H. & St. Jo. Ry., 80 Mo. 220; Gilson v. Ry., 76 Mo. 282. (5) The verdict is so utterly at variance with common sense, so opposed to the weight of evidence, disinterested evidence, so against the manifest truth of the matter, that it must have been the result of caprice, prejudice, passion, or some cause other than the conviction or belief in the truth of the facts and liability of appellant under the law, even as declared by the trial court, and it should not be permitted to stand. It is an outrage upon honesty, fair dealing and justice. Herring v. Ry., 57 Ill. 59; Reid v. Piedmont, etc., Ins. Co., 58 Mo. 429; Campbell v. Hood, 6 Mo. 218; Carroll v. Paul, 16 Mo. 240. Where the trial court has unwisely or unsoundly exercised or refused to exercise its discretion in those matters where it is invoked, the appellate court ought to and will interfere to correct the abuse.

Edwards & Davison, E. L. King and M. J. Leaming for respondent.

(1) The doctrine that a master is not liable for injuries resulting from the unauthorized, wanton and malicious acts of his servant, has no application in this case, for the injuries in this case were inflicted by the servant on one to whom the master owed a special duty, viz.: to safely and comfortably carry the plaintiff for hire. The authorities are numerous and uniform on this point in England and this country. Angell & Ames on Corp. (8 Ed.) 404; Howe v. Newhearch, 12 Allen, 115; Goddard v. Grand Trunk Ry., 57 Me. 202; Moore v. Ry., 4 Gray, 365; Seymour v. Greenwood, 7 Hurl. & Nor. 354; Ry. v. Finney, 10 Wis. 388; Weed v. Ry., 17 N. Y. 362; Pendleton v. Kinsley, 3 Cliff. 416; Story on Agency, sec. 452; Philadelphia, etc., Ry. v. Derby, 14 How. Pr. 486; Smith's M. & S. 152; Sleath v. Wilson, 9 Carrington & P. 607; Steamboat New World v. King, 16 How. 474; Penn. Ry. v. Vandiver, 42 Pa. St. 370; Rounds v. Delaware, etc., Ry., 64 N. Y. 129; Sherley v. Billings, 8 Bush, 147; Chicago & Eastern Ry. v. Flexman, 103 Ill. 646; Chicago Northwestern Ry. v. Croakes, 36 Wis. 657. (2) The question whether respondent, without cause, rashly jumped from the train was one for the jury under the evidence, and this question was fairly submitted to the jury by the instructions given both for plaintiff and defendant. 1 Bell Com. 372; Ingalls v. Bills, 9 Met. 1; Angell on Carriers, sec. 548, Aston v. Heaven, 2 Esp. 533; Christie v. Greggs, 2 Camp. 79; Sharp v. Gray, 9 Bing. 457; Gasway v. Atlantic Ry., 58 Ga. 216; Richmond et al v. Sacramento, etc, Ry, 18 Cal. 351; Eckett v. Long Island Ry., 43 N. Y. 502; Gaynor v. Old Colony Ry., 100 Mass. 208; Detroit, etc., Ry. v. Curtiss, 23 Wis. 152; O'Flaherty v. Union Ry., 45 Mo. 70; Durant v. Palmer, 29 N. J. (5 Dutch) 544; Nerbas v. Cent. Pac. Ry., 52 Cal. 335. (3) Among the most important duties of the carrier toward his passenger is that of interposing his authority to protect the passenger from insult and annoyance. What the carrier permits he is justly considered to commit, and he permits that which he does not, by prompt exercise of his authority, prevent or suppress. White v. McDonnough, 3 Sawyer, 313; Chamber v. Chandler, 3 Mason, 242; New Orleans Ry. v. Burke, 53 Miss. 200; Pittsburg Ry. v. Pillow, 76 Pa. St. 510; Taylor v. Grand Trunk Ry., 48 N. H. 304. (4) The duties of carriers, whether by land or water, are said to include everything calculated to render the transportation most comfortable and least annoying to passengers. Day v. Owen, 5 Mich. 520. (5) A person is not charged with contributory negligence for acting erroneously in a position of sudden danger in which he is placed by the negligence or fault of another. Stokes v. Saltonstall, 13 Pet. 181; Walsh v. Ry., 52 Mo. 434; Morrissey v. Wiggins, etc., 47 Mo. 521. Where the negligence of the defendant was so gross as to imply a disregard of the consequences, the plaintiff may recover, even although he is a trespasser or may have contributed to the injury by his own negligence. Lafayette, etc., Ry. v. Adams, 26 Ind. 76; Indianapolis, etc., Ry. v. McClure, 26 Ind. 370; Louisville, etc., Ry. v. Collins, 2 Duv. (Ky.) 114; Whisley v. Whitman, 1 Head (Tenn.) 610. (6) There was no error in refusing defendant's instruction numbered two. The same principle was given in the other instructions, and this is sufficient. Besides, it ignored important facts in evidence and its tendency would have been to mislead the jury. (7) The judgment should not be reversed because of excessive damages. Sedgwick on Damages, 762; Woodward v.Scott, 20 Mo. 272; Chapman v. Dodd, 10 Minn. 350; Porter v. Ry., 71 Mo. 66.

Edwin Silver and J. R. Walker also for respondent.

(1) The defendant tried the case on the theory that it was liable if the facts alleged in the petition were true and the conductor was guilty of the acts charged against him. Having done this, it is estopped to deny that the doctrine of respondeat superior applies, if the facts alleged in the petition are true. Mastin Bk. v. Hammerslough, 72 Mo. 274; Leabo v. Goode, 67 Mo. 127; Cratchfield v. Ry., 64 Mo. 255. (2) But independent of the foregoing, the doctrine of respondeat superior properly applies in this case. Brown v. Ry., 66 Mo. 588; Perkins v. Ry., 55 Mo. 202; Craker v. Ry., 36 Wis. 657; Bass v. Ry., 36 Wis. 450; Ry v. Derby, 11 How. (U. S.) 468; Weed v. Ry., 17 N. Y. 362; Goddard v. Ry., 57 Me. 202; Flint v. Transportation Co., 34 Conn. 554; Chamberlain v. Chandler, 3 Mason, 242; Nieto v. Clark, 1 Clifford, 145; Ry. v. Hinds, 53 Pa. St. 512; New Orleans v. Ry., 38 Miss. 242; Hutchinson on Carriers, sec. 548; Sherley v. Billings, 8 Bush, 147; 2 Parsons on Contracts (5 Ed.) 227-8; Thompson on Carriers of Passengers, 364; Jencks v. Coleman, 2 Sumner, 221; Commonwealth v. Power, 7 Met. 596; Day v. Owen, 5 Mich. 520. In Chamberlain v. Chandler, 3 Mason, 242, Judge Story, in speaking of the duty of a carrier by water towards the passenger, says: “It is a stipulation not for toleration merely, but for respectful treatment, for that decency of demeanor which constitutes the charm of social life, for that attention which mitigates evil without reluctance and for that promptitude which administers aid to distress.” And in Craker v. Ry., 36 Wis. 672, Judge Ryan says, referring to the language of Judge Story: “These things were said, indeed, of passage by water, but they apply equally to passage by railroad.” (3) The legal liability of the defendant is the same, whether the plaintiff was pushed from the train by the conductor while it was moving, or got off in obedience to the order of the conductor who could enforce it, or was frightened off by him. Moral force may be as persuasive as physical force. Brown v. Ry., 66 Mo. 588; Kline v. Ry., 38 Cal. 40; S. C., 38 Cal. 587; Thompson on Carriers of Passengers, 375, note 5; 1 Wharton's Crim. Law (8 Ed.) sec. 164. Says the last named author: “It is an equally familiar rule that a party cannot shield himself by setting up, as a defence, contributory negligence, the result of fright, or paralysis caused by his own misconduct. * * * He, for instance, who causes another, under influence of fright, to run into a river from which drowning ensues, is responsible for the death.” (4) The question of defendant's contributory negligence in jumping from the cars under the circumstances stated by him, was one for the jury. Keegan v. Kavanagh, 62 Mo. 232; Stoddard v. Ry., 65 Mo. 521. One in a perilous position is not to be held to the exercise of same care and presence of mind as if he were in a place of security. Adams v. Ry., 74 Mo. 553; Mark v. Ry., 10 Reporter, 211. (5) The instructions given for plaintiff were proper. Lemon v. Chanslor, 68 Mo. 340; Hinds v. Ry., 53 Pa. St. 512. (6) The court did not err in refusing instruction number two, asked by defendant. The matters of defence contained in it were fully covered by the other instructions given, and particularly by number three, given for defendant. Nugent v. Curran, 77 Mo. 328; State v. Walton, 74 Mo. 271; Cramer v. Benington, 42 Mo. 515. The refused instruction was, also, objectionable in calling the jury's attention to particular facts in the evidence, and is based on a partial and incomplete view of the facts of the case. State v. Gain, 72 Mo. 374. (7) The cause should not be reversed on the evidence. Both the jury and the trial court...