Brown v. Hannibal & St. Joseph R.R. Co.
Citation | 66 Mo. 588 |
Court | United States State Supreme Court of Missouri |
Decision Date | 31 October 1877 |
Parties | BROWN v. HANNIBAL & ST. JOSEPH R. R. CO., Appellant. |
Appeal from Linn Court of Common Pleas.--HON. THOMAS WHITAKER, Judge
At the time of the ejection from defendant's train complained of in this action, a rule in force on defendant's road prohibited the carrying of passengers on extra freight trains.
James Carr and H. B. Leach for appellant.
S. P. Huston for respondent.
This was an action for damages which plaintiff alleged that he sustained from an injury received by him in consequence of being pushed off the platform of defendant's car, by the conductor of the train, while the train was in motion. The evidence shows that in July, 1872, the plaintiff arrived at Chillicothe, after the defendant's passenger train going east had passed that point, and being anxious to reach Brookfield, went to the depot and inquired of a telegraph operator in defendant's employment, when the next train would go east. The operator informed him that there would be no train until three o'clock next morning, when a freight train would pass going east; that without special permission from headquarters, conductors of freight trains were not permitted to receive passengers on such trains, but that if plaintiff would pay for dispatches both ways, he would telegraph Bennett, who was authorized to give permission to persons to travel on freight trains, and procure a permit for him. This was accordingly done, and Bennett gave the required permission. It was then arranged between plaintiff and the operator, that plaintiff could go to bed at the hotel, and the operator should wake him in time for the train, known as freight train No. 12, which was named in Bennett's telegram as the train he should ride on. The operator failed to wake plaintiff in time for him to take the regular train, No. 12, which moved off as plaintiff approached the depot. There was an extra freight just behind the regular No. 12, and then standing a short distance west of the depot, which was to follow the regular train immediately, and the operator informed plaintiff that he could go on that, as the extra and the regular, by a rule of the road, were regarded as one train, but that he would have to be ready and get on while it was moving by, as it did not stop at the depot. The plaintiff gave the operator some of his baggage, which the operator was to hand him when he got on the train. It came along, moving about six miles an hour; the conductor was standing on the rear platform of the car, or on the step of the platform, and plaintiff, as the train passed, got on the step and was holding to the platform railing. The conductor told him, plaintiff says after he got on, another witness says before, that he could not ride on that train. Plaintiff told him he had a permit. Conductor repeated his remark, and ordered plaintiff to get off--the train still moving at the same rate of speed. Plaintiff states, in his evidence, that the conductor pushed him off of the step on to the depot platform, and that he fell upon his back and was seriously hurt. The conductor and another witness testified that plaintiff got off and was not pushed off by the conductor. There was evidence on the part of plaintiff tending to show that prior to that occurrence he was in reasonable health and condition; on the part of the defendant that he then had syphilis; on the part of the plaintiff that the injury then received on his leg, between the knee and ankle, produced a running sore of an aggravated character, which finally involved the bone, and rendered amputation necessary; on the part of the defense that it was a syphilitic sore, and was not caused by any injury received by him in the fall. We have not stated the evidence with a view of passing upon the question of preponderance, but in order that the instructions given and refused, may be properly understood. There was a conflict of evidence on all the material issues of fact upon which the jury have passed, and we cannot disturb the verdict, unless the court made improper rulings in the progress of the trial. The operator had no authority from the company except to transmit and receive telegrams in relation to its business, and none to give passes or permission to travel on trains.
The instructions given for the respondent are the following:
1st. Although the jury may believe that the train upon which plaintiff got, was not, under the rules of the company, allowed to carry passengers, yet, if they believe that plaintiff had a permit from Mr. Bennett to ride on No. 12, and that defendant's agent at Chillicothe directed him to get on this train, informing him that it was part of No. 12, and that his permit entitled him to ride on it, and assisted plaintiff on the train, and that after he got upon the caboose car of the train, the conductor threw or pushed him off while the train was in motion, then they are bound to find for the plaintiff.
2nd. The jury are instructed that the conductor had no right to put plaintiff off the car while the train was in motion, and if he did so, and plaintiff was injured thereby, then the defendant is liable, and the verdict must be for plaintiff.
3rd. Even should the jury believe from the evidence, that plaintiff may have had syphilis or other disease latent in his system, yet if they believe that he was unlawfully and willfully put off of a car on defendant's railroad while the train was in motion, by the servant or agent of defendant, and that he thereby received injuries which directly caused or developed pains in the small of the back and a sore upon his right leg, then the defendant is responsible for all the ill effects which naturally and necessarily followed the injuries in the condition of health in which plaintiff was at the time, and it is no defense that the injuries may have been aggravated and rendered more difficult to cure, by reason of plaintiff's state of health, or that by reason of the latent disease, the injuries were rendered more serious to him than they would have been to a person in robust health.
4th. If the jury find for the plaintiff, they may allow: 1st. The expense incurred by plaintiff in attempting to cure himself of his injuries. 2nd. His loss of time occasioned by the injuries. 3rd. His bodily pain and suffering. 4th. The present and prospective condition of the wounded limb, resulting from the injury. And to this sum they may add such amount as they believe the circumstances justify in the way of exemplary damages or smart money, provided they believe that plaintiff was willfully and maliciously pushed or thrown off their train while in motion.
5th. If the jury believe from the evidence that the plantiff got upon the caboose attached to Tabler's train, and that after he got on he was ordered off the train by the conductor in a threatening manner, and that in attempting to get off while the train was in motion, he, without fault or negligence on his part, was thrown down and injured, then the finding should be for the plaintiff.
6th. If the jury believe from the evidence that any witness has willfully sworn falsely in regard to any material fact, they may entirely disregard the testimony of such witness, unless such testimony as to some part is supported by other witnesses, or by corroborating circumstances.
7th. In making up the verdict, the jury may take into consideration all the facts and circumstances surrouning the case, the plaintiff's condition in life, and his ability to provide for the future wants of his family, and may assess his damages at any sum not exceeding ten thousand dollars.
The instructions given for the appellant were the following:
1st. The jury are instructed that the defendant has the right to prescribe by rule upon what trains passengers may be carried, and that under the rules read in evidence, passengers were not at the time of the plaintiff's alleged injury allowed to be carried upon extra freight trains, without a special permit from the general superintendent or master of transportation.
2nd. Under the permit read in evidence, the plaintiff had no right to ride upon an extra freight train, and upon no train other than freight train No. 12.
3rd. The jury are instructed that in this case the burden of proof rests upon plaintiff, to show each of the following facts: 1st. That he had a permit, from some person authorized to give the same, to ride upon the extra freight train, of which Tabler was conductor. 2nd. That he got on said train and was shoved or pushed therefrom by Tabler. 3rd. That the plaintiff was injured thereby; and unless the plaintiff has established each one of these facts by the preponderance of the evidence, the jury are bound to find for the defendant.
4th. Although the jury may believe from the evidence, that Brown had his leg amputated after the alleged accident at Chillicothe, yet, if the jury believe from the evidence, that said amputation was rendered necessary by a disease which he had, called syphilis, or pox, and not by the accident, then said Brown cannot recover in this action for the loss, time or expense caused by the pox alone.
5th. The jury will decide any fact in issue in favor of that party who has the preponderance of the evidence on his side.
The following, asked by the defendant, the court refused to give:
7th. If the jury believe from the evidence, that the plaintiff got upon the platform, or step leading to the platform of the caboose attached to an extra freight train; that the conductor of said train ordered him off; that in obeying said order, he stepped off backwards, tripped himself and fell upon the station platform; that he would not have fallen if he had stepped off in the direction in which the train was running, they will find for the defendant.
The 8th was, substantially, that if plaintiff carelessly attempted to board an extra freight train, not allowed to carry passengers, while it was in motion, and if such carelessness materially...
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