Brown v. Hannibal & St. J. R. Co.

• Decision Date: 02 July 1888
• Parties: JOHN S. BROWN, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 661

JOHN S. BROWN, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

July 2, 1888

Appeal from Clinton Circuit Court, HON. JAMES M. SANDUSKY, Judge.

Affirmed.

The case is stated in the opinion.

STRONG & MOSMAN and JOHN W. HENRY, for the appellant.

I. The court erred in refusing to direct a finding for defendant as prayed. There was a total failure of proof that the crossing was not a " good and sufficient crossing" ; or that defendant permitted it to remain in a dangerous condition, or that plaintiff's wife was injured because of such condition. Field v. Davis, 27 Kan. 405. The plaintiff's own evidence showed that the casualty was caused by the carelessness of plaintiff's wife. Buesching v. Gas Co., 73 Mo. 229; Milburn v Railroad, 86 Mo. 109; Lawrence v. Railroad, 42 Wis. 322; Fox v. Gastonbury, 29 Conn. 204. There was no proof to connect the casualty with a defective crossing.

II. The court erred in giving plaintiff's instructions one and two. (a ) Under these, the jury were bound to find for plaintiff, regardless of the evidence as to negligence of his wife, contributing to cause the accident. The court was bound to submit that question to the jury. They instructed the jury " to find the issues for plaintiff without being thereby further required to pass upon and consider the conduct of the plaintiff in the premises, and the plaintiff's knowledge, if any, of the broken tie-beam and the unsafe and dangerous condition of the scaffolding. We do not think a conclusion upon the whole case was, under the issues and evidence, authorized by a finding of the facts thus submitted." Sullivan v. Railroad, 88 Mo 181, 182. Each of these instructions purported to cover the whole case, and each is bad under the rule announced in Sullivan case, supra, following Thomas v. Babb, 45 Mo. 384; Getz v. Railroad, 50 Mo. 472; Singer Co. v. Hudson, 4 Mo.App. 145; Henry v. Bassett, 75 Mo. 89; Bank v. Murdock, 62 Mo. 70, 73, and cases cited. (b ) In neither of these instructions are the jury required to find that, by reason of the other facts submitted, plaintiff suffered any damage, pecuniary or other. " An instruction which hypothecates a state of facts, and upon their existence directs a verdict, is improper, unless all the facts are hypothecated, which are necessary to sustain a verdict." Thomas v. Babb, supra; Sullivan case, supra, and cases therein cited. ( c ) There was error in each of these instructions in that it submitted to the jury the question whether the crossing was " reasonably safe and convenient for public travel" , and also declared to them that the law required defendant to so construct and maintain it, as that it " would be reasonably safe, and convenient for public travel." This required more than was claimed in the petition, viz., in respect to convenience. This declared a duty not by law imposed on defendant. There was no evidence that the crossing was unsafe, and, therefore, that question should not have been submitted to the jury. (d ) " In every case it must appear * * * that the person complaining was at the time in the exercise of ordinary care." Tritz v. City, 84 Mo. 645; Craig v. Sedalia, 63 Mo. 417; Buesching case, 73 Mo. 229. This question was not propounded to the jury in any form. Gibson v. Railroad, 76 Mo. 282. (e ) The first instruction put the duty of defendant too broadly--and considering the evidence the jury must have been misled by the instruction. " Defendant was only bound to keep such parts of the road in repair as are necessary for the convenience and use of the traveling public." Tritz v. City, supra; Streeter v. City, 23 Mo.App. 250; Craig v. Sedalia, 63 Mo. 419; Brown v. Glasgow, 57 Mo. 157; Bassett v. St. Joseph, 53 Mo. 290; Heckler v. St. Louis, 13 Mo.App. 279; Ellis v. Railroad, 17 Mo.App. 131.

III. The court erred in giving plaintiff's third instruction. It does not limit damages recoverable within the allegations of the petition; and the court misled the jury in so failing to thus limit. Wright v. Jacobs, 61 Mo. 19; Bank v. Murdock, 62 Mo. 70; Waldhier v. Railroad, 71 Mo. 514; Crews v. Lackland, 67 Mo. 619. Besides, it is in conflict with the instruction given by the court of its own motion and must have misled the jury.

IV. The court erred in giving the instruction on its own motion, because it was in conflict with other instructions given, was variant from the petition, and does not limit the damages to such as are recoverable. It was error to submit to the jury to find plaintiff's " pecuniary loss arising from loss of wife's services or society," because there was not one word of testimony as to the value of her services or society. The jury were compelled to conjecture as to that. Nichols v. Winfrey, 79 Mo. 553; Callahan v. Warne, 40 Mo.; Raysdon v. Trumbo, 52 Mo. 35; Givens v. Van Studdiford, 4 Mo.App. 499. This error made the way plain for the wrong done defendant in the excessive verdict returned, viz., eleven hundred dollars.

V. The court erred in overruling defendant's motion for a new trial. The verdict was grossly excessive. Plaintiff gave no satisfactory evidence as to expending more than fifty dollars, and no evidence at all as to value of " " services and society" of his wife, nor any data from which a plausible conjecture could proceed to measure his loss. He stated in his petition that the loss was for a period of three months only. It is absurd to say that he suffered pecuniarily on that account at the rate of more than four thousand dollars per annum. The verdict is, therefore, unsupported by evidence. The demurrer should have been sustained for reasons heretofore given. The court erred in overruling motion in arrest of judgment. The instructions changed the issues, enlarged the issues, ignored some issues, and introduced others, so that the whole record did not support or authorize the judgment. Defendant prays reversal of judgment on account of errors assigned in its said motions respectively.

THOS. J. PORTER, for the respondent.

I. The court properly refused to direct a finding for the defendant as prayed. " To authorize such interference, the evidence must not merely be weak, but there must be no evidence." Brink v. Railroad, 17 Mo.App. 195, and authorities there cited. In passing upon a demurrer to the evidence, " the court is required to make every inference of fact from the evidence in favor of the party offering it which the jury might, with any degree of propriety, have inferred in his favor." Buesching v. Gas Co., 73 Mo. 219; Barton v. Railroad, 82 Mo. 253; Donohue v. Railroad, 91 Mo. 357.

II. The pleadings raise no issue as to contributory negligence, and there could be no finding against the plaintiff on the ground of contributory negligence, unless " it clearly appears from the evidence, without any contradiction," that his wife was guilty of such contributory negligence as would preclude a recovery. Drain v. Railroad, 86 Mo. 574; Petty v. Railroad, 88 Mo. 306; Donovan v. Railroad, 89 Mo. 147; Brown v. Railroad, 23 Mo.App. 209. The case last referred to above rested upon the same facts as this, and the evidence is substantially the same.

III. The law presumes, in the absence of proof to the contrary, that Jane E. Brown was, at the time of the accident, exercising ordinary care and prudence, and she " had the right to presume that the crossing was reasonably safe and to act on such presumption." Brown v. Railroad, 23 Mo.App. 209; Moberly v. Railroad, 17 Mo.App. 518.

IV. There is no error in giving instructions one and two for plaintiff. They do not " instruct the jury to find the issues for the plaintiff," but submit to the jury all the issues made in the pleadings. The duties of defendant with respect to crossing of highways are defined by sections 765 and 807, Revised Statutes.

V. The question of contributory negligence is not in issue under a general denial. Donovan v. Railroad, 89 Mo. 147; Sweigert v. Railroad, 75 Mo. 475.

VI. Instructions should not be submitted upon an issue not made by the pleadings. Vanhooser v. Berghoff, 90 Mo. 487. But if required by the pleadings, the requirement is met by instructions given for defendant. Muehlhausen v. Railroad, 91 Mo. 346.

VII. Even if the instructions complained of are erroneous, a new trial ought not to be awarded where they worked no harm. Brink v. Railroad, 17 Mo.App. 197; Keen v. Schnedler, 92 Mo. 516; Rev. Stat., sec. 3775.

VIII. In estimating the expense incurred by reason of the injury, the jury were authorized to consider the necessary expenditure of money by plaintiff for hands to do his own work while he attended his wife. Smith v. St. Joseph, 55 Mo. 459.

ELLISON J.

This action is for damages resulting to plaintiff by reason of personal injuries suffered by his wife resulting, as is alleged, from an unsafe, insufficient, and dangerous crossing constructed on a public highway across defendant's track. The answer was a general denial. There was a judgment for plaintiff for the sum of eleven hundred dollars and defendant appeals.

It appears from the evidence that plaintiff and his wife were moving from the south part of this state and were traveling westward in two farm-wagons at the time of the injury. Plaintiff was driving the wagon in advance and his wife was driving the other, following him; that they approached the crossing from the east, he passing over; that she drove upon the eastern approach, but in passing over the track down the western approach her wagon turned over, rolled down the embankment inflicting painful, if not serious injuries upon her.

The objections to plaintiff's first and second instructions are, that they did not submit the question of contributory negligence. Contributory negligence,...