Buddenberg v. Charles P. Chouteau Transp. Co.
| Decision Date | 22 December 1891 |
| Citation | 18 S.W. 970,108 Mo. 394 |
| Parties | Buddenberg v. The Charles P. Chouteau Transportation Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D.D. Fisher Judge.
Reversed and remanded.
E. T. & C. B. Allen for appellant.
(1) The measure of damages was the fixed sum of $ 5,000. It was error to instruct for a sum "not exceeding $ 5,000." R S. 1889, sec. 4425; Becke v. Railroad, 102 Mo. 544; Magoffin v. Railroad, 102 Mo. 540; Crumply v Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Sullivan v. Railroad, 97 Mo. 113; Wagner v. Railroad, 97 Mo. 512; Schlereth v. Railroad, 96 Mo. 509; Flynn v. Railroad, 78 Mo. 201; Holmes v. Railroad, 69 Mo. 536; Elliott v. Railroad, 67 Mo. 272; Proctor v. Railroad, 64 Mo. 122; Rafferty v. Railroad, 15 Mo.App. 559; Rindskoff v. Rodgers, 34 Mo.App. 125; Brewing Co. v. Bodeman, 12 Mo.App. 573. (2) It was error to instruct the jury that Buddenberg's intoxication would be no defense to the action, unless they should believe from the evidence that he was so intoxicated as to be unable to exercise the care and prudence of a sober man. Fitzgerald v. Weston, 52 Wis. 537; Strand v. Railroad, 64 Mich. 216. (3) A carrier of passengers is not an insurer of their safety. Woods' Railway Law, sec. 296, p. 1034; Sawyer v. Railroad, 37 Mo. 241; Carroll v. Railroad, 58 N.Y. 138; Galeno v. Fay, 16 Ill. 558; Meier v. Railroad, 64 Pa. St. 225; Fairchild v. Stage Co., 13 Cal. 599; Keith v. Pinkham, 43 Me. 501; Simmons v. Steamboat Co., 97 Mass. 361. (4) The facts in this case rebut any inference of negligence in landing at the wharfboat in question. Loftus v. Ferry Co., 84 N.Y. 460; Laflin v. Railroad, 106 N.Y. 136; Dougan v. Trans. Co., 56 N.Y. 1; Cleveland v. Steamboat Co., 68 N.Y. 306; Crocheron v. Ferry Co., 56 N.Y. 656. (5) The plaintiff must abide by the case made by her petition, and she cannot urge that the wharfboat was not lighted when the steamer landed, for that is inconsistent with, and repugnant to, her allegation that the wharf was partially lighted by the light on the steamer. Knoop v. Kelsey, 102 Mo. 291; Ramsey v. Henderson, 91 Mo. 560; Lenox v. Harrison, 88 Mo. 491; Bank v. Armstrong, 62 Mo. 59; Foley v. Alkire, 52 Mo. 317. (6) If Buddenberg could have seen there were no rails at the place from which he fell, if he had looked, but did not look, he was negligent. Butts v. Railroad, 98 Mo. 272; Gleeson v. Mfg. Co., 94 Mo. 201; Yancey v. Railroad, 93 Mo. 433; Taylor v. Railroad, 86 Mo. 458; Lenix v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80; Zimmermann v. Railroad, 71 Mo. 476; Hallihan v. Railroad, 71 Mo. 113.
P. H. Bierman, Thos. Thoroughman and J. K. Hansbrough for respondent.
(1) This suit was brought and tried, as falling under what is generally known as the third section of the damage act, being section 4426 of Revised Statutes, 1889. If an injury, and not death, had ensued, Buddenberg could have maintained an action against defendant for the wron s complained of in the petition. Elliott v. Railroad, 67 Mo. 272. But even if properly falling under the second section of the damage act, it is now too late to so insist for the first time in this court, defendant having tried the case on the theory that it came under the third section. Bank v. Armstrong, 62 Mo. 59; Tetherow v. Railroad, 98 Mo. 74; Davis v. Brown, 67 Mo. 313; McGonigle v. Daugherty, 71 Mo. 259; Smith v. Culligan, 74 Mo. 388; Holmes v. Braidwood, 82 Mo. 610; Bank v. Hatch, 98 Mo. 376. Furthermore, if this cause of action falls under the second section, yet, as the verdict is not in excess of the amount allowed by that section, the verdict is not void; and the defendant is not injured, and cannot complain. In re Graham, 74 Wis. 450. (2) There was no error in giving the instruction for plaintiff, bearing on Buddenberg's intoxication. (3) A carrier of passengers is bound to use all the care, caution and prudence that human skill and foresight can bring to his aid; must use the highest degree of foresight, knowledge, skill and care; and is liable for the least degree of negligence. Lemon v. Chanslor, 68 Mo. 340; Leslie v. Railroad, 88 Mo. 55; Hutchison on Carriers, secs. 500-504. (4) If plaintiff's instructions were, in any manner, defective or obscure, such defects and obscurities were abundantly supplied in defendant's instructions; and when the instructions, taken together, present the issues fairly, there can be no just claim of injury, and the verdict will not be disturbed. Owens v. Railroad, 95 Mo. 170; Reilly v. Railroad, 94 Mo. 600; Henschen v. O'Bannon, 56 Mo. 289; Marshall v. Ins. Co., 43 Mo. 586; Vinegar Co. v. Guggemos, 98 Mo. 391; Barry v. Railroad, 98 Mo. 62; La Riviere v. La Riviere, 97 Mo. 80; Bank v. Hatch, 98 Mo. 376. (5) Defendant's fifth point, to-wit: "If it was too dark for Buddenberg to see where he was going, he was negligent in walking to the place he fell in; and, if he could have seen there were no rails there, had he looked, but did not look, he was negligent," is so entirely original, and so thoroughly overwhelming in its logical results, that we confess ourselves unable to fittingly answer it.
The plaintiff brought this suit to recover damages for the death of her husband, caused, it is alleged, by the negligence of the defendant.
A society of some eight hundred or a thousand persons chartered the defendant's steamer for an excursion on the fourth of July, 1887. They sold to William Buddenberg, the deceased, the right to maintain a bar and restaurant on the boat and pleasure grounds. The boat returned to St. Louis that night between ten and eleven o'clock, and landed at what is called the Diamond Joe wharfboat, which was a different place from which the boat departed in the morning.
The wharfboat was a long, covered structure, boarded down to within seven feet of the floor. There were two openings on the river side, one fourteen feet wide and the other ten or twelve feet wide, separated only by a post. The small one was down the river from the other, and was constructed so as to be closed with guardrails, but the rails or bars were down when the steamer landed and discharged her passengers. There were guards on either side of these openings to protect persons and property. The gang plank was extended from the steamboat to the large opening of the wharfboat.
The evidence for the plaintiff tended to show that the electric lights of the steamer were turned off immediately after the passengers had landed; that there were then no lights on the steamer or wharfboat, save a small lantern which was too far away to be of any assistance; that, at the time the electric lights were turned off, Buddenberg's barkeepers and waiters had removed most, but not all, of his goods and bar furniture to the wharfboat; that Buddenberg was on the wharfboat giving directions as to loading his property on a wagon. The evidence of one witness for the plaintiff, taken by itself, rather tends to show that Buddenberg started back to the steamer, and in doing so missed the gang plank and fell off at the opening designed to be closed by guardrails. The great mass of the evidence, however, is to the effect that he did not start back to the steamer, but was standing or moving about close to the opening and fell over and was drowned.
The evidence for the defendant tends to show that the electric lights were not turned off until Buddenberg had all of his effects on the wharfboat; that there were three lamps on the steamer, one on each side of the gang plank, and one on the capstan, and that there were two lights on the wharfboat, one at each end. There was a fair moonlight, but another steamer at the wharf obstructed that light at this landing.
It is conceded on all hands that Buddenberg had been drinking, but a number of persons say he had full possession of his faculties. On the other hand a number of witnesses testified that he was drunk to a staggering condition. Two persons who were standing at the foot of the gang plank say he stepped around or over some goods lying on the wharfboat and up to the post between the two openings; that he stood there for a moment or two and fell over. One of them says he made a noise as if sick at the stomach. These two witnesses must have been within ten or fifteen feet of him when he fell.
As the plaintiff's instruction on the subject of intoxication is made the ground of much complaint, we set it and one given at the request of the defendant out in full.
For the plaintiff: "Although the jury may believe, from the evidence, that Buddenberg had, during the day, been drinking beer and whiskey, and that he was, to some extent, under its influence, unless they further believe, from the evidence, that he was so intoxicated as to be unable to exercise, and did not exercise, the care and prudence at the time he fell into the river that prudent and sober men situated in like circumstances as he was would ordinarily exercise, and that such want of care on his part directly contributed to his falling into the river and drowning, then such intoxication, if there was any, is no defense to this action, and does not preclude a recovery by plaintiff on that ground."
For the defendant: "If the jury believe, from the evidence, that William Buddenberg, at and shortly before the time when he fell into the river from the Diamond Joe wharfboat, was more or less intoxicated, and that by reason of such intoxication he did not exercise the care and prudence ordinarily exercised by prudent and sober men in such a place, and under such circumstances as he then was, and that such intoxication resulted in want of reasonable care on his part which directly contributed to his falling into the river and being drowned, they...
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