Chitty v. St. Louis, I. M. & S. Ry. Co.

Citation148 Mo. 64,49 S.W. 868
CourtUnited States State Supreme Court of Missouri
Decision Date15 February 1899
PartiesCHITTY v. ST. LOUIS, I. M. & S. RY. CO.

Appeal from circuit court, Scott county; H. C. Riley, Judge.

Action by Henry Chitty, a minor, by his next friend, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action for $20,000 damages for personal injuries. The plaintiff, a minor, became, on April 5, 1893, a passenger on one of defendant's local freight trains at Brider's switch, in Scott county, to go to Allenville, in Cape Girardeau county. After paying his fare, the petition alleges "that plaintiff took his place and remained in the caboose attached to the rear end of said train, which was set apart and used by defendant for the carrying of passengers as aforesaid; that, while said local freight train was standing still for some purpose on defendant's main track at Delta, an intermediate station on its road before reaching Allenville, defendant, by its agents and employés, through gross negligence and carelessness, in broad daylight, caused another of its heavy freight trains or freight cars to be run suddenly and at great speed against the rear end of the train on which plaintiff was riding, striking the caboose in which plaintiff then was with such force as to knock the same from its tracks, and entirely demolish the rear platform and the end of said caboose; that, by the great shock of said collision of cars the heavy sliding door at the side of the said caboose, which was open at the time, was caused to fly shut, and with great force, and plaintiff, being thrown forward by the concussion, had his right leg caught between said door and the door jamb, and the same was crushed between the ankle and the knee; that upon the rebounding of the door plaintiff was thrown with great violence from the caboose a great distance onto the hard ground, and sustained thereby serious and painful bruises and contusions," etc. The answer is a general denial and a plea of contributory negligence. The reply denied the new matter in the answer. Upon the trial the plaintiff introduced evidence tending to prove the allegations of the petition, and defendant introduced evidence tending to contradict those allegations so far as to show that before the collision the plaintiff jumped from the caboose, and received his injuries in that way, and not by reason or in consequence of the collision, and that, if he had remained in the caboose, as some other passengers did, he would not have been injured. No question is raised here as to the admission or exclusion of evidence, so it will not be necessary to state the facts more in detail.

At the request of the plaintiff the court instructed the jury as follows: "(1) The court instructs the jury that if you shall find from the evidence that defendant, by its agents and employés, undertook for hire to carry plaintiff as a passenger in the caboose of its local freight train from Brider's switch to the station at Allenville on its road, and collected fare from him for such transportation, it became and was the duty of defendant to use reasonable care in conveying plaintiff to his destination; and if you shall believe from the evidence that before reaching Allenville, while the local freight train was standing on the main track of defendant's road, and while plaintiff was in the caboose, through its agents and employés, carelessly and negligently caused another of its freight trains to be run back against the caboose in which plaintiff was riding, and you shall further find that, in consequence of the collision of cars, plaintiff was injured, your verdict shall be for the plaintiff. (2) The court further instructs the jury that, if you shall believe from the evidence that the collision of cars caused the sliding door at the side of the caboose to fly shut, and that plaintiff's right leg was broken by being caught between the door and the door jamb, while he was attempting to escape from the caboose, yet, if you further find that plaintiff at the time had reasonable cause to apprehend a collision, and that the danger thereof was then imminent and impending, and, further, that plaintiff exercised such degree of care as under the circumstances would reasonably be expected from one of his age and capacity, then he is entitled to recover, and your finding should be for him, although you may be further satisfied that he would not have been injured if no attempt to escape had been made. (3) The court further instructs the jury that, if you find the issue for the plaintiff, you should assess his damages at such sum, not exceeding $20,000, as from the evidence you may believe will be a fair compensation to him for the injuries he has sustained; and that in estimating such damages you should take into consideration the physical pain and mental anguish occasioned by his injuries; the fact, if you so find from the evidence, that his injuries are permanent, and their future effect upon his health, if from the evidence you believe it will be affected thereby; his physical disfigurement or deformity, if you find that such has been shown by the evidence; and, further, any loss of earnings after he shall have attained the age of twenty-one years."

At the request of the defendant the court instructed the jury as follows: "(1) The jury are instructed that, in order to entitle plaintiff to recover, the burden of proof is upon him to show that by reason of the negligence of defendant's servants a collision was caused between the caboose in which plaintiff was riding and other cars of defendant, and that, in consequence of the force of said collision, the sliding door of said car was thrown against plaintiff's leg, and broke the same, and that on the rebounding of said door plaintiff was thrown thereby to the ground, and his body bruised and contused, and his chest injured and, unless the jury finds from the evidence that said injuries were so caused, they will find for the defendant." "(3) With respect to the charges made by the plaintiff as his ground of action against defendant, you are instructed that the burden of proving them is upon the plaintiff; and unless the jury believe, after considering the evidence in the cause, that he has established such facts by a preponderance of the testimony, — that is, the testimony entitled to the greater weight, — they must find for the defendant."

The defendant asked and the court refused to instruct the jury as follows: "(2) The court instructs the jury that if they find the fact to be that plaintiff's injuries were caused by his jumping from the caboose car, and that said injuries were not caused by the force of the collision between the caboose car and the switching train, then they will find for the defendant." "(4) The court instructs the jury that if they find that plaintiff's injuries were in part caused by his jumping from the car, they must find for the defendant as regards such injuries, and that they can only find a verdict for the plaintiff for such injuries to plaintiff as have been directly caused by the force of the collision between the caboose car and the switching train. (5) The jury are instructed that it is improper and illegal for them to arrive at a verdict by first agreeing that each juror should set down the amount, if any, which he is in favor of awarding the plaintiff, dividing the aggregate by twelve, and stating the result as their verdict."

The verdict was for plaintiff for $20,000. The circuit court required, and plaintiff entered, a remittitur of $5,000, and then the motion for a new trial was overruled, and defendant, after proper steps, appealed to this court.

Martin L. Clardy and R. Graham Frost, for appellant. Wilson Cramer, for respondent.

MARSHALL, J. (after stating the facts).

1. The first proposition that presents itself for determination arises on the instructions given and refused. The negligence pleaded in the petition is that while plaintiff was seated in the caboose, which was standing on the main track at Delta, the defendant's agents and...

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