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

• Citation: 166 Mo. 435,65 S.W. 959
• Court: United States State Supreme Court of Missouri
• Decision Date: 29 June 1901
• Parties: CHITTY v. ST. LOUIS, I. M. & S. RY. CO.<SMALL><SUP>1</SUP></SMALL>

65 S.W. 959

166 Mo. 435

CHITTY v. ST. LOUIS, I. M. & S. RY. CO.¹

Supreme Court of Missouri, Division No. 1.

June 29, 1901.

RAILROADS — INJURY TO PASSENGER — INSTRUCTIONS — EXCESSIVE DAMAGES.

1. Where evidence is so conflicting as to warrant a finding for either party, the verdict will not be disturbed on appeal.

2. Where, in an action for injuries received in a railway collision, the petition alleged that the plaintiff was thrown forward by the concussion, and had his leg crushed between the door of the car and the door jamb, and the evidence showed that the plaintiff was thrown forward and partially out of the car while standing in front of the side door thereof, and defendant requested an instruction that the jury should find in its favor unless they found that the plaintiff was thrown forward "from his seat" and injured, the striking out of the words "from his seat" was not error.

3. Where a boy 14 years of age had his leg crushed so that at the time of trial, some 7 years after the injury, he still suffered pain, and the wound was not entirely healed, but periodically suppurated, requiring constant bandaging, and the injured leg was shorter than the other, but by putting cotton in the shoe he was able to walk by aid of a stick, and, while there was no definite showing as to his prior, present, or future earning capacity, it appeared that he had worked since the accident, a verdict for $15,000 was excessive, and should only be allowed to stand to the extent of $10,000.

4. The supreme court has power to order a remittitur where excessive damages have been awarded by a jury.

Robinson, J., dissenting.

Appeal from circuit court, Stoddard county; J. L. Fort, Judge.

Action by Henry Chitty against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Conditionally affirmed.

Martin L. Clardy, Louis F. Dinning, and James F. Green, for appellant. Wilson Cramer, for respondent.

MARSHALL, J.

1. This is the second appeal in this case. When the case was here before, the judgment of the circuit court in plaintiff's favor for $15,000 damages was reversed for the errors in law then pointed out. Chitty v. Railway Co., 148 Mo. 64, 49 S. W. 868. Afterwards the defendant obtained a change of venue from Scott to Stoddard county, where the case was tried anew, and again resulted in a verdict and judgment for the plaintiff for $15,000, and defendant has again appealed. On the former appeal it was held that a party cannot count upon one cause of action and recover upon another, even though such cause of action would warrant a recovery if properly pleaded. And, because the plaintiff in this case predicated his right to recover upon a collision between two trains of the defendant, it was held that an instruction was erroneous which authorized a verdict in his favor if he received injuries while attempting to escape from the train, when he had reasonable cause to apprehend a collision, and when the danger thereof was, and he believed it was, imminent and impending, and, e converso, that it was error to refuse an instruction, asked by defendant, that if he was so injured, and not from the collision, as his petition charged, the verdict must be for the defendant. It was further then held that the petition stated a cause of action, that there was evidence sufficient to support the allegations of the petition, and that the first instruction given upon the theory of the petition was proper. Upon the trial anew the errors pointed out when the case was here before were avoided. The plaintiff adhered strictly to the allegations and theory of his petition, and at his instance the court limited his right to recover solely to the cause of action pleaded. The court gave two instructions asked by defendant, to the effect that the plaintiff could not recover if he received his injuries by jumping from the train, and not from the collision of the two trains; thus emphasizing the instruction given for the plaintiff, limiting his right to recover to the collision. The case was therefore tried in accordance with the principles of law announced by this court on the former appeal. There is sufficient testimony to support the allegations of the petition and the theory of the plaintiff. There is also evidence to support the defendant's contention that the plaintiff received his injuries by jumping from the train before the collision occurred. The plaintiff testified that he was a passenger on the defendant's freight train, riding in the caboose. This train was standing on the main track at Delta on April 5, 1893, headed north. Another freight train was backed against it, and struck the caboose car with so much force as to drive the whole train, consisting of five or six cars, six feet up the track, to demolish the platform and displace the trucks of the caboose, and to knock the south end of the caboose to the west so that the center of the caboose was over the west rail of the track. Before the collision, Samuel Lane, a passenger, was on the rear platform of the caboose. When the colliding train was 40 or 50 feet from the caboose, Lane gave the warning of the impending collision, and jumped off the platform. Thereupon Davenport, the conductor, immediatey jumped out of the side door on the east of the caboose, and was followed at once by Isham Hanbaugh and James Higgenbotham, two stockmen, who were also passengers on the caboose. This left only the plaintiff, a boy of 14 years of age, and a man named Kellum, in the caboose. The plaintiff heard the warning to look out, — there was going to be a wreck, — and he looked out of the rear door of the caboose and saw the approaching train, and started towards the door on the east side of the caboose, with the intention of jumping, as the conductor and the other passengers had done. But before he reached the door the collision occurred. The caboose was knocked towards the west, and he was thrown towards the east, head foremost, and through the side door; but after his whole body, except his right leg, had passed through the door, the sliding door on the east side of the caboose was suddenly shut, and caught his right leg between the door and the jamb, and as the door rebounded his leg was released, and he fell from the car into the ditch at the side of the train. In this account of the accident, and especially as to his leg being caught between the door and the jamb, the plaintiff is corroborated by the testimony of D. M. Dunn, who said he saw the door strike his leg, and by other witnesses who saw his leg just after the accident, and who said his leg was crushed and bruised on both sides of the leg, thereby supporting the contention that it was caught between the door and the jamb. On the other hand, the conductor and Hughes, a brakeman, who was on the third car from the caboose, setting the brakes, testified that the plaintiff jumped from the caboose before the collision, and was injured by jumping. Upon this conflict as to the facts the court submitted the case to the jury upon proper instructions asked by the plaintiff, limiting his right to recover to the finding of the fact to be that he was injured by the collision, and upon proper instructions asked by the defendant, also limiting his right to recover to the finding of the fact to be that he was injured by the collision, and negativing his right to recover if the jury found the fact to be that he was injured in consequence of jumping from the train to escape injury from the impending danger of a collision. The jury found for the plaintiff, thereby necessarily finding the fact to be that the injury was received as plaintiff contended, and against the defendant's contention. This is an action at law, and this an appellate court, and the practice is settled that under the conditions here presented this court will not disturb the finding of fact by the jury in plaintiff's favor, as it would not have done if the jury had adopted defendant's contention and returned a verdict in its favor. The difference between the parties was simple and clear, and there was evidence sufficient to support a verdict either way. This being so, this court will not interfere with the finding of the facts as to the cause of the injury. The defendant, however, still contends that there was a clear departure between the plaintiff's allegations and his proofs. This presupposes that the fact is that the plaintiff was injured by jumping, and not by the collision. As pointed out, there was sufficient evidence to support a finding that the plaintiff never jumped, but was thrown out of the car while intending to jump, but before he had time to put his intention into execution. This being true, it follows that there was no such departure between the allegations and the proofs, and therefore this contention fails. The defendant complains of a modification of its sixth instruction, which was as follows: "The court instructs the jury that the plaintiff charges in his petition that there was a collision between the caboose car in which he was...