Dougherty v. Missouri Railroad Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRay, J.
Citation8 S.W. 900,97 Mo. 647
PartiesDougherty v. The Missouri Railroad Company, Appellant
Decision Date18 June 1888

8 S.W. 900

97 Mo. 647

The Missouri Railroad Company, Appellant

Supreme Court of Missouri

June 18, 1888

Rehearing Granted 97 Mo. 647 at 667.

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke, Judge.


Dyer, Lee & Ellis for appellant.

(1) The evidence shows the plaintiff guilty of contributory negligence as pleaded in defendant's answer. (2) The tenth instruction on the subject of contributory negligence given by the court, was error. Zimmerman v. Railroad, 71 Mo. 476-80; Harlan v. Railroad, 65 Mo. 22-25; Nelson v. Railroad, 68 Mo. 593; Cagney v. Railroad, 69 Mo. 416; Rains v. Railroad, 71 Mo. 164; Maher v. Railroad; 64 Mo. 267; Kelly v. Railroad, 75 Mo. 138-40; Werner v. Railroad, 81 Mo. 368-74; Price v. Railroad, 72 Mo. 414-19; Strauss v. Railroad, 75 Mo. 185; Yarnall v. Railroad, 75 Mo. 575; Ashbrook v. Railroad, 18 Mo.App. 290, 305-6; Welch v. McAllister, 13 Mo.App. 90; Scoville v. Railroad, 81 Mo. 434. (3) Instructions numbered three and five, given at the instance of the defendant, correctly defining contributory negligence, did not cure the error of the court in giving plaintiff's instruction number ten, and are contradictory to and in conflict with said instruction, whereby the jury were misled. Rains v. Railroad, 71 Mo. 164; Strauss v. Railroad, 75 Mo. 185, 191; Yarnall v. Railroad, 75 Mo. 575, 580, 583; Price v. Railroad, 77 Mo. 508; Stevenson v. Hancock, 72 Mo. 612; State ex rel. v. Anert 2 Mo.App. 295; St. Louis Type Foundry v. Union Printing Co., 3 Mo.App. 142, 150; Singer Manufacturing Co. v. Hudson, 4 Mo.App. 145; Scoville v. Glasner, 79 Mo. 449, 457. (4) Instruction number twelve given in behalf of plaintiff is erroneous and misleading because out of four or five different facts which the answer charges as contributory negligence, the instruction selects but two, thus giving these two an undue prominence and also giving the jury to understand they are not to consider the evidence tending to establish the other facts, which are charged as constituting contributory negligence. McDermot v. Railroad, 87 Mo. 285; Musser v. Adler, 86 Mo. 445, 450; Maxwell v. Railroad, 85 Mo. 96; Bank v. Murdock, 62 Mo. 70; Hines v. McKinney, 3 Mo. 382; Sigerson v. Pomroy, 13 Mo. 620; Clark v. Hamerlee, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 20; Semour v. Semour, 67 Mo. 303; Jackson v. Bowles, 67 Mo. 609; Kendig v. Railroad, 79 Mo. 207; Crews v. Lackland, 67 Mo. 619; Wyatt v. Railroad, 62 Mo. 408; Chouteau v. Jupiter Iron Works, 83 Mo. 73. And the fifth instruction given in behalf of plaintiff is open to the same objection. This instruction entirely ignores the consideration by the jury of contributory negligence on the part of the plaintiff, and tells the jury that the only exception to the responsibility of the defendant for the injury, is, "unless it appears from the evidence that said jerk was produced by some cause not under the control of defendant or its agents, servants or employes." This instruction singles out one of several exceptions to the liability of the defendant, and ignores our entire defense in the case. Besides being open to all the objections to the twelfth instruction given in behalf of the plaintiff, it is in no way cured by the general instruction given by the court to the effect that the jury are to consider all the instructions together. (5) The third instruction given in behalf of plaintiff is erroneous in that it requires of the defendant company "the exercise of the utmost human foresight, knowledge, skill and care." This is an extreme and unfair statement of the law upon this question. This is liable to the same objection as the last instructions quoted -- and besides the true rule on this subject, as laid down by this court in this very cause is "such care and vigilance as a prudent, rational person would exercise under like circumstances." Dougherty v. Railroad, 81 Mo. 325, 331; Flynn v. Railroad, 78 Mo. 195; Morgan v. Cox, 22 Mo. 373. (6) The testimony of Newton Jarrett as to one of the four teams, which had been used by him six months before the accident, on the car in controversy, being unsafe and skittish, without being followed by proof that such team was on the car at the time of the accident should have been excluded. Its only effect could have been to prejudice the defendant in the minds of the jury and lead them to the conclusion that the defendant was generally negligent in having skittish teams, although the same were not in use at the time of the accident. It further appeared by the undisputed testimony of the driver that the team referred to by Newton Jarrett was not on the car on the night in question. (7) The damages assessed by the jury were not compensatory, nor in any sense an indemnity; they were excessive, and intended by the jury to be punitive. The amount of the verdict is grossly excessive and is, under the testimony, sufficient ground for reversal. Collins v. Railroad, 12 Barb. 492; Murray v. Railroad, 47 Barb. 196.

Boyle, Adams & McKeighan and W. B. Thompson for respondent.

(1) The proof was ample on the part of respondent to charge appellant with negligence, and there was no evidence in the case tending to show that the respondent was guilty of any contributory negligence under any proper consideration of the law and the evidence in this case. Dougherty v. Railroad, 9 Mo.App. 483; s. c., 81 Mo. 325. (2) Appellant misconstrues instruction ten; it does not mean and was not intended by the court to mean what is claimed, and could not have been so considered by the jury. (3) But if it were admitted that instruction ten, or instructions five and twelve given for respondent, were ambiguous, or obscure or faulty in their phraseology, it is clear that the other instructions given by the court both for the respondent and the appellant relieved them of any such ambiguity or fault, and therefore it is apparent from all the instructions taken together that the jury were not misled, especially as the jury were expressly told by instruction fourteen that all the instructions were to be taken and read together. Hoenchen v. O'Bannon, 56 Mo. 289; Porter v. Harrison, 52 Mo. 524; McKeen v. Railroad, 43 Mo. 405; Marshall v. Ins. Co., 43 Mo. 586; Moore v. Sanborn, 42 Mo. 490; Karle v. Railroad, 55 Mo. 476; Whalen v. Railroad, 60 Mo. 323; W. S. M. Co. v. Railroad, 71 Mo. 203; Cooper v. Johnson, 81 Mo. 483. (4) The judgment was for the right party, and the judgment will not be reversed although erroneous or faulty instructions are given. Noble v. Blount, 77 Mo. 235; Galbreath v. City, 80 Mo. 584; Methudy v. Ross, 81 Mo. 481. (5) The third instruction given for respondent, that the appellant was bound to exercise the utmost human foresight, knowledge, skill and care, is correct, and expressly so declared by the decisions of this court. Lemon v. Chanslor, 68 Mo. 340; Coudy v. Railroad, 85 Mo. 79; Dougherty v. Railroad, 81 Mo. 325; Stokes v. Salstonstall, 13 Peters (U. S.) 181; Railroad v. Pollard, 22 Wall. 341. (6) The amendment of respondent's petition did not change the gist of or the cause of the action, and hence the amendment related back to the commencement of the action. The plea of the statute of limitations did not therefore affect the matter of detail set up by way of amendment. Kellebrew v. Stockdale, 51 Tex. 520; Crockett v. St. L. T. Co., 52 Mo. 557; Lotham v. Barnett, 62 Mo. 159. (7) The conversation with Wells amounted to nothing. Mr. Wells made no declaration for or against the company, although we think that what he said as chief executive officer of the company would have been admissible, if he had said anything, which it seems he did not. Besides the appellant in cross-examination of respondent first brought up the talk with Wells. (8) There is no error in the record as to the admission of testimony of drivers and conductors. In the first place it was competent, relevant and material; and in the next place none of it was objected to except certain parts of Jarrett's for specific reasons, and except Meagher's which was only admitted after he had sworn that the mode of operating cars on the People's and the appellant's line was the same. (9) There was no error in respondent being allowed to show how the male patrons of appellant, without objection on its part, took seats in order to avoid getting up for ladies. It tended to show what was ordinary prudence under such circumstances; we hardly think it cut much figure either way in the case. (10) The matter of cross-examination of the appellant's driver as to the Feehan accident was not objected to when the questions were asked, and it was discretionary with the court to exclude it, no objections being made at the time. It was, however, a very trifling matter. Of course it was not error to reject the record in the Feehan case. (11) The testimony of Jarrett as to the horses was competent, relevant and material. It showed the character of horses used on that particular car a short time before, that there had been no change (which was a presumption of law unless a change had been shown by the appellant). (12) The damages allowed by the jury were not excessive. The injury was great, the loss great, the suffering extreme and long continued, and the expenses great. The amount of damages in such cases is peculiarly within the province of the jury, and a court rarely interferes, unless at first blush the damages seem outrageous and flagrantly excessive. Kennedy v. Railroad, 36 Mo. 351; Porter v. Railroad, 71 Mo. 67; Frick v. Railroad, 75 Mo. 595; Waldheir v. Railroad, 87 Mo. 37.

OPINION [8 S.W. 901]

[97 Mo. 653] Ray, J.

Upon a former trial of this cause plaintiff was compelled at the close of his evidence to submit to a non-suit, but on writ of error to the St. Louis court of appeals the judgment of the circuit court was reversed. 9 Mo.App. 478. On writ of error by defendant to this court, the judgment of the court of appeals was affirmed. 81 Mo. 325...

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