Farber v. The Missouri Pacific Railway Company

• Decision Date: 25 May 1897
• Citation: 40 S.W. 932,139 Mo. 272
• Parties: Farber v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

40 S.W. 932

139 Mo. 272

Farber v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

May 25, 1897

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Affirmed.

Martin L. Clardy, H. S. Priest, and Henry G. Herbel for appellant.

(1) The court erred in sustaining the plaintiff's motion for a new trial on the ground that the instructions given were erroneous. Candee v. Railroad, 31 S.W. 1032; Miller v. Car Co., 31 S.W. 574; R. S. 1889, sec 2241; Sess. Acts 1891, p. 70; Tetherow v. Railroad, 98 Mo. 85; Tomlinson v. Ellison, 104 Mo. 112; McClanahan v. West, 100 Mo. 322; Green v City, 106 Mo. 454. (2) As to the instructions given for plaintiff, they were well enough; but, had they not been so, plaintiff could not have complained of them, because he would have been bound by his own law. Parties are concluded by the instructions they ask to be given, whether abstractly correct or not. Jennings v. Railroad, 99 Mo. 399. So we have only the defendant's instructions to consider on this appeal. (3) That the first of these instructions is correct goes without saying, because it is a stereotyped form which has been approved by this court in innumerable instances. (4) That the second instruction is correct ought not to admit of serious question. It simply told the jury that their finding should be confined to the issues presented by the pleadings, viz., whether or not the plaintiff's son was forcibly ejected from the train. Surely there can be no question regarding the soundness of the statement as a legal proposition, because it is one of the elementary principles of practice that a plaintiff can recover only on the negligence charged in his petition. It was certainly in harmony with the plaintiff's instructions, which contained the condition that the jury should find "that said employee (brakeman) forced the plaintiff's son to comply with such order by stepping on his fingers on the ladder whereon the plaintiff's son was then standing," before they could return a verdict for the plaintiff, which instruction was in consonance with the allegations of the petition. If the plaintiff's son was not forcibly ejected from the train, then the plaintiff can not recover, under his own instruction. So he certainly can not complain of an instruction which required nothing more of the jury. Harper v. Morse, 114 Mo. 321; Whitmore v. Lodge, 100 Mo. 47; Price v. Town, 92 Mo. 387; Keen v. Schnedler, 92 Mo. 526; Thorpe v. Railroad, 89 Mo. 666; Rilly v. Railroad, 94 Mo. 600. (5) The third instruction contains a correct declaration of law, and is founded on the testimony of defendant's conductor, Stevens. (6) The fourth instruction was merely a repetition of the second instruction, prefaced by an unquestionable declaration of law, because the plaintiff's son admitted that he was a trespasser on defendant's train. (7) The fifth instruction has been approved by this court too often to admit of discussion. Its oppositeness to this case is obvious in view of the facts that no suit was brought on this claim until four years after the injury; that the plaintiff offered no evidence to corroborate his son's statements, or to explain the absence of his son's companion, Dillon, at the time of his injury; that his son's testimony was diametrically opposed to that of defendant's brakeman on the vital features of this case; that he contradicted his testimony on a former trial, and made numerous inconsistent and conflicting statements regarding the purpose of his visit to Kirkwood, and was shown by his own father's testimony to have had a disreputable character. Miller v. Car Co., 31 S.W. 576. (8) The sixth and last instruction given for the defendant was clearly unexceptionable. It was based on the testimony of plaintiff's witness, Mahoney, and defendant's witness, Haley, to the effect that while it was the brakeman's duty to tell trespassers to get off the train, it was not his duty to force them off the train, as plaintiff claimed his son had been forced off. The authority of this agent of defendant was one of the vital questions in this case, and it was therefore clearly proper to make it the subject of an instruction. (9) As the verdict was clearly for the right party, it should not have been disturbed, even though there may have been errors in the instructions which we deny. Homuth v. Railroad, 31 S.W. 906; Orth v. Dorschlein, 32 Mo. 366; Ellerbe v. Bank, 109 Mo. 445; Kelly v. Railroad, 88 Mo. 534; Hoyt v. Davis, 30 Mo.App. 309; Nevitt v. Crow, 29 P. 749.

George A. Castleman and Ben T. Castleman for respondent.

(1) It was erroneous for the trial court to give instruction number 1 for defendant, because it was based upon testimony of Willie Farber, the maimed boy, erroneously admitted in cross-examination of witness, against objection and exception of plaintiff. State v. Parker, 96 Mo. 382; State v. Howard, 102 Mo. 142; State v. Houx, 109 Mo. 654; State v. Gesell, 124 Mo. 535. (2) It was erroneous for the trial court to give instruction number 2 for defendant, because it bases plaintiff's right to recover upon the question of the use of actual force in the ejection of plaintiff's son from the moving train; whereas the basis of plaintiff's action is negligence which may exist without force, either actual or constructive. Brown v. Railroad, 66 Mo. 596; Isabel v. Railroad, 60 Mo. 480; Hicks v. Railroad, 64 Mo. 437; Brill v. Eddy, 115 Mo. 603. (3) It was erroneous for the court to give instruction number 3 for defendant, because there was no probative testimony upon which to base the condition, "and that he thereafter attempted to get upon or aboard said train, and was injured while so doing," etc. This is based upon "hearsay testimony," being an alleged declaration of Willie Farber on the caboose after injury (how long is not disclosed), as testified to by Stevens, conductor of the train. We submit that it is not shown to have been a part of res gestae, and must have been considered by trial court as the admission of a party to the cause, whereas Willie Farber was only a witness and in law a stranger to the case, whose declarations, not shown to be a part of the res gestae, have no probative force whatever, and standing alone, can not be made the basis of an instruction. Wharton on Ev., sec. 261a; State v. Martin, 124 Mo. 525; State v. Punshon, 124 Mo. 455. (4) It was error for the court to give, at defendant's instance, instruction number 4, because it denies the right of recovery by plaintiff if his son was driven from train "without being forced by said brakeman to do so." In other words, the only evidence of negligence which would sustain the case must be proof of the use by the brakeman of actual force upon the son of plaintiff.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an appeal from an order granting a new trial from a verdict in favor of defendant. The order sustaining plaintiff's motion for a new trial is as follows: "The court having fully considered the motion for a new trial * * * doth sustain the same on the grounds that there was error in the instructions given to the jury," and "doth order the judgment set aside."

This is an action by the father for injuries received by his son who, he alleges, was wrongfully expelled from one of defendant's freight trains. Save in one material respect, the facts are the same as were developed on the son's case against the defendant in 116 Mo. 81, 22 S.W. 631. In this case plaintiff introduced evidence tending to prove that the brakeman was authorized to expel trespassers from the train, evidence which was entirely omitted from the son's case. The facts may be summarized as follows: William Farber, a son of plaintiff, sixteen years old, and a companion, without the knowledge of defendant or its employees, climbed upon one of its freight trains at St. Louis bound west from said city. They crawled into an open hatch in the top of a car loaded with lumber and laid themselves down to rest. The testimony of the boy, William, is to the effect that his purpose was to steal a ride to Kirkwood, some twelve or fifteen miles distant; that when the train was approaching Webster, a station several miles west of St. Louis, a brakeman, who was walking over the train, put his lantern into the manhole and discovered him and his companion lying on top of the lumber in the car; that he ordered them to get out on top of the car, and, after they had done so, asked them whether they had any "stuff," and receiving a negative answer, asked them if they had a knife, pistol, razor, or anything of that kind, or tobacco; they told him "no." He then ordered them off the train, which order they refused to obey because the train was running too rapidly; that he then forced the plaintiff's son down the ladder, and kept treading on his fingers, as he went down, until he had reached the last rung, when the pressure of the brakeman's shoe became so great that he relinquished his hold upon the ladder and fell to the ground, striking a tie, which threw his foot under the wheels, which passed over his foot, mashing it and a couple of his toes, which had to be amputated. The injured boy was the only witness who testified in plaintiff's behalf concerning the manner of the injury, the absence of his companion Dillon not being accounted for.

The brakeman's version of the accident was that while passing over the train, he saw a manhole open and lowered his lantern into it and saw the boys hiding there. He told them to get out, and then asked them where they were going. They replied "to Kansas City." He then told them that they (the train crew) were not allowed to carry passengers on freight trains, and that they would have to get off; that they...