Feary v. Metropolitan St. Ry. Co.

• Decision Date: 12 February 1901
• Citation: 162 Mo. 75,62 S.W. 452
• Parties: FEARY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

62 S.W. 452

162 Mo. 75

FEARY v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 12, 1901.

CARRIERS — INJURIES TO PASSENGERS — CAUSE OF ACCIDENT — UNAVOIDABLE CASUALTY — CONCLUSIVENESS OF VERDICT — DISCRETION — WITNESSES — MISCONDUCT OF JURORS — INSTRUCTIONS — EXCEPTIONS — APPEAL — QUANTUM OF DAMAGES — HARMLESS ERROR.

1. Where plaintiff, suing for injuries sustained on a street car, contended that the gripman negligently let the grip lever slip from his hands, in consequence of which the car ran violently down an incline and caused the accident, and defendant contended that the grip shank broke as the car started down the incline, whereby the accident occurred, and that the grip shank was the best and most approved appliance of its kind, etc., and there was substantial evidence to support a verdict either way, the court would not interfere with the finding of the jury.

2. Where, in an action for injuries received in a street-car accident, plaintiff's condition, injuries, and changed health were fully gone into, and no excuse was offered for not calling, in chief, witnesses offered in rebuttal to prove that plaintiff did not appear to be in as good health after the accident as he did before, it was not an abuse of discretion to exclude their testimony.

3. Where plaintiff, suing for injuries received in a street-car accident, limited his right to recover to a specific act of negligence of defendant, he could not avail himself of the general rule that a passenger is only obliged to allege generally and prove the relation of passenger and carrier and the injury, to make out a prima facie case, and that the burden then shifts to the carrier to exonerate himself.

4. Where no exception was taken or saved to the action of the court in modifying an instruction asked, and the matter was not called to the attention of the court in a motion for a new trial, it will not be open for review on appeal.

5. A party cannot complain of the court's modification of an instruction asked, where such action simply makes the instruction harmonize with other instructions asked by such party.

6. A party cannot complain of an instruction, in an action for injuries by a passenger against a street-car company, that the fact that one of the parties is a corporation should not affect the minds of the jury, in the absence of a showing that he is prejudiced thereby.

7. In an action by a passenger for personal injuries, a charge that if plaintiff "could have earned money by reasonable effort, and neglected so to do, he cannot charge his loss, if any, to defendant," was not erroneous, as telling the jury that if plaintiff could have earned anything, however small, and did not do so, he could not recover anything from defendant.

8. Where a jury found that plaintiff, in an action for injuries, was not entitled to recover at all, an instruction on the quantum of damages, even if erroneous, was harmless.

9. An instruction for defendant in a personal injury case that if the jury find, from all the evidence in the case, whether offered by plaintiff or defendant, that there was no negligence of the character submitted, then defendant's burden has been sustained, and it is entitled to a verdict, though they should find that plaintiff was a passenger, and was injured without fault on his part, does not conflict with an instruction for plaintiff that the burden was on him to show that the accident was caused by defendant's negligence, and, if he so showed, then the burden shifted to defendant to excuse itself; the first instruction simply telling the jury the means defendant might employ to excuse itself, and directing what evidence they might consider in determining whether defendant was without fault.

10. A charge in a personal injury case that, if the jury believe that the injuries sustained by plaintiff were merely "the result of accident," then he could not recover, is not objectionable for not using the words "inevitable" or "unavoidable accident."

11. Where a petition for injuries to a passenger on a street car merely charged that the accident was caused by defendant's negligence, defendant is not required to prove what caused the train to get beyond its control.

12. A street-car company is not liable for injuries received by passengers through a car escaping down an incline, if it used the best machinery known, such as experience had shown was safe, and the accident was caused by something it could not have foreseen or guarded against, though it fails to show the immediate cause of the accident.

13. In an action against a carrier for injuries, a charge requiring of defendant such care and foresight as is "reasonably practicable" is sufficient, and should not require of defendant "the utmost practicable human skill, diligence, and foresight."

14. Where plaintiff, suing a street-car company for injuries received as a passenger, limits himself to a right to recover for the negligence of defendant, which defendant denies, contending that the injury was caused by unavoidable casualty, a charge that, though plaintiff was hurt without his fault, yet defendant was not liable, unless the jury find that the car went down the incline by reason of defendant's negligence, and if, by reason of any unavoidable casualty, it got beyond the control of defendant's

gripman, then there was no negligence, properly stated the law applicable.

15. All statements made by a party as a witness which are against his own interest must be taken as true, but statements in his own favor are only to be given such credit as the jury, under all the facts and circumstances in evidence, deem them entitled to.

16. Merely copying the affidavits filed with the motion for a new trial into the bill of exceptions will not make the matter part of the record.

17. That jurors played cards with one of the attorneys for a party during the progress of the trial is not such misconduct as would call for reversal.

Appeal from circuit court, Lafayette county; Richard Field, Judge.

Action by George D. Feary against the Metropolitan Street-Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John S. Blackwell & Son, Clarence Vivion, and Hollis & Fidler, for appellant. Frank Hagerman, John Welborn, Frank P. Walsh, and Wm. Aull, for respondent.

MARSHALL, J.

This is an action for $50,000 damages for personal injuries received by the plaintiff on the 27th of July, 1896. The suit was begun in Jackson county. The venue was changed, at plaintiff's instance, to Lafayette county, and resulted in a verdict and judgment for the defendant, from which plaintiff appealed.

The petition, after charging that the defendant owns and operates a street-railroad line in Kansas City for carrying passengers for hire, and that a part of its line is upon Ninth street, from Jefferson street to Union avenue, so far as it is material to this inquiry is as follows: "Said road is constructed with double track, and operated by means of an endless steel wire cable, running underground, propelled by steam force from a power house on said line. The cars are attached to said cable by means of a device called a `grip iron,' extending downward through the front car, called a `grip car,' and through an iron slotted rail to the said cable, and clamped by the jaws of the grip iron. That there is a steep incline extending from defendant's depot on Union avenue, up and along Ninth street, to Jefferson street, a distance of about one-quarter of a mile. Said incline is about 20 per cent. grade for said quarter of a mile, making said place very dangerous for travel unless great care is exercised in going up and down said steep incline. That the cars in going down the same are held from excessive speed by tightly grasping the cable with the grip iron, and applying the brakes on the cars to keep the same at the usual speed of the cable, which, when properly done, insures reasonable safety in descending from Jefferson street to said Union avenue. Plaintiff, for cause of action, states that on or about the 27th day of July, 1896, he became and was a passenger of defendant on its said Ninth street line, by boarding one of its cars uptown, and paying the usual fare to be transported to defendant's depot at Union avenue, all in Kansas City, county and state aforesaid. That when said train of cars reached the top of said incline, and proceeded down same, in a westerly direction, said train was, by the carelessness and negligence of its servants, agents, and employés, permitted to descend said steep grade at a rapid and hazardous rate of speed, to wit, 50 miles per hour, without checking or stopping the same. Plaintiff, with other passengers, was warned by the conductor in charge of said train to remain still, and not attempt to get off, which plaintiff did, in obedience to said instructions. That when said cars, running at said dangerous speed, reached nearly the bottom of said incline, they left the track, and collided with other cars, causing a wreck, the force of which, together with the wreckage, severely and permanently injured him, as follows," etc. The answer is a general denial, with a special plea of contributory negligence. The reply denied, generally, any contributory negligence.

The plaintiff states the facts to be as follows: "The undisputed testimony of the witnesses, both for plaintiff and defendant, shows that plaintiff, with his two sisters from New York, boarded defendant's cars at Ninth and Washington streets, to go to the Union Depot, on Union avenue. The sisters, who had been here visiting plaintiff, were leaving for their home in the East. That the decline from the west edge of Jefferson street to defendant's depot, on Union avenue, is between an 18 and 19 per cent. grade, and the distance from Jefferson street to the bottom of the incline is about 1,200 feet."

Plaintiff, with his sisters, was seated in the front or grip car, just on the left of the...