Feary v. Metropolitan Street Railway Company

• Decision Date: 16 April 1901
• Citation: 62 S.W. 452,162 Mo. 75
• Parties: FEARY, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY
• Court: Missouri Supreme Court

62 S.W. 452

162 Mo. 75

FEARY, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY

Supreme Court of Missouri, First Division

April 16, 1901

Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

John S Blackwell & Son, Clarence Vivion and Hollis & Fidler for appellant.

(1) The court permitted the defendant to prove by witnesses that they had known plaintiff before and after the accident, and that there was no difference in his looks and appearances after and before. In rebuttal plaintiff offered to prove by three witnesses that they had known plaintiff before and after the injury and that he looked like a different man in this: That he is much lighter in weight, more pallid and dull in appearance, has not the same color and does not look as strong and healthy. This was proper rebuttal to which plaintiff was entitled. (2) The court erred in modifying plaintiff's instruction numbered 1. "Proof by a passenger of the derailment of train and his injury makes out a prima facie case of the company's negligence." Furnish v. Railroad, 102 Mo. 438; Clark v Railroad, 127 Mo. 197; Dougherty v. Railroad, 81 Mo. 329. (3) Defendant's instruction numbered 1 is a mere abstract proposition, not predicated upon the pleadings or evidence; is a stump speech. Therefore, erroneous and prejudicial to plaintiff. Railroad v. Railroad, 118 Mo. 625; State v. Fairlamb, 121 Mo. 149; Bergaman v. Railroad, 104 Mo. 90; Fairgrieve v Moberly, 29 Mo.App. 142. (4) Defendant's instruction numbered 2 is misleading in this: It says in effect that if plaintiff could have earned money -- no matter how little -- then he could not charge any of his loss to defendant. It is misleading and is not a fair statement of the law. (5) Defendant's instruction numbered 3 is not predicated on the pleadings or evidence. It is a comment and criticism on plaintiff's instructions and in conflict with the law, as declared by the court in instruction 2 given on behalf of plaintiff. It failed to enlighten the jury as to the "character of the negligence" submitted under the pleadings and evidence, but left the jury to guess at such negligence, and placed the burden on plaintiff all through the trial. Blanton v. Dold, 109 Mo. 77; Stanley v. Railroad, 114 Mo. 620; Evers v. Shumaker, 57 Mo.App. 454; Frank v. Railroad, 57 Mo.App. 181; Redpath Bros. v. Lawrence, 42 Mo.App. 101. (6) Defendant's instruction numbered 4 is misleading, in saying that if plaintiff's injuries were "merely the result of accident" the verdict will be for defendant. Whilst this court has approved instructions saying that if the injury was caused by "mere accident," plaintiff could not recover, the wording of this instruction is such that a jury which had to be instructed as this jury was, by defendant's instruction numbered 1, would be very apt to conclude as there was no pretense that this injury was inflicted willfully and intentionally, it "was merely the result of accident," hence the "verdict will be for defendant." It should not be given in this form without qualification. This accident must have been inevitable, and one that could not have been seen, detected or known to the defendant, its agents or servants, by the exercise of the utmost practicable human skill, diligence and foresight. Smith v. Railroad, 108 Mo. 244; Dowell v. Guthrie, 99 Mo. 653; Hickman v. Link, 116 Mo. 123; Spillman v. Railroad, 111 Mo. 555; Sullivan v. Railroad, 133 Mo. 1; Lemon v. Chanslor, 68 Mo. 346; Conway v. Reed, 66 Mo. 353; Hite v. Railroad, 130 Mo. 132; Dougherty v. Railroad, 97 Mo. 654; Coudy v. Railroad, 85 Mo. 85. (7) Defendant's instruction numbered 5 is erroneous. It does not correctly or fully state the admissions of plaintiff and defendant in their pleadings. The instruction limits the issues made by the pleadings and evidence. The instruction is argumentative and misleading, and instead of serving as a guide to the jury in reaching a verdict, it confused the jury in wandering away from the issues presented by the pleadings and evidence in the case. The instruction is in conflict with and contradictory of the law as declared by the court in plaintiff's instructions numbered 1 and 2. Matson v. Frazier, 48 Mo.App. 302; Altman v. Smith, 52 Mo.App. 351; Rhodes v. McNulty, 52 Mo.App. 301. (8) Defendant's instruction numbered 6 is grossly erroneous and fatally vicious. It is not declarative of the law applicable to the pleadings and evidence in this case. It is not predicated on the pleadings and evidence, or either of them. The instruction puts the defendant above and beyond the reach of the law. Clark v. Railroad, 127 Mo. 207; Furnish v. Railroad, 102 Mo. 442; Lemon v. Chanslor, 68 Mo. 340. (9) Defendant's instruction numbered 8 ignores the issues made by the pleadings and evidence. It is in direct conflict and is inconsistent with and contradictory of the law as declared by the court in instructions 1, 2 and 3, given on behalf of plaintiff. It is also erroneous in assuming that plaintiff's injuries were the result of unavoidable accident, and relieves the defendant from any proof as to how the car "got from the control of the gripman" by what "unavoidable casualty." (10) Defendant's instruction numbered 9 is erroneous in this: That there is no evidence whatever to base it on. Plaintiff testified to nothing against his interests and it is an improper, prejudicial and illegal comment on plaintiff's evidence, and in this, that it is self-contradictory, and takes away from the jury their sole and absolute right to act as judges of the evidence, and passes upon the credibility of the witness, and as matter of law directs the jury that they must accept as true certain parts of plaintiff's evidence and give such credit to the remainder as they deem it entitled to, and in this, that it is improper to give such instructions in a civil case. This instruction was copied from the criminal case of State v. Brooks, 99 Mo. 137, and is commented on in a civil case by the court in Culberson v. Railroad, 50 Mo.App. 562.

John Welborn, William Aull, Frank P. Walsh and Frank Hagerman for respondent.

MARSHALL, J. Valliant, J., concurs in the result, for reasons stated in separate concurring opinion.

OPINION

MARSHALL, J.

This is an action for $ 50,000 damages for personal injuries received by the plaintiff on the twenty-seventh of July, 1896. The suit was begun in Jackson county, the venue 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 under ground, 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 twenty 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 twenty-seventh day of July, 1896, he became and was a passenger of defendant on its said Ninth street line by boarding one of its cars up-town 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 employees, permitted to descend said steep grade at a rapid and hazardous rate of speed, to-wit, fifty 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 street 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 eighteen and nineteen per cent grade, and "the distance from Jefferson street to the bottom of the incline is about twelve hundred...