Griffith v. The Missouri Pacific Railway Company

• Court: Missouri Supreme Court
• Writing for the Court: Brace, J.
• Citation: Griffith v. The Missouri Pacific Railway Company, 11 S.W. 559, 98 Mo. 168 (Mo. 1889)
• Decision Date: 01 April 1889
• Parties: Griffith v. The Missouri Pacific Railway Company, Appellant

11 S.W. 559

98 Mo. 168

Griffith v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

April 1, 1889

Appeal from Henry Circuit Court. -- Hon. J. B. Gantt, Judge.

Affirmed.

Thos J. Portis, Wm. S. Shirk and Thos. G. Portis for appellant.

(1) The demurrer to the evidence should have been sustained. Plaintiff's own undisputed evidence shows that he was guilty of contributory negligence, directly tending to produce the accident. After he had safely alighted from the train, and while passing from one train to another, he walked into the creek with his own lighted lantern in his hand. Having been safely landed from his train, he was bound to look where he went. As he had already furnished himself with a light, it was not incumbent on defendant to furnish him a light from one train to another. By the exercise of reasonable or ordinary care he would have avoided the injury. Henry v. Railroad, 76 Mo. 288; Lenix v Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo 80. Plaintiff was guilty of negligence, if he did not see the creek, provided he could have seen it by exercising ordinary care. His light did not go out until after he fell into the creek, for he says, "I saw by the light of my lantern I was in a creek." Buesching v. Gas Light Co., 73 Mo. 219; Thomp. on Neg., sec. 4, p. 1149 and cas. cit.; Murch v. Railroad, 29 N.H. 9; Mackey v. Railroad, 27 Barb. 528; Hassinger v. Railroad, 48 Mich. 209. (2) The advice and direction of the conductor to get off the train, on which plaintiff then was, cannot be said to be the proximate cause of his injury. He was not driven from the train. He left of his own free will, and for his own purposes, as he himself testified. He might have remained if he chose. He was safely landed, and of his own volition walked into the creek, in attempting to pass from one train to the other. This voluntary action on the part of the plaintiff and his consequent injury cannot in any legal sense be said to have been occasioned by the defendant. Henry v. Railroad, 76 Mo. 293. (3) It was error to permit the plaintiff to testify, that the creek or water way, into which he fell, had since been covered over, and it was error for the trial court to refuse to strike it out after the witness so testified. Ely v. Railroad, 77 Mo. 34; Salters v. Railroad, 3 Hun. 348; Payne v. Railroad, 9 Hun. 526; Dougan v. Trans. Co., 56 N.Y. 1; Dall v. Railroad, 73 N.Y. 468; Hudson v. Railroad, 8 A. & E. R. R. Cas. 464; Chicago v. Powers, 42 Ill. 169; Stoher v. Railroad, 91 Mo. 504. (4) It was likewise error for the lower court to permit the witness Hart, to testify as to the condition of the ground and the creek or ditch, in 1881, three years before the accident occurred. Railroad v. Eubanks, 31 A. & E. R. R. Cas. 176. (5) The damages are grossly excessive. The plaintiff has fully recovered, except that his left leg is slightly shorter, as is the case in all fractures of that member, and his knee is partially stiff. A verdict of nine thousand dollars, for such an injury, clearly indicates that the jury were actuated by passion or prejudice. (a) The damages under the evidence can only be compensatory. There were no circumstances of wilfulness or wantonness, malice or a desire to injure. Brown v. Road Co., 89 Mo. 152; Perkins v. Railroad, 55 Mo. 201. (b) The verdict cannot be supported on the ground that it was given as compensation for permanent injury. A partially stiffened knee is too slight an injury, though it may be permanent, to call for such heavy damages. The evidence does not show any peculiar or unusual loss of time, or bodily suffering, and he paid out nothing whatever for medical attention and nursing. Railroad v. Dwyer, 12 P. 352; Sawyer v. Railroad, 37 Mo. 265; Clapp v. Railroad, 19 Barb. 462; Collins v. Railroad, 12 Barb. 492; Sweeny v. Railroad, 12 Allen, 368; Railroad v. McKean, 40 Ill. 218; Railroad v. Fillmore, 57 Ill. 265; Railroad v. Pondrum, 51 Ill. 333; 1 Rorer on R. R. 735 and authorities; 1 Suth. on Dam. 810 and authorities; Railroad v. Wilson, 63 Ill. 167; Railroad v. Peavy, 11 Am. & Eng. R. R. Cases, 260; Railroad v. Finlayson, 18 Am. & Eng. R. R. Cases, 68; Railroad v. Hughes, 69 Ill. 170.

Fyke & Calvird and J. LaDue for respondent.

(1) The demurrer to the evidence was properly overruled: (a) There was no plea of contributory negligence. Harrison v. Railroad, 74 Mo. 364; Stevens v. City of Macon, 83 Mo. 345; Donovan v. Railroad, 89 Mo. 147; Mathews v. Railroad, 26 Mo.App. 75; Petty v. Railroad, 88 Mo. 306; St. Clair v. Railroad, 29 Mo.App. 76. (b) Although plaintiff had safely alighted from the train, the injury having occurred immediately thereafter on defendant's premises while he was attempting to pass from one train to another at the suggestion, order and direction of the conductor, he is entitled to recover. McGee v. Railroad, 92 Mo. 208; Hulbert v. Railroad, 40 N.Y. 145; Bennett v. Railroad, 1 Am. and Eng. R. R. Cases, 71; Hartwig v. Railroad, 49 Wis. 358. (2) Plaintiff had a right to act upon the suggestion and direction of the conductor. The train stopped and plaintiff was informed that that was the place for him to take the returning train; he had a right to presume that the place where he landed was sufficiently safe and proper for him to do so. McGee v. Railroad, supra, and cases there cited; Hulbert v. Railroad, supra; Chance v. Railroad, 10 Mo.App. 351. (3) It was not error to permit the plaintiff to testify that the creek had been covered over since the injury, because: (a) There was no objection by defendant to the question. (b) The reason given for excluding the question was, that the same was immaterial and irrelevant, and tended to prejudice the jury, which does not amount to a specific objection to the testimony. Margrave v. Ausmuss, 51 Mo. 561; Taussig v. Schields, 26 Mo.App. 318; Geer v. Redman, 92 Mo. 375; Holmes v. Braidwood, 82 Mo. 610. (c) It has been held in the following cases that such evidence is admissible: Railroad v. Henderson, 51 Pa. St. 315; Railroad v. McElwee, 67 Pa. St. 311; McKee v. Bedwell, 74 Pa. St. 218; Martin v. Towle, 59 N.H. 31; Railroad v. Evanish, 63 Tex. 54. (4) The objection to the question put to witness Hart, as to the condition of ground at Dewey switch in 1881, was properly overruled, because the only reason given for the objection was: "That the testimony is immaterial and irrelevant," which this court has repeatedly held is not such an objection as will be considered. See cases supra. Besides, the testimony as to the condition of the ravine in 1881 was admissible to show that it had been in that condition so long that defendant was likely to have notice of its dangerous condition. (5) The damages are not excessive. In an action for permanent injury to the person, the courts will not disturb the award of damages where the evidence tends to support the verdict. The verdict will not be set aside as excessive, unless the amount is so disproportionate to the injury as to evince prejudice or passion on the part of the jury. Merrill v. City of St. Louis, 12 Mo.App. 466; 2 Wood's Ry. Law, 1226, note 2, 1238; Dephe v. Railroad, 38 Iowa 592; Drain v. Railroad, 86 Mo. 583; Waldhier v. Railroad, 87 Mo. 48; Price v. Railroad, 71 Mo. 66; Harrold v. Railroad, 24 Hun. (N. Y.) 184; Sheehy v. Railroad, 32 Am. & Eng. R. R. Cases, 233. In assessing damages for personal injury the jury should consider the age, situation, bodily suffering and mental anguish of the person injured, and the loss sustained by him in consequence. Whalen v. Railroad, 60 Mo. 323.

Brace, J. Sherwood, J., absent; Barclay, J., concurs in the result.

OPINION

Brace, J.

Action for personal injuries. Damages laid at fifteen thousand dollars. Motion to require plaintiff to elect. Motion overruled. Answer, general denial. Demurrer to plaintiff's evidence. Demurrer overruled, and cause submitted to the jury on plaintiff's instructions and evidence, defendant offering none. Verdict for plaintiff for nine thousand dollars. Defendant appeals and urges for reversal: That the court erred in overruling the demurrer to the evidence; in admitting illegal evidence; and that the damages are excessive.

I. While the petition contained a good deal of superfluous and redundant matter that might have been stricken out on motion, the facts therein stated constituted but a single cause of action, in a single count, and there was no error in overruling the motion to elect.

II. The facts appearing in evidence are as follows: At the time plaintiff received the injuries of which he complains, there was at Dewey switch on the defendant's road, three or four miles west of Washington station, under the main track and switch and across the space of eight or ten feet between the tracks, a water way fifteen feet deep and eleven feet wide at the top, between rock walls uncovered between the tracks. On the morning of the twenty-ninth of April, 1884 the plaintiff shipped two car-loads of cattle from Montrose in Henry county to St. Louis, and took passage on the same train with the cattle to see to and take care of them. About nine p. m. the train stopped for supper at Chamois, a station about ninety miles west from St. Louis. After supper plaintiff boarded the train, and discovered after it had moved a short distance, upon inquiry of the conductor, that his cattle were not in the train. By mistake they had been left at Chamois. The conductor said there was a tank twelve or fifteen miles further on, the mistake might be discovered and his cattle sent in the second section and he had better get off and wait for it. The train stopped at the tank. He got off, boarded the second section when it came along, inquired of the conductor and found his cattle were not on that section. At the next station, the conductor wired the...