Hurt v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 20 February 1888
• Citation: 7 S.W. 1
• Court: Missouri Supreme Court
• Parties: HURT v. ST. LOUIS, I. M. & S. RY. Co.

7 S.W. 1

HURT v. ST. LOUIS, I. M. & S. RY. Co.

Supreme Court of Missouri.

February 20, 1888.

1. EVIDENCE — OPINION — PERSONAL EVIDENCE.

A question put to a parent, who sues for the loss caused by the injury of his child, as to what he thinks he has been damaged thereby, considering the value of his services until his twenty-first year, and the trouble and expense caused by the injury, should be excluded, as it called for an opinion of one who had not qualified as an expert upon facts of which the jury were equally competent judges.¹

2. CARRIERS — PASSENGERS — NEGLIGENCE.

An instruction that a railroad company is bound to exercise the strictest vigilance in carrying passengers to their destination, and in setting them down thereat, is erroneous.

3. NEGLIGENCE — COMPARATIVE — DOCTRINE IN MISSOURI.

The doctrine of "comparative negligence" is not recognized in Missouri.

4. DAMAGES — PERSONAL INJURIES — EXCESSIVE.

Where the evidence showed that a child, who had been seriously injured, would have rendered services from his tenth to his twenty-first year, of the value of $100 per year to his father, a verdict giving more than twice that amount to the latter is excessive; there being no foundation for punitive damages.²

Appeal from circuit court, Madison county; J. D. Fox, Judge.

Action by Samuel Hurt against the St. Louis, Iron Mountain & Southern Railway Company, for the alleged negligent injury of plaintiff's son, J. Henry Hurt. Judgment for plaintiff, and defendant appeals.

Bennett Pike, Wm. Carter, and H. G. Herbel, for appellant. J. E. F. Edwards, Moses Whybark, Mr. Emerson, and Cahoon & Cahoon, for respondent.

SHERWOOD, C. J.

Action by plaintiff for injuries received by his minor son, a boy about five years old, who was shaken from the front platform of a caboose, and run over by a car of the defendant, in consequence of the caboose being struck by the train from which it was detached, backing suddenly. The result of the accident was that one of the boy's legs had to be amputated just below the knee, as well as the toes of the other foot. The plaintiff, his wife, and four children, aged, respectively, one, five, seven, and ten years, took passage in the caboose of the defendant from Knob Lick to Fredericktown, their point of destination. When that point was reached, the conductor announced the station, the cars stopped, and other passengers got out, and while the plaintiff was on the front platform, and in the act of getting off with his wife and children, the collision occurred, with the consequences above stated. It seems that this collision or jar of the cars took place as the result of the trainmen making what is called a "running switch," and this was made after a signal had been given to "back up." As is usual in such cases, there was great conflict in the testimony; that of the plaintiff showing that not sufficient time was given after the train stopped to permit himself and family to alight, and that their employes were guilty of carelessness in backing the train; that of the defendant showing the exercise of care, and the giving of ample time for alighting; the different witnesses on either side fixing at from one half minute to some four or five minutes; that the caboose remained at a stand-still. The result of the trial was a verdict for the plaintiff for $4,500.

As the evidence was conflicting, the only points for discussion will be in reference to the admissibility of the testimony, the instructions, and the amount of the verdict. Of these in their order. While the plaintiff was testifying, his counsel drew his attention to the amount of his damage in the following way. "Now, then, having stated his incapacity for work, tell the jury, as near as you can, what, considering first the loss of his work until his twenty-first year of age, and the trouble and expense you have been at in caring for the child, and in the caring for him in the future, the amount you are damaged by reason of the injuries. State, if you can, how much you think you are damaged." Objection was made by the defendant's counsel to the witness making such statement, as requested, upon the ground that such estimate of the witness would be merely speculative, and not the proper measure of damages; but the objection was overruled, and the witness answered: "Well, from the loss of the child's work, and what I have lost myself, I claim damages, $5,000."

1. The objection was well taken, and should have prevailed. A witness not testifying as an expert, testifying merely as to matters with which the jury may well be supposed to be as conversant as himself, and as capable of drawing a correct conclusion, is not allowed to give an opinion. 1 Phil. Ev. 781, (Cow. & H. Notes;) Ramadge v. Ryan, 9 Bing. 335. The books are full of illustrations of this doctrine. Blair v. Railroad, 20 Wis. 262, is a case directly in point. A member of a mercantile firm had been injured by the negligence of a railroad company; the injury causing his enforced absence from the firm. It was ruled that his partner, testifying as a witness, could not be allowed to state his opinion as to the amount of damage the firm had sustained by reason of that absence. To the same point is Lincoln v. Railroad, 23 Wend. 424. Wherever the testimony sought to be elicited amounts to but matters of opinion as to the future, not of a present fact, it is inadmissible. Burt v. Wigglesworth, 117 Mass. 302. Here, the testimony drawn out of the witness as to the amount of his damage was merely speculative in its character, and the response that he made to his counsel was but a substitution of the judgment of the witness for the judgment of the jury, and virtually put him in their place. If the opinion sought is based on no evidence, it should be rejected; and, if properly founded upon evidence, that evidence ought to be laid before the jury; the law presuming that they are equally as capable to draw therefrom the correct inferences. Best, Ev. (Chamberlayne,) 497. A result similar to the one here announced, as to an opinion of a non-expert witness respecting damages, has been reached in Belch v. Railroad, 18 Mo. App. 80.

2. Now as to the instructions. The second one for the plaintiff was in this language: "No. 2. The court instructs the jury that defendant, as a railroad company, is responsible to passengers for the careless or negligent acts of its agents and servants employed by it, running or managing its trains, when such wrongful, careless, or negligent acts result in injury to such passengers, and are committed in connection with the business intrusted to them, and springing from or growing immediately out of such business; and that defendant, as such railroad company, is bound to exercise the strictest vigilance in carrying passengers to their destinations, and in setting them down safely thereat, and are responsible for want of care and foresight in doing it, and are amenable to the direct and immediate consequences of errors committed by it in so doing. If, therefore, the jury believe from the evidence in the cause that the caboose in which defendant transported plaintiff and his family, at the time referred to by the witnesses in this cause, was not allowed to remain standing still such reasonable and sufficient length of time...