Johnston v. St. Louis & San Francisco Railroad Company

• Citation: 130 S.W. 413,150 Mo.App. 304
• Parties: JOSEPHINE JOHNSTON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Decision Date: 12 July 1910
• Court: Court of Appeal of Missouri (US)

130 S.W. 413

150 Mo.App. 304

JOSEPHINE JOHNSTON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 12, 1910

Appeal from Franklin Circuit Court.--Hon. R. S. Ryors, Judge.

Judgment affirmed.

W. F Evans and Mann, Johnson & Todd for appellant.

(1) If the injury may have resulted from one of the two causes, for one of which and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture, the plaintiff must fail in this action. Warner v. Railroad, 178 Mo. 125; Browning v. Railroad, 106 Mo.App. 729; Goransson v. Mfg. Co., 186 Mo. 300; McGrath v. Transit Co., 197 Mo. 97; Purcell v. Shoe Co., 187 Mo 276; Caudle v. Kirkbridge, 117 Mo.App. 412. (2) Plaintiff's evidence showed that the vestibule of the car was amply light at the time of the alleged accident; that the deceased had good eyesight; that if the vestibule door was open at the time he could easily have seen that it was open. Under this state of facts, the court should have decided as a matter of law, upon plaintiff's own showing, that she could not recover, and it was error to submit the case to the jury. Davis v. Railroad, 159 Mo. 1; Loring v Railroad, 128 Mo. 359; Evans v. Railroad, 178 Mo. 508; Clancy v. Transit Co., 192 Mo. 615; McGrath v. Transit Co., 197 Mo. 97; Brockschmidt v. Railroad, 205 Mo. 435. (3) Instruction number four given on behalf of plaintiff is in conflict with the instruction given on behalf of defendant. Where two separate instructions are directly in conflict, the fact that one is correct does not cure the other, since the court cannot say by which instruction the jury was guided. Sheperd v. Transit Co., 189 Mo. 362; Porter v. Railroad, 199 Mo. 82; Hamilton v. Railroad, 114 Mo.App. 504; Oil Co. v. Drug Co., 74 Mo.App. 446. (4) Instruction number four given on behalf of plaintiff was erroneous, for the further reason that it closed by telling the jury that if said injuries would not have been received by plaintiff (deceased) but for said negligence, then said negligence was the proximate cause of the injury to deceased, and his consequent death. Moffatt Com. Co. v. Railroad, 113 Mo.App. 544; Lamar Mfg. Co. v. Railroad, 117 Mo.App. 453; Porter v. Railroad, 199 Mo. 97; Warner v. Railroad, 178 Mo. 134. (5) Instruction number five given at the request of plaintiff was erroneous, in that the court practically tells the jury that if there is evidence in the case from which they can fairly and reasonably infer that said vestibule doors were permitted to stand open and that the deceased fell through same on defendant's right of way, then the jury are bound to draw that inference. Copp v. Hardy, 32 Mo.App. 593; Winter v. Sup. Lodge K. of P., 96 Mo.App. 1. (6) Instructions numbers 2 and 3, given at the request of plaintiff, are erroneous, in that they give to the jury an erroneous measure of damages; that is, they tell the jury that they may take into consideration the age of deceased, his probable expectancy of life, his occupation, his ability to labor, and his accustomed earnings, but they fail to tell the jury that they should take into consideration the one point which is all important, that is, the amount which plaintiff lost by reason of the death of deceased, i. e., the amount he contributed to her support. Knight v. Lead & Zinc Co., 75 Mo.App. 541.

Silver & Dumm and J. W. Booth, for respondent.

(1) It was a question for the determination of the jury whether or not permitting the vestibule doors of the car to remain open while the train was in motion was an act of negligence on defendant's part. Wagoner v. Railroad, 118 Mo.App. 239; Railroad v. Oliver, 123 S.W. 662 (Sup Ct. Ark., decided December 6, 1909); Bronson v. Oakes, 76 F. Rep. 735; Crandall v. Railroad, 96 Minn. 434; 2 Shearman & Redfield on Negligence (5 Ed.), sec. 524; 4 Elliott on Railroads (2 Ed.), sec. 1509a. (2) It was also a question for the jury under the evidence whether the vestibule doors of the smoker were open when deceased left the train and whether he fell through the open door, and thereby met his death. Younge v. Railroad, 133 Mo.App. 141; Buesching v. Gas Light Co., 73 Mo. 219; Schultz v. Moon, 33 Mo.App. 329; Leeright v. Ahrens, 60 Mo.App. 118; Soeder v. Railroad, 100 Mo. 673; Railroad v. McDade, 191 U.S. 64. Where a status or condition is shown to exist, it will be presumed to continue until the contrary is shown. Cargill v. Wood, 63 Mo. 501; Diel v. Stegner, 56 Mo.App. 535. The defendant did not produce as a witness, Reed, the colored porter on its porter on its train, who was shortly before the trial in its service and who presumably knew whether or not the vestibule doors were permitted to remain open, nor did defendant offer any explanation of its failure to have said witness at the trial. The foregoing facts raised a strong presumption that the evidence of the porter would have been damaging to defendant. Tinsley v. Railroad, 104 N.Y.S. 916; Hicks v. Railroad, 62 N.Y.S. 597; Schiner v. Railroad, 90 N.Y. 558; Railroad v. Wall, 75 Ga. 282; Railroad v. Darnell, 68 N.E. 609 (Ind.); Peltz v. Eichele, 62 Mo. 171; Blatch v. Archer, 1 Cowper 63 (Lord Mansfield). The presumption that deceased did not commit suicide or intend selfdestruction obtains in the absence of evidence to the contrary, as is the case here. Buesching v. Gas Light Co., 73 Mo. 219; Meadows v. Ins. Co., 129 Mo. 76; Smiley v. Railroad, 160 Mo. 636. It was sufficient for plaintiff in making out her prima facie case to prove circumstances which indicated that the fall of the deceased from the train might be ascribed with reasonable probability to the causes stated in the petition. Youngue v. Railroad, 133 Mo.App. 149. See, also, Cambron v. Railroad, 165 Mo. 543; Lead Co. v. Railroad, 123 Mo.App. 402; Winter v. Sup. Lodge, 96 Mo.App. 13; Marshall v. Ins. Co., 43 Mo. 586; Banking Co. v. Blell, 57 Mo.App. 410; Duerst v. Stamping Co., 163 Mo. 607; Dakan v. Mercantile Co., 197 Mo. 238; Chemical Co. v. Lime Co., 85 Mo.App. 667; Anderson v. Railroad, 196 Mo. 443; Knapp v. Hanley, 108 Mo.App. 353; Weiler v. Railroad, 6 N.Y.S. 322; Kern v. Snider, 145 F. Rep. 329; Conner v. Railroad, 181 Mo. 411; Root v. Railroad, 195 Mo. 350; People v. Donohue, 100 N.Y.S. 202; Tayson v. Wilson, 37 Mo.App. 640; 1 Greenleaf Ev., sec. 1. (3) The evidence being conflicting on the question whether or not the vestibule of the smoker was lighted, that issue was one for the jury. Buesching v. Gas Light Co., 73 Mo. 219; Frick v. Railroad, 74 Mo. 595. Nor would the fact that the vestibule platform was lighted so that deceased could see that the vestibule doors were open, necessarily preclude plaintiff's recovery in this case as a matter of law. City of Naples, 32 U. S.Ct. of App. 613; Anderson v. Railroad, 161 Mo. 429; Buesching v. Gas Light Co., 73 Mo. 232. Besides, the defendant having asked, by an instruction given at its request, the judgment of the jury on the sufficiency of the light in the vestibule platform of the car and on that feature of the case, cannot now be heard to complain that such issue was submitted to the jurors. Berkson v. Cable Co., 144 Mo. 212; Gayle v. Foundry Co., 177 Mo. 426. (4) Nor is there any basis for the contention that instruction number 4, given for plaintiff is inconsistent with the one given for defendant in the matter of light on the vestibule platform of the car in question. Defendant's answer consisted merely of a general denial; it did not interpose any defense to the effect that the platform was sufficiently lighted for deceased to see the open door, and that for that reason deceased was guilty of contributory negligence in going out on the platform and falling through the open door, which precluded plaintiff's recovery as a matter of law. Contributory negligence should be pleaded to be available as a defense. Wise v. Transit Co., 198 Mo. 546, p. 558. The instruction as asked by defendants and as given did not correctly state the law, for the mere fact that there was sufficient light on the platform to enable deceased to see that the vestibule door was open, did not preclude plaintiff's recovery in this case regardless of the question of fact whether or not deceased was at the time using ordinary care and of all the other circumstances in evidence. Buesching v. Gas Light Co., 73 Mo. 232; Anderson v. Railroad, 161 Mo. 429. Appellant cannot profit by an erroneous instruction given in its behalf, however inconsistent it may be with a proper instruction given for respondent. Sprague v. Sea, 152 Mo. 327; Reardon v. Railroad, 114 Mo. 385. It is now the established rule in this state that in actions for injuries caused by negligence, an instruction is not erroneous which authorizes a recovery on the facts mentioned in it, without reference to plaintiff's contributory negligence where the latter is submitted to the jurors in a separate instruction. Owens v. Railroad, 95 Mo. 169; Hughes v. Railroad, 127 Mo. 447; Lange v. Railroad, 208 Mo. 458; Meily v. Railroad, 215 Mo. 567; Mathew v. Railroad, 115 Mo.App. 468. (5) Instruction number 5, given at plaintiff's request, properly stated the law, and the objections made to it by defendant are not well taken. Settle v. Railroad, 127 Mo. 336; Yongue v. Railroad, 133 Mo.App. 141. (6) Plaintiff's first instruction stated the law correctly as to the measure of care required of defendant as a common carrier of passengers. Furnish v. Railroad, 102 Mo. 438; Sweeney v. Cable Co., 150 Mo. 401; Mathew v. Railroad, 115 Mo.App. 468. The definition of proximate cause in plaintiff's instruction number 4 is not erroneous. Dean v. Railroad, 199 Mo. 411; Hoepper v. Hotel Co., 142 Mo. 378; Harrison v....