Jones v. St. Louis-San Francisco Railways Co.

• Decision Date: 19 March 1921
• Citation: 228 S.W. 780,287 Mo. 64
• Parties: WILLIAM JONES, An Infant, By FRANK J. JONES, His Next Friend, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

228 S.W. 780

287 Mo. 64

WILLIAM JONES, An Infant, By FRANK J. JONES, His Next Friend, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 19, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Frank Landwehr Judge.

Reversed and remanded.

W. F Evans, E. T. Miller and A. P. Stewart for appellant.

(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested at the close of the whole case should have been given. (a) Plaintiff's evidence as to the manner in which he received his injuries is beyond belief and does not comport with either physical facts or laws. (b) The testimony of plaintiff's witnesses, Warmack and Cooper, that it was the duty of brakemen on defendant's freight trains to expel trespassers therefrom was based on their conclusions, and hence was incompetent and cannot support the verdict. Kane v. Railway, 251 Mo 44; Davidson v. Railway, 207 S.W. 277. The remaining evidence was not sufficient to show that the duties of defendant's brakemen included the ejection of trespassers from freight trains. This will not be presumed, but the authority of a brakeman in that behalf must be established aliunde the mere fact that he is a brakeman. Farber v. Railway, 116 Mo. 93; Krueger v. Railway, 84 Mo.App. 366; Marcum v. Railway, 139 Mo.App. 220. (c) Even if plaintiff's evidence could be said to be sufficient to raise a presumption that it was the duty of brakemen on defendant's freight trains to expel trespassers, and thus make out a prima-facie case, yet this presumption was overcome by positive evidence to the contrary, and since plaintiff then produced no positive testimony to disprove defendant's positive testimony, his prima-facie case falls. Guthrie v. Holmes, 217 Mo. 233. (2) Plaintiff's instruction on the measure of damages is erroneous. This instruction did not confine the jury to a consideration of the evidence in assessing the damages, but was a roving commission to the jury to assess the damages at such sum as, in their opinion, would fairly compensate plaintiff, without any regard whatever to the evidence. This error was not cured by any instruction given at the request of defendant. Ganz v. Railway, 220 S.W. 497. (3) The court erred in refusing to give defendant's requested instruction "C." Under the statute the facts set forth in an affidavit for a continuance shall, if the opposite party admits that the absent witness would, if present, swear to such facts, be read as the evidence of such witness. To give the moving party the benefit of such evidence which the statute bestows, the court should instruct the jury that such evidence is entitled to the same weight and credit they would give it if the witness were personally present and testified to the same facts before them. Sec. 1960, R. S. 1909. (4) The verdict was grossly excessive, and clearly the result of prejudice and passion on the part of the jury, and notwithstanding the remittitur forced by the court nisi, the judgment is still excessive. Chitty v. Transit Co., 166 Mo. 443; Stolze v. Transit Co., 188 Mo. 590; Nicholds v. Glass Co., 126 Mo. 68; O'Connell v. Railway, 106 Mo. 485; Brady v. Railroad, 206 Mo. 540; Johnson v. Coal Co., 205 S.W. 619; Newcomb v. Railroad, 182 Mo. 726; Lessenden v. Railroad, 238 Mo. 265; Greenwell v. Railway, 222 S.W. 410.

Earl M. Pirkey and Arthur Stahl for respondent.

(1) Appellant cannot complain of alleged error in respondent's instruction where he gives or requests an instruction containing the same thing. Smart v. Kansas City, 208 Mo. 204; Williams v. Elec. Co., 274 Mo. 14. (2) Testimony that brakemen customarily put off persons who were not entitled to be transported on freight trains, and this was done over a long period of time, will establish the brakeman's authority to eject persons who have no right to ride. Markham v. Railroad, 139 Mo.App. 220. (3) To show the authority of a brakeman to eject trespassers it is competent for a brakeman or conductor to testify what the duties of a brakeman are. Farber v. Mo. Pac. Ry. Co., 139 Mo. 279. (4) Defendant is liable for the acts of its brakeman if what he did was within the scope of the brakeman's employment. Droelshagen v. Railroad, 186 Mo. 266. (5) It is also said that defendant is liable for the acts of its employee "when done in the course of his employment." Farber v. Mo. Pac. Ry. Co., 116 Mo. 92; Gardner v. St. Louis Screw Co., 201 Mo.App. 358; Whiteaker v. Railroad, 252 Mo. 458. (6) The omission from an instruction of the cautionary requirement to find from the evidence or weight of the evidence is not reversible error. Ullrich v. Ry. Co., 220 S.W. 686; Zackwick v. Fire Ins. Co., 225 S.W. 139; Cody v. Gremmer, 121 Mo.App. 359; Compressed Air Co. v. Fulton, 166 Mo.App. 28; Logan v. Field, 192 Mo. 69; Strode v. Conkey, 106 Mo.App. 15; Rogers & Powers v. Warren, 75 Mo.App. 275; Baker v. Ry. Co., 52 Mo.App. 606. (7) It is improper to single out a witness and comment on a part of his evidence; for this reason the court properly refused appellant's instruction B. Landrum v. Railway, 132 Mo.App. 721; Huff v. Ry. Co., 213 Mo. 514; Quinn v. Railway, 218 Mo. 555; Zander v. Transit Co., 206 Mo. 461.

RAILEY, C. Mozley and White, CC., concur.

OPINION

RAILEY, C.

This action was commenced in the Circuit Court of the City of St. Louis, on August 20, 1917. The case was tried on the second amended petition, which states in substance, that plaintiff was a minor between twelve and fifteen years of age; that Frank J. Jones was appointed his next friend, qualified as such, and prosecutes this action in that behalf; that defendant is a railroad corporation and, in July, 1917, operated a line of railroad from Starland, in Perry County, Missouri, to St. Louis, in said State; that on or about July 17, 1917, at or near Crystal City, Missouri, plaintiff boarded one of defendant's freight trains on said road, bound for St. Louis; that while on said train, and while it was in rapid motion, one of defendant's servants in charge of said train did willfully, intentionally, wrongfully and maliciously threaten to strike plaintiff, and did strike him, whereby he was caused to fall from said train while it was in rapid motion, and one or more wheels of said train ran over, crushed, lacerated, tore and bruised plaintiff's left foot, so that the front half thereof had to be, and was amputated; that plaintiff's head, limbs and body were bruised; that his back was lacerated, torn and bruised, and plaintiff sustained a great nervous shock. "That said acts of said servant in charge of said freight train were within the scope of his employment and authority under defendant, and were done while he was undertaking to serve defendant pursuant to his said employment and while he was in the course of his employment under defendant; that by his injuries so sustained, plaintiff has suffered," etc. The petition concludes with a prayer for $ 20,000 actual damages and $ 10,000 punitive damages.

The answer is a general denial.

It appears from the evidence that plaintiff, who was about fourteen years of age, and two companions, Edward and William Hawver, about fifteen and thirteen years of age respectively, on July 17, 1917, were in Crystal City aforesaid, and were desirous of returning to St. Louis, Missouri, where they lived; that about 300 or 400 feet north of defendant's depot at Crystal City, a bridge was in course of erection over defendant's track; that about one o'clock on that day a north-bound freight train passed through Crystal City on its way to St. Louis; that plaintiff and the older Hawver boy, Edward, according to their testimony, got on this train from the west side, while it was in motion; that the younger Hawver boy did not get on the train, but ran along the side of same. Plaintiff testified, in substance, that he and his two companions were standing beside the track about fifteen feet north of the bridge when the train came along; that the train was running about fifteen or twenty miles an hour; that Edward Hawver got on the side of a car, near the engine, and plaintiff got on two cars behind him; that the smaller boy did not get on, but ran along by the side of the train; that plaintiff climbed on a box car by the iron hand-holds until he got within about two feet of the top of same; that he climbed about four or five of those steps before he was hurt. He testified "that the brakeman was on top of the car with a stick and he said, 'what are you doing there?' and he hit me with the stick, and I fell off;" that this man struck him on the left shoulder; that he did not know what the man hit him with, but it was about two feet long and looked like an axe handle; that he hit plaintiff hard, and knocked him off the train; that plaintiff fell on his back on the sand; that the latter slanted to the track; that plaintiff slipped under the train and his left foot was cut off; that the brakeman of that train struck him.

He further testified on cross-examination: "Q. How did you know that man was a brakeman on that train? A. I have saw them before."

He said the brakeman just hit him once; that he had ridden about 100 feet from where he got on the train.

Plaintiff was then taken to the office of Dr. Commerford, where his injuries were dressed.

Edward Hawver testified by deposition that "the three of us got on; we boarded the train. I was on a coal car near the middle of the train and the two other boys got on two cars back of me. I saw a brakeman on the train, and he told the boy to get off; hollered and told him to get off. The train was in motion when this was done; the freight train was running about fifteen or twenty miles an hour. I first knew that an accident had occurred when my brother...