184 S.W.2d 407
ROBERT DOWNEY JONES
GUY A. THOMPSON, Trustee of MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
Supreme Court of Missouri.
Division Two, December 4, 1944.
Rehearing Denied or Motion to Transfer to Banc Overruled January 2, 1945.
[184 S.W.2d 408]
Appeal from Circuit Court of City of St. Louis. — Hon. Harry F. Russell, Judge.
AFFIRMED (subject to remittitur).
Watts & Gentry for appellant.
(1) Plaintiff had a definite place assigned to him to ride in while engaged in his duties for his employer, the Express Agency. He had no right whatever to go into the mail storage car between his car and the engine. Under such circumstances defendant owed him no duty, except not to injure him willfully after discovering his position of peril. Fussellman v. Wabash Railroad Co., 139 Mo. App. 198; Scrivner v. Mo. Pac. Ry. Co., 260 Mo. 421; Wencker v. M., K. & T. Ry., Co., 169 Mo 592; Feeback v. Mo. Pac. Ry. Co., 167 Mo. 206; State ex rel. Vulgamoth v. Trimble, 253 S.W. 1014; C., R.I. & P. Ry. Co. v. Thorlow, 178 Fed. 894; C., R.I. & P. Ry. Co. v. Lee, 92 Fed. 318; Carroll v. The Interstate Rapid Trans. Co., 107 Mo. 653; Richmond v. Mo. Pac., 133 Mo. App. 463. (2) The proximate cause of plaintiff's injury was the closing of the sliding door of the mail storage car, which caught his hand between said door and the door jamb. Fussellman v. Wabash Railroad Co., 139 Mo. App. 198; Scrivner v. Missouri Pac. Ry. Co., 260 Mo. 421; Wencker v. Railway Co., 169 Mo. 592, 593; Feeback v. Mo. Pac. Ry. Co., 157 Mo. 206; State ex rel. Vulgamott v. Trimble, 253 S.W. 1014. (3) The result following the leaving of the door open and unfastened, to-wit, the catching of plaintiff's hand and injuring it, was, in view of the evidence, a result that was so unusual and so unexpected in the light of the experience of Haynie when he left the door open, that no man could be charged with negligence in failing to foresee any danger of injury to plaintiff because of such action on Haynie's part. For such unexpected results as cannot be reasonably foreseen by an ordinarily prudent person in the exercise of ordinary care, a defendant cannot be held liable. American Brewing Assn. v. Talbot, 141 Mo. 674; Ward v. Ely Walker Dry Goods Building Co., 248 Mo. 348, 154 S.W. 478; Mattingly v. Broderick, 36 S.W. (2d) 415; Lotta v. Kansas City Pub. Serv. Co., 117 S.W. (2d) 296; Mann v. Pulliam, 127 S.W. (2d) 426; Ray on Negligence of Imposed Duties, pp. 133, 134; Webb's Pollock on Torts (American Ed.), pp. 45, 46; Wecker v. Grafeman-McIntosh Ice Cream Co., 31 S.W. (2d) 974, 326 Mo. 451; Fuchs v. St. Louis, 167 Mo. 620; Jones v. Railway, 63 S.W. (2d) 94; Graney v. Railroad Co., 157 Mo. 666; Nelson v. Heinz Stove Co., 8 S.W. (2d) 918; State ex rel. v. Lusk, 271 Mo. 463. (4) The starting of the engine with the mail storage car and plaintiff's express car faster than usual and without warning, to plaintiff was in no sense a proximate cause of his injury, and therefore affords no ground for recovery. State ex rel. Trading Post v. Shain, 116 S.W. (2d) 99; Henry v. First Natl. Bank, 115 S.W. (2d) 121; Wecker v. Grafeman-McIntosh Ice Cream Co., 31 S.W. (2d) 974; Warner v. Railway, 178 Mo. 134; Harper v. St. L. Mer. Bridge Term. R. Co., 187 Mo. 575. (5) Plaintiff's description of the stop made when he was thrown in the mail storage car so that his hand was placed on the door jamb to support himself was insufficient to establish negligence and would have been insufficient even if he had been a passenger on that car. Guffey v. Hannibal and St. J. Ry. Co., 53 Mo. App. 462; Portucheck v. Wabash Railroad Co., 101 Mo. App. 52. (6) Plaintiff was guilty of contributory negligence as a matter of law, as shown by his own evidence, in going to a portion of the train which was not provided for his carriage, where he had no duty to perform and where he had no right to be. Fussellman v. Wabash Railroad Co., 139 Mo. App. 198; Scrivner v. Mo. Pac. Ry. Co., 260 Mo. 421; State ex rel. Vulgamott v. Trimble, 253 S.W. 1014; Wait v. O., K.C. & E.R. Co., 165 Mo. 612. (7) The damages assessed by the verdict of the jury are grossly excessive. Guidice v. Viviano Bros. Mfg. Co., 9 S.W. (2) 964; Schuler, Admr., v. St. Louis Can Co., 18 S.W. (2d) 42; Wagner v. Gilsonite Const., 220 S.W. 890; Hulse v. St. Joseph R. Co., 214 S.W. 150; Simon v. St. L. Brass Co., 250 S.W. 24; Gordon v. Muehling Pckg. Co., 40 S.W. (2d) 692; Parks v. U.P. Co., 235 S.W. 1067; Rose v. St. L. & San Francisco R. Co., 289 Mo. 913; Leighton v. Davis, 260 S.W. 986; Schroeder v. Wells, 298 S.W. 806.
Mark D. Eagleton, James A. Waechter and Roberts P. Elam for respondent.
(1) Plaintiff, in the performance of his work on defendant's trains, occupied the status of a passenger, and, at the time of his injury, continued to occupy that status notwithstanding that he was then in the mail car. His being in the mail car was not voluntary and without reasonable excuse or necessity on his part, but was induced and impelled by defendant's wrongful conduct in failing to afford him a reasonable opportunity to get out of his express car and into the one behind it in order to continue with his work, as his duty required. His status as a passenger could not be converted into that of a mere licensee or trespasser by such wrongful conduct on the part of defendant. 13 C.J.S., p. 1053, sec. 548; Magoffin v. Mo. Pac. R. Co., 102 Mo. 540, 15 S.W. 76; Mellor v. Mo. Pac. R. Co., 105 Mo. 455, 16 S.W. 849; Jones v. St. Louis S.W.R. Co., 125 Mo. 666, 28 S.W. 883; Bond v. St. Louis-S.F.R. Co., 288 S.W. 51; Lasater v. St. Louis, I.M. & S.R. Co., 177 Mo. App. 534, 160 S.W. 818; Farmer v. St. Louis, I.M. & S.R. Co, 178 Mo. App. 579, 161 S.W. 327; Graves v. Missouri Pac. R. Co., 342 Mo. 542, 118 S.W. (2d) 787; Berry v. Mo. Pac. R. Co., 124 Mo. 223, 25 S.W. 229. (2) There was ample, competent and substantial evidence that defendant negligently managed and operated the switch engine and cars by bringing them to a sudden, violent and unusual stop. Plaintiff was qualified by his experience and observation to describe and characterize the nature of the stop made, and his testimony that the stop was "sudden, violent and unusual" was substantial evidence as to the nature and character of the stop. Furthermore, plaintiff's testimony in this connection was corroborated by testimony of defendant's trainmen and by specific physical facts in evidence. Meyers v. Wells, 273 S.W. 110; Laycock v. United Rys. Co., 290 Mo. 344, 235 S.W. 91; Robert v. New York Central R. Co., 122 S.W. (2d) 1; Dunn v. Alton R. Co., 88 S.W. (2d) 224; Rhodes v. Mo. Pac. R. Co., 213 Mo. App. 515, 255 S.W. 1084; Daniels v. St. Louis, I.M. & S.R. Co., 181 S.W. 599; Farmer v. St. Louis, I.M. & S.R. Co., 178 Mo. App. 579, 161 S.W. 327; Brown v. Winwood Amusement Co., 225 Mo. App. 1180, 34 S.W. (2d) 149. (3) The proximate cause of plaintiff's injury was defendant's negligent stopping of the switch engine and cars in a sudden, violent and unusual manner, because: Absent that negligence of defendant, plaintiff would not have been injured. Kimberling v. Wabash R. Co., 337 Mo. 702, 85 S.W. (2d) 736. (4) The negligence of defendant being established, defendant is liable for all consequences directly resulting therefrom, even though the particular injury might not have been foreseen. Since defendant's switch crew knew (actually or constructively) of the presence of persons in the cars, it cannot be said that injury to some one or more of such persons could not have been foreseen as the natural and probable consequence of such negligence. Graney v. St. Louis, I.M. & S.R. Co., 140 Mo. 89, 41 S.W. 246; State ex rel. Emery, Bird, Thayer D.G. Co. v. Shain, 348 Mo. 650, 154 S.W. (2d) 775; Gray v. Kurn, 345 Mo. 1027, 137 S.W. (2d) 558; Mrazek v. Terminal Railroad Assn., 341 Mo. 1054, 111 S.W. (2d) 26; Freeman v. Terminal Railroad Assn., 341 Mo. 288, 107 S.W. (2d) 36. (5) Plaintiff was not, as a matter of law, guilty of contributory negligence — i.e., a lack of ordinary care on his part which directly contributed to his injury — in going into, or being in, the mail car. Fish v. Chicago, R.I. & P.R. Co., 263 Mo. 106, 172 S.W. 341; Lincoln v. St. Louis-S.F.R. Co., 223 Mo. App. 46, 7 S.W. (2d) 460; Cento v. Security Building Co., 99 S.W. (2d) 1; Graves v. Mo. Pac. R. Co., 342 Mo. 542, 118 S.W. (2d) 787; Berry v. Mo. Pac. R. Co., 124 Mo. 223, 25 S.W. 229; Wagner v. Mo. Pac. R. Co., 97 Mo. 512, 10 S.W. 486. (6) Damages for injury to the person cannot be definitely or exactly measured in money, and what constitutes a reasonable award for any particular injury must rest largely in the discretion of the jury. O'Brien v. Vandalia Bus Lines, 173 S.W. (2d) 76. (7) Appellate courts should not disturb findings of the jury on the measure of damages, unless it is manifest from the record that the verdict is "grossly excessive." Plater v. Kansas City, 334 Mo. 842, 68 S.W. (2d) 800; Crockett v. City of Mexico, 336 Mo. 145, 77 S.W. (2d) 464; McNatt v. Wabash R. Co., 341 Mo. 516, 108 S.W. (2d) 33; Mickel v. Thompson, 348 Mo. 991, 156 S.W. (2d) 721. (8) When considered in the light of awards held not excessive for similar injuries and losses, the verdict and judgment in the case at bar is not "grossly" — i.e., conspicuously, outrageously, shockingly, and out of all measure — excessive. Schroeder v. Wells, 298 S.W. 806; Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W. (2d) 693; Mattice v. Terminal Railroad Assn., 270 S.W. 306; Dodson v. Otis Elevator Co., 324 Mo. 1147, 26 S.W. (2d) 942.