Kleiber v. People's Ry. Co.
| Decision Date | 09 November 1891 |
| Citation | 17 S.W. 946,107 Mo. 240 |
| Parties | Kleiber v. The People's Railway Company et al., Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.
Affirmed.
Hitchcock Madill & Finkelnburg for the People's Railway Company appellant.
(1) The trial court erred in refusing this defendant's instruction of nonsuit, offered at the close of all the evidence. There was absolutely no evidence of negligence on the part of this defendant or any of its employes. Under the facts, as shown by the testimony, the case should not have been submitted to the jury. Maschek v. Railroad, 71 Mo. 276; Jackson v. Hardin, 83 Mo. 175; Hunt v. Railroad, 89 Mo. 607; Holman v. Railroad, 62 Mo. 562; Railroad v. Wallen, 65 Tex. 568. (2) The court erred in not setting aside the verdict as against this defendant (the People's Railway Company), because it was apparent, in view of the evidence before the jury and the instructions given them by the court, that the jury disregarded said instructions, and wholly disregarded the evidence in rendering a joint verdict against both defendants. The verdict as to this appellant was directly against the evidence and against the law as laid down by the court. Where the verdict is manifestly against the evidence and the instructions, the supreme court will interfere and reverse judgment. Ackley v. Slaehlin, 56 Mo. 558; Hearne v. Keath, 63 Mo. 84; Schmieding v. Young, 57 Mo. 78; Whitsett v. Ransom, 79 Mo. 258; Cary v. Railroad, 60 Mo. 209. The supreme court will grant new trial when verdict is so clearly against weight of evidence that it must have been the result of passion or prejudice. Hipsley v. Railroad, 88 Mo. 348. Though one witness denies facts stated by another, so that facts are not undisputed, appellate court is not prevented from interfering if disputed facts, even if proved, do not tend to support verdict. Douglas v. Orr, 58 Mo. 573. (3) The court erred in refusing this defendant's instructions, numbered 1, 2 and 3. They contain fundamental propositions of law governing cases of this kind and should have been given to the jury. (4) The court erred in permitting plaintiff and other witnesses to answer questions as to how other passengers acted and looked, and whether others in the car jumped, or changed their position. The question was whether this plaintiff acted properly, and this cannot be determined by showing the conduct of others. This testimony was incompetent and irrelevant. (5) The court erred in permitting witnesses to be asked how far the bell of the locomotive could be heard. This defendant had a right to rely on the proper management of the gates as a guide, and the court so instructed the jury. Speed v. Railroad, 71 Mo. 304. (6) Plaintiff's counsel erroneously influenced the jury by an argument not justified by the testimony. (7) The damages ($ 4,000) awarded by the jury in this case are manifestly excessive and indicate that the jury was prejudiced against the defendants. (8) The supreme court, on appeal, may reverse or affirm the judgment of the trial court, or give such judgment as it thinks the trial court should have given. It may also reverse a judgment as to one of two appellants and affirm it as to the other.
Bennett Pike for Missouri Pacific Railway Company, appellant.
Rassieur & Schnurmacher for respondent.
(1) When one is placed in a situation of peril by the negligence of another, his attempt to escape danger, even by doing an act which is also dangerous, and from which injury results, will not prevent a recovery, if the attempt was one, such as an ordinarily prudent person might make under the like circumstances. Beach on Contributory Negligence, p. 43; Whittaker's Smith on Negligence, p. 392, and note; Nelson v. Railroad, 68 Mo. 593; Twomley v. Railroad, 69 N.Y. 158; Buel v. Railroad, 31 N.Y. 314; Wilson v. Railroad, 26 Minn. 278; Stokes v. Saltonstall, 13 Pet. 181; Coal Co. v. Heater, 84 Ill. 126; Frink v. Potter, 17 Ill. 406; Karr v. Parks, 40 Cal. 188; Lund v. Inhabitants, 11 Cush. 563; Cook v. Parkham, 24 Ala. 21. (2) And the foregoing is the rule, even though the person would not have been injured at all, had he not made the attempt to escape the threatened danger. Twomley v. Railroad, 69 N.Y. 158; Buel v. Railroad, 31 N.Y. 314; Railroad v. Mowery, 36 Ohio St. 418; Wilson v. Railroad, 26 Minn. 276; Smith v. Railroad, 30 Minn. 169; Schultz v. Railroad, 44 Wis. 638; Gunz v. Railroad, 52 Wis. 672; Railroad v. Rhodes, 56 Ga. 645. (3) And the question in such case is not what a prudent person under ordinary circumstances would have done; for the shock, the suddenness of the emergency, the excitement and the influence of fear and terror should all be taken into account; cool presence of mind cannot be expected. Beach on Contributory Negligence, p. 44, and cases cited; Siegrist v. Arnot, 86 Mo. 200; Adams v. Railroad, 74 Mo. 553. (4) Therefore, what other persons did, or what they said by way of exclamation, may be given in evidence to show what may have been reasonably prudent under the circumstances. Twomley v. Railroad, 69 N.Y. 158; Railroad v. Fay, 16 Ill. 558; Railroad v. Ashcroft, 48 Ala. 15. (5) Both demurrers to the evidence were properly overruled. The record will disclose that the situation of peril from which plaintiff tried to free herself was brought about by the carelessness, as well of the watchman of the one defendant, as of the driver of the other. Where an injury is occasioned by the concurring negligence of two persons, the negligence of the one will be no defense to the other. The injured party may hold either, or both liable. Whittaker's Smith on Negligence, p. 31, and cases cited. (6) The instructions must be read together; and their meaning is not to be collected from detached instructions, or from phrases in them. If, when so treated, their meaning is obvious and the legal principles announced correct, they are safe guides for a jury, even though open to verbal criticism. State v. Mathews, 98 Mo. 125; Vinegar Co. v. Guggemos, 98 Mo. 391; Bank v. Hatch, 98 Mo. 376; Reilly v. Railroad, 94 Mo. 600; State v. Grayor, 89 Mo. 600. And when read together the instructions in this case placed the issues fairly before the jury. (7) The damages were not excessive. To determine them is peculiarly the province of a jury; this court has even refused to disturb the verdict where it would have been better satisfied had the amount been less. Whalen v. Railroad, 60 Mo. 323.
Hough & Hough, also, for respondent.
(1) The law does not require, in a case of this kind, that the apparently impending peril shall be a real peril; but if the defendants, by a combination or concurrence of confusing circumstances and threatening surroundings, brought about by them or either of them, calculated to produce a high state of mental excitement and terror in a reasonably prudent person, and apparently requiring instant decision and action on the part of plaintiff to escape personal injury therefrom, caused the plaintiff, acting as a reasonably prudent person, to perform an act, in so attempting to escape such apparently impending injury, productive of injury to himself, then the defendant or defendants, as the case may be, are liable for such injury. Stokes v. Saltonstall, 13 Peters, 181; Coal Co. v. Healer, 84 Ill. 126; Jones v. Boyce, 1 Stark. 402; Twomley v. Railroad, 69 N.Y. 158. (2) And if two carriers jointly contribute to produce such excitement and terror and consequent action on the part of plaintiff, then both are liable for the injury thereby occasioned. Flaherty v. Railroad, 39 Minn. 328. And the negligence of the carrier on which the plaintiff was a passenger will not be imputed to the plaintiff. Little v. Hackett, 116 U.S. 366; Becke v. Railroad, 102 Mo. 548. (3) Evidence of the action of the other passengers was competent as a part of the res gestae, and, also, as evidence of what was deemed prudent by those in the same situation having an interest to take the least, and avoid the greatest, hazard. Railroad v. Fay, 16 Ill. 558; Railroad v. Ashcraft, 48 Ala. 15; Twomley v. Railroad, 69 N.Y. 158. (4) The flagman should have closed the gate and prohibited the passage of all vehicles when he had notice that an engine was coming; and that he had notice is shown by his act in partially closing the gate, and his exclamation to "get out of there" and to "hurry up;" and he should not have partially closed the gate and then raised it, and told the driver to hurry up and go across. Peck v. Railroad, 50 Conn. 379. (5) The Missouri Pacific flagman owed only the duty of ordinary care to the People's railway, but the People's railway owed the duty of the highest possible degree of care to plaintiff; so that, even though the Missouri Pacific may have performed its duty of ordinary care to the People's railway, that would not constitute the performance by the People's railway of its duty of the highest degree of care to the plaintiff.
OPINION
IN BANC.
Plaintiff sued the defendants, the People's Railway Company and the Missouri Pacific Railway Company, jointly for $ 10,000 damages on account of personal injuries alleged to have been sustained by her, by reason of their negligence.
In June, 1887, the date of plaintiff's injuries, the defendant street railway company operated a horse-car line of street railroad along Fourth street, in the city of St Louis, and defendant, the Missouri Pacific Railroad Company operated a steam railroad along Poplar street and across Fourth street. At the Poplar street crossing of Fourth street, the steam railway company ...
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