Logan v. Metropolitan Street Ry. Co.

• Decision Date: 02 July 1904
• Citation: 82 S.W. 126,183 Mo. 582
• Parties: LOGAN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

82 S.W. 126

183 Mo. 582

LOGAN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 2, 1904

Appeal from Jackson Circuit Court. -- Hon. Jas. H. Slover, Judge.

Affirmed.

John H Lucas for appellant.

(1) The court erred in admitting incompetent evidence on the part of plaintiff and in refusing to admit competent evidence on the part of defendant. (a) Hows cars passed over the switch coming from the Southwest boulevard. (Atley.) (b) As to condition after the accident. (Logan.) (c) Brightwell not in rebuttal. Bank v. Bank, 64 Mo.App. 253; Goble v Kansas City, 148 Mo. 470; Culbertson v Railroad, 140 Mo. 35; Day v. Railroad, 81 Mo.App. 471; Hansberger v. Railroad, 82 Mo.App. 566; Feary v. Railroad, 162 Mo. 75; Alcorn v. Railroad, 108 Mo. 901; Hipsley v. Railroad, 88 Mo. 354; Mahoney v. Railroad, 108 Mo. 200. (2) Manifest error was committed in giving instructions requested by plaintiff and refusing those asked by defendant. (a) Instruction 3 asked by the plaintiff. It is unsupported by the evidence, enlarges the issues, and is misleading, calculated to mislead and confuse the jury, not to assist them in the proper determination of the issues involved in the controversy. Bailey v. Railroad, 152 Mo. 449; Feary v. Railroad, 162 Mo. 101; Drumm-Flato v. Bank, 92 Mo.App. 333; Fitzgerald v. Hayward, 50 Mo. 516; Sawyer v. Railroad, 37 Mo. 240; Donohue v. Railroad, 83 Mo. 560; Greer v. Parker, 85 Mo. 107. (b) Instruction 4 asked by plaintiff. It charges the defendant with a degree of care not required by law, enlarges the issues between plaintiff and defendant, and is erroneous and misleading, and submits questions concerning which there is no evidence, and conflicts with those given for the defendant. In addition to all this it requires defendant to prove on its part a high degree of care in matters that in no wise contributed to the injury. Booth, Street Railways (1 Ed.), sec. 361; Clark v. Railroad, 127 Mo. 210; 2 Fetter, Carrier Passengers, sec. 480; Spencer v. Railroad, 17 Am. and Eng. R. R. Cas. (N. S.) 116; Railroad v. Burrow, 17 Am. and Eng. R. R. Cas. (N. S.) 683; Nellis, Surface Railroads, pp. 518-19; Hastings v. Railroad, 40 N.Y.S. 93; Hite v. Railroad, 130 Mo. 138; Feary v. Railroad, 162 Mo. 75; Waddingham v. Hulett, 92 Mo. 528; Barr v. Kansas City, 105 Mo. 560; Duke v. Railroad, 99 Mo. 351; Sawyer v. Railroad, 37 Mo. 257. (c) Instructions numbered 1 and 3 asked by the defendant and refused. There was no evidence on which to base a recovery and the court should have so instructed the jury. Nellis, Surface Railroads, p. 519; Hipsley v. Railroad, 88 Mo. 353; Hite v. Railroad, 130 Mo. 138; 2 Am. and Eng. Ency. Law (1 Ed.), 746; Powell v. Railroad, 76 Mo. 80. (d) Instruction 4 asked by the defendant and refused, ought to have been given. Surely it was proper for the jury to be instructed in what manner they might regard the evidence of the plaintiff. Feary v. Railroad, 162 Mo. 75; Erwin v. Railroad, 94 Mo.App. 297; O'Neill v. Blase, 94 Mo.App. 665; Holmes v. Leadbetter, 95 Mo.App. 425. (3) The court erred in overruling the motion for a new trial. Error was committed in refusing to sustain the demurrer to the evidence, in admitting and refusing to admit evidence, in giving and refusing instructions, and for the reason that the verdict should have been for the defendant, and not for the plaintiff. Authorities cited supra; Nellis, Surface Railroads, p. 519; Hipsley v. Railroad, 88 Mo. 353; Hite v. Railroad, 130 Mo. 138; Whitsett v. Ransom, 79 Mo. 260; Spohn v. Railroad, 87 Mo. 84; Garrrett v. Greenwell, 92 Mo. 125; Caruth v. Richardson, 96 Mo. 192; State v. Primm, 98 Mo. 373; State ex rel. v. Guinotte, 156 Mo. 521; May v. Crawford, 150 Mo. 521; Oglesby v. Railroad, 150 Mo. 224.

Cook & Gossett and W. Wallace Greene for respondent.

(1) (a) The testimony of the witness, Atley, as to the practice of defendant's employees in "jumping" and prying its cars over the point in the track or switch where the derailment occurred was withdrawn by the court from consideration by the jury, but this testimony was eminently proper as tending to show a bad condition of the track, including the switch. It could be so withdrawn. Winters v. Railroad, 39 Mo. 475; Stephens v. Railroad, 96 Mo. 207; Wright v. Gillespie, 43 Mo.App. 244; Anderson v. Railroad, 161 Mo. 420, approving Stephens v. Railroad, supra. The testimony was proper. Stoher v. Railroad, 105 Mo. 192; Railroad v. Putnam, 118 U.S. 545 (30 L.Ed. 257); Guttridge v. Railroad, 105 Mo. 527; Swadley v. Railroad, 118 Mo. 268. (b) The testimony of Logan, in describing the switch as it was on October 14, one week after the accident, was perfectly competent, especially in view of the testimony of defendant's witness, Simmons, to the effect that the switch was the same as it was on October 6, the date of the occurrence, and the testimony of other witnesses to the same effect. His testimony was not an opinion. Rose v. City, 152 Mo. 602; Guttridge v. Railroad, 105 Mo. 527; Swadley v. Railroad, 118 Mo. 273; State v. Buchler, 103 Mo. 207; State v. Robinson, 117 Mo. 649. (c) The testimony of Brightwell was proper in rebuttal. It tended to contradict affirmative propositions of defendant's witnesses, and, at all events, was admissible in the reasonable discretion of the court. Defendant did not ask a continuance or claim a surprise. Bailey v. Chapman, 41 Mo. 536; Burns v. Whelan, 52 Mo. 520; State v. Murphy, 118 Mo. 15; State v. Buchler, 103 Mo. 208; Jackson v. Railroad, 118 Mo. 199. (2) (a) Plaintiff's instruction 3 is strictly in accordance with the pleading and with the evidence and the law. The derailment of the car made out a prima facie case, but the jury were told not to find for the plaintiff if they found the defendant was not guilty of carelessness and negligence or that the plaintiff's injuries did not occur as a result of such carelessness or negligence. This instruction is a correct statement of the law as repeatedly enunciated by this court. Smith v. Railroad, 108 Mo. 243; Furnish v. Railroad, 102 Mo. 452; Olsen v. Railroad, 152 Mo. 426; Clark v. Railroad, 127 Mo. 208; Malloy v. Railroad, 173 Mo. 75; Shuler v. Railroad, 87 Mo.App. 624. It is the law in all English speaking states and countries. Gleason v. Railroad, 140 U.S. 435; 21 Am. & Eng. Ency. Law (2 Ed.), 512; Stokes v. Saltonstall, 13 Pet. 181 (10 L.Ed. 115). (b) Instruction 4 given at the request of the plaintiff is likewise a correct statement of the law as repeatedly decided by this court. Hulsenkamp v. Railroad, 37 Mo. 537; Sweeny v. Railroad, 150 Mo. 393; Furnish v. Railroad, 102 Mo. 438; O'Connell v. Railroad, 106 Mo. 482; Clark v. Railroad, 127 Mo. 197; Sharp v. Railroad, 114 Mo. 94. Every possible criticism, if any there be, urged against instruction 3 or against plaintiff's instruction 4 is nullified and corrected by defendant's instructions 5, 6, 7 and 8, as modified, and 9, 10, 11 and 14. If there is any inconsistency between plaintiff's 3 and 4, and these instructions of defendant, it is on the side of favor to the defendant, of which it can not complain. Johnson v. Railroad, 173 Mo. 316; Geisman v. Elec. Co., 173 Mo. 679; Chambers v. Chester, 172 Mo. 462; Bank v. Hatch, 98 Mo. 376; McGrew v. Railroad, 109 Mo. 582; Hughes v. Railroad, 127 Mo. 447; Perrette v. City, 162 Mo. 238; Smith v. Railroad, 108 Mo. 243; Anderson v. Railroad, 161 Mo. 427; Lemay v. Railroad, 105 Mo. 371; Grace v. Railroad, 156 Mo. 303; State v. Smith, 164 Mo. 567; Owens v. Railroad, 95 Mo. 181; Meadows v. Ins. Co., 129 Mo. 97. (c) Defendant's instruction 4 was properly refused as not being applicable to the evidence in the case or justified by it. All statements against a party's interest are not to be taken as true. It is only when they are material and not the result of honest mistake or error. Connor v. Railroad, 181 Mo. 397; Montgomery v. Railroad, 181 Mo. 477; Ephland v. Railroad, 137 Mo. 198; Dahlstrom v. Railroad, 108 Mo. 540; Culberson v. Railroad, 50 Mo.App. 563; 1 Am. & Eng. Ency of Law (2 Ed.), 724; Schafstette v. Railroad, 175 Mo. 156. (3) The court did not err in overruling appellant's motion for a new trial. On the contrary, the maintenance without a watchman of a switch in a road over which thousands of passengers are carried daily which a small boy and broomstick could dislocate and wreck human life and health, which accumulated dirt, rendering it likely to derail the cars, and which, unless properly blocked, could be thrown out of place by the hoof of a horse or by a wagon or buggy wheel, and which had been changed from an automatic to non-automatic operation, all as admitted by defendant's witnesses, should be held to justify a peremptory instruction to find for the plaintiff. Sadtler v. Lead & Zinc Co., 91 Mo.App. 574; Railroad v. Harris, 158 U.S. 326; Hughes v. Railroad, 127 Mo. 447; Fullerton v. Fordyce, 144 Mo. 519; Schmitz v. Railroad, 119 Mo. 256; Pinney v. Railroad, 71 Mo.App. 577; Rinard v. Railroad, 164 Mo. 270; Owens v. Railroad, 95 Mo. 180.

OPINION

BURGESS, J.

This is an action for seven thousand dollars damages for personal injuries alleged to have been sustained by plaintiff, a passenger upon defendant's cars, by reason of the carelessness and negligence of defendant, and, for one hundred and twenty-five dollars alleged to have been necessarily paid out, or by him become liable therefor, for drugs and the services of physicians in caring for and curing his said injuries.

The petition alleges that while plaintiff was at the time of said injury riding upon one of defendant's cars upon said line as a passenger for hire and for a valuable consideration, and while said car and line of road and track thereof were under the care, control and management and being operated by defendant, by...