Loyd v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1873
• Citation: 53 Mo. 509
• Court: Missouri Supreme Court
• Parties: LYDIA M. LOYD, et al., Respondents, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

53 Mo. 509

LYDIA M. LOYD, et al., Respondents,

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Monroe Circuit Court.

James Carr, for Appellant.

I. There is no allegation in the petition that the respondent, Lydia M. Loyd, exercised proper care in attempting to alight from the coach in which she had been riding. This is an affirmative allegation, without which she was not entitled to recover. (Chicago, B. & Q. R. R. vs. Hazzard, 26 Ill., 373; Evansville R. R. Co. vs. Dexter, 24 Ind., 411; Indianapolis, P. & C. R. R. Co. vs. Keely's Admr. 23 Ind., 133; Gahagan, Admx. vs. Boston & Lowell R. R. Co., 1 Allen, 187.)

II. The respondent's evidence did not show that she exercised proper care in alighting from the coach. She stepped out from the train after it had moved half a car length. (Ohio & Mississippi R. R. Co. vs. Schiebe, 44 Ill., 460; Railroad Co. vs. Aspell, 23 Penn. St., 147; Damont vs. Carrollton R. R. Co., 9 La. An., 441; Lucas, Admr. vs. Taunton & New Bedford R. R. Co., 6 Gray, 64; Gavett vs. Manchester & Lawrenceburg R. R. Co., 16 Gray, 501; Gilman vs. Deerfield, 15 Gray, 577; Siner vs. Great Western Railway Co., 3 Exch. (Law) R., 150; Gahagan, Admr. vs. Boston & Lowell R. R. Co., 1 Allen, 187; Adams vs. Carlisle, 21 Pick, 146; Murphy vs. Deane, 101 Mass., 455; Wilds vs. Hudson River R. R. Co., 24 N. Y., 430.)

III. The court below should have set aside the verdict of the jury, on account of the misbehavoir of the respondent, Lydia M. Loyd, towards Miss Alice B. Johnson, whilst she was testifying for appellant. Miss Johnson had never been in court or testified before. She was young, modest, and easily embarrassed. The respondent's interruption did embarass her so much that she was unable to testify to all the facts material to the case, to which she could and would have testified to if she had not been interrupted. Her affidavit made since the trial shows this very clearly.

IV. The counsel for the respondents, Thomas L. Anderson, misbehaved in the closing argument to the jury. He made statements of facts and lugged in rumors in regard to other causes and matters in which the appellant was concerned, not relevant to the case, and not in evidence, which were not true, and which misled and prejudiced the jury.

During the argument by the respondents' counsel, the appellant's counsel requested the court to require the respondents' counsel to confine himself to the evidence. The court declined to interfere. (Tucker vs. Henniker, 41 N. H., 317; Mitchum vs. State of Georgia, 11 Ga., 629; Berry vs. State of Georgia, 10 Ga., 521.)

V. The court erred in not making the order for the examination of Mrs. Loyd, after she had refused to be examined. No medical man had testified in regard to the nature and extent of her injury at the time of the trial. There was no evidence before the jury as to her condition then.

There is certainly as much necessity for an examination in this case, or this kind of a case, as there was for the writ de ventre inspiciendo at common law, that a widow, claiming to be enciente by her deceased husband, should be viewed by twelve knights, and searched by twelve women, in the presence of the twelve knights, et ad tractandum per ubera, et ventrem inspiciendum. (Willoughby's case, 1 Croke, 566; 3 Black., 361; 2 Tidd's Pr., 795; 1 Dunlap's Pr., 601.)

George H. Shields, for Respondents, presented the following, among other points:

I. The novel proposition, that the court should require the plaintiff to submit to examination by two physicians of defendant's choosing, was properly overruled. There was no ground in law or reason for such a proposition and it could not be enforced.

II. Another point relied on to reverse is, that counsel for plaintiffs, in the closing argument to the jury, “lugged in rumors in regard to other cases and matters in which defendant was concerned not relevant to this case, and not in evidence, which were not true and which misled and prejudiced the jury.”

The court properly overruled the objection.

If ex parte affidavits of this kind made by a single witness would set aside a verdict, no verdict would ever be allowed to stand, and the jury system had better be abolished. The argument and conduct of the case is submitted to the nisi prius judge, and in matters of this sort his power is discretionary. (Hilliard's New Trials, 225, § 40; Hilliard's New Trials, 225, § 40; 227, §§ 45, 48, 50; Cobb vs. State, 27 Ga., 648; 2 Waterman on New Trials, 47 and cases cited.)

III. Another point relied on was “excessive damages.” Courts will not set aside a verdict on the ground of excessive damages, unless they are outrageously so, or there is reason to believe that there was passion, or prejudice, or corruption, on the part of the jury. (Hogg vs. Emerson, 11 How., 587; Wheaton vs. N. B. R. R. Co., 36 Cal., 590; Boyce vs. Cal. Stage Co., 25 Cal., 460; Russ vs. War Eagle, 14 Iowa, 363.)

The plaintiff remitted $1,500 of the verdict, leaving only $2,500, which is a reasonable sum for such injuries as plaintiff received.

IV. Appellant contends, that the petition does not aver, that plaintiff was in the “exercise of due care,” nor negative the idea of plaintiff's own negligence. This is not necessary. (Thompson vs. N. M. R. R. Co., 51 Mo., 190; Shearm. on Neg., 46; 11 Wis., 160; 5 Barb., 337; 18 N. Y., 248; 1 Hilton, 213; 5 Dutch., 548; 37 Ver., 50.)

NAPTON, Judge, delivered the opinion of the court.

This suit was to recover damages sustained by Mrs. Loyd in getting off the cars at Monroe City, where it is alleged the cars of defendant did not stop long enough to enable her and her child to get off with safety, and where, in her attempt to do so, she was thrown upon the platform of the station and injured, to her damage in the sum of 5,000 dollars.

It appears from the evidence; that the cars did not stop at Monroe City more than a minute; that when the signal was given, the plaintiff started with her child, and some bundles, for the door, and meeting some persons coming on the cars, could not immediately get down the steps, and before she could get off, the cars were in motion, and she jumped off and fell on the depot platform and was injured.

There was testimony in relation to the amount of injury Mrs. Loyd received, and the defendant moved that two respectable physicians and surgeons should examine her condition, but the court refused such examination.

The court instructed the jury, that if the plaintiff's child stepped from the train before it was in motion, and the plaintiff stepped off while it was in motion, but without delay, the plaintiff was entitled to recover.

The court also instructed the jury, that if time enough was allowed for the plaintiff to get off the cars, when the train arrived at Monroe City, the defendant was not liable, and that R. R. passengers, knowing that the train was in motion, were not entitled to recover for damages, if the train stopped a reasonable time.

The jury found a verdict for the plaintiff for $4,000, which was reduced on the suggestion of the judge, who tried the cause, to $2,500.

There was a motion for a new trial, assigning the usual reasons, and the additional ones that the damages were excessive, and that the plaintiff interrupted and embarrassed one of defendant's witnesses, so that the witness did not tell all she knew about the matter, and because the counsel for the plaintiff did not state all his points in his opening argument, and n his closing address made statements of facts outside of the evidence, which tended to mislead and prejudice the jury.

And in support of these latter grounds, affidavits were filed, n the part of the witness who was interrupted, and in regard o the details of the speech made by plaintiff's attorney.

There was also a motion in arrest of judgment, because the petition did not state facts sufficient to...