McKeon v. Citizens' Ry. Co.

• Decision Date: 31 October 1867
• Citation: 42 Mo. 79
• Parties: EDWARD MCKEON, Respondent, v. THE CITIZENS' RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

42 Mo. 79

EDWARD MCKEON, Respondent,

v.THE CITIZENS' RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1867.

Appeal from St. Louis Circuit Court

The following instructions were given on behalf of the plaintiff: (The remaining instructions which figure in the case appear in the opinion of the court.)

1st. If you find that the defendant, at the time of the injury to the plaintiff, was a corporation and common carrier, and that plaintiff was a passenger for hire in a car of defendant, and that defendant at the time of the injury had but one agent or servant on said car, and that such servant was on the front platform driving the same, and that plaintiff came on to the front platform to have the car stopped in order to get off the car, and while being on said front platform was thrown overboard or off the car and under its wheels, by the least negligence, want of skill or prudence, on the part of defendant's agent in managing said car, and that plaintiff then and there exercised ordinary care and prudence as a passenger, then the jury should find for plaintiff.

3d. The degree of care required of the plaintiff is ordinary care, which means that degree of care which may reasonably be expected of a person in the plaintiff's situation; and if the plaintiff used ordinary or reasonable care, and suffered an injury from the negligence of the defendant, their agent or servant, then the jury will find for plaintiff.

5th. The jury are to determine as to the credibility of the witnesses, and should give to the evidence of each just such weight as they may think it is entitled to; and if they believe any witness in the cause has willfully sworn falsely, they may disregard all of his or her testimony.

7th. The fact that when the injury occurred the plaintiff was getting on or off the front end of the car does not relieve the defendant from liability, if the jury believe from the evidence that his so getting on or off was not from choice on his part, but was required by the misconduct of defendant, or any of its officers, servants, agents, or employees, while running the car, or by any rule adopted by defendant.

9th. Although the jury may believe that plaintiff was guilty of such carelessness or negligence as contributed to and brought about the injury done to him by the front wheel of the car, yet if the jury believe from the evidence that, after the injury by the front wheel was done, the car was stopped, and afterward defendant's driver, negligently, unskillfully, or recklessly, started the car and ran over the plaintiff's leg with the hind wheel, when but for such starting he might have been rescued by the bystanders without any injury from said hind wheel, then the defendant is liable to plaintiff for all damages done to him by the hind wheel.

Cline, Jamison & Day, for appellant.

I. The first instruction given for the plaintiff was erroneous and calculated to mislead the jury, and unsupported by any view of the evidence in the case (Huelsenkamp v. Citizens' R.R. Co., 34 Mo. 45.)

II. The sixth instruction given for the plaintiff was also erroneous. Punitory or exemplary damages should never be allowed in a case of this character. The weight of authority establishes the rule to be that, if the damages to the person be committed unintentionally, the award of the jury should be compensatory; but if the injury be willful and intentional, exemplary damages may be allowed. This instruction lays down a different doctrine, and permits the jury in all cases to yield to their prejudices against incorporated companies and saddle upon them ruinous verdicts, upon their interpretation of what is slight or gross negligence. The court should never permit a jury, by instruction in a civil case, to go beyond compensation, unless it found the defendant actuated by malice in its legal sense; that is, in the language of the books, “willfulness--a wrongful act done intentionally, without just cause.” (Goetz v. Ambs, 27 Mo. 28.)

III. The seventh instruction granted by the court for the plaintiff should not have been given. It contravenes the law, which is absolute, that no liability shall attach from any injury to a passenger in getting off or on the car at the front platform. The instruction states an exception to the law not found in its provisions. (Sess. Acts, 1860, p. 518, § 9; Taylor v. Carondelet, 22 Mo. 105; City of Carondelet v. Lannan, 26 Mo. 461; Huth's Adm'r v. City of Carondelet, 26 Mo. 466.)

IV. The ninth instruction was also incorrect. It admits that the carelessness and misconduct of the plaintiff placed him between the wheels of the car, and yet holds the defendant liable for any injury he may have received by the hind wheel, if the horses were permitted to start through the negligence of the driver, however slight the same may have been. According to all of the cases on this subject, if the party injured by his own negligence or unlawful conduct contributed directly to the injuries complained of, there can be no recovery.

Hudgins & Son, for respondent.

I. The record contains no exception or objection to the admission of evidence, and there is no record of the rejection of any; hence the assignment of error by the appellant, for the admission and rejection of evidence, cannot be considered by this court.

II. Common carriers are liable for the least degree of negligence where injury is sustained by a passenger who used ordinary care and prudence at the time to prevent the injury. This is all the first instruction, given by the court at the instance of the respondent, declares. It is an affirmation of a well-established rule of law, fixing the liability of a common carrier toward its passengers, as recently indorsed by this court in the case of Huelsenkamp v. Citizens' Railway Co. (37 Mo. 537; Stokes v. Solton et al., 13 Pet. 192; 16 How. 474; 13 Conn. 327; 42 Penn. St. 365; Redf. Rail. § 149; 13 Wend. 611; Ang. Corp. §§ 523, 568, and 570; 21 Conn. 565; 14 How. 486; 32 Penn. 292; Story on Rail. § 601; 16 Barb. 115-353; 1 Duer, 233; 18 N. Y. 408.)

III. The degree of care required of the plaintiff is ordinary care, which means that degree of care which may be reasonably expected of a person in the plaintiff's situation. And if the plaintiff used ordinary or reasonable care, and suffered an injury from the negligence of the defendant, he is entitled to recover his damages. This is the rule of law as declared in the plaintiff's third instruction and recently indorsed by this court in the case of Huelsenkamp v. Citizens' Railway Co. (See, also, 12 Cush. 177; 8 Gray, 79; 17 Barb. 94; 1 E. D. Smith, 36; 4 id. 21; Redf. Rail. § 150; 24 Verm. 487; 3 Ohio St. 172; 4 Ohio, 474; 19 Conn. 507; 1 Ad. & El., N. S., 422; 34 Mo. 59.)

IV. The fifth instruction asked by plaintiff was properly given by the court. (34 Mo. 59.)

V. It is a well-settled doctrine of the common law that a jury, in actions of trespass and tort, may inflict exemplary or vindictive damages upon a defendant, having in view the enormity of defendant's conduct rather than compensation to plaintiff. The sixth instruction given for plaintiff affirms this rule by declaring that if the negligence was gross, then the jury might give exemplary damage; otherwise they should only give compensation for actual injury. The instruction was properly given. (Stempson v. The Railroads, Wallace, Jr., R. 170; Sedg. on Dam., 3d ed., 490, 464; Question Reviewed, 10 Law Reporter, 49; Sanford v. Eighth Av. R.R., 23 N. Y. 343; 10 N. H. 130; Conrad v. The Pacific Ins. Co., 6 Peters. 272; Bride v. McLoughlin, 5 Watts, Penn. R., 375; Cheltham v. Tillotson, 3 Johns. 56; 14 Johns. 352; 15 Conn. 225, 267; 3 Scammon, 373; Tracy v. Swarbuort, 10 Peters, 81; 42 Penn. St. 365.)

VI. The seventh instruction given for the plaintiff simply negatives the assumption of the respondent that he had a perfect exemption from all liability for the injuries occurring on the front end of the car by virtue of the statute pleaded in bar of this action. If the defendant required the plaintiff to get on or off the front end, then they are liable, notwithstanding the statute of exemption. Or, if plaintiff was required to come on the front end by the agent, and was injured there, then they are liable. (Huelsenkamp v. Citizens' Railw. Co., 37 Mo. 537; 32 Barb. 657.)

VII. This court cannot interfere unless the damages are clearly excessive, even in a case where exemplary damages are inadmissible. (2 W. Black, 942; 3 Burr. 184; 4 T. R. 651; 5 Cow. R. 106; Graham N. T. 410 et seq.;5 Mason, 497.)

VIII. Removing from the cars of defendant, passengers who fail to pay their fare, is within the scope of the general employ of the agent of defendant, and they are liable for his wrongful acts in using unnecessary force and violence. (42 Penn. St. 369; 30 Law J. Exch. 189; 21 How. 202; 4 Gray 465; 6 Jurist, N. S., Pt. 2, p. 143.)

HOLMES, Judge, delivered the opinion of the court.

This was an action for damages for an injury done to a passenger by reason of the carelessness and negligence of the driver of the car. The answer denied the material averments of the petition, and alleged that the plaintiff's injuries were the result of his own negligence. It set up a defense also under the statute entitled “An act concerning street railroads in the city of St. Louis,” approved January 16, 1860. This act provided that “said railroad companies shall not be liable for injuries occasioned by the getting off or on the cars at the front or forward end of the car.”

We have examined the evidence in order to see upon what basis of facts the instructions were given or refused. It is not our province to weigh evidence or to determine the force or effect of conflicting testimony, but we may consider what the evidence on either side tended to prove, and what not. Instructions should be given or refused upon the case made by the evidence. Theoretical propositions, for which there is no proper foundation in the evidence, or which suppose a...