Miller v. St. Louis R.R. Co.

• Decision Date: 09 April 1878
• Citation: 5 Mo.App. 471
• Parties: J. M. MILLER, Respondent, v. ST. LOUIS RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

5 Mo.App. 471

J. M. MILLER, Respondent,

v.ST. LOUIS RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 9, 1878.

1. It will not be held to be negligence per se to expose the elbow to some extent from the window of a street-car drawn by horses on a track laid upon the streets of a city. What is ordinary prudence, as to the position to be assumed by a passenger in such a car, cannot be determined by any arbitrary rule.

2. Negligence of plaintiff, if a remote condition of the accident, will not relieve defendant of the consequences of negligence on his part which is the efficient cause of the injury.

3. Under a general allegation of negligence, it is error to admit evidence or give an instruction as to the general condition of the tracks of defendant's railroad.

4. Had the pleading been amended in this respect, evidence of the condition of the track at another time and place than that of the accident would still be incompetent.

5. It is error to instruct the jury that, if plaintiff's elbow was outside the car window, and the conductor did not warn him of his danger, and his arm was injured by the cars running too close together, while going in opposite directions on parallel tracks, they will find for plaintiff.

6. Where that which causes the accident is under the management of the carrier, and the accident such as would not ordinarily happen, the accident, if unexplained, is reasonable evidence of negligence; but where, from the character of the accident, it appears that it could not have happened without improper exposure on the part of the passenger, it does not raise the presumption of negligence.

7. In a damage suit, the fact that the jury arrived at the measure of damages by dividing by twelve the aggregate of the several amounts which each had privately jotted down, is not a ground for a new trial, where the amount thus ascertained is freely assented to by each juror.

8. The testimony of the jurors will not be admitted to impeach their verdict.

9. The rules of the St. Louis Circuit Court adopted by general term are subject to the discretion of the judges at special term, and the Court of Appeals will not review the discretion of the trial court in permitting a bill of exceptions to be signed and filed beyond the time limited by its own rules, if done within the time prescribed by statute.

10. Where the character of a witness for truth is indirectly attacked on cross-examination, and by evidence of contradictory statements made by him, it is competent for the party calling him to give evidence of his general good character.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

SMITH P. GALT, for appellant: Equivocal words, and such as are ambiguous and calculated to mislead, should not be used in instructions.-- Bank v. Lonergan, 21 Mo. 46; Belt v. Goode, 31 Mo. 128; Buel v. Transfer Co., 27 Mo. 564; Edmunds v. Railroad Co., 3 Mo. App. 603. When an instruction enumerates certain facts in the case, and is decisive of the case, it must embrace all the material facts bearing upon the point involved.-- Clark v. Hammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Railroad Co., 37 Mo. 240. It was negligence per se, directly causing the injury, for plaintiff to have his arm out of the car window.-- Todd v. Railroad Co., 3 Allen, 18; 7 Allen, 207; Holbrook v. Railroad Co., 12 N. Y. 236; Railroad Co. v. Rutherford, 29 Ind. 82; Railroad Co. v. McClurg,56 Pa. St. 294; Railroad Co. v. Andrews, 39 Md. 329; Railroad Co. v. Sickings, 5 Bush, 5. Contradiction among witnesses examined in court supplies no ground for admitting general evidence as to character.--1 Greenl. on Ev. (12th ed.), sec. 469; The People v. Hulse, 3 Hill, 309; Starks v. The People, 6 Denio, 106; Russell v. Coffin, 8 Pick. 154; Bishop of Durham v. Beaumont, 1 Camp. N. P. 207.

REESE & HICKS and DRYDEN & DRYDEN, for respondent: Appellant's bill of exceptions was presented out of time, and was improperly allowed.--Wag. Stat. 1043, secs. 27, 28; Smith v. Pollock, 58 Mo. 161; Mentsing v. Railroad Co., 64 Mo. 25; Riddlesberger v. McDaniel, 38 Mo. 138; Howes v. Holmes, 2 Mo. App. 81; Hoffelman v. Frank, 52 Mo. 542; Dale v. Patterson, 63 Mo. 98; Wright v. Shea, 55 Mo. 70; The State v. Smith, 44 Mo. 112; Tilford v. Ramsey, 43 Mo. 410; 56 Mo. 503. The affidavits or testimony of jurors will not be admitted or considered to show misbehavior of the jury in regard to their verdict, or to impeach the same.-- The State v. Underwood, 57 Mo. 40; McFarland v. Bellemo, 49 Mo. 371; The State v. Carpenter, 39 Mo. 430; Sawyer v. Railroad Co., 37 Mo. 263. Even if admissible, the affidavits in this case show no misconduct on the part of the jury.-- Dorr v. Fenno, 12 Pick. 521; Cowperthwaite v. Jones, 2 Dall. 55; Heath v. Conway, 1 Bibb, 398. Testimony of the witness's character was properly admitted.-- The State v. Hamilton, 55 Mo. 523; The State v. Breden, 58 Mo. 507; 1 Greenl. on Ev., secs. 461, 469; Stark. on Ev. (6th ed.) 186; Paine v. Tilden, 20 Vern. 554; The State v. Rowe, 12 Vt. 93; Isler v. Demey, 71 N. C. 14.

BAKEWELL, J., delivered the opinion of the court.

This action is for damages for injuries suffered by plaintiff whilst a passenger on one of the street-cars of defendant. The allegations of the petition are that, by the negligence, imprudence, unskilfulness, and carelessness of the agents and employees of defendant, a car on defendant's road, in charge of defendant's servants, collided with and raked against the car of defendant in which plaintiff was being carried, and broke his arm and otherwise injured him, to his damage $10,000. The answer is a general denial.

There was evidence tending to show that plaintiff, at the time of the accident, was sitting in the car with his elbow and arm on the window-sill, and his wrist and hand outside, grasping the frame of the window; that the car passing in the opposite direction rubbed against the car in which plaintiff was sitting, mashed his hand, drove his arm back, and broke it above the elbow. Plaintiff suffered intensely, carried his arm in splints for three months, was still suffering, at times, at the date of the trial, and his arm is permanently injured, so that plaintiff, who is a farmer and stock-dealer, is permanently disabled from doing hard work, such as is required on a farm. There was testimony that the track was in bad condition at the place where the accident occurred, and elsewhere.

There was also testimony tending to show that plaintiff had his elbow outside the window at the time of the occurrence; that the car did not collide, or touch; that the track was in good condition at the point of accident. There is no direct testimony that either of the cars was off the rails at the time of the accident. A passenger swears that he warned plaintiff, before the accident, to take his arm in. Plaintiff says he heard no such warning. The plaintiff's statements as to his position in the car are corroborated by the conductor and a passenger, and are contradicted by a passenger. There was a verdict and judgment for plaintiff for $1,908.25, and defendant appeals.

1. It is contended by respondent that the bill of exceptions was presented out of time, and improperly allowed. It appears that the cause was tried at the December term, and that, on January 22 of that term, the judge announced that the motion for a new trial would be overruled; and then, by consent of parties, suspended the entry of judgment until the next term, in order to allow time to prepare the bill of exceptions. The entry that the motion for a new trial was overruled was made on February 5, and at the February term; and then, against the objection of respondent, the court granted appellant, on February 9, time until March 1 (a day of the February term) to prepare his bill of exceptions. On February 22, appellant handed his bill of exceptions to respondent, who then protested that it was out of time under the rule of court; and on February 24, the trial judge sealed the bill, against the objection of respondent, who insisted that such action was in violation of the sixteenth rule of the Circuit Court, adopted at general term, and then in force and binding upon the court at special term. This rule provides that the bill of exceptions shall be presented to the opposite party within five days after the motion is overruled, who shall return the same within three days.

A bill of exceptions must be signed during the term at which the cause is finally disposed of, unless this is waived by stipulation filed, or by entry of record. This is a settled rule of practice from which no departure is allowed in this State. But we have already decided ( Saulsbury v. Alexander, 1 Mo. App. 209) that we will not review the discretion of the Circuit Court in permitting a bill of exceptions to be signed and filed beyond the time limited by its own rules, if done within the time prescribed by statute. We are asked to reconsider that decision, on the ground of the peculiar organization of the St. Louis Circuit Court, and the distinct powers and functions of general term of that court, which, it is contended, give its rules in this respect the force of a legislative enactment, not to be suspended or disregarded at the discretion of the judge at special term. We see no reason whatever for overruling the decision in Saulsbury v. Alexander. To say that the rules made by the Circuit Court in general term are as unbending as a statute, and that the trial judges of that court are to be deprived of the ordinary discretionary power of suspending, when they see sufficient cause, the operation of a rule of court in a particular case, might work a denial of justice.

2. Affidavits are filed by three of the jurors, to the effect that they arrived at the measure of damages by dividing by twelve the sum of the several amounts which each juror privately jotted down as the amount upon which he determined. Independently of the fact that the affidavits of...