Mirrielees v. Wabash Railroad Company

• Decision Date: 12 June 1901
• Parties: MIRRIELEES v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

63 S.W. 718

163 Mo. 470

MIRRIELEES v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

June 12, 1901

Appeal from Hannibal Court of Common Pleas. -- Hon. Reuben F. Roy Judge.

Affirmed.

Geo. S Grover for appellant; A. H. Waller and Geo. A. Mahan of counsel.

(1) The demurrer to the evidence should have been sustained. Fetter on Carriers of Passengers, secs. 222 and 223; Ray on Passenger Carriers, p. 16; 2 Wood on Railroads, (Ed. 1894) sec. 298, p. 1205; 3 Elliott on Railroads, sec. 1255, p. 1961; Thompson on Carriers of Passengers, sec. 3, p. 43; Railroad v. Thompson, Admr., 107 Ind. 442; Planz v. Railroad, 157 Mass. 377; Railroad v. Johnson, 3 Okl. 41; Railroad v. Beggs, 85 Ills. 80; Railroad v. Brooks, 81 Ills. 245; Railroad v. Michie, 83 Ills. 427; Brown v. Railroad, 64 Mo. 536; Lillis v. Railroad, 64 Mo. 464; Railroad v. Nichols, 8 Kansas, 505; Way v. Railroad, 64 Iowa 48; Railroad v. Moore, 49 Texas, 31; Berry v. Railroad, 124 Mo. 223; Condram v. Railroad, 67 F. 522; McVeety v. Railroad, 45 Minn. 268; Vobostelli v. Railroad, 33 F. 796; Dalton's Admr. v. Railroad (Ky.), 56 S.W. 657; Handley v. Railroad (Kan.), 7 Am. Neg. Reports 46; Walker v. Railroad, 15 Mo.App. 333; Earl v. Railroad (Iowa), 6 Am. Neg. Reports 274; Padgitt v. Moll, 60 S.W. 121. (2) The court should have directed a verdict for the defendant at the close of the whole case. Authorities cited, supra; Yarnall v. Railroad, 113 Mo. 580; (3) The arbitrary ruling of the court upon the question of amendment was an abuse of judicial discretion. Sec. 655, R. S. 1899; Archer v. Ins. Co., 43 Mo. 434. (4) The hypothetical questions asked by the plaintiff were improper and prejudicial. Ross v. Railroad, 112 Mo. 45; Smith v. Railroad, 119 Mo. 256; Muldowney v. Railroad, 39 Iowa 615; Williams v. Brown, 20 Oh. St. 547; Rogers on Expert Testimony (2 Ed.), sec. 27. (5) The court gave improper instructions at the plaintiff's request. Authorities cited, supra. (6) The court refused proper instructions asked by defendant. Authorities cited, supra; Yarnall v. Railroad, 113 Mo. 580. (7) The defendant should have been granted a new trial on account of the perjury committed by the plaintiff. Sec. 800, R. S. 1899; Dwyer v. Railroad, 66 Mo.App. 335. (8) The contract as expressed in the mileage-book is valid, and the violation of it, as shown by the evidence, precluded a recovery here. Authorities cited, supra; Express Cases, 117 U.S. 1; News Co. v. Railroad, 151 Mo. 373; Quimby v. Railroad, 150 Mass. 365; Hosmer v. Railroad, 156 Mass. 506; Mosher v. Railroad, 127 U.S. 390; Boylan v. Railroad, 132 U.S. 146; Railroad v. Reeder, 170 U.S. 530; Railroad v. Voigt, 176 U.S. 498.

F. L. Schofield and Thos. Worthington for respondent.

(1) The court properly overruled the demurrer to the evidence and the motion directing a verdict for defendant, at the close of all the evidence. The question of negligence, that is to say, the question whether the defendant's servants exercised that decree of care which the law imposed upon them, at the time, and under the circumstances in evidence, was a question of fact for the jury under appropriate instructions, and there was abundance of evidence to carry the question to the jury. Karle v. Railroad, 55 Mo. 484; Barker v. Railroad, 98 Mo. 50; Sinclair v. Railroad, 133 Mo. 283. (2) The action of the court in permitting plaintiff to dismiss the first count and amend the second count of his petition was neither arbitrary nor erroneous. (a) Plaintiff had a right to declare his cause of action in separate counts; one upon the theory that he was a passenger, the other on the theory that he was not. He could not have been compelled to elect, and if he had chosen to go to the jury on both counts, a general verdict would have supported the judgment. Brownell v. Railroad, 47 Mo. 239; Lincoln v. Railroad, 75 Mo. 27; Owens v. Railroad, 58 Mo. 394; Taylor v. Springfield, 61 Mo.App. 263; Straub v. Eddy, 47 Mo.App. 189; Lancaster v. Ins. Co., 92 Mo. 460; McKee v. Calvert, 80 Mo. 348; Brinkman v. Hunter, 73 Mo. 178. (b) The matter introduced by the amendment was not, as appellant complains, "an entirely new allegation," and one "which, as a matter of course, the defendant was not prepared to meet." Goodwin v. Railroad, 75 Mo. 73; Schneider v. Railroad, 75 Mo. 295; Mack v. Railroad, 77 Mo. 232; Shaw v. Railroad, 104 Mo. 648; Sullivan v. Railroad, 97 Mo. 113; Robertson v. Railroad, 84 Mo. 119; Hill v. Railroad, 121 Mo. 477. And it has been repeatedly held that such general allegation of negligence in running, operating and managing defendant's cars, is sufficient to authorize proof of a neglect to use the means at hand to prevent the injury after discovery of plaintiff's exposed condition. Hilz v. Railroad, 101 Mo. 56; Hanlan v. Railroad, 104 Mo. 391; LeMay v. Railroad, 105 Mo. 370; Dickson v. Railroad, 104 Mo. 502. (c) The court might properly have refused defendant a continuance upon any terms whatever. There could have been no such thing as legal surprise to the defendant. R. S. 1889, sec. 657; Timber Co. v. Cooperage Co., 112 Mo. 383; Carr v. Moss, 87 Mo. 447; Harlan v. Moore, 132 Mo. 488; Ins. Co. v. Smith, 117 Mo. 261; Kerr v. Bell, 44 Mo. 124; Bennett v. McCanse, 65 Mo. 194; Wellman v. Dismukes, 42 Mo. 101; Callaghan v. McMahan, 33 Mo. 111; Sinclair v. Railroad, 70 Mo.App. 597; Collins v. Glass, 46 Mo.App. 297. (3) The instructions given on plaintiff's motion announced correct propositions of law and were abundantly supported by the evidence in the cause. (a) To abstain from wanton or willful injury is neither the moral nor legal measure of duty even to a trespasser after once seeing and knowing the imminence of the peril to which he is exposed. Jewett v. Railroad, 50 Mo.App. 547; Warren v. Railroad, 59 Mo.App. 367; Wallace v. Railroad, 74 Mo. 597; Pryor v. Railroad, 69 Mo. 218. (b) But the very doctrine, namely, the doctrine requiring ordinary care in avoiding the injury after the knowledge of plaintiff's exposure and danger, which learned counsel are here so eloquently arraigning, was declared by the court in the first and second instructions given at defendant's own request. The defendant can not now complain of error committed by the court in its instructions for plaintiff, where the same theory of the case and the same error are contained in the instructions given on its own motion. Holmes v. Braidwood, 82 Mo. 610; McGonigle v. Daugherty, 71 Mo. 259; Crutchfield v. Railroad, 64 Mo. 255; Davis v. Brown, 67 Mo. 313. (4) There was no error in refusing the refused instructions offered by defendant. (a) In so far as any of said instructions may have announced correct propositions of law under the second count of plaintiff's petition, if any of them do announce correct propositions of law, they were well and sufficiently covered by the instructions given and, therefore, were unnecessary. Payne v. Railroad, 112 Mo. 6; State ex rel. v. Gage, 52 Mo.App. 464; Garrison v. Graybill, 52 Mo.App. 580; Beck v. Haas, 111 Mo. 270. (b) The refused instructions, taken as a whole, were misleading and confusing; jumbling matters applicable alone to the first count of the petition, which was not before the jury, with matters pertaining to the second count. And, besides, they were inconsistent with the two instructions given on defendant's own motion. (5) There was no error in the refusal of the court to grant defendant a new trial, "on account of the perjury committed by plaintiff." First, because there was no perjury committed; the ex parte affidavits and unsworn statement filed in the cause by defendant are insufficient to convict plaintiff of this very serious charge, even if this court could, in this proceeding hear and determine the question on the proffered evidence. In the next place, because the matters set forth in defendant's "supplemental motion for a new trial," on the ground of alleged newly-discovered evidence, were not such as to have warranted the court in entertaining the motion, even if said matter had been set out in the original motion for a new trial and filed in time. And lastly, because the "supplemental motion for a new trial" was filed out of time and could not have been considered by the lower court. Newly-discovered evidence must be material. State v. Locke, 26 Mo. 603; Shaw v. Beach, 58 Mo. 107; Culbertson v. Hill, 87 Mo. 556. The third ground mentioned in the motion merely offered evidence, which, at most, would have been cumulative. This is insufficient. Dolman v. Munson, 90 Mo. 85; Culbertson v. Hill, 87 Mo. 556; State v. Griffin, 87 Mo. 608. (6) This "supplemental motion for a new trial," was filed seventeen days after the day of the trial, and the last "proof" in support of it, was filed just three months after the trial. It was, therefore, properly overruled and can not here be considered. R. S. 1899, sec. 803; St. Joseph v. Robinson, 125 Mo. 1; Maloney v. Railroad, 122 Mo. 114; State v. Dusenbery, 112 Mo. 295; State v. Brooks, 92 Mo. 542; Bank v. Bennett, 138 Mo. 494; Bank v. Porter, 148 Mo. 176; reversing s. c., 65 Mo.App. 448. (7) Railroad companies may not contract with their passengers ad libitum against liability arising from any and all sorts of negligence by their operatives in running and managing their trains. Public policy will not tolerate such a rule, and more especially in respect of the transportation of passengers. Tibby v. Railroad, 82 Mo. 292; Carroll v. Railroad, 88 Mo. 239; Jones v. Railroad, 125 Mo. 666; Ryan v. Railroad, 32 Mo.App. 228.

OPINION

MARSHALL, J.

This is an action for damages sustained by the plaintiff on July 29 1895, while riding on defendant's freight train, near Clifton Hill. The original petition was in two counts. The first count was predicated upon the relation of passenger and carrier,...