Oglesby v. Missouri Pacific Railway Company

Decision Date30 May 1899
Citation51 S.W. 758,150 Mo. 137
PartiesOglesby v. Missouri Pacific Railway Company, Appellant
CourtMissouri Supreme Court

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from Bates Circuit Court. -- Hon. James H. Lay, Judge.

Reversed and remanded.

R. T Railey and Martin L. Clardy for appellant.

(1) Where the testimony shows that the injury complained of could have happened in more than one way, and there is no testimony showing how it did occur, then it becomes a matter of conjecture, and, as the burden of proof devolves upon the plaintiff to establish negligence affirmatively, he failed to make out a case, and the court should have accordingly directed a verdict for defendant. 1 Greenl. on Evid. (15 Ed.), sec. 11; Perkins v. Railroad, 103 Mo. 58; Wintuska's Admr. v. Railroad, 20 S.W. 820; Hughes v. Railroad, 16 S.W. 276; Hayes v Railroad, 97 N.Y. 262; Baulec v. Railroad, 59 N.Y. 336; Schertle v. Railroad, 2 A. & E. R. R. Cas. 161; Orth v. Railroad, 50 N.W. 363; Briggs v Railroad, 53 N.W. 1019; Peck v. Railroad, 31 Mo.App. 123. (2) The statement made by the plaintiff's counsel in his concluding argument to the jury reads: "Gentlemen of the jury, it is not for me to say how much, but I think he ought to have a liberal judgment, and in my humble opinion $ 12,000 is not too much." The declaration thus made by counsel for plaintiff in his concluding argument before the jury, stands as though the plaintiff had risen before the jury and declared to them that, under the evidence, he was not entitled to a verdict of more than $ 12,000. Under the law of this State, the plaintiff is represented by his counsel, and the counsel addresses the jury in behalf of his client. Whatever, however, the attorney may say in his concluding argument before the jury in behalf of his client, occupies the same position legally as though the plaintiff himself had declared what the counsel said. It is, furthermore, the settled law that whatever the counsel, under the circumstances aforesaid, may say is binding on his client. Gehrke v. Jod, 59 Mo. 522; Field v. Matson, 8 Mo. 688; Miller v. Bernecker, 46 Mo. 196; Walsh v. Railroad, 102 Mo. 588. (3) The concluding argument of the plaintiff's counsel heretofore set out, conclusively sustains this contention. We therefore insist that in a case where the plaintiff has sued for damages greatly in excess of that which he is entitled to recover, that the court should not instruct the jury that under the evidence, if they find for plaintiff, they may return the verdict for any sum within the amount claimed in petition. This is in legal effect, telling the jury that, in the estimation of the court the evidence, in the case, if they find for the plaintiff, would warrant a verdict for any sum up to $ 25,000. This is not the law. Bryan v. Acee, 27 Ga. 87; Glasscock v. Shell, 57 Tex. 224; Willis & Bro. v. McNeill, 57 Tex. 478; Fordyce v. Nix, 23 S.W. 967.

O. L. Houts for respondent.

(1) The demurrer to the evidence was properly overruled. The evidence not only tended to show, but it was clearly proven by the great weight of the evidence, that this Union Line car was rotten and unfit for service; that defendant could have known its condition by reasonable inspection and that the use of this rotten car by defendant was the cause of the wreck of the train and the injury to plaintiff. This not only compelled the trial court to submit the case to the jury but entitled plaintiff to a verdict. Parsons v. Railroad, 94 Mo. 286; Gorham v. Railroad, 113 Mo. 408; Gutridge v. Railroad, 94 Mo. 468; Gutridge v. Railroad, 105 Mo. 520; Condon v. Railroad, 78 Mo. 567; Settle v. Railroad, 127 Mo. 336. Defendant did not offer a demurrer at the close of plaintiff's testimony and must have then believed that plaintiff had made a case. Defendant's suggestion that the train was running at an excessive rate of speed, and caused plaintiff's injury is squarely contradicted by the record, and by that part of the record made by defendant. Defendant proved by the uncontradicted testimony of the crew of the train that it was running twenty or twenty-two miles an hour, a reasonable rate of speed. At the request of defendant the court instructed the jury "that defendant was guilty of no negligence in running said train at the rate of speed disclosed by the evidence." (2) There was no error in giving plaintiff's instruction on the measure of damages. The instruction is drawn from one approved by this court in Russell v. Columbia, 74 Mo. 480. That case has been often cited and followed and instructions in substance the same many times approved. Gorham v. Railroad, 113 Mo. 408; Rodney v. Railroad, 127 Mo. 676. The instruction is not bad because it does not permit the jury to give a verdict for a greater sum than that asked by the pleadings. Wright v. Jacobs, 61 Mo. 19; Gorham v. Railroad, 113 Mo. 408. (3) The verdict of the jury is not excessive. The amount of damages in a case of this kind must be left largely to the discretion of the jury, and their verdict ought not to be reversed unless the amount is so gross as to shock the sense of justice of the judicial mind, and satisfy it that such verdict was the result of passion, prejudice or partiality. This is the rule of this court. Rodney v. Railroad, 127 Mo. 676; Hollenbeck v. Railroad, 34 S.W. 494; Dowd v. Air Brake Co., 132 Mo. 579.

R. T. Railey and Martin L. Clardy for appellant on motion for rehearing.

(1) Defendant's inspectors were guilty of no negligence in respect to performing their duty. Defendant's instruction numbered 5, is abundantly supported by the law in this State as well as elsewhere. Mackin v. Railroad, 135 Mass 206; Thomas v. Railroad, 109 Mo. 187; Baldwin v. Railroad, 50 Ia. 680; Ballou v. Railroad, 54 Wis. 257; DeGraff v. Railroad, 76 N.Y. 131; Krampe v. Railroad, 59 Mo.App. 277; Moss v. Railroad, 49 Mo. 167; Murphy v. Railroad, 71 Mo. 202; Roblin v. Railroad, 119 Mo. 484. (2) The mere fact that certain defects were found in the car after the wreck, as disclosed by the freshly broken places, does not make a prima facie case of negligence against the inspectors. 3 Elliott on Railroad, sec. 1308; McPadden v. Railroad, 44 N.Y. 480; Sherman and Redfield on Neg. (3 Ed.), sec. 87; Wood's Law of Master and Servant (2 Ed.), sec. 419; Pierce on Railroads, 383; 2 Rorer on Railroads, pp. 1200, 1201; Krampe v. St. L. B. A., 59 Mo.App. 283; Moss v. Railroad, 49 Mo. 170; Murphy v. Railroad, 71 Mo. 202; Roblin v. Railroad, 119 Mo. 484; Sack v. Dolese, 27 N.E. 64. (3) We have shown from the undisputed evidence that the wreck more than likely occurred by reason of the rapid rate of speed at which the train was run. The motive for running it rapidly appears from the testimony of Butts and Hessler. Both testified that the train was two hours late. The conductor says that they were trying to make a side-track ahead of the passenger train. The plaintiff's evidence shows that they were running close on passenger train time. The plaintiff swears that he noticed the engineer did not shut off his steam, as he generally did; that he looked back and saw the middle brakeman about four cars from the caboose, with his hands behind him; that he did not seem to make any motion to set brakes, and did not set any brakes; and that plaintiff did not set any brakes until he got down, and that he noticed the train was running too fast. It is likewise alleged in the petition that the train was run at a rapid and dangerous rate of speed. These facts are to be taken as true against plaintiff. Bruce v. Sims, 34 Mo. 251; Speck v. Riggin, 40 Mo. 406; Capital Banks v. Armstrong, 62 Mo. 65; Chapman v. Callahan, 66 Mo. 312; Donnan v. Pub. Co., 70 Mo. 175; Kuhn v. Weil, 73 Mo. 215; Weil v. Posten, 77 Mo. 287; Wilson v. Albert, 89 Mo. 546; Bensieck v. Cook, 110 Mo. 182. (4) The presumption of law being that the inspectors did their duty, and the court having so instructed the jury, there was not a scintilla of evidence to overcome the presumption and the plaintiff should have been nonsuited. The cause was submitted to the jury in view of the undisputed evidence in regard to the defects; the car breaking down before it left the track; in regard to the inspection; in regard to the ability of the car to carry the load, notwithstanding the defects, purely upon conjecture, without a scintilla of substantial evidence upon which to predicate the verdict. Railroad v. Shertle, 97 Pa. St. 450; Wintuska's Admr. v. Railroad, 20 S.W. 820; Megow v. Railroad, 56 N.W. 1099; Duncan v. W. U. Tel. Co., 58 N.W. 75; Orth v. Railroad, 50 N.W. 364; O'Malley v. Railroad, 113 Mo. 325; Perkins v. Railroad, 103 Mo. 52; Peck v. Railroad, 31 Mo.App. 125; Glick v. Railroad, 57 Mo.App. 105; Moore v. Railroad, 28 Mo.App. 625; Hughes v. Railroad, 16 S.W. 275; Cotton v. Wood, 8 C. B. (N. S.), 568; Hays v. Railroad, 97 N.Y. 259; Baulec v. Railroad, 59 N.Y. 366. (5) This court is unauthorized, under the decisions of this State, to fall back upon the conduct of the court below, in refusing to require a remittitur, as the cause in said court was tried upon the express theory that this court would require a remittitur. This case was tried upon the law as it then existed, and it was so appealed to this court. This court, for more than forty years, has without the slightest hesitation, in cases of this character, reversed the lower court and remanded the case for a new trial. Judge Elliott says: "It is inconceivable that a high court of justice, such as an appellate tribunal, may not, upon an investigation of the record, so frame its judgment as to prevent the defeat of justice by technical and arbitrary rules. The denial of this right involves the affirmation...

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