Olfermann v. The Union Depot Railroad Company

• Decision Date: 10 December 1894
• Citation: 28 S.W. 742,125 Mo. 408
• Parties: Olfermann, Appellant, v. The Union Depot Railroad Company
• Court: Missouri Supreme Court

28 S.W. 742

125 Mo. 408

Olfermann, Appellant, v. The Union Depot Railroad Company

Supreme Court of Missouri, First Division

December 10, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Henry Kortjohn for appellant.

(1) The supreme court will reverse a judgment based on evidence so improbable, as to necessarily lead to the conclusion that the verdict was the result of passion or prejudice. Spohn v Railroad, 87 Mo. 74; Garritt v. Greenwell, 92 Mo. 120; Whitsett v. Ransom, 79 Mo. 258. (2) Instructions are erroneous which leave it to the jury to find, in a general way, what constitutes negligence. Goodwin v. Railroad, 75 Mo. 73; Ravenscroft v Railroad, 27 Mo.App. 617. (3) Negligence may be presumed and in most cases must be presumed from facts and circumstances. Buesching v. Gaslight Co., 73 Mo. 219; Keim v. Railroad, 90 Mo. 314; Rine v. Railroad, 100 Mo. 228; Hudson v. Railroad, 32 Mo.App. 667; Hill v. Scott, 38 Mo.App. 370; Kearney v. Railroad, L. R. 6 Q. B. 759; Thompson on Negligence, p. 1220. (4) A judgment will be reversed for improper remarks of counsel, unless the trial court, upon objection being made, rebukes the counsel making them. Gibson v. Zeibig, 24 Mo. 65; McDonald v. Hainds, 45 Mo.App. 66.

G. A. Finkelnburg for respondent.

(1) The supreme court will not review the facts for the purpose of weighing the evidence or for the purpose of passing on the mere preponderance of the testimony. (2) Defendant's second instruction was proper. The words "negligence of her own" are not a technical expression and need no definition. In the absence of a request on the part of plaintiff to have them further defined to the jury, it was not the duty of the court to do so. And a failure to do so would in no event constitute reversible error. Browning v. Railroad, 27 S.W. 644; Johnson v. Railroad, 96 Mo. 341; Tetherow v. Railroad, 98 Mo. 74; Railroad v. Nell, 26 S.W. 1004. And see Thompson on Trials as to general instructions on contributory negligence, volume 2, page 1252. (3) Defendant's first instruction does not imply, as counsel for plaintiff erroneously assumes, that negligence can not be inferred from facts and circumstances; it simply tells the jury that negligence is not to be presumed merely because an accident has occurred and because plaintiff was hurt upon defendant's railway -- that it must be proved like any other fact -- the character or kind of evidence is not mentioned. (4) The language of defendant's counsel to the jury complained of as wrong, if improper, does not constitute reversible error. State v. Zumbunson, 86 Mo. 111; State v. Stark, 72 Mo. 37; State v. Emory, 79 Mo. 461; State v. Brooks, 92 Mo. 542; State v. McNamara, 100 Mo. 100; State v. Musick, 101 Mo. 361; Thompson on Trials, sec. 984, note 3. The judgment will not be reversed where it is for the right party. Nelson v. Foster, 66 Mo. 381; Noble v. Blount, 77 Mo. 235; Sinclair v. Bradley, 51 Mo. 180; Dunbar v. Weightman, 51 Mo. 432; Jackson v. Magruder, 51 Mo. 55.

OPINION

Black, P. J.

This is an appeal prosecuted by the plaintiff from a verdict and judgment in an action for personal injuries sustained by the plaintiff while she was either getting on or off the defendant's street cars operated by electricity.

According to the evidence of the plaintiff, she and another lady, Mrs. Fricke, were on the east side of the street on which the plaintiff operates its cars. They saw a train composed of two cars coming, and the plaintiff signaled the motorman to stop. The train stopped after it passed a street crossing. She and her friend passed behind the train to the west side of the street, so as to get on the rear car from the west side, that being the only side from which they could enter the car. She says the car started just as she got one foot on the lower step and threw her down on the ground, inflicting the injuries of which she complains. Her account of the accident is supported by the evidence of Mrs. Fricke, though the latter made a written statement, at the request of the agents of defendant, shortly after the accident, which differs in some respects from her evidence given on the trial. They are both German women, advanced in years, and do not converse well in the English language, and this may account for the seeming conflicting statements of Mrs. Fricke.

The defendant produced three witnesses who were passengers on the same train. Two of them were standing on the rear platform of the rear car and were in a position to see what transpired. One of these witnesses testified that he saw the two women start towards the car, that plaintiff got on the step and from that to the platform. He says she then stepped back and jumped off after the train started, because she did not want to leave her companion, as he supposes. The other of these witnesses testified that he saw the two women standing over on the street corner. One of them came across and got on the rear platform where he was standing, and was about to enter the car. She then looked back to the other one and said something in German and made a motion to come on. The other woman shook her head. Plaintiff then turned around and jumped off. He says the car had started at this time, and he thinks had moved eighty or ninety feet. The conductor of the train says he was on the outside of the motor car, standing on the west side, that he stopped his train for passengers to get off, that he saw the plaintiff get up on the steps and he waited until she got up on the platform out of his view.

1. Counsel for plaintiff insists that the verdict is against the evidence and should be set aside for that reason; and in this connection he insists the evidence of the defendant's witnesses can not be true. The value of this testimony was a question for the jury to determine. This court can not deal with such questions when the evidence is conflicting, as it is here. The foregoing recital of the evidence is sufficient to show that the objection is not well taken. Indeed the verdict seems to be well supported.

2. During the examination of the plaintiff, she was asked these questions: "When you hailed the car did you stop on the sidewalk or did you continue walking until you got near the car?" "What did you mean by saying before, that you went in the car?" The defendant objected to these questions; to the first because leading, to the second because it called upon the witness to interpret what she had said, both of which objections were sustained.

The witness, in testifying through the medium of an interpreter, used language on several occasions, which evidently did not express what she desired to say. Under these circumstances the first objection might well have been overruled, for it is sometimes necessary to ask questions more or less leading, and we think the rule on this subject might have been relaxed as to this witness. The objection to the second question was not well taken and should have been overruled; for the witness had a right to explain what she meant by her answer to the former question. But upon an examination of all of her evidence she testified as to these matters to the fullest extent, and this being so, the plaintiff has no ground of complaint.

3. For the plaintiff, the court gave an instruction which, after reciting some matters now immaterial, concludes: "And that in attempting to board said car, she used such diligence and exercised such care for her own safety as an ordinarily careful person would use under similar circumstances, and that said train of the defendant was set in motion by the servants of the defendant, before she could by the exercise of reasonable care and diligence on her part reach a place of safety on said car, and that by reason thereof she was thrown on the street and injured, then the jury will find for the plaintiff."

The court at the request of the defendant gave the following instructions:

"1. The court hereby instructs you that the ground of plaintiff's suit against this defendant is negligence, and that negligence can not be presumed, but must be established by plaintiff to your satisfaction by proof: Therefore, although you find that the plaintiff was injured in endeavoring to get on or off of defendant's cars, yet that fact alone does not entitle the plaintiff to recover in this action, but before plaintiff can recover she is bound to prove to your satisfaction that she sustained the injury complained of in direct consequence of the negligence of the defendant's employees in charge of the car, and, unless the plaintiff has so proven, your verdict must be for the defendant.

"2. If you find from the evidence that the direct cause of plaintiff's fall upon the street was negligence of her own, either in the manner of boarding the car or in trying to step off the train after it had started and while the same was in motion, and that her fall was not due to negligence on the part of defendant's employees, then your verdict should be for the defendant."

If the first of these instructions, given at the request of the defendant, told the jury, in effect, that negligence could not be inferred from the circumstances, as is contended by the...