Phillips v. Southwest Missouri Railroad Co.
| Decision Date | 07 April 1913 |
| Citation | 155 S.W. 470,170 Mo.App. 416 |
| Parties | WILL F. PHILLIPS, Respondent, v. SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court. Division Number Two.--Hon. David E. Blair, Judge.
AFFIRMED.
Judgment affirmed.
McReynolds & Halliburton for appellant.
(1) The court erred in refusing instruction K asked by defendant, and that error is not cured by instruction L given for defendant. They present two entirely different propositions. L is to the effect that if plaintiff's leg was broken in the fight then he could not recover at all, and K was to the effect that, although his leg may have been broken by the fender yet if plaintiff received any injuries in the fight he could not recover anything on account of such injuries. The evidence shows plaintiff did receive some injuries in the fight with the conductor. The fight between plaintiff and the conductor occurred after plaintiff ceased to be a passenger and defendant is not liable and cannot be held for any injuries received in the fight or for damages on account thereof. A master is not liable for a tortious act of his servant done while in the performance of his servient duties, unless the act itself pertains to the service for which he is employed. The mere fact that it is done by the servant with the intention of serving his master is not sufficient to bring it within the scope of his employment. Farber v. Railroad, 32 Mo.App. 378-381; McKeon v. Railroad, 42 Mo. 83; Snyder v. Railroad, 60 Mo. 419; Jackson v. Railroad, 87 Mo. 430; Farber v. Railroad, 116 Mo. 81, 93; McGowan v. Railroad, 61 Mo. 528; Wood's Railway Law, sec. 316; Perkins v. Railroad, 55 Mo. 211; II Nellis on Street Railways, sec. 329, notes 65, 66, 67, 68; Hurt v. Railroad, 94 Mo. 262, 263; Richmond v. Railroad, 144 S.W. 170; Walker v. Railroad, 121 Mo. 575, 584, 588; Burger v. Railroad, 123 Mo. 679-683. (2) The trial court erred in giving plaintiff's first instruction and refusing instructions A and B, as asked by defendant, and by changing defendant's instruction A and B by inserting "or by the exercise of ordinary care on his part could have known," in instruction A, and by inserting the words, "or by the exercise of ordinary care on his part could not have so known," in instruction B and giving said instructions as so amended, and by refusing instruction I, as asked by defendant and by amending said instruction by inserting the words, "or by the exercise of ordinary care on his part could not have known" and then giving it as amended. (a) Unless the evidence, shows, first, the existence of a duty on the part of the defendant to protect the deceased from the injury of which plaintiff complains; second, a failure by defendant to perform that duty; and, third, an injury to deceased from such failure of the defendant, the plaintiff must fail. To constitute actionable negligence these three ingredients must be shown to coexist. Wheeler v. Stock Yds. & Terminal Co., 66 Mo.App. 260; Wencker v. Railroad, 169 Mo. 592; Shaw v. Goldman, 116 Mo.App. 332. (b) In an action for negligence it devolves upon the plaintiff to show that there was such connection between the negligent act and the injury as to bring it within reasonable contemplation of the act, or that such injury would naturally and probably result from the act, and that the injury was such as ought to have been forseen as likely to have followed therefrom. Christy v. Huges, 24 Mo.App. 275. (c) Negligence is not the proximate cause of an accident unless under the circumstances the accident was the probable as well as the natural consequence thereof, that is, one that might have been forseen by a man of ordinary intelligence and prudence. Saxton v. Railroad, 98 Mo.App. 494; American Brewing Co. v. Talbot, 141 Mo. 674; Hysell v. Swift, 78 Mo.App. 39. (d) Defendant cannot be held liable unless the injury complained of is the natural and probable consequence of the negligence complained of. Brubaker v. Light Co., 130 Mo.App. 439; Boyd v. Graham, 5 Mo.App. 403; Fuchs v. St. Louis, 167 Mo. 645. (3) There is no evidence of willfullness or wantonness on the part of the conductor in lowering the fender and its coming in contact with plaintiff, and where there is no evidence of willfulness or wantonness on the part of one alleged to have inflicted an injury, the humantitarian rule does not apply. Deane v. Transit Co., 192 Mo. 575; Clancy v. Transit Co., 192 Mo. 615. Zumault v. Railroad, 175 Mo. 288; Moore v. Railroad, 176 Mo. 538; McGauley v. Railroad, 179 Mo. 592; Wilkerson v. Railroad, 140 Mo.App. 316; Holwerson v. Railroad, 157 Mo. 216; Hodges v. Railroad, 135 Mo.App. 692; Warner v. Railroad, 178 Mo. 125. (4) The court erred in refusing instruction E, as asked by defendant and by inserting therein the words "in itself," and then giving as amended. The fact of an accident and injury is not any evidence of negligence (except in cases where the doctrine of res ipsa loquitur applies and that doctrine does not apply in this case). The accident and injury may be the result of negligence, but cannot be any evidence of it. The error in the amendment is that the striking of the plaintiff by the fender is left to the jury to consider in connection with other evidence as evidence of negligence. Jackson v. Mining Co., 151 Mo.App. 644; Warner v. Railroad, 178 Mo. 133-4; Wilkerson v. Railroad, 140 Mo.App. 321. (5) The court erred in refusing instructions F and G, as asked by the defendant and by inserting the words, "and injure him," and giving said instruction as amended over the objections of defendant, and in refusing instruction H asked by the defendant, as plaintiff must recover upon the allegations of his petition and his evidence thereunder. And plaintiff's evidence is all to the effect that the fender struck at the point upon his leg where it was broken. There was evidence introduced by defendant witness Jacobs, that the fender struck plaintiff on the shoulder or body, and if it did, it is a physical fact that it could not have broken his leg just above the ankle. And defendant was entitled to an instruction based on the evidence of witness Jacobs, and it was error to refuse it. Wren v. Street Railway, 125 Mo.App. 604; Cahn v. Reid, 18 Mo.App. 115; Gray v. McDonald, 28 Mo.App. 492; Murray v. Transit Co., 176 Mo. 183, 191; Livingstone v. Ins. Co., 7 Cranch, 506-544; Cahn v. Reid, 18 Mo.App. 116; Ghio v. Railroad, 125 Mo.App. 716; Christian v. McDonnell, 127 Mo.App. 635. (6) An examination of the photographs of the fender attached to the record, and the evidence in regard to its distance from the rail of the track in its three positions, show that it was a physical impossibility for the fender to have struck plaintiff at the point of his leg where it was broken, or at any point on his leg that could have broken plaintiff's leg at the point thereon that the evidence shows it was broken. And defendant's instructions F and G should have been given as asked, and defendant's instruction H should have been given. Latson v. Transit Co., 192 Mo. 469. Contra, it would be error to submit a case to the jury resting upon testimony contrary to the physics of the case and to the common knowledge of all men. Nugent v. Milling Co., 131 Mo. 253; Kelsay v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 566; State ex rel. v. Clifford, 204 Mo. 204; Dunphy v. Stock Yards Co., 118 Mo.App. 522. (7) The verdict in this case is excessive under the evidence. Plaintiff only lost two weeks' time and $ 50 salary, and his medical bill was only $ 25, and the amount of the verdict can only be accounted for, first, by the refusal of the court to charge that plaintiff could not recover anything on account of the fight with the conductor; second, the wrongful argument permitted to be made by plaintiff's attorney Decker, with its appeals to the passion and prejudice of the jury; third, the bias, passion or prejudice of the jury. (8) The court erred in overruling defendant's objections to the closing argument of attorney for plaintiff and in not sustaining said objections and reprimanding said attorney. His argument being clearly outside the record and abusive of defendant's employees who were witnesses in the case, by insinuation and inuendo and an appeal to the passions and prejudice of the jury and had its effect as shown by the size of the verdict. McDonald & Co. v. Cash & Hinds, 45 Mo. 66; Gibson v. Zeibig, 24 Mo.App. 65; Miller v. Dunlap, 22 Mo.App. 97; Marble v. Walters, 19 Mo.App. 134; Reeder v. Studt, 12 Mo.App. 566; Ensor v. Smith, 57 Mo.App. 584; Smith v. Telegraph Co., 55 Mo.App. 626; State v. Lee, 66 Mo. 167-8; State v. Kring, 64 Mo. 591; State v. Barham, 82 Mo. 70-71; Thompson v. Barneys, 85 Mo.App. 575; Ritter v. Bank, 87 Mo. 576; Stetler v. Street Railway, 210 Mo. 710; Evans v. Town of Trenton, 112 Mo. 390; Brown v. Swineford, 44 Wis. 282; 1 Thompson on Trials, sec. 955; Haynes v. Town of Trenton, 108 Mo. 133.
P. D. Decker and Walden & Andrews for respondent.
(1) The first point made by the appellant is that the court erred in refusing to give instruction K. This was not an error because the court had fully covered the point in instruction L required by the defendant. It is the office of instructions to clearly and concisely present the issues to the jury without unnecessary repetition. Reiteration has a tendency to confuse and mislead by giving undue prominence to certain features of the case and should be avoided; and it is not error to refuse instructions on the matters covered by other instructions. Edgar v. Cupper, 110 Mo.App. 280-285; Culverson v. Maryville, 67 Mo.App. 343. (2) When a proposition of law has once been fairly formulated and given, to turn about and couch it in a different and more learned phrase is but tending...
To continue reading
Request your trial