Shaefer v. The Missouri Pacific Railway Company

• Decision Date: 16 February 1903
• Citation: 72 S.W. 154,98 Mo.App. 445
• Parties: J. F. SHAEFER, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

72 S.W. 154

98 Mo.App. 445

J. F. SHAEFER, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 16, 1903

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.

AFFIRMED.

Judgment affirmed.

Elijah Robinson and J. L. Lorie for appellant.

(1) The trial court committed error in permitting the plaintiff to testify that after the difficulty had occurred the porter ran around the car and said, "This is my bread and butter and if it was to do over I would do it again." (2) The testimony, as to what occurred between the porter and the other traveling man (if it did occur) had no bearing whatever upon what had taken place between the conductor, the porter and the plaintiff, and it is difficult to conceive any theory upon which it was admitted. However, it was calculated to prejudice the jurors against the defendant. (3) The court committed error in permitting witness Krieger to answer the question asked by counsel for plaintiff as to whether the conductor or porter used any abusive or insulting language. These statements upon the part of these witnesses were simply expressions of their opinion, their own conclusions as to what occurred, and not statements of facts. (4) The court committed error in permitting plaintiff to testify as to what Mr. Bendure told him about being influenced to testify in favor of the defendant. (5) Plaintiff took the deposition of a Mr. Kreigbaum. When the whole of the testimony of said witness is read it becomes perfectly apparent that this expression upon his part was simply in effect a statement that there was, so far as he could see, no other injury sustained by plaintiff. (6) The court committed error in excluding from the jury the testimony of several witneses as to the occupation of William Condon, who was a witness upon the part of the plaintiff, and the only witness who corroborated plaintiff as to what occurred in the car. Trabue v. Commonwealth, 66 S.W. 718. (7) The trial court also committed error in excluding from the jury the testimony as to the disposition and characteristics of the plaintiff. 1 Rice on Evidence, 625; McDowell v Preston, 26 Ga. 528; Rathburn v. Ross, 46 Barb 127; People v. Abbott, 19 Wend. 192; Stevens v. Rodgers, 25 Hun 54. (8) The court committed error in giving plaintiff's instruction No. 1. This instruction told the jury that defendant, as a common carrier of passengers, was bound not only to carry its passengers safely, but to treat them respectfully and with courtesy. This general statement was calculated to lead the jury to believe that the employees of the railroad company were bound to treat a passenger respectfully and with courtesy, regardless of the conduct upon the part of the passenger. (9) The verdict in this case is so clearly against the weight of the evidence that it is apparent the jurors must have been influenced by the evidence, the admission of which is hereinabove complained of, which was so clearly calculated to create a prejudice; and in a case of this kind no verdict ought to be permitted to stand where it appears from the record that evidence which was calculated to create prejudice in the minds of the jurors was improperly admitted. (10) The verdict of the jury was insufficient, and, on that account, the trial court should have set it aside, or sustained defendant's motion in arrest of judgment. Where it can not be ascertained from the verdict what amount the plaintiff is entitled to recover, a judgment rendered thereon must be reversed. 2 Am. and Eng. Ency. of Pl. and Pr., page 910, and cases there cited.

J. C. Rosenberger and Haff & Michaels for respondent.

(1) The trial court did not err in overruling defendant's objection to plaintiff's testimony, that immediately after the negro porter had choked him, and when plaintiff expostulated with him, the porter said: "This is my bread and butter, and I would do it again." Taylor v. Penquite, 35 Mo.App. 402; Clark v. Loan Co., 46 Mo.App. 248; Margrave v. Ausmuss, 51 Mo. 561. It was part of the res gestae. (2) Appellant's complain in their point 2, that the court erred in permitting witness Condon to testify to things done by the porter after the negro had let go of plaintiff's throat. What was done by the porter or conductor or plaintiff immediately after the assault is an issue in the case, made so by the pleadings; and again, it is a part of the res gestae. (3) A non-expert may testify to his opinions or impressions if the manifestations, expressions, and conditions can not be correctly and intelligibly reproduced by language. State v. Buchler, 103 Mo. 207; Haymaker v. Adams, 61 Mo.App. 585; Madden v. Railroad, 50 Mo.App. 673. (4) Appellant next complains that the court erred in allowing plaintiff to testify as to what Mr. Bendure told him about being influenced to testify for the railroad company. But the record shows no exceptions saved to any ruling of the trial court on the questions or answers complained of, and therefore there is nothing before this court to review. Asbury v. Lenoir, 47 Mo. 298; Sawyers v. Drake, 34 Mo.App. 472. (5) Appellant's next complaint is that the court erred in sustaining plaintiff's motion to strike out part of the answer of witness Krigbaum. The court was entirely correct in striking them out. The words constituted no statement of fact. "I think" and "probably" are words clearly denoting conclusion and opinion. (6) Appellant next complains that the court erred in sustaining plaintiff's objections to questions put to certain of defendant's witnesses for the purpose of impeaching witness Condon. The court's ruling was entirely correct. Seymour v. Farrel, 51 Mo. 97; State v. White, 35 Mo. 500; Hawkins v. Globe Ptg. Co., 10 Mo.App. 174; 1 Greenleaf on Evidence, (14 Ed.), sec. 461b; Rapalje on Witnesses, section 199. (7) Appellant next complains of the court's ruling excluding testimony of the general characteristics and disposition of the plaintiff. Collins v. Todd, 17 Mo. 537. Evidence of particular traits and characteristics are always inadmissible for any purpose. 5 Am. and Eng. Ency. of Law (2 Ed.), 859; State v. Nelson, 101 Mo. 468. (8) Appellant next complains of plaintiff's instruction No. 1. This instruction was copied from an approved instruction in the case of Malecek v. Railroad, 57 Mo. 19, a case almost exactly like the one at bar. The instruction correctly announced the law as laid down in above case and in Farber v. Railroad, 116 Mo. 91; Eads v. Railroad, 43 Mo.App. 545; Sacket on Instructions, pp. 327, 328; Randolph v. Railroad, 18 Mo.App. 615, et seq; McGinnis v. Railroad, 21 Mo.App. 399. (9) Appellant's next point is that the verdict is against the weight of the evidence and must have resulted from passion and prejudice. It is idle for the appellant to expect this court to pass upon the weight of the evidence in view of the garbled and incomplete abstract it has brought to this court. Goodson v. Railroad, 23 Mo.App. 76; Garrett v. Kansas City, 111 Mo. 279; Bowlin v. Creel, 63 Mo.App. 229; Loker v. Railroad, 68 S.W. 373; Haycraft v. Griggsby, 67 S.W. 965. (10) Appellant's final point is that it can not be ascertained from the verdict what amount the plaintiff is entitled to recover. Mere clerical errors in drafting a verdict will be disregarded. Holmes v. Braidwood, 82 Mo. 610; Gurley v. O'Dwyer, 61 Mo.App. 348; Bank v. Pipkin, 66 Mo.App. 597.

OPINION

SMITH, P. J.

--This is an action by plaintiff against defendant to recover damages for an assault committed by a conductor and negro porter of the latter on the former while a passenger on a train of such latter.

The facts which the plaintiff's evidence tends to prove are stated with sufficient accuracy in the defendant's statement of the case, and are: That plaintiff was a passenger on the defendant's train on the evening of January 25, 1899, and when between St. Joseph, Missouri, and Atchison, Kansas, a difficulty occurred between him and the conductor. The testimony on both sides tended to show that plaintiff told the conductor he was going to Atchison and offered mileage tickets in payment of his fare; that the conductor informed him that he could not accept mileage to Atchison; that plaintiff then asked the amount of cash fare, and being told it was eighty-five cents, handed the conductor one dollar and the conductor gave him fifteen cents in change, and, while punching his receipt for the cash fare, remarked to plaintiff that he could take cash fare beyond Atchison, either in the direction of Kansas City or in the direction of Omaha; that thereupon plaintiff said he was going to Hiawatha, Kan., and told the conductor to take the mileage to Hiawatha; that the conductor then handed plaintiff back his dollar and received from plaintiff his fifteen cents change, the plaintiff at the same time handing to the conductor his mileage book; that the conductor took from the book the fare to Hiawatha, being tickets representing seventy miles, that being the mileage fare from St. Joseph to Hiawatha, and cancelled the same and returned the book to plaintiff; that thereupon plaintiff asked the conductor how much mileage he had taken, and the conductor replied seventy miles. Up to this point there was no conflict in the evidence. Then there was testimony on the part of the plaintiff tending to prove that, upon being told by the conductor that he had taken seventy miles, the plaintiff said he did not want to go to Hiawatha, and demanded the return of his mileage in a rather resolute and determined way, at the same time rising to his feet, and that thereupon the conductor said, "G--d d--n you, why didn't you say so?" and knocked or pushed the plaintiff down in the seat, and that he and the porter choked him.

There was a trial to a jury which...