Sharp v. Kansas City Cable Railway Company
| Decision Date | 06 February 1893 |
| Citation | 20 S.W. 93,114 Mo. 94 |
| Parties | Sharp, Appellant, v. The Kansas City Cable Railway Company |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.
Reversed and remanded.
W. J Hollis for appellant.
(1) The court erred in compelling plaintiff to carry the burden of proof through the trial. Lemon v. Chanslor, 68 Mo 340; Hipsley v. Railroad, 88 Mo. 348; Coudy v Railroad, 85 Mo. 85; Crane v. Railroad, 87 Mo. 588; Dougherty v. Railroad, 97 Mo. 647. "Plaintiff need only allege in his petition what he is bound to prove to make out his prima facie case." Crane v. Railroad, 87 Mo. 588; Thompson on Carriers of Passengers, 547. "The obligation of a carrier to carry safely arises out of a public duty and not from any contract to do so." Story on Bailments [9 Ed.] sec. 590, note 1. "The promise to carry safely is implied from the duty; not the duty from the promise." Shearman & Redfield on Negligence [3 Ed.] sec. 296. The fact that the plaintiff pleaded acts of negligence made no difference. This court say in the Dougherty Case, "the allegations were immaterial, unnecessary and harmless." Dougherty v. Railroad, 97 Mo. 654. (2) The court erred in its ruling on the evidence refusing to permit plaintiff to prove facts upon which witnesses based their opinion of plaintiff's mind. Crowe v. Peters, 63 Mo. 429; Moore v. Moore, 67 Mo. 192. (3) The court erred in giving and refusing instructions and compelling plaintiff to ask instructions contrary to his theory or go to the jury in a manner without any. Stokes v. Saltenstall, 13 Peters, 184. Thompson on Carriers of Passengers, pp. 163-183. Hageman v. Railroad, N. Y. Ct. App. 1885. Plaintiff's instructions 1, 2 and 6 properly declared the law and should have been given. Crane v. Railroad, 87 Mo. 588; Coudy v. Railroad, 85 Mo. p. 85; Hipsley v. Railroad, 88 Mo. 348; Dougherty v. Railroad, 97 Mo. 647. Thompson on Carriers of Passengers, pp. 188, 193, 194, 195, 547-9; Frick v. Potter, 17 Ill. 406; Thorne v. Stage Co., 6 Cal. 232; Carmentan v. Gulf Co., 5 La. 703; Weed v. Railroad, 19 Wend. 534; Allender v. Railroad, 37 Iowa 264; Railroad v. Pillsbury, 5 A. S. R. sec. 6; 483, A. S. R. 734, and note. (4) The court erred in giving instructions 2, 6, 7, 8 and 10 asked by defendant. Authorities above cited. (5) The court erred in giving instructions 1, 2, 3, 4 and 4 1-2. Authorities above cited. (6) The motion for new trial should have been sustained.
Johnson & Lucas for respondent.
(1) The general allegations of plaintiff's petition were limited and restricted by the specific ones, and, having elected to pursue a certain course, he could not to the prejudice of defendant be permitted to change it. Price v. Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34; Sidekum v. Railroad, 93 Mo. 400, instruction on page 406. (2) The changing of its ruling by the court on the question of non-expert witnesses giving their reasons for their conclusions, and its remark thereon, were in no way prejudicial to plaintiff. No exception was taken to the remark of the court at the time. (3) Plaintiff cannot be heard to complain that the court compelled him to adopt its theory of the case. (4) Instructions 1 and 2 asked by plaintiff were properly refused because they were expressed in involved and obscure language and so far as any parts were applicable to the case were supplied by instructions 3 and 4 given by the court of its own motion. (5) Instruction 2 was to prevent what is a common practice amongst jurors in cases where unliquidated damages are sued for. It has been held that it is not a proper method of arriving at a verdict, and yet it cannot be shown that such method was adopted by affidavits of jurors. Hence the giving of an instruction forbidding it is the only (if there is any) corrective. Sawyer v. Railroad, 37 Mo. 240. (6) The fifth instruction means that if the failure of the brakes to stop the train was caused by the icy and slippery condition of the track, and not by any defect or insufficiency in the brakes, then the defendant is not liable. It was correct and was properly given. (7) No vice has been pointed out by appellant in instructions 1, 2, 3, and 4, given by the court of its own motion, and none of the authorities cited controvert the principles laid down.
This was a suit to recover damages for injuries sustained by the plaintiff in February, 1888, while a passenger on defendant's road. The appeal is prosecuted by the plaintiff from a verdict and judgment in favor of the defendant.
The defendant owns and operates a cable street railroad from Union avenue in Kansas City eastward. The tracks at Union avenue rest upon trestle work some thirty feet above the ground. From there east to Jefferson street, a distance of about a quarter of a mile, there is a steep up grade. Plaintiff took passage at Union avenue on a train composed of a grip car and a coach. When the train was within one hundred feet of Jefferson street, the grip broke at the shank, and the train ran back down the hill. The evidence shows that there were two brakes on the grip-car, one an automatic brake to be applied to the car wheels, and the other a rail-brake which applied blocks of wood to the track-rail, both operated by the gripman. The coach had two brakes also, operated by the conductor and a hill brakeman. The grip-shank runs in a slotted rail and is subject to constant friction, and has chafing irons attached to keep it from wearing away. There is no dispute as to the above facts.
The plaintiff's evidence tends to show that the chafing irons had been removed from the grips on all the cars a short time before this accident because the cold weather caused the slot to close to some extent. The gripman says he applied his brakes as soon as the grip-shank broke, but they did not hold the cars; that he knows the blocks on the rail-brake were worn from the fact that the lever went over too far. Some of the plaintiff's witnesses say the train ran down the hill at the rate of thirty to fifty miles per hour. The plaintiff did not testify in his own behalf, and it does not clearly appear where he left the train or whether he jumped off or was thrown off. We infer he jumped off before it reached the bottom of the incline. He received severe injuries. A Mr. Carr, a witness for plaintiff, says he was in the grip-car, that something broke and he stepped off, that he followed the train down the hill and on his way met a number of passengers and two of the employes. He thinks these employes belonged to this train and that one was the gripman and the other the hill brakeman. He says he met these employes more than a hundred feet from the place where the cars stopped.
The evidence for the defendant is to the effect that the grips and brakes used by the defendant were the best that had then been devised; that the grips were made of soft steel; that freezing weather has a tendency to make steel brittle and liable to break, and there is no known remedy; that the grips and brakes were inspected daily; that the brakes on these cars were all in good condition at the time of and were found to be in good condition just after the accident. The hill brakeman testified that all the brakes were applied as soon as the grip broke; that it was freezing and thawing, and raining and sleeting, making the track slippery; that the train slid down the hill gradually at a rate not exceeding ten miles per hour; that he and the conductor notified the passengers in the coach several times to remain in their seats and they would be safe, and that he remained at his post until the car stopped. The evidence of the gripman is that he remained at his proper place, and it seems the conductor was on the car when it reached the bottom of the incline.
1. The trial court allowed non-professional witnesses to give their opinions that plaintiff's mind was seriously and injuriously affected by the accident, but at first refused to allow them to recite the facts upon which they based their opinions. At a later stage of the trial these witnesses were recalled and were permitted to state the facts.
A non-professional witness may give his opinion as to the mental condition of another in connection with a recital of the facts upon which he bases his conclusion. This is the well settled law in this state. Crowe v. Peters, 63 Mo. 429; Moore v. Moore, 67 Mo. 192; Appleby v. Brock , 76 Mo. 314. But the value of such opinion depends wholly upon the opportunity the witness has had to observe the conduct of the person whose mind is in question and upon the incidents actually observed. These circumstances should be stated, first, to make the opinion competent as evidence; and second, to enable the jury to estimate the value of the opinion. Indeed a non-professional witness may relate the facts without expressing any opinion at all, leaving it to the jury to draw the conclusion with or without the aid of experts. The court erred in the first instance in excluding the offered evidence, but, as the witnesses were recalled and permitted to testify, the error was corrected and therefore constitutes no ground for reversal.
2. At the close of all the evidence the plaintiff asked a number of instructions, some of which were given and others were refused. The bill of exceptions shows that the court suggested to counsel for plaintiff that if he would prepare and ask certain instructions, they would be given. Counsel prepared and asked the instructions and they were given. The complaint is now made that in this way the trial court in effect compelled the plaintiff to adopt its theory of the case or go to the jury without instructions.
This court cannot listen to such complaints. The attorney for the plaintiff had a...
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