Smiley v. St. Louis & Hannibal Railway Company

• Decision Date: 12 March 1901
• Citation: 61 S.W. 667,160 Mo. 629
• Parties: SMILEY v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

61 S.W. 667

160 Mo. 629

SMILEY v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

March 12, 1901

Appeal from Boone Circuit Court. -- Hon. Jno. A. Hockaday, Judge.

Affirmed.

George A. Mahan and J. D. Hostetter for appellant.

(1) Instruction 2, given upon the request of plaintiff, transfers the burden of proof to defendant without requiring the jury to find that the plaintiff was without fault at the time of receiving his injury. This was plain error. Och v Railroad, 130 Mo. 51; Shafer v. Railroad, 128 Mo. 70; Furnish v. Railroad, 102 Mo. 453; Hipsley v. Railroad, 88 Mo. 352; Lemon v Chanslor, 68 Mo. 354; Miers v. Railroad, 64 Pa St. 225; Laing v. Colder, 8 Barr, 482; Sullivan v. Railroad, 6 Case, 234. (2) Instruction 2 is also vicious because there is no evidence upon which to base a finding of injury to the body. It submitted an issue to the jury not made by the evidence. Wilkerson v. Eilers, 114 Mo. 245; Stone v. Hunt, 114 Mo. 66; Goltz v. Griswold, 113 Mo. 144. (3) The court committed error in giving instruction 3, asked by plaintiff. There is not a particle of proof showing any certain future suffering. All the evidence tends to show that there was no suffering or pain at the time of the trial and would be none in the future. There were no bones broken or scars left or permanent injury shown. The vice in the instruction is in telling the jury that "they may take into consideration the physical pain and mental anguish, if any, that they may believe from the evidence that he will suffer in the future in consequence of such injuries." This part of the instruction was not based on the evidence. Ross v. Kansas City, 48 Mo.App. 440; 3 Sunderland on Damages, p. 261. (4) An expert medical witness can not be allowed to give his opinion in testimony, based upon statements made to him by parties out of court and not under oath. Greenleaf on Evidence, (13 Ed.), sec. 440, n. 2; Heald v. Thing, 45 Maine 392; Hurst v. Railroad, 49 Iowa 79; Railroad v. Huntley, 38 Mich. 537; Hunt v. State, 9 Tex. Ct. App. 166; Railroad v. Shires, 108 Ill. 617; Wetherbees v. Wetherbees, 38 Vt. 454; Rogers on Expert Testimony, (2 Ed.), sec. 46, p. 113. Defendant sought to prove by plaintiff, having taken the depositions of Drs. Bishop and Baskett, who attended him during the eight months following the accident, had not offered to read either of these depositions to the jury. The plaintiff's case in chief was then closed. The plaintiff objected to such proof, and the court sustained the objection, and excluded the proffered evidence. "The failure of a party to call a witness who has knowledge of important facts would raise a presumption against such party, and hence the fact of such failure would be relevant and admissible." 11 Am. and Eng. Ency. of Law (2 Ed.), p. 503 and 504; Durgin v. Danville, 47 Vt. 95; Danner v. Railroad, 4 Rich. L. (S. Car.) 329; Frick v. Barbour, 64 Pa. St. 120; Brown v. Schock, 77 Pa. St. 471; Bleecker v. Johnston, 69 N.Y. 309; People v. Hovey, 92 N.Y. 554; Jones v. Knauss, 31 N.J.Eq. 609; Wallace v. Harris, 32 Mich. 380; Cole v. Railroad, 81 Mich. 156; Cooley v. Foltz, 85 Mich. 47; Cole v. Railroad, 95 Mich. 77; McDonough v. O'Niel, 113 Mass. 92; Thompson v. Thompson, 9 Ind. 323; Merwin v. Ward, 15 Conn. 377; Miller v. Jones, 32 Ark. 337; Atty. Gen. v. Queen's Free Chapel, 24 Beav. 679; Lowell v. Todd, 15 U. C. C. P. 306; Atty.-Gen. v. Halliday, 26 U. C. Q. B. 397. (5) The court erred in refusing defendant's instruction 11, to the effect that the jury should not include plaintiff's insanity as an element of damages in making up the verdict. The petition did not sufficiently allege any specific injury to the mind so as to authorize either the reception of testimony as to plaintiff's insanity, or the taking into consideration of such insanity as an element of damages. 5 Ency. Pl. and Prac. p. 719; Kleiner v. Railroad, 162 N.Y. 193; Uransky v. Railroad, 118 N.Y. 304; Geoglegan v. Railroad, 64 N.Y.S. 640; Gumb v. Railroad, 114 N.Y. 411. (6) The verdict in this case is so outrageous as to shock the judical conscience and is clearly the result of passion and prejudice on the part of the jury, and is but a manifestation of that intense and unreasonable bias and prejudice which unfortunately is prevalent among the masses of the people against all railroad corporations. It has frequently been held by this court that relief from verdicts for an excessive amount will be afforded by requiring the party in whose favor such verdict has been returned either to enter a remittitur or else reverse and remand the case. Spohn v. Railroad, 87 Mo. 74; Nichols v. Crystal Plate Glass Co., 126 Mo. 55; Rodney v. Railroad, 127 Mo. 676; Waldhier, v. Railroad, 87 Mo. 37; Furnish v. Railroad, 102 Mo. 438; Gurley v. Railroad, 104 Mo. 211.

Chas. J. Walker, Norton, Avery & Young and Turner & Hinton for respondent.

(1) The court did not err in giving instruction 2 for the plaintiff. Flynn v. Railroad, 78 Mo. 212; Beusching v. St. Louis Gas Light Co., 73 Mo. 233; Tuley v. Railroad, 41 Mo.App. 436; Mellor v. Railroad, 105 Mo. 462; Magoffin v. Railroad, 102 Mo. 541; Och v. Railroad, 130 Mo. 52; Hite v. Railroad, 130 Mo. 138; Olsen v. Railroad, 152 Mo. 430; Bunyan v. Railroad, 127 Mo. 18; Clark v. Railroad, 127 Mo. 197; Young v. Shickle Iron Co., 103 Mo. 324; Voegeli v. Marble & Granite Works, 49 Mo.App. 643. (2) Nor did the court commit error in giving instruction 3 and including in that instruction a directon to the jury that they might take into consideration the physical pain and mental anguish, if any, that they may believe from the evidence that he will suffer in the future in consequence of such injuries. Gerdes v. Iron Foundry Co., 124 Mo. 360; Mellor v. Railroad, 105 Mo. 464; Railroad v. Curry, 64 Texas 85; Chilton v. Railroad, 143 Mo. 203. (3) Nor did the court commit error in exclusion and admission of testimony. Hickman v. Green, 123 Mo. 179; Railroad v. Freedman, 46 S.W. 101; Carr v. Smith, 79 Texas 47; Johnson v. Railroad, 50 N.W. 473; Fullerton v. Fordyce, 144 Mo. 531; Russ v. Railroad, 112 Mo. 48; Borgess v. Vette, 142 Mo. 560; In re Estate of Soulard, 141 Mo. 642; Bank v. Worthington, 145 Mo. 91; Kerstner v. Vorweg, 130 Mo. 196; Bank v. Nichols, 43 Mo.App. 396. (4) There is nothing in the contention that plaintiff's insanity was not sufficiently alleged. Mellor v. Railroad, 105 Mo. 455. (5) The damages are not excessive. Gorham v. Railroad, 113 Mo. 410; Hollenbeck v. Railroad, 141 Mo. 112; Geary v. Railroad, 138 Mo. 262; Fullerton v. Fordyce, 144 Mo. 533, 534; Railroad v. George, 145 Mo. 38.

OPINION

BRACE, P. J.

This is an action for personal injuries in which the plaintiff obtained judgment in the court below for $ 5,000 and the defendant appeals.

The errors assigned for reversal are, the giving of instructions numbered two and three for the plaintiff, the refusal to give instruction numbered eleven for the defendant, the admission of illegal evidence for the plaintiff, the exclusion of legal evidence for the defendant, and the refusal of the court to grant a new trial on the ground of excessive damages.

The pleadings and evidence, so far as is necessary, will be noticed in the course of the opinion.

Instructions numbered two and three given for the plaintiff are as follows:

"2. The court instructs the jury that if they believe from the evidence that the plaintiff was a postal agent in the employment of the United States, and that at the time of the accident, while in the discharge of his duties as such postal agent, he was being transported on defendant's passenger train in a postal or mail car, with the knowledge and consent of defendant, and that such train was derailed, overturned, and thrown down an embankment; and that the plaintiff thereby received injuries to his head, body or ankle, then it devolves upon the defendant to prove to the satisfaction of the jury that such derailment and overturning of said train was not caused by any fault, negligence or carelessness on its part in running said train, and in providing and maintaining a reasonably safe track and roadbed over which to run the same; and unless it is so shown the verdict should be for the plaintiff.

"3. If the jury find for the plaintiff, then, in assessing his damages they will allow the reasonable expense, if any, which they may believe from the evidence that he has incurred for medical treatment growing out of the injuries sustained by him in the derailment of defendant's train; they will also allow him a reasonable compensation for the loss of time and earnings, if any, that they may believe from the evidence that he has sustained up to the present time in consequence of such injuries; and the jury may take into consideration the impairment, if any, in plaintiff's capacity to earn a livelihood, which they may believe from the evidence that he has sustained in consequence of such injuries, and allow him a reasonable compensation therefor; and the jury may also take into consideration the physical pain and mental anguish, if any, that they may believe from the evidence that he has suffered in consequence of such injuries, and allow him a reasonable compensation therefor; and, also, they may take into consideration the physical pain and mental anguish, if any, that they may believe from the evidence that he will suffer in the future in consequence of such injuries, and allow him a reasonable compensation therefor, not to exceed in all the sum of ten thousand dollars."

(1) The first objection urged to plaintiff's instruction numbered 2, is, that it "transfers the burden of proof to defendant without requiring the jury to find that the plaintiff was without fault at the time of receiving his injury." In answer to which it is...