Smith v. Chicago & A.R. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Black, J.
• Citation: Smith v. Chicago & A.R. Co., 18 S.W. 971, 108 Mo. 243 (Mo. 1891)
• Decision Date: 22 December 1891
• Parties: Smith et al. v. The Chicago & Alton Railroad Company, Appellant

18 S.W. 971

108 Mo. 243

Smith et al. v. The Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri, First Division

December 22, 1891

Appeal from Howard Circuit Court. -- Hon. G. H. Burckhartt, Judge.

Reversed and remanded.

George Robertson for appellant.

(1) The verdict is against the evidence in the case, and this court will set aside a verdict when it is without evidence to support it. Hacker v. Brown, 81 Mo. 68; Foster v. Foster, 77 Mo. 227; Schooling v. Railroad, 75 Mo. 518; Fairgrieve v. Moberly, 29 Mo.App. 141. Or when the evidence so preponderates against it as to show that it was the result of partiality, prejudice or passion. Oglesby v. Corby, 96 Mo. 285; Rosecrans v Railroad, 83 Mo. 678; Thompson on Trials, sec. 2273. (2) Plaintiff's instruction, numbered 3, is error, because it declares the starting of the train, in connection with other facts, to be negligent, and that the defendant is liable. Whether it was negligence to have started the train at the time was a question for the jury. Doss v. Railroad, 57 Mo. 37; Dowell v. Guthrie, 99 Mo. 653. The state of facts set forth in this instruction does not include all the facts necessary to constitute a case of liability of the defendant. It leaves out the fact of the injury as the result of defendant's agency. Instructions should be predicated upon the whole facts. Sheedy v. Streeter, 70 Mo 679; Dowell v. Guthrie, 99 Mo. 653. (3) Instruction numbered 4, given at plaintiff's request is error. First. Because it is a mere abstract proposition of law. Abstract propositions of law must not be given. Schroeder v. Mason, 25 Mo.App. 190; Fairgrieve v. Moberly, 29 Mo.App. 141; Haegele v. Stove Co., 29 Mo.App. 486; Zwisler v. Storts, 30 Mo.App. 164; McDermott v. Dougan, 44 Mo. 85. The reason being that such instructions may mislead the jury. McDermott v. Dougan, supra. Second. It is error because by the use of the word "utmost" the highest possible degree of care the human mind can attain to or is capable of inventing is required of the defendant, when the law is satisfied with the greatest degree of care practicable. Redfield on Car., sec. 347; 2 Rorer on Railroads, p. 955. (4) Instruction, numbered 6, of plaintiff is erroneous, for telling the jury in assessing damages to take into account plaintiff's expenditure of money when the evidence disclosed no expenditure at all. Duke v. Railroad, 99 Mo. 347. (5) Plaintiff's instruction, numbered 7, was erroneous in excluding from the jury the statement of the son that his mother had jumped off, except for the purpose of contradiction. He was with her and assisting her when she fell, and his exclamations that she jumped from the train are admissible as part of the res gestae. Waller v. Railroad, 83 Mo. 608; Brownell v. Railroad, 47 Mo. 239; Harriman v. Stowe, 57 Mo. 93; 1 Greenleaf's Ev., sec. 108, et seq.

P. S. Rader and Tyson S. Dines for respondents.

(1) The verdict is amply sustained by the evidence, and this court will not disturb the finding when such is the case. The court could not sustain a demurrer to plaintiff's cause predicated upon defendant's evidence. Wood v. Ins. Co., 50 Mo. 112; Smith v. Hutchinson, 83 Mo. 691. The jury, and not the court, must psss upon any conflict in the testimony. Brown v. Railroad, 99 Mo. 310. (2) Plaintiff's instruction, numbered 3, is right. It simply says that a failure on the part of defendant to perform its duties is negligence. The question as to whether plaintiff's injuries resulted proximately from his negligence is another question and covered by another instruction. Besides, this instruction is taken almost verbatim from the case of Hickman v. Railroad, 91 Mo. 435, where it is approved by this court. Owens v. Railroad, 95 Mo. 169, 180; Goodwin v. Railroad, 75 Mo. 73; Mfg. Co. v. Ballow, 71 Ill.; Ravenscraft v. Railroad, 27 Mo.App. 617, 623. (3) Instruction, numbered 4, given at plaintiff's request is right. The words complained of in this instruction are not nearly so strong as have been frequently quoted with approval by this court. This instruction imposes the duty "of exercising the utmost care." Taken in connection with instruction, numbered 2, given for defendant, the whole law is given. In the case of Furnish v. Railroad, 102 Mo. 456, the words are "utmost human skill and diligence," and this is approved. So often has the term utmost been used by this court to define the duty of common carrier of passengers, that the objection seems frivolous. Higgins v. Railroad, 36 Mo. 433; Leslie v. Chancellor, 68 Mo. 340; Gibson v. Railroad, 76 Mo. 282; Waller v. Railroad, 83 Mo. 608-616; Story on Bailments [7 Ed.] sec. 601; Angell on Carriers [4 Ed.] sec. 569; Ingalls v. Bills, 9 Met. 1; Christie v. Griggs, 2 Camp. 80; Taylor v. Railroad, 48 N.H. 304; Stokes v. Saltonstall, 13 Peters, 181.

OPINION

Black, J.

The defendant prosecutes this appeal from a judgment in favor of the plaintiff rendered in a personal-damage suit. Plaintiff is a married woman of the age of forty-five years. She and her son, fifteen years of age, became passengers at Odessa for Higbee on the defendant's morning train. A hundred or more persons got on the train at the first-named place for an intermediate station, so that the local cars were crowded. Several witnesses testify that the conductor of the train directed the plaintiff and her son to get in a rear coach, designed for through passengers, and it is an undisputed fact that they took a seat in the front end of the rear car. She had in her hands a long pasteboard shoe-box and a small hand-satchel, and the boy had in his care a hand valise and a small paper box. The conductor told the porter of the car where she would get off, and the porter had a conversation with her before she reached Yates, which was the station next west of Higbee; but there is mach conflict in the evidence as to what he said to her.

Her evidence is to the following effect: "The porter passed through the car and stopped at the door; he and the conductor had a conversation; he then came to me and said: 'The next time the train stops, that will be at Yates. You cannot reach the platform from this car; you go in the car two cars ahead of this, or you cannot get out.' The porter gave me that direction, and I supposed it was an order from the conductor." She says she and her son got up and started forward as soon as the train stopped at Yates; that her son went out on the platform first and one of the two doors closed; that she opened it as quick as she could; that she got out on the platform and just as she stepped on it the car started and she fell off head foremost. She says, "I suppose it was the jerk of the cars," and, again, "I was jerked off and rolled down in a ditch." The boy says the porter told them to go two coaches ahead when they got to Yates. There is much evidence to the effect that the train stopped at Yates but a few seconds, not long enough to enable persons to pass through two coaches, and that plaintiff and her son started forward as soon as the cars stopped.

The porter says it was his duty to assist ladies, children and infirm persons on and off the cars; that he told plaintiff the car she was in would not reach the platform at Higbee, and before they reached that place he would assist her in going forward two coaches, so that she could get off on the platform. There is other evidence tending to show that the car began to move before she left her seat; that she was found one-fourth of a mile beyond the platform at Yates, and that she said she got dizzy while on the platform.

Before the accident she was a stout woman, and made a living for herself and son as a seamstress, earning about $ 20 per month. Though no bones were broken she received several wounds, and since that time has not had the full use of one leg and arm and still suffers much, and is able to perform but little work. The verdict was for $ 3,000.

I. If the defendant's servants directed the plaintiff to move to the third car forward of the one in which she was sitting as soon as the train stopped, and she undertook to obey the order, it devolved upon her to use ordinary care and diligence, considering her age, sex and surroundings. On the other hand it became the duty of the defendant to stop the train long enough to enable her to go to the car to which she had been directed, by the use of the care and diligence before mentioned; and a failure on the part of defendant to stop the cars for such a length of time was a breach of duty to her, entitling her to recover damages for the injuries occasioned thereby. These principles are all embraced in the plaintiff's first and third instructions, and there was no error in giving them. Indeed, they required the jury to find the further fact that the defendant's servant negligently put the train in motion while she was on the platform, and before she could get across by the use of ordinary care and expedition.

There is no merit whatever in the claim that the verdict is unsupported by the evidence. It is true there is a conflict in the evidence, and especially as to the instruction of the porter, but it was for the jury to settle this matter. The six instructions given at the request of the defendant present most favorably the entire defense.

II. The fourth instruction given at the request of the plaintiff told the jury, that the law imposed upon a common carrier of passengers the utmost care in carrying them safely to the place of destination, and that the absence of the utmost care constituted such negligence as to render the carrier liable for all injuries resulting to the passengers, the passenger being free of contributory negligence.

By the second instruction given at the request of the defendant the court told the jury that railroad...