Spohn v. The Missouri Pacific Railway Company

• Decision Date: 14 May 1894
• Parties: Spohn v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

26 S.W. 663

122 Mo. 1

Spohn v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

May 14, 1894

Appeal from Cooper Circuit Court. -- Hon. D. W. Shackleford, Judge.

Affirmed.

H. S Priest and Wm. S. Shirk for appellant.

(1) Courts are not bound to believe improbable and incredible statements or stories, simply because a jury seems to have rendered a verdict upon them. Gurley v. Railroad, 105 Mo. 211; Spohn v. Railroad, 87 Mo. 74; Hunter v. Railroad, 23 N.E. 9; Spohn v Railroad, 116 Mo. 617. The circuit court should have disregarded plaintiff's evidence, and should have sustained the demurrer. (2) Plaintiff's story as now told is so flatly contradictory in many important and vital particulars, from his narration of it, at former trials, as to lead to the irresistible conclusion, that his whole conduct was the result of an hallucination. (3) The language complained of by plaintiff was not such as would cause a reasonably prudent and sensible man to believe that he stood in greater peril of life or limb by remaining on the train than by leaping from it at full speed. (4) The language was not such as would cause a reasonable apprehension in the mind of the conductor, as a man of ordinary prudence and experience, that the plaintiff would jump off the train, as the natural, usual or probable consequence of such language regard being had by the conductor to the apparent intelligence of the plaintiff and his conduct in the conductor's presence. Spohn v. Railroad, 101 Mo. 456, 457; Twombly v. Railroad, 69 N.Y. 158; Stokes v. Saltonstall, 13 Pet. 181; Coal Co. v. Healer, 84 Ill. 126; Karr v. Parks, 40 Cal. 188; Beach on Contributory Negligence, p. 43; 2 Rorer on Railways, p. 1092, par. 2; Kleiber v. Railroad, 107 Mo. 240. (5) The court erred in admitting the evidence of Wm. G. McCarty, as to a conversation had with Chas. E. Gallagher, to impeach and contradict Conductor Gallagher. It is the settled law of this state that in order to lay the foundation for discrediting a witness by proof of prior contradictory statements, he must first be interrogated as to time, place and persons to whom such contradictory statements were made. Spohn v. Railroad, 116 Mo. 617, and authorities there cited; Brown v. State, 72 Md. 468; Bank v. Kelly, 29 Neb. 590; 1 Greenleaf on Evidence [15 Ed.], 462, and authorities. (6) The court also erred in admitting the evidence of James W. Meyers, as to a conversation which he had with conductor Gallagher, to discredit and impeach said Gallagher. The conversation related by Meyers was substantially and materially, if not totally, different as to subject-matter, from that propounded to Gallagher. The subject-matter of the question propounded to the witness to be discredited, and to the discrediting witness must be the same. Spohn v. Railroad, 116 Mo. 617, and authorities cited. (7) The exact questions presented in points 2 and 3 were adjudicated, and, so far as this case is concerned, forever settled by the decision of this court in this case when it was last before it. For the error of admitting this evidence, the case was then reversed. And it was the pointed, persistent and contumacious refusal of the lower court to follow and obey the ruling of the court on these points that brought about another verdict for the plaintiff, and caused this appeal. A question passed upon in a former appeal, will be considered res adjudicata. Chambers v. Smith, 30 Mo. 156; Overall v. Lyon, 38 Mo. 209; Bank v. Taylor, 62 Mo. 888; Boone v. Shackelford, 66 Mo. 494; Adair Co. v. Ownby, 75 Mo. 232; Gaines v. Fender, 82 Mo. 497; Keith v. Keith, 97 Mo. 223; Gwin v. Waggoner, 22 S.W. 710; Russ v. Railroad, 30 Mo.App. 564; Rutledge v. Railroad, (S. C. Mo.), not yet reported. (8) Courts are very averse to admitting evidence of former contradictory statements to discredit a witness, where the effect of admitting such statements will be to get before the jury incompetent, immaterial and prejudicial evidence. Rudolph v. Com., 11 S.W. 813. (9) Especially is this true, where it is evident that the instruction of the court that such contradictory statements are admitted only to discredit the witness, and not as an admission against the defendant. In this case the jury undoubtedly treated these statements as an admission against defendant, that its conductor had frightened plaintiff off the train. Cobb v. Griffith, 12 Mo.App. 130; Railroad v. Winslow, 66 Ill. 219; Ibs Co. v. Rubin, 79 Ill. 402; Howe Mach. Co. v. Rosine, 37 Ill. 105; Thompson on Charging the Jury, sec. 94, p. 124. (10) The court also erred in permitting the plaintiff to testify as to what the three persons in the car said after the conductor went out of the car. Hutchinson on Carriers, sec. 552, citing Putnam v. Railroad, 55 N.Y. 108; Batton v. Railroad, 23 Am. and Eng. R. R. Cases (Ala.), 514; Felton v. Railroad, 27 Am. and Eng. R. R. Cases, 229; 2 Rorer on Railways, p. 951. (11) The court erred in giving the plaintiff's third instruction. It entirely ignored the principle that the threats made must have been such as would lead an ordinarily reasonable and prudent person to believe that he was in greater danger in remaining on the train than in jumping off at full speed. The instruction only required the jury to find that the threats caused the plaintiff to believe that he was in greater risk to life and limb by remaining on the car than by jumping off. Such is not the law. 2 Rorer, Railways, p. 1092, par. 2; Beach on Contributory Negligence, p. 43; Nelson v. Railroad, 68 Mo. 593; Twombly v. Railroad, 69 N.Y. 158; Wilson v. Railroad, 26 Minn. 278; Stokes v. Saltonstall, 13 Pet. 181; Coal Co. v. Healer, 84 Ill. 125; Karr v. Parks, 40 Cal. 188; Kleiber v. Railroad, 107 Mo. 240.

J. R. Edwards, J. R. Walker and Edwin Silver for respondent.

(1) The demurrer to the evidence was properly overruled. This precise question was passed on and settled in each of the three former appeals. Spohn v. Railroad, 87 Mo. 74; Spohn v. Railroad, 101 Mo. 417; Spohn v Railroad, 116 Mo. 617; S. C., 22 S.W. 690. (2) Nor was it necessary to plaintiff's recovery that having had all the prudence he possessed scared out of him by defendant's misconduct, he should still have exercised the care of a reasonably prudent person. First. It was not so ruled on any of the former appeals. Spohn v. Railroad, 87 Mo. 74; 101 Mo. 417; 116 Mo. 617. Second. Appellant's position in that respect is not supported by the authorities relied on by it. See 2 Rorer on Railways, p. 1091; Nelson v. Railroad, 68 Mo. 593. Third. The conduct of the conductor amounted to a wanton or willful wrong, and contributory negligence constitutes no defense. Gray v. McDonald, 104 Mo. 303; Ruter v. Foy, 43 Iowa 132; Whitehead v. Mathaway, 85 Ind. 86; Cooley on Torts [2 Ed.], p. 810; Beach on Contributory Negligence, secs. 46, 64, 65; 1 Wharton's Criminal Law, sec. 164. Making it essential to plaintiff's recovery that he should have exercised the care of a reasonably prudent person is equivalent to saying that he must not have been guilty of contributory negligence. Fourth. Besides, instructions numbers 6 and 7 given at defendant's request announce the same doctrine contained in plaintiff's instruction. Whitmore v. Sup. Lodge, 100 Mo. 36; Tetherow v. Railroad, 98 Mo. 391; Keen v. Schneidler, 92 Mo. 516; Thorpe v. Railroad, 89 Mo. 651; Davis v. Brown, 67 Mo. 313; Crutchfield v. Railroad, 64 Mo. 255. (3) Plaintiff's instructions do not authorize a recovery founded on any threats, except those made by the conductor or in his presence and with his approval; so instruction number 2 given for defendant expressly told the jury that defendant was not liable for threats not made in the presence or hearing of the conductor or of which he was not informed. (4) There was positive evidence that threats were made not only in the presence of the conductor, but by him. Connelly was a passenger on the train in question, and the very gravamen of the action and the gist of the recovery is what was said by Connelly and the conductor in the seat next behind plaintiff just before he leaped from the train. (5) Whether or not the conductor as an ordinarily prudent person could have anticipated plaintiff's act in leaping from the train was a question for the jury. Spohn v. Railroad, 101 Mo. 417. (6) The seven instructions given at plaintiff's request numbered from 1 to 7 stated the law sufficiently favorable for defendant. Numbers 6 and 7 fixed the same rule of liability and announced the same doctrine contained in instruction number 3 given for plaintiff. (7) Defendant's refused instructions were properly denied. The conduct of the conductor and his colleague Connelly constituted a wanton or willful wrong, and it was not essential to plaintiff's recovery that he should have exercised the care of an ordinarily prudent person similarly situated. Contributory negligencc has no place in this case. Gray v. McDonald, 104 Mo. 303; Cooley on Torts [2 Ed.], p. 810; Beach on Contributory Negligence, secs. 46, 64 and 65; 1 Wharton's Crim. Law, sec. 164; R. S. 1889, sec. 3491. Threats whereby a person is compelled to leave a place where he had a right to be, constitute an assault, even at common law. State v. Martin, 85 N.C. 509; State v. Rawles, 65 N.C. 334; State v. Sims, 3 Strobhart's Law Rep. p. 137; Martin v. Shoppel, 3 Car. & Payne, 373. (8) First. The testimony of Meyers and McCarty was competent for the purpose of impeaching Gallagher, the conductor. Spohn v. Railroad, 101 Mo. 417; 116 Mo. 617; Leahy v. Railroad, 97 Mo. 105. Besides, the facts in this record differ somewhat from those on the last appeal, which see argument infra. Second. Nor was it necessary that the contradiction should be in terms; the proof merely of inconsistent statements was...