Spohn v. The Missouri Pacific Railway Company
| Decision Date | 13 June 1893 |
| Citation | 22 S.W. 690,116 Mo. 617 |
| Parties | Spohn v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Miller Circuit Court. -- Hon. E. L. Edwards, Judge.
Reversed and Remanded.
H. S Priest and W. S. Shirk for appellant.
(1) Defendant's demurrer to plaintiff's evidence should have been sustained. Plaintiff's story, as told upon this trial, is so extraordinary and improbable, that a verdict should not be permitted to stand upon it; and the fact that a verdict was rendered upon it, leads to the conclusion that the verdict was the result of passion or prejudice, or a total disregard of the instructions of the court. His story is much more incredible now than when the case was last before this court. 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. (2) The demurrer to the evidence should have been sustained for many other reasons: The acts or threats 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 from it while under full headway. 2 Rorer on Railroads, p. 1092, paragraph 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. (3) The evidence, as it now stands, does not show that any threats were made against plaintiff, or any abusive language used towards him, or that anything was said or done to him calculated to alarm or terrify him, except the conversation between the conductor, Connolly, and the plaintiff. (a) The language 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. (b) 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 plaintiff and his conduct in the conductor's presence. That these propositions correctly state the law, see Spohn v. Railroad, 101 Mo. 456; 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 Railroads, p. 1092, paragraph 2; Kleiber v. Railroad, 107 Mo. 240. (4) It was error to permit the witnesses Meyer and McCarty to testify to a conversation had with the conductor, Gallagher, long after the injury to plaintiff, as to how plaintiff happened to jump from the train. Gallagher's declarations made in this conversation were not a part of the res gestoe and were not made at the time of the injury, but was the mere narration of a past event. It was therefore immaterial, and a witness cannot be contradicted upon an immaterial matter. Smith v. Railroad, 91 Mo. 58; Adams v. Railroad, 74 Mo. 554; Scoville v. Glassner, 79 Mo. 455; Aldredge v. Furnace Co., 78 Mo. 559; Brown v. Weldon, 27 Mo.App. 251; Church v. Fire Co., 28 N.Y. 153; Lohart v. Buchanan, 50 Mo. 201. (5) The impression made upon the minds of the jury, that the conductor had frightened the plaintiff off the train, could not be removed by an instruction. Cobb v. Griffith, 12 Mo.App. 130; Railroad v. Winslow, 66 Ill. 219; Railroad v. Rubin, 79 Ill. 420; Howe Mch. Co. v. Rosine, 37 Ill. 105; Thompson on Charging the Jury, sec. 94, p. 124. (6) Under any view, it was error to permit the witnesses Meyers and McCarty, to be asked if they had a conversation with Gallagher, and if so, what Gallagher said in that conversation. The rule in the trial courts of this state is uniform, and, we believe, unbending, that the witness whom it is sought to contradict must first be asked if at a certain time and place he said "thus and so," stating his language as near as may be. Then the contradicting witness can only be asked if at the time and place mentioned the witness to be contradicted did use the language (at least in substance) which was repeated to him. This specific objection was made to the questions and answers on this trial. It had never been made at any former trial, and has not been passed upon by this court. Neither McCarty or Meyers, in their evidence, swore that Gallagher made the statements about which he was asked; but under the guise of contradicting Gallagher, they were permitted to detail in evidence other statements and declarations, which they said Gallagher made to them. This was error. Starkie on Evidence [Sharswood's 8 Ed.], p. 148, *p. 170. (7) It was error to permit the plaintiff, against defendant's objection, to introduce evidence as to Munger's bill for nursing, board and care of plaintiff while at his house, and as to his doctor's bill, and cost of wooden leg. The petition contained no allegations covering these matters, and they were not, therefore, proper elements of damages. Mellor v. Railroad, 105 Mo. 455. (8) Plaintiff's third instruction does not correctly enunciate the law, and is misleading and grossly prejudicial to defendant, for the following reasons: Damages for mental suffering and wounded feelings are only given when such feelings are the proximate consequences of physical injury. Trigg v. Railroad, 74 Mo. 147; Burnett v. Tel. Co., 39 Mo.App. 599; Russell v. Tel. Co., 3 Dak. 315; Railroad v. Stables, 62 Ill. 313; Canning v. Williamstown, 1. Cush 451; Wyman v. Leavitt, 71 Me. 227; Johnson v. Wells, 6 Nev. 224; Dorah v. Railroad, 65 Miss. 14. McGinnis v. Railroad, 21 Mo.App. 399, is not opposed to these cases. It will be seen that said instruction makes the defendant liable to the plaintiff merely for the making of threats, regardless of the question whether said threats resulted in any injury to the plaintiff or not. (9) Plaintiff's fourth instruction should not have been given for several reasons. (10) Plaintiff's fifth instruction should not have been given. It tells the jury that if the threats of violence, etc., created in plaintiff's mind a fear of greater risk, etc. This declaration should have been so qualified as to tell the jury that the fear must have been a reasonable one or such as a reasonable and ordinarily prudent and cautious man would have felt under the same circumstances, and not a wild, unreasonable, unfounded and insane fear. See authorities, supra. (11) It was error to give plaintiff's eighth instruction: (a) There is no evidence whatever that any other person in the hearing of the conductor, or with his approval, had threatened to rob the plaintiff, or tie him and throw him off the train. (b) It is also wrong for the further reason that it entirely fails to submit to the jury whether defendant's conductor, as a man of ordinary prudence and experience, would have reasonably anticipated that the threats made or language used would cause the plaintiff to jump from the train, taking into consideration plaintiff's apparent intelligence, his conduct in his presence, and his situation and surroundings. This was a necessary and vital qualification. Spohn v. Railroad, 101 Mo. 456 and 457. (c) The failure to so qualify this instruction must be regarded as grossly misleading and harmful and prejudicial to defendant, for the reason that defendant's seventh, eighth and ninth instructions, all of which submit this question to the jury, were refused. (d) Said eighth instruction purports to cover all the legal principles involved in the case necessary to a recovery by plaintiff. Its failure to include the principle that the threats must have been such as to cause the conductor, as a man of ordinary prudence, etc., to anticipate that plaintiff would jump off as the natural and probable consequence of such threats, is not cured by the giving of another instruction, in which this principle may be included. Billups v. Daggs, 38 Mo.App. 367; Ellis v. Wagner, 24 Mo.App. 407; Hayner v. Churchill, 29 Mo.App. 676; Dougherty v. Railroad, 97 Mo. 647; Clark v. Fairley, 24 Mo.App. 429; Stocker v. Green, 94 Mo. 280; Bertwistle v. Woodward, 95 Mo. 113.
J. R. Edwards, J. R. Walker and Edwin Silver for respondent.
(1) The demurrer to plaintiff's evidence was properly overruled. This precise question was passed on and settled in the two former appeals in this cause. Spohn v. Railroad, 87 Mo. 74; Spohn v. Railroad, 101 Mo. 417. (2) Nor was it necessary that plaintiff, having had the life scared out of him by defendant's misconduct, should have then exercised the care of a reasonably prudent person. (a) It was not so ruled on either of the former appeals. Spohn v Railroad, 87 Mo. 74; Spohn v. Railroad, 101 Mo. 417. (b) Appellant's position in that respect is not supported by the authorities relied on by it. 2 Rorer on Railways, page 1091; Nelson v. Railroad, 68 Mo. 593. (c) The conduct of the conductor amounted to a willful or wanton wrong and contributory negligence is no defense. Cooley on Torts [2 Ed.], page 810; Beach on Contributory Negligence, sections 46, 64 and 65; 1 Wharton Criminal Law, section 164; Gray v. McDonald, 104 Mo. 303. 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. (3) The instructions do not authorize a recovery founded on any threats except those occurring in the presence of the...
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