Straus v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 30 April 1885
• Citation: 86 Mo. 421
• Parties: STRAUS v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

86 Mo. 421

STRAUS

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Strong & Mosman for appellant.

(1) The court erred in giving plaintiff's first instruction. The fact that the company has been guilty of negligence, followed by an injury, does not make it liable, unless the injury was occasioned by that negligence. Harlan v. Ry. Co., 65 Mo. 25. It affirmatively declared that plaintiff was entitled to “a reasonable time to pass from his seat in the car to the station platform.” This was not warranted by the law or the facts. Imhoff v. Ry. Co., 20 Wis. 344; Straus v. Ry. Co., 75 Mo. 191. The instruction ignored the question of negligence, the gist of the action. State v. Hill, 69 Mo. 451; Moffatt v. Conklin, 35 Mo. 453; Randle v. Ry. Co., 65 Mo. 325; Brown v. Street Ry., 49 Mich. 153; Mitchell v. Ry. Co., 51 Mich. 236. “The instruction in question withdraws from the jury all attendant circumstances, and predicates the right of plaintiff to recover upon the mere failure to stop the train, and plaintiff's injury in attempting to get off just as the train started, thus ignoring facts essential to a recovery by plaintiff.” Price v. Ry. Co., 72 Mo. 418-20; Railroad Co. v. Aspell,23 Pa. St. 147; Staples v. Canton, 69 Mo. 592; Brown v. Congress Street R. Co., 49 Mich. 153; Chicago Ry. v. Smith, 46 Mich. 510; Mitchel v. Ry. Co., 51 Mich. 236; Haley v. Ry. Co., 25 Kas. 56-7; Ry. Co. v. Flinn, 24 Kas. 640; Wyatt v. Ry. Co., 62 Mo. 408; Hulsenkamp v. Ry. Co., 34 Mo. 54; Thomas v. Babb, 45 Mo. 387-8. It was inconsistent with the other instructions. Thomas v. Babb, 45 Mo. 384; Seymour v. Seymour, 67 Mo. 303; Modisett v. McPike, 74 Mo. 636. It was in conflict with the other instructions. Price v. Ry. Co., 77 Mo. 508; Stevenson v. Hancock, 72 Mo. 614. (2) There was no evidence upon which to base the second instruction for plaintiff. Price v. Ry. Co., 72 Mo. 416; Edens v. Ry. Co., 72 Mo. 212; Ry. Co. v. Stark, 38 Mich. 714. (3) Plaintiff's fourth instruction was an abstract proposition of law, too general in its terms, and misleading. Price v. Ry. Co., supra; Yarnall v. Ry. Co., 75 Mo. 583; Nicholas v. Winfrey, 79 Mo. 551. (4) Plaintiff's fifth instruction was too general. Stewart v. Clinton, 79 Mo. 603; Curtis v. Ry. Co., 20 Barb. 282. It was not based on the evidence. State ex rel. v. Emmerson, 76 Mo. 608. It assumed facts. State v. Wheeler, 79 Mo. 366; Merritt v. Given, 35 Mo. 98. It did not fairly and plainly state the law. Railroad v. Thul, 32 Kas. 255; Callaway County v. Clark, 32 Mo. 305; Taylor v. Monroe, 43 Conn. 96; Machine Co. v. Ry. Co., 7 Mo. 203; Lambert v. Craig, 12 Pick. 199. The damages were excessive. Kalb v. O'Brien, 86 Ill. 210; Delie v. Ry. Co., 51 Wis. 400; Sawyer v. Ry. Co., 37 Mo. 264 (5) The instructions given by the court were erroneous. (6) It was error to refuse defendant's first, third and fifth instructions. They were justified by the pleadings and the evidence. Defendant's sixth instruction was given by the court on its own motion, on the former trial, and should have been given. The defendant's second, ninth, tenth and thirteenth instructions should have been given. They were supported by the evidence and were not embraced in others given, and were correct applications of the law to the facts of the case. (7) The court erred in permitting the witnesses, Hose and Mrs. Jackson, to testify to their opinions. Sparr v. Wellman, 11 Mo. 234; N. E. Glass Co. v. Lovell, 7 Cush. 321; White v. Ballou, 8 Allen, 408; Gavisk v. Ry. Co., 49 Mo. 277; Koons v. Ry. Co., 65 Mo. 597-8; Wagner v. Jacob, 26 Mo. 530. (8) The case should be reversed for the remarks of plaintiff's counsel, in his opening speech to the jury. State v. Lee, 66 Mo. 165; State v. Upham, 38 Me. 261; Fletcher v. State, 49 Ind. 124; Devies v. Haywood, 63 N. C. 53; Rolfe v. Rumford, 66 Me. 564; Brown v. Swineford, 44 Wis. 282; Cleveland Paper Co. v. Banks, 15 Neb. 22; Coble v. Coble, 79 N. C. 589; State v. Mahly, 69 Mo. 315.

Woodson, Green & Burnes for respondent.

(1) The plaintiff's first instruction properly declared the law. Straus v. Ry. Co., 75 Mo. 185. (2) Plaintiff's second instruction was supported by the testimony. It did not present a theory of the case not stated in the petition. (3) Plaintiff's fourth instruction was a correct statement of the law. ( a) The question as to whether there was any contributory negligence is one for the jury to determine in all cases in which there is any conflict of evidence on the point. Filer v. Ry. Co., 49 N. Y. 47; Greenleaf v. Ry. Co., 29 Ia. 14; Herrick v. Sullivan, 120 Mass. 576; Canal Co. v. Bentley,66 Pa. St. 30; Newhouse v. Miller, 35 Ind. 436; Smith v. Ry. Co., 61 Mo. 588; Manley v. Ry. Co., 74 N. C. 655; Willard v. Pinard, 44 Vt. 34; Schierhold v. Ry. Co., 40 Cal. 447; Ry. Co. v. State, 36 Md. 366; Ry. Co. v. Brady, 17 Kas. 380; Ry. Co. v. Mason, 51 Miss. 234. ( b) And the burden of proof is on the defendant to show contributory negligence. Frech v. Ry. Co., 39 Md. 574; Hays v. Gallagher,72 Pa. St. 136; Hoyt v. Hudson, 41 Wis. 105; Hocum v. Weithrick, 22 Minn. 152; New Jersey, etc., Co. v. Nichols, 32 N. J. Law, 166; Ry. Co. v. Gladman, 15 Wall. 401; Buesching v. Gas Light Co., 73 Mo. 229. ( c) Plaintiff is not bound to prove due care on his part, but the jury are at liberty to infer it from absence of appearance of fault on his part, either positive or negative. Mayo v. Ry. Co., 104 Mass. 137; Marble v. Ross, 104 Mass. 44; Johnson v. Ry. Co., 20 N. Y. 65; Ry. Co. v. Cragin, 71 Ill. 177. There was no evidence of contributory negligence on the part of plaintiff. (4) Plaintiff's fifth instruction is supported by the evidence. The jury had the right to take into consideration plaintiff's age, situation in life, bodily and mental anguish, and expenses caused by the accident. Peoria Bridge Ass'n v. Loomis, 20 Ill. 235; Ransom v. Ry. Co., 15 N. Y. 415; West v. Forrest, 22 Mo. 344; Bannon v. Ry. Co., 24 Md. 108. (5) Plaintiff's fifth instruction was correct. State v. Anderson, 19 Mo. 241; Rose v. Bates, 12 Mo. 30. (6) The fourth instruction, given by the court of its own motion, was not prejudicial to defendant. Plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant, and of a resulting injury to himself. Ellis v. Railroad, 2 Ired. (N. C.) Law, 138; Herring v. Ry. Co., 10 Id. 402; Scott v. London Dock Co., 3 Hurl. & C. 596. (7) The seventh instruction, given by the court, of its own motion, was not prejudicial to defendant. The jury, from the facts, are to say whether the plaintiff contributed to the injury. Cases supra, third; Bigelow v. Reed, 51 Me. 325; Wilds v. Hudson Railroad, 24 N. Y. 430; Hoben v. The Burlington, etc., Ry. Co., 20 Iowa, 562; Brand v. Schenectady, etc., Ry. Co., 8 Barb. 368. (8) The statements made by Mr. Green, one of the plaintiff's counsel, were arguments fairly deducible from the facts. The matter was not material to the issue, and not being material, it cannot be alleged as ground for reversal. (9) That part of the testimony of Hose and Jackson, to which defendant excepts, was clearly competent, because it was a question that was susceptible of no better evidence.

NORTON, J.

This cause is before us for the second time on defendant's appeal from a judgment of the circuit court of Buchanan county. Plaintiff, who was a passenger on defendant's train, destined for Pickering, a station of its road, sued to recover damages for injuries sustained by him, by reason of the alleged negligent failure of defendant to stop its train a sufficient length of time at said station to enable him to get off at said station, and in prematurely starting the train while he was in the act of alighting, whereby he was thrown between the cars and platform of the depot and injured.

The opinion delivered in this case when it was first before the court, is reported in 75 Mo. 185. The evidence bearing on the point there raised by counsel, and, also, now raised, that there was no evidence on which to submit the question to the jury, that the conductor either knew, or had good reason to believe, that plaintiff was in the act of alighting from the train, when he ordered it to start, is thus stated in the opinion: “The plaintiff himself testified as follows: ‘On the twenty-sixth day of November, 1877, I was a passenger on the defendant's train, going to Pickering. Just as the train whistled for Pickering, I got up from my seat and went to the door of the car. When it stopped, I opened the door and started out, and the car started, just as I was in the act of getting off, with a sudden jerk, and I was thrown down between the car and the platform, and rolled around till I got to the end of the platform.’ * * * Several witnesses testified that the plaintiff told them, a short time after the accident, that he had been traveling on trains so much that he had become careless; that he did not notice that the train was moving, and that he got off backwards, and that nobody was to blame for his getting hurt but himself. * * * The plaintiff, on his cross-examination, admitted that he stated to several persons that the conductor was not to blame, but said he so stated because he did not wish to get the conductor into trouble. But he denied that he ever stated to any one that no one was to blame but himself. The conductor testified as follows: ‘The train stopped still. The stop was at least for one-half minute. We stopped the usual length of time for stops at stations at which no business is to be transacted. After the train stopped I walked out on the depot platform, walked across to the corner of the depot and leaned up against the building a few seconds. * * * As I went across the platform to the depot, I looked to the left, over my shoulder, to the rear of the train, and saw the plaintiff coming down the...