Winters v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 28 February 1867
• Citation: 39 Mo. 468
• Court: Missouri Supreme Court
• Parties: NATHAN A. WINTERS, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

39 Mo. 468

NATHAN A. WINTERS, Respondent,

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

February Term, 1867.

Appeal from Livingston Circuit Court.

The plaintiff moved the court to instruct the jury as follows:

1. If the jury find from the testimony that the train in which plaintiff was riding was stopped in consequence of a car or cars being off the track, and that defendant, by its agents or servants, moved said car or cars off the track, or caused it to be done, but left the same so near the track of the road that it came in collision with or scraped against the car in which plaintiff was riding, and that plaintiff was injured thereby, the jury must find for the plaintiff, unless they further find that at the same time of the injury plaintiff was guilty of a want of ordinary care and prudence, which directly contributed to the injury.

2. It was no want of ordinary care and prudence on the part of the plaintiff to have his elbow or arm on the window-sill; and if the defendant, by its agent or servants, left the wrecked car or cars nearer the track than heavy objects were ordinarily permitted by the company to remain, and so near that the passengers on the train in which plaintiff was riding were liable to have their arms caught if lying out of the windows, and that defendant, by its agents or servants, failed to give such notice to the plaintiff as to put him effectually on his guard, and that plaintiff was injured by having his arm caught or struck by such wrecked cars, or by the same coming in collision with or scraping against the car in which the plaintiff was riding, the jury must find for the plaintiff; yet if the jury find that plaintiff's arm or elbow projected out of the window at the time of the injury, it is a circumstance from which they may infer a want of ordinary care on his part.

3. If the jury find from the testimony that the defendant, by his agents or servants, left a wrecked car so near the track as to endanger the safety of the passengers on the train in which plaintiff was riding; and they further find that plaintiff, while on defendant's train, was injured in passing it, the jury must find for the plaintiff, unless they also find that plaintiff had timely notice of such increased danger prior to the injury, and that after so having notice plaintiff was guilty of a want of ordinary care and prudence which directly contributed to the injury.

4. The plaintiff was not bound to select a seat so as to incur the least hazard; he need only to have been, at the time of the injury, where it was prudent for him ordinarily to be, to entitle him to recover for an injury prodced by the slightest negligence of defendant.

5. If the jury find from the testimony that defendant, by its agents or servants, in the matter of moving the wrecked car from the road, or in running the car in which plaintiff was riding, thereby failed to exert the utmost care and vigilance to secure the safety of the passengers; or that defendant, by its agents or servants, was guilty of the slightest negligence, and that plaintiff, was injured by such failure or negligence, they must find for the plaintiff, unless they further find that plaintiff by a want of ordinary care and prudence directly contributed to the injury.

6. If the jury find for the plaintiff, they will assess his damages at such sum, not exceeding ten thousand dollars, as the jury may believe from the testimony the plaintiff has sustained; and in estimating the damages the jury may take into consideration plaintiff's condition in life, his pursuits and the nature of his business, the bodily pains and sufferings resulting from his injuries, as well as his loss of time, expenses of cure, and the direct pecuniary loss, past and prospective, from the privation of the full use of his arm; but, in estimating any prospective future loss, the jury must be governed by the evidence, and not by mere speculation.

Which the court gave, and defendant excepted.

At the instance of defendant the court instructed the jury as follows:

1. To entitle the plaintiff to recover in this action, the jury must be satisfied from the evidence that plaintiff was injured through the negligence of defendant or its agents.

2. If the jury believe from the evidence that negligence or want of ordinary care on the part of the plaintiff contributed in any degree to the injury of plaintiff, he cannot recover.

3. To entitle the plaintiff to recover, the jury must be satisfied from the evidence, not from speculation, that the negligence of defendant, or his agents or servants, alone caused the injury sued for.

4. Defendant only contracted to carry the plaintiff safely while he kept within the car of defendant.

5. If the jury find for plaintiff, they will find for him the actual damage sustained by him in consequence of the injuries the jury may believe from the evidence he received, but they will not find vindictive or exemplary damages.

6. If the jury believe from the evidence that the plaintiff knew the condition of the wreck in proof, and, so knowing, permitted his arm to rest on the window-sill of the car in which he was passenger at the time said car was passing said wreck, in such way that his arm projected outside of said car, then he was guilty of such negligence as will prevent his recovery in this case, provided the jury believe from the evidence that plaintiff was injured by said wreck striking or rubbing the car in which plaintiff was passenger.

The defendant moved the court to give the following instructions:

1. If the jury believe from the evidence that the plaintiff sustained the injury sued for by reason of the position of his body, and his having his arm projecting outside of the window of the coach in which he was riding at the time of receiving said injury, they will find for the defendant, notwithstanding they may believe from the evidence that the defendant suffered a wrecked car to remain so close to the track of defendant's road that said coach could not run by said wrecked car without being scraped by said wrecked car, and that plaintiff would not have sustained said injury if said wrecked car had not been suffered to remain so close to said track.

2. If the jury believe from the evidence that plaintiff's arm and elbow were outside of the window of the car when the injury sued for was received, it was an act of negligence on the part of plaintiff, and he cannot recover for said jury.

Which the court refused, and defendant excepted.

Carr, and Hall & Oliver, for appellant.

I. The court below erred in allowing the witness, Dr. Warren Johnson, to state the number of children the plaintiff had, or to state upon whom his family was dependent for support. The evidence was incompetent and irrelevant, besides unfair to the defendant, because it was calculated to mislead the jury and induce them to assess the damages much higher than they would otherwise do. The evidence was not proper to go to the jury on the question of damage, or any other issue presented by the record; it was wholly inadmissible--Shaw v. Boston, &c. R. R. Co., 8 Gray, 45; 4 Gray, 333; 8 Barr. 481; Lincoln v. Saratoga & Sch. R. R. Co., 23 Wend. 424.

II. The court below erred in giving the 2d instruction for plaintiff, because in it the court decides what was not ordinary care and virtually takes the question from the jury. It was the province of the jury to determine the question of negligence or want of ordinary care on the part of the plaintiff from the facts proved in the cause, and not for the court to decide the question as one of law--19 Cow. 566; 2 Am. Railw. Cas. 115; 2 Redf. on Railw. 331, 394; Kennedy v. N. Mo. R. R. Co., 36 Mo. 364; Boland et ux. v. N. Mo. R. R. Co., 36 Mo. 491; 37 Mo. 247; Holbrook et ux. v. Utica & Sch. R. Co., 2 Kern. 236; 49 Penn. Stat. 60; 15 N. Y. 380; 22 N. Y. 191; 13 N. Y. 526; 24 How. Pr. 97; 24 N. Y. 430; 1 Allen, 187; 18 N. Y. 422; 25 Barb 600; 13 Barb 9.

III. The verdict of the jury was glaringly against the evidence and the weight of evidence in the cause, and therefore the court below erred in overruling the motion to set aside the verdict and grant a new trial.

IV. The defendant was entitled to the opinion of experts in the structure of cars; on the nature of motive power, and in running and conducting trains on the Hannibal and St. Joseph railroad; and on the facts and circumstances, proved in the cause, as to the probability of plaintiff having been injured in the manner described in his petition if he had kept his arm and head inside of the car in which he was riding. The court below therefore erred in refusing to permit witnesses McEntyre and Tower to state their opinion on that point--1 Greenl. Ev. § 440, and note; Redf. on Railw. 144, and notes; Neis v. Brown, 38 Eng. Com. L. R. 352; Mattoon v. Nesbit, 12 Id. 51.

V. The instructions given for the respondent are inconsistent--Wood v. Steamb't Fleetwood, 19 Mo. 529. The instructions given for the respondent are contradictory to those given for the appellant--Schneer v. Lemp, 12 Mo. 142.

The respondent's own conduct contributed to his injury, and he in consequence thereof cannot recover, although the appellant was likewise guilty of negligence--Ernst. v. Hudson Riv. R. Co., 24 How. 97; Gahagan, Adm'x v. Boston & L. R. Co., 14 Wend. 187; Wild v. Hudson Riv. R. Co., 24 N. Y. 430; Stevens v. Oswego & Syr. R. Co., 18 N. Y. 422; Brooks v....