Wyatt v. Citizens Ry. Co.

• Decision Date: 31 May 1876
• Citation: 62 Mo. 408
• Parties: ISAAC WYATT, Appellant, v. THE CITIZENS RAILWAY COMPANY, Respondent.
• Court: Missouri Supreme Court

62 Mo. 408

ISAAC WYATT, Appellant,

v.THE CITIZENS RAILWAY COMPANY, Respondent.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Buchanan Circuit Court.

Jas. H. Ringo, for Appellant, cited Wyatt vs. Citizen's R. R. Co., 55 Mo., 485; McIntyre vs. Cent. R. R. Co., 37 N. Y., 287; 49 Id., 47; Fiber vs. Same, 59 Id., 351; Morrison vs. Erie R. R. Co., 56 N. Y., 304; Penn. R. R. Co. vs. Kilgore, 32 Penn. St., 292; Same vs. McKloskey's Adm'r, 23 Id., 526; Foy vs. London B. & So. C. R. R. Co., 18 Com. Ben. [N. S.], 225; Siner vs. G. W. R. R. Co., L. R., 3 Exch., 150; S. C., 17 W. R., 417; Lambeth, Adm'r, vs. North Car. R. R. Co., 8 Am., 509; Shear. & Redf. Negl. Chs., 15, 27; Chicago & Alton R. R. Co. vs. Pondrom, 2 Am., 309; Gal. & C. U. R. R. Co. vs. Jacobs, 20 Ill., 478; Chic. & R. I. R. R. vs. Still, 19 Id., 499; St. Louis & Al. R. R. vs. Todd, 36 Id., 409; Chic. & Al. R. R. vs. Hogarth, 38 Id., 370; Huelsenkamp vs. Cit. R. W. Co., 37 Mo., 552; Morissey vs. Wiggins Ferry Co., 43 Id., 383; S. C., 47 Id., 523; O'Flaherty vs. Union R. R. Co., 45 Id., 71; Brown vs. H. & St. J. R. R. Co., 50 Id., 464; Kerwhacker vs. C., C. & C. R. R. Co., 3 Ohio St., 172; Redf. Rail., vol. 2, 4 ed., pp. 225 231, 236; 24 Vt., 487; 13 Ga., 86; 18 Ga., 679; 24 Ga., 75; 2 Roceworth, 374; 9 Allen, 557; 16 Conn., 421; 19 Id., 507; 19 Ga., 440, 437; 4 Bing., 628; 1 Dutcher [N. J.], 556.

Allen H. Vories, for Respondent, cited Huelsenkamp vs. Citizens R. R. Co., 37 Mo., 537; Morrissey vs. Wiggins Ferry Co., 43 Mo., 380; Karle vs. K. C., St. Jo. & C. B. R. R. Co. 55 Mo., 476; Whalen vs. St. L., K. C., & N. R. R. Co., 60 Mo., 323; Wyatt vs. Cit. R. W. Co., 55 Mo., 491, and cases referred to; Beattie vs. Hill, 60 Mo., 72.

NAPTON, Judge, delivered the opinion of the court.

This case is here on an appeal from the second trial in the circuit court, which resulted, as the first trial did, in a verdict for the defendant. The history of the first trial is reported in 55 Mo., 485. The report of the second trial contains a statement of all the evidence, and this more clearly shows the important disputed facts, and consequently the applicability of the instructions given to the jury.

It appears that the plaintiff's son, whose injury this action was brought to redress, had, previous to his fall in stepping from the street car, cut his knee with a hatchet, and that medical advice and aid had been received in regard to this wound. What length of time had elapsed between the accidental wound from a hatchet and the occurrence of the injury complained of, is variously stated by the witnesses from two to seven weeks, and to what extent the hatchet wound impaired the young man's health and activity, is also the subject of the most contradictory and irreconcilable testimony. On the one hand, it was stated that the hatchet wound occurred only two or three weeks before the accident on the car; that young Wyatt was confined to his bed for eight or ten days by the cut, and, when able to leave his room, used crutches; and in fact, was using a cane at the time the alleged injury, in jumping from the car, occurred. On the other hand, it is testified to, that this wound by a hatchet occurred seven weeks before the street car accident; that it was a trivial hurt, and never deterred the young man a single day from his usual occupations; that he never used crutches until after the amputation of his leg, and never used a cane or stick for a support, and that the wound was entirely healed when he ventured on stepping from the car.

It is evident that the condition of this hatchet wound constituted a very material element in arriving at a conclusion as to the prudence of the young man's movements in jumping from the street car.

Another circumstance, having a material bearing on the case, was the alleged conversation between young Wyatt and the conductor, and the testimony on this point is fully as contradictory as it is in regard to the wound from the hatchet. The young man himself testifies, that he asked the conductor three several times to stop the car at the street crossing where he desired to get off; that the conductor not only refused to stop the car, but told him, if he insisted on getting off, to jump off. On the other hand, the conductor stated on the trial, that he was never asked to stop the car, and did not observe young Wyatt's...