66 Mo. 588 | Mo. | 1877
— This was an action for damages which plaintiff alleged that he sustained from’ an injury received by him in consequence of being pushed off the platform of defendant’s car, by the conductor of the train, while the train was in motion. The evidence shows that in July, 1872, the plaintiff arrived at Chillicothe, after the defendant’s passenger train going east had passed that point, and being anxious to reach Brookfield, went to the depot and inquired of a telegraph operator in defendant’s employment, when the next train would go east. The operator informed him that there would be no train until three o’clock next morning, when a freight train would pass going east; that without special permission from headquarters, conductors of freight trains were not permitted to receive passengers on such trains, but that if plaintiff would pay for dispatches both ways, he would telegraph Bennett, who was authorized to give permission to persons to travel on freight trains, and procure a permit for him. This was accordingly done, and Bennett gave the required permis
The instructions given for the respondent are the following : ,
1st. Although the jury may believe that the train upon which plaintiff got, was hot, under the rules of the company, allowed to carry passengers, yet, if they believe that plaintiff had a permit from Mr. Bennett to ride on No. 12, and that defendant’s agent at Chillicothe directed him to get on this train, informing him that it was part of No. 12, and that his permit entitled him to ride on it, and assisted plaintiff on the train, and that after he got upon the caboose car of the train, the conductor threw or pushed him off while the train was in motion, then they are bound to find for the plaintiff.
2nd. The jury are instructed that the conductor had no right to put plaintiff off the car while the train was in motion, and if he did so, and plaintiff was injured thereby, then the defendant is liable, and the verdict must be for plaintiff.
3rd. Even should the jury believe from the evidence, that plaintiff may have had syphilis or other disease latent in his system, yet if they believe that he was unlawfully and willfully put off of a car on defendant’s .railroad while the train was in motion, by the servant or agent of defendant, and that he thereby received injuries which directly caused or developed pains in the small of the back and a
4th. If the jury find for the plaintiff, they may allow : 1st. The expense incurred by plaintiff' in attempting to cure himself of his injuries. 2nd. His loss of time occasioned by the injuries. 3rd. His bodily pain and suffering. 4th. The present and .prospective condition of the wounded limb, resulting from the injury. And. to this sum they may add such amount as they believe the circumstances justify in the way of exemplary damages or smart money, provided they believe that plaintiff was willfully and maliciously pushed or thrown off their train while in motion.
5th. If the jury believe from the evidence that the plantiff got upon the caboose attached to Tabler’s train, and that after he got on he was ordered off the train by the conductor in a threatening manner, and that in attempting to get off while the train, was in motion, he, without fault or negligence on his part, was thrown down and injured, then the finding should be for the plaintiff.
6th. If the jury believe from the evidence that any witness has willfully sworn falsely in regard to any material fact, they may entirely disregard the testimony of such witness, unless such testimony as to some part is supported by other witnesses, or by corroborating circumstances.
7th. In making up the verdict, the jury may take into consideration'all the facts and circumstances surround" ing the case, the plaintiff’s condition in life, and his ability to provide for the future wants of his family, and may as
The instructions given for the appellant were the following :
1st. The jury are instructed that the defendant has the right to prescribe by rule upon what trains passengers may be carried, and that under the rules read in evidence, passengers were not at the time of the plaintiff's alleged injury allowed to be carried upon extra freight trains, without a special permit from the general superintendent or master of transportation.
2nd. Under the permit read in evidence, the plaintiff’ had no right to ride upon an extra freight train, and upon no train other than freight train No. 12.
3rd. The jury are instructed that in this case, the burden of proof rests upon plaintiff, to show each of the following facts: 1st. That he had a permit, from some person authorized to give the same, to ride upon the extra freight train, of which Tabler was conductor. 2nd. That he got on said train and was shoved or pushed therefrom by Tabler. 3rd. That the plaintiff was injured thereby; and unless the plaintiff has established each one of these facts by the preponderance of the evidence, the jury are bound to find for the defendant.
4th. Although the jury may believe from the evidence, that Brown had his leg amputated after the alleged accident at Chillicothe, yet, if the jury believe from the evidence, that said amputation was rendered necessary by a disease which he had, called syphilis, or pox, and not by the accident, then said Brown cannot recover in this action for the loss, time or expense caused-by the pox alone.
5th. The jury will decide any fact in issue in favor of that party who has the preponderance of the evidence on his side.
The following, asked by the defendant, the-court refused to give:
7th. If the jury believe from the evidence, that the
The 8th was, substantially, that if plaintiff carelessly attempted to board an extra freight train, not allowed to carry passengers, while it was in motion, and if such carelessness materially contributed to any injury received by him, he could not recover.
The 9th was to the effect that notwithstanding Burke, the operator, told plaintiff he could ride on the extra train, while in motion, yet unless he showed that Burke had authority, from the company, to issue, and did issue to him a permit to ride on the train, he had no right to ride thereon.
The 10th was in substance that the jury should exclude from their consideration the evidence of what was said and done by Burke, with reference to plaintiff’s getting on the extra train, if they found from the evidence that he was only the agent of the company to receive and transmit dispatches in regard to the running of trains.
The 11th. If the jury ■ believe from the evidence that said train was running at the rate of five or six miles per hour ydien plaintiff attempted to get on the caboose attached to it; that the conductor did not know that the operator had told plaintiff that he could ride on the train, then said conductor had a right to prevent the plaintiff from getting on said train, or to order him off after he had got on, and if plaintiff got hurt in obeying said order, and defendant’s agent did not contribute to said injury in any other way than as herein stated, they will find for the defendant.
Appellant complains of the 3rd instruction given for plaintiff, but the principle is well established by the authorities. “ An assault and battery is none the less a wrong, lor which the party injured is eDj.^.je(q ¿amageS} because inflicted on a
person enfeebled by disease, or by any other cause. The defendant could not screen himself from the legitimate consequences of his own unlawful acts by proof of the bad habits of the plaintiff.” Littlehale v. Dix, 11 Cushing 364; State v. Morphy, 33 Iowa 270. See also note to this case in 11 American Reports, 125. If the injury on plaintiff’s leg from the fall on the platform did not produce the sore which finally made amputation necessary, of course defendant would not be responsible for that; but whether it was a pre-existing syphilitic sore, or one produced by the injury, was a question fairly submitted to the jury. That plaintiff had had syphilis, and that a wound or injury upon his person would be more likely to result seriously than such injuries to persons not so afflicted, is a consideration that cannot avail defendant. Authorities supra.
Charles Green, a witness called by defendant, was a drug and prescription clerk, and declined to answer the following question: State what medicines , , . , you sold the plaintiff during the years 1871 and 1872, prior to July, 1872? Witness claimed that he was privileged from answering that question, and the court so ruled, and of this appellant complains. There was abundant evidence that plaintiff had syphilis; he admitted in his testimony that h'e had had that disease, and several physicians examined both on the part of plaintiff and defendant, had testified to having treated him for the disease. It was, at best, but circumstantial and cumulative evidence, and at all events the exclusion of the testimony
Hoc. Kelly, a witness for defendant, testified that he knew the character of plaintiff for truth and veracity, and ^ was had, and defendant then asked witness if he was acquainted with the general moral character of plaintiff, and on plaintiff’s objection, the court refused to let the witness answer the question. Of this defendant complains. If the witness had stated that he did not know the character of plaintiff for truth and veracity, then, under decisions of this court, the question would have been pertinent. But why insist upon an answer to such a question after the witness had stated that plaintiff’s character for truth was bad? It certainly will not be insisted that proof of his general bad moral character was admissible for any other purpose, than to affect his credibility as a witness, and as the witness had directly testified that he was not worthy of credit, there was no error in the ruling of the court which materially affected the right of defendant. If his bad moral character had been proved, it would only have been a circumstance to be considered by the jury in determining what credit the plaintiff' was entitled to as a witness, and as the same witness by whom it was offered to prove his bad moral character, had already given evidence of his bad character for truth and veracity, there was no necessity or propriety in proving by that witness that his general moral character was not good. The court might have admitted it without error, but its refusal to do so was not such error as would justify a reversal of the judgment on that ground.
The remarks of Col. Bell, in his closing address to the jury for plaintiff, were far less objectionable that those of plaintiffs attorney in Lloyd v. The H. & St. Jo. R. R. Co., 53 Mo., 509, and in that case the court refused to reverse the judgment. The practice of traveling out of the record in an address to a jury, and making statements of facts which there was no evidence tending to prove, has been often condemned, and in a case of gross misconduct in this regard, this court should reverse a judgment obtained by the party whose attorney should so conduct himself, and to avoid such a result, the better and safer practice is, in argument to a jury, to keep within the record and the testimony.
We have considered all the questions presented by the record, because for a palpable error of the court in givlng th® 6th instruction asked for by the plaintiff, the judgment will be reversed and the cause remanded. The testimony given by the plaintiff was contradicted in several material particulars, and0there was evidence tending to prove that his character for truth was bad. The defendant asked and the court gave the following instruction: “ If the jury believe from the evidence that any witness has willfully sworn falsely in regard to any material matter on the trial of this cause, then the jury may disregard all the evidence of such witness.” Eor the plaintiff the court gave the same instruction with this qualification: “ Unless such as to some part, is supported by other witnesses or by corroborating circumstances.” Is the jury not at liberty to disregard the testimony of one who has committed perjury in their presence} as to some fact testified to by him, because as to that or some other fact testified to by him, he is corroborated ? If the corroborative evidence establish the fact, they may find the fact on the corroborative evidence, but if the cor
Reversed.