Clair v. Missouri Pacific Railway Co.
29 Mo. App. 76
Mo. Ct. App.
1888
Check Treatment
Philips, P. J.

I. The instruction given on behalf of the plaintiff is objected to because it told the jury to find for the plaintiff if he “ was forced or compelled” to jump from the train. The objection is lodged against the use of the word, “forced,” when the petition only employed the word, “compelled.” The criticism isr that the word, “forced,” implies the exercise of a power not resistible, while the word, “compelled,” used in that connection in the disjunctive, was likely to convey to the mind of the jury the impression that something less than physical force, such as mere moral force or persuasion, might warrant a verdict for plaintiff. There is too much of refinement in this verbal criticism for practical use in jury trials. If it be conceded to defendant that the term, “compelled,” implies ordinarily less physical violence than the word, “forced,”'the defendant cannot complain that plaintiff, by using it in the instruction, imposed upon himself the duty of proving more than his petition required. Nor can we discover any reasonable basis for the conjecture that the employment of the two terms, disjunctively in the instruction, could have possibly-misled the jury. In its ordinary signification the word, “compel,” implies force or violence, and has in it the element of irresistibility. Web. Die. As employed in the instruction, it is not conceivable that it could have conveyed any other impression to the mind of the jury than that the two words were used interchangeably and meant about one and the same thing.. And to remove any reasonable ground of misapprehension, the instruction given on behalf of defendant plainly told the *87jury that before plaintiff could recover they must find that he “was thrown from, defendant’s car by the conductor, in the manner charged in the petition.” This left no ground for doubt in the mind of the jury as to-what was meant by the words, “forced or compelled.”

II. It is insisted that the evidence showed that plaintiff was guilty of contributory negligence, and that, therefore, defendant ’ s demurrer to the evidence should have been sustained. To this there are several conclusive answers. No such issue was presented by the answer. Unless so tendered the defendant could introduce no evidence for such purpose. Mathews v. Railroad, 26 Mo. App. 75; Petty v. Railroad, 88 Mo. 306. But, say counsel, although not pleaded in the answer, yet, where plaintiff’s evidence discloses the fact of his contributory negligence, it may be availed of by the-defendant in a general demurrer to the evidence. Even if this be conceded, there was nothing to justify such inference by the court at the conclusion of plaintiff’s evidence. The plaintiff’s evidence, if credited by the jury (and with that the court had nothing to do), strongly tended to show that the conduct of the conductor was rude and violent, and that he actually employed force in shoving the plaintiff from his car while it was running at a high rate of speed, and in the night-time, and that he did not even so much as check up his train to see what had become of the passenger. It would have been palpable error had the court withdrawn the case from the jury on such evidence. The evidence tending to show that plaintiff voluntarily, or unnecessarily jumped from the train, was introduced by the defendant. The court could not sustain a demurrer to the plaintiff’s cause predicated upon defendant’s evidence. The force of this evidence and the credibility of the witnesses must go to the jury. Wood v. Ins. Co., 50 Mo. 112; Herriman v. Railroad, 27 Mo. App. 443.

It is of no consequence, however, to apply these-rules respecting contributory negligence to this case. The evidence offered by defendant, tending to show that *88the plaintiff voluntarily jumped from the train, was admissible under thé general issue, for it tended to disprove the allegation of the petition that the conductor compelled him to jump. If the conductor compelled him to' jump off, the case was with the plaintiff; if the plaintiff jumped off of his own volition he had no case. This was the precise issue of fact presented in the pleadings and covered by the instructions. The fourth instruction given on behalf of defendant directly told the jury, that if “plaintiff received the injuries, of which he complains, by jumping or accidentally falling from defendant’s train, they will find for the defendant.”

III. It is finally insisted that the judgment should be reversed because the jury were guilty of misconduct in the manner of arriving at their verdict; and because the damages awarded by the jury are excessive. Defendant presented affidavits tending to show that, soon after the jury returned the verdict, there was found on the table of the consultation-room a slip of paper indicating that twelve different sums had been set down and added up, and then divided by twelve, the quotient corresponding with the verdict; and that one of the jurors admitted that that was the way they reached a verdict. This was not sufficient to impeach the verdict. McMurdock v. Kimberlin, 23 Mo. App. 523. As to the amount of damages, if they were to be ascertained with reference alone to the physical injuries done to plaintiff, we should hold they were excessive. But the instruction authorized the jury to award the plaintiff smart money, if they found that the conductor had acted wantonly, cruelly, and regardless of the "life or limb of the plaintiff. Crediting the plaintiff’s evidence, which we must do in considering this question, there was sufficient evidence to warrant the jury in awarding punitive damages. We discover no reason in this record for interfering with the conclusion of the jury.

• The other judges concurring, the judgment of the circuit court is affirmed.