Corrister v. Kansas City, St. Joseph & Council Bluffs Railroad, 25 Mo. App. 619

Corrister v. Kansas City, St. Joseph & Council Bluffs Railroad

25 Mo. App. 619 | Mo. Ct. App. | 1887

Hall, J.

The objections made by the defendant to the admission of evidence were too general, and are not, for that reason, subject to review by us. The defendant should have specified the grounds of its objections. Margrave et al. v. Ausmuss et al., 51 Mo. 567, and cases cited ; Johnson v. Railroad, 22 Mo. App. 599. But as the judgment must be reversed, for reasons hereinafter given, thereby necessitating a new trial, we deem it proper to pass upon the objections urged by the defendant before us as to the admissibility of said evidence. The declarations of an agent or servant do not, in general, bind the principal. “ To be admissible, they must be in the nature of original, and not of hearsay, evidence ; they must constitute the fact to be proved, and must not be mere admissions of some other fact. They must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time.” Luby v. Railroad, 17 N. Y. 133 ; Adams v. Railroad, 74 Mo. 556. The testimony of witness concerning statements made by defendant’s station agent, in relation to the sale by him of a ticket, from latan to Kansas City, to plaintiff, four or five days prior to the making of the statements, was clearly hearsay evidence. The statements were not in regard to a transaction then depending, but were simply a narrative of a past transaction. The evidence was inadmissible. Chillicothe v. Raynard, 80 Mo. 185 ; MeDermot v. Railroad, 73 Mo. 518; Scoville v. Glasner, 79 Mo. 455.

II.

The deienaant urges the objection to the instructions given for the plaintiff, that those instructions “remitted the jury to the pleadings to find the issues. ’ ’ The instructions are not open to the objection. The jury are *628not referred by them to the pleadings to find the issues. “ The reference, evidently made for the purpose of shortening the instructions, is to matters of description which are parts of the narrative, and not to the essential questions in the case, which are apparent from the instructions.” Edelman v. St. Louis Transfer Co., 3 Mo. App. 506.

III.

The general rule is, that the recovery of damages must be limited to those which naturally and proximately result from the act complained of. Whether the damages are remote or proximate, is sometimes a question of law, and sometimes a question of fact. “Where the connection between the. act of negligence and the damage is so remote as to have no ground for difference of opinion among fair minded men, as to whether the negligence was the natural cause of the damage, the judge should decide it, and should not submit it to the jury; but where a substantial doubt arises as to whether the damage was the natural and proximate, or a speculative and remote, result of the negligence, the question should be submitted to the jury under proper instructions.” Dunn v. Railroad, 21 Mo. App. 198.

The plaintiff, as the jury found, was wrongfully ejected from the train at Beverley Junction, and he was-entitled to recover all the damages naturally and proximately resulting from the said wrong. But the plaintiff had not the right to inflict injury on himself to enhance the damages. Railroad v. Birney, 71 Ill. 392 ; Francis v. Transfer Co., 5 Mo. App. 7. Because wrongfully ejected from defendant’s train on the north side of the Missouri river, when he should have been carried on said train to the south side of the river, the plaintiff had not the right to swim the river and make the defendant pay the damages sustained by him by reason thereof. Because, although, “ when, by the negligence of another, *629a person is threatened with danger, and he attempts to escape such threatened danger by an act, not culpable in itself, under the circumstances, the person guilty of the negligence is liable for the injury received in such attempt, even though no injury would have been sustained had there been no attempt to escape the threatened danger” (Brower et ux. v. Railroad, 64 Wis. 358), one who is wrongfully ejected from a railroad train at a station, a place of safety and comfort, cannot, by voluntarily leaving such place and incurring discomfort and danger, inpose upon the railroad company liability for the damages sustained by such course. Had the plaintiff swum the river, he might have swum it because he was ejected from the train, but the ejection would no more have been the cause of the swimming, than it would have been the cause of the plaintiff committing suicide, had he done so because he was ejected. The cause of the suicide would have been the madness of the plaintiff, just as the wilful recklessness of the plaintiff would have been the cause of the swimming of the river.

In this case the plaintiff was put off the train at a station, a place of shelter and comfort; he voluntarily went out into the storm and stayed out in it during the entire night. The cause of this was the wilful recklessness of plaintiff. He left the shelter of the station. He neglected the shelter of the farm houses along his route. The damages thus sustained he inflicted upon himself, and for them he had no right to recover. The fact that he had no money with him was no justification for such course under the proof. This is too clear for doubt. The court should have so instructed the jury.

For these reasons the court should have given the instruction number six, asked by defendant, and should have modified instruction number two, given for plaintiff.

Judgment reversed and cause remanded.

All concur.