83 Mo. App. 528 | Mo. Ct. App. | 1900
The petition alleges in substance that on June 8, 1896, the plaintiff took passage from Gorin in Scotland county to Medill in Clark county, Missouri, in a car attached to one of defendant’s freight trains being used for the purpose of carrying freight and passengers; that when the train reached Medill on said day and was stopped by the engineer in charge of the locomotive hauling the train, to let plaintiff out of said car and off the train, said engineer so carelessly and negligently stopped said locomotive and train and ear in which plaintiff was sitting, that plaintiff was jostled and thrown forward from the seat upon which she was sitting in said car, on and against a stove, coal and wood box or other hard substance with such force and violence that her right arm, shoulder and side were greatly bruised
The answer was an admission of defendant’s corporate existence; a general denial, and a charge of contributory negligence. The latter charge was denied by a reply filed by plaintiff. At the close of all the evidence the petition to conform to the evidence, was amended in this particular: The plaintiff alleged that the conductor of the train at the station of Wyaeonda, a. station reached before- reaching Medill, agreed to carry plaintiff and put her off of the train at the depot at the crossing of the Atchison, Topeka & Santa Ee railroad by the Keokuk & Western railway, three hundred yards east of and beyond Medill, and that it was at this crossing the plaintiff was injured, by the careless and negligent stopping of the train by the engineer in charge. The evidence is: “The defendant company operates a railroad running through Clark county, Missouri. On its road, passing from west to east, are the following stations: G-orin, Wyaeonda, Medill and Medill crossing. The latter is about three hundred yards east of Medill proper and is located at the crossing of defendant’s road with the Keokuk & Western railroad, which is operated by another corporation. Different tickets at different rates were sold by defendant at the time in question, for Medill and the crossing; and a local rate of five cents was charged between the two points.
The plaintiff resides at Kahoka, which lies off from defendant’s road and can be reached either by taking the Keokuk & Western at the crossing or by taking the hack which runs from Medill for the accommodation of passengers. On the morning of June 8, 1896, the plaintiff, Mrs. Dorsey, was at Gorin and purchased from defendant’s agent at that point a ticket to Medill station. This entitled her to
Plaintiff’s testimony is that she had a friend, one Collins, aboard the train, who was going to Kahoka (her destination); that when she boarded the train at Wyaconda the conductor of the train at the request of Collins, agreed to carry her and Collins to the crossing east of Medill without additional fare and put them off there, so that they could board a train on the Keokuk & Western road, for their home, Kahoka; that when the train neared Medill the engine was cut loose, leaving the caboose two hundred to three hundred yards from the station, did some switching, then came back, hitched on the caboose and proceeded to the crossing without making a stop at Medill; that when the train approached near the crossing Collins left his seat and went to the forward part of the caboose and took hold of the doorknob; that she followed and when she got to the forward end of the caboose she heard a bumping noise and sat down on the front seat to the right in front of the stove; that in a moment the caboose suddenly bumped very hard and she was thrown forward from her seat against the stove or wood box and injured, two of her ribs were broken loose from the sternum, and she was otherwise bruised; that she was helped off the car and on the same evening was conveyed to her home, over the Keokuk & Western railway where she received medical attention. Collins had died before the trial and his deposition
On tbe part of tbe defendant tbe evidence of tbe conductor was tbat be did not agree to carry plaintiff beyond Medill to tbe crossing of tbe two roads; tbat tbe caboose was stopped at Medill in front of tbe station for several minutes, and tbat plaintiff bad ample time to leave tbe caboose and alight at Medill; tbat be was not aware tbat sbe was on tbe train after leaving Medill; tbat there is a down grade from Medill to tbe cr'ossing — distant about 1,000 feet; tbat there is about four inches between tbe bumpers and drawbars of cars in a freight train; tbat wben a train is stopped on down grade this slack is taken up, by tbe cars “crowding upon tbe engine after it is stopped,” tbat this particular train bad twenty-five or twenty-eight cars, and tbat would give from twelve to fourteen feet of slack tbat would be taken up after tbe engine stopped and would necessarily occasion a considerable jar to tbe caboose; tbat tbe stop on this particular occasion was made in tbe usual manner and there was no unusual jar from tbe slack. Tbe conductor further testified tbat as soon as be discovered tbat tbe plaintiff was injured be went to ber; tbat Collins was standing by, and wben asked bow it happened, stated in tbe presence of plaintiff, tbat they were standing up by tbe door, and wben tbe jar came tbe plaintiff pitched forward against him and fell to tbe floor; tbat plaintiff made no statement at tbe time as to tbe position sbe was in wben burt, nor did sbe say anything as to tbe statement made by. Collins. Tbe evidence of tbe conductor as to tbe stopping of tbe train, was corroborated by both brakemen
At the close of all the evidence and when the amended petition was filed, the two attorneys conducting the defense filed a motion for a continuance, on the grounds of surprise, and in support, each of them filed their separate affidavit, stating that defendant was taken by surprise by the amendment; that as a matter of fact the conductor had no authority
“1. The court instructs the jury, that plaintiff in her petition charges that defendant on June 8, A. D. 1896, upon reaching the depot at the crossing of the defendant’s said railroad by the Keokuk & Western railroad in said town of Medill on said day was stopped by the engineer of defendant having charge of the locomotive attached thereto to let plaintiff get out of said car and off said train, that said engineer so carelessly and negligently stopped said locomotive, train and the said car in which plaintiff was sitting, that plaintiff was jostled and thrown forward from the seat upon which she was sitting in said car, at the time said locomotive train and car was stopped by said engineer as aforesaid, on and against a stove, coal and wood box or other hard substance with such force and violence, that her right arm and shoulder and side was greatly bruised and injured thereby and two of her ribs broken loose from the right side of her breast bone or sternum and is permanently injured thereby, and that said injuries have and are greatly injuring and interfering with her lungs, and breathing power thereof, and which injury and interference are also permanent.
“Now if the jury shall believe from the evidence that plaintiff was injured as charged in said petition as herein above set out, on said June 8, A. D. 1896, by the carelessness and negligence of said defendant’s said engineer, then and in that case the jury shall find and assess her compensatory or actual damages in such sum or amount as the jury shall think*537 she is entitled to from the evidence, not exceeding one thousand dollars.
“2. The court instructs the jury, that if they shall believe from the evidence in the case that the engineer of defendant on said June 8, 1896, acted maliciously, violently, oppressively, or with wanton recklessness in stopping defendant’s train at said Medill, then and in that case they may find such sum as they may think the evidence will warrant as exemplary or punitive damages, not exceeding nine hundred and ninety-nine dollars.
“3. That if the jury shall believe from the evidence that plaintiff was injured by the carelessness and negligence of said defendant’s said engineer, as charged in plaintiff’s said petition and which charges are set out in plaintiff’s instruction number one (1) given by the court herein; and shall believe that her injuries are permanent, then and in that case they should take that fact into consideration in assessing compensatory damages to her; and also take into consideration the pain, anguish and suffering, mentally and physically, which she has suffered in the past or may suffer in the future therefrom.”
The defendant asked the following instructions, which the court refused to give, to which ruling defendants excepted, to wit:
“A. At the close of plaintiff’s evidence the court declares the law to be that plaintiff is not entitled to recover in this action.
“B. At the close of all the evidence the court declares the law to be that plaintiff under the pleading and evidence, can not recover and your verdict will be for defendant.
“0. The petition alleges that the'plaintiff was injured at Medill station; and if the jury believe from the evidence, that the Keokuk & "Western crossing was another and differ*538 ent station and that the plaintiff was injured at said crossing, then the plaintiff can .not recover.
“D. The plaintiff in her petition does not claim to have been a passenger, or entitled to any of the rights of a passenger east of Medill station; if the jury believe from the evidence, therefore, that the injury to plaintiff occurred east of Medill station, then plaintiff can not recover.
“E. The court instructs the jury that under the pleadings and the evidence in this case there can be no recovery of exemplary damages, and you will not allow plaintiff anything on that account.
“E. The court instructs the jury that if you find from the evidence that plaintiff purchased from defendant a ticket entitling her to ride from Gorin to Medill, and that she was safely carried to Medill, and its train stopped there long enough to allow plaintiff to leave the train in safety, but that plaintiff did not leave the train at Medill but remained thereon without the knowledge of defendant or its agents, and was thereafter injured, then your verdict shall be for defendant.
“G. There is no evidence in this case that the conductor on the freight train had authority to permit the plaintiff to ride from Medill station to the N. & "W. crossing, without the payment of fare for such ride.
“H. There is no evidence that any of defendant’s employees knew that plaintiff was on the train in controversy between Medill station and the K. & "W. crossing.”
The court gave for defendant nine instructions, which it is not necessary to set forth in this opinion. The jury returned a verdict for plaintiff assessing to her $700 as compensatory damages and $200 as exemplary damages. After unavailing motions for new trial and in arrest of judgment defendant appealed.
I. "We discover no error in the action of the court by
II. Appellant insists that there was no substantial evidence that the engineer carelessly and negligently stopped the train, and that plaintiffs prima facie case, if made, was so overcome by positive testimony that there was no negligence, that the court should have instructed the jury to find for defendant. There was no direct and positive proof that the engineer was guilty of negligence. Negligence, like any ’other question of fact, may be proven by facts and circumstances, in the absence of direct or positive testimony, and we may look backwards from a known effect to discover the
This case is distinguishable from the case of Guffey v. Railway, 53 Mo. App. 462, in this: In the Guffey case a passenger was injured by a brakeman falling upon her, who had been thrown from his feet by the jostle of a freight train in making a stop. In the case at bar the respondent was thrown from her seat, and thrown with such force against the stove or wood box as to break her ribs, showing that the violence of the jerk or jostle in the case at bar was much greater than in the Guffey case.
III. Instruction number 2 given for plaintiff is clearly erroneous. There is no allegation in the petition to warrant an instruction for exemplary damages; nor is there a line of testimony in the record tending to show that the engineer acted wantonly, maliciously or unlawfully with the intent to do wrong or to injure the passengers on his train. Exemplary damages are only given where there was an “unlawful act coupled with an intentional wrong.” State ex rel. v. Jungling, 116 Mo. loc. cit. 165, and cases cited.
IV. After appellant had rested, the respondent was called as a witness in rebuttal, and was permitted, over the objection of appellant, to repeat a portion of her testimony given on her examination in chief. This was unfair, and can not be too strongly condemned, as it is opposed to an old and well-settled rule of practice; but it is not reversible error, for we can not say that it prejudiced the substantial rights of appellant. The repetition of her testimony by respondent added nothing to its probative force, and we can not presume from the fact that she was permitted to repeat, that the jury gave undue weight to it because twice told.