57 Mo. App. 147 | Mo. Ct. App. | 1894
— The plaintiff was injured by jumping from one of defendant’s caboose cars attached to a mixed train, carrying passengers and freight on defendant’s railway. He instituted this action to recover damages alleged to have resulted to him, and recovered in the trial court.
Since the verdict was for plaintiff we will state as the facts what the evidence tended to prove. He was a passenger with three others and was riding in the caboose. While the train was running at a moderately rapid rate of speed the brakeman in the car, upon a whistle signal from the engineer (though plaintiff .did not hear the whistle) called out in a loud and excited tone to jump off, for Hod’s sake, and began, immediately, in an excited way, to set the brake. This excited the plaintiff and two of the other passengers. All three jumped up and one of the others called out to come on, when they all started for the car door. They all three jumped off while the train was running at from twelve to fifteen miles per hour. It was from this jump that the. plaintiff received the injuries complained of.
In point of fact there was no danger or peril at hand and if the brakeman did give the alarm as claimed, it was a “false alarm.” So that plaintiff’s recovery must be defended upon the ground of defendant’s servants having negligently given the false alarm and negligently called upon the passengers to jump off, thereby causing plaintiff to believe in the imminence of danger in remaining upon the train. This belief must have been such as an ordinarily prudent man would have entertained under the same circumstances, and plaintiff’s action resulting therefrom must have been such as would probably have been taken by an ordinarily prudent man and must have been unaccom
This instruction recites the facts and “circumstances of the place,” which, if they induced the act, would justify plaintiff in jumping from the train. There was no evidence that plaintiff heard the sound of the whistle, or that he knew the train was remote from any siding, switch or station. The instruction therefore embraced erroneous matter materially affecting the merits of the case. For, as before stated, it was the appearance of things inducing a belief in an unreal danger that gives plaintiff any standing. It is quite apparent that under such state of the case it was greatly prejudicial to have submitted to the jury grave circumstances which would tend to induce the belief of peril, when no such circumstances appeared in evidence. If plaintiff was alarmed and made to believe there was danger impending, it must have been from matters appearing to, or operating upon, his mind. Therefore
The instruction was furthermore erroneous in practically excluding from the jury a consideration of whether the act of the brakeman in giving the alarm was negligence. It can not, from the evidence presented, be said to be negligence as a matter of law and therefore the hypothesis of negligence should have been included in the instruction. Welburn v. Railroad, 36 Mo. App. 210. The act of the defendant’s servant in causing the alarm must have been a negligent act. Kleiber v. Railroad, 107 Mo. 249.
The instruction is likewise objectionable in that it omitted to submit the question whether the alarm given was such as was likely to cause an ordinarily prudent man, under the same circumstances, to act as plaintiff acted; and in this connection it is well to remark that it did not submit to the jury the question whether plaintiff believed there was impending danger. It may be suggested that these objections were covered by defendant’s instruction similarly to that pertaining to .the next objection, but we think they are not sufficiently cured thereby. Defendant’s instructions in a recitative way, refer to these matters, but not in that direct manner that they should have done. If one party relies upon the instructions of his opponent to cure errors in his own, the cure should be complete and direct.
The further objection made to this instruction is that it omitted any question of contributory negligence of plaintiff. There is such omission; but the question of plaintiff’s contributory negligence is submitted in' an instruction for defendant, and under the dissenting
As the instructions were presented to the jury, the second one is subject to much of the criticism we have made of the first. But if the first had been as we have indicated it should have been, the second, following thereafter, would be properly understood by the jury and would in such ease be free from any substantial error.
Plaintiff had included in his instruction as to the measure of his damages the item of loss of time. His testimony was that he was in the employment of a banking company and that during the period of his suffering from his injury he was paid his regular monthly wages or salary — no deduction or diminution thereof was made by his employers. He did not, therefore, lose his wages and was, of course, not damaged in this respect. The instruction contemplates a loss— a pecuniary loss. The case does not seek to punish defendant by the infliction of exemplary damages; it merely seeks compensation; if plaintiff did not lose there is nothing to compensate. This question has received consideration from the supreme court of New York in Drinkwater v. Dinsmore, 80 N. Y. 390, where it was decided that damages on this head, under such circumstances, could not be recovered. The question came before the St. Louis court of appeals in Lee v. Western Union Tel. Co., 51 Mo. App. 375, and was decided adversely to the claim of wages. In the case last mentioned several of the authorities which are relied upon as maintaining a different view are
Passing to the defendant’s refused instructions, we find some just cause of 'complaint. His instruction number 4 should be given. It is but a proper admonition to the jury not to look to one instruction, but to consider them all as embracing the whole law of the case. Under the phraseology of some of the instructions in calling for a verdict, while not presenting within its terms all the issues for determination, it is well to give an instruction, as was asked here, though we do not say that, standing alone, it would be reversible error.
Instruction number 7, as to mutual negligence, by omitting the words, “in any degree,” and substituting
We are not prepared to approve of instruction number 3, offered by defendant and refused by the court. By it the jury would have been directed to consider the plaintiff’s interest in the cause in passing upon what weight they would give that part of his testimony which was in his favor, and that in the instances, if any, where he had testified against his interest it should be taken by the jury as trae. The amount of this would be, that all which the plaintiff, as a witness, might say in the course and run of his testimony, which was against his interest, was to be taken and accepted as a solemn admission of its being a fact, and should be so accepted. This is not a proper statement of the law. There are admissions or statements of fact which a party to a cause may make while upon the stand as a witness, which will bind him, but this is an entirely different proposition from that contained in the instruction. An honest party to a cause may make statements as a witness against his interest which he believes to be true and yet the entire balance of the testimony in the case show that he was mistaken.
The instruction given' by the court of its- own motion is not properly subject to criticism. That portion relating to false swearing is necessarily left much to the discretion of the court. White v. Lowenberg, 55 Mo. App. 69. The remainder which relates to the interest of witnesses, their appearance, manner, etc., was entirely proper and found full application to the case in hand.
In cross-examining one of defendant’s witnesses with a view of locating him at a distant point in Kansas, so as to show that he could not have witnessed the accident, the witness was asked if he was not at the
Defendant insists that plaintiff has no standing in court on the facts and that its demurrer to the testimony should have been sustained. The train, as has been stated, was a mixed train, composed of several freight cars, a regular passenger coach and a caboose. This caboose, as is well known, is a necessary attachment to a freight train, and is necessarily used and occupied in the running, manipulation and management of freight trains. The defendant permitted passengers to occupy it for smoking purposes, and it was for this purpose that plaintiff and the three other passengers were occupying it at the time of this .accident. We are willing to concede to defendant’s counsel that he makes a proper statement of the law when he says, in effect, that when plaintiff chose to enter the caboose, though with the permission of the company, he took upon himself the necessary inconveniences and risks which accompany that sort of a car in its relation to the management of a freight train. The fact that there was a passenger car on which passengers were carried and from which access to the caboose was permitted, will not alter the question from what it would have been had the train been a regular freight train on which passengers had taken passage. Notwithstanding this,
Nor are we willing to say, as a matter of law, that plaintiff should have investigated for himself as to out
Defendant insists and the evidence justifies the insistence, that the brakeman was in the cupola, while plaintiff was in the car with his back to him. That plaintiff could not have known the brakeman was addressing him; that the brakeman may have been addressing his fellow employees. We see nothing in this which ought to affect the question. Allowing that the brakeman was not addressing the passengers, or that he was not addressing the language to any one, yet if he used the language without sufficient cause, it may just as readily have produced the result which .plaintiff says it did produce, as if it had been addressed to the passengers or the plaintiff direct. If the servant in charge and control of a crowded theater, in the presence and hearing of an audience, negligently, falsely and loudly cries, “fire, run for your lives,” would not the proprietor be liable for the damage resulting from the conduct consequent upon the terror which this might excite, whether he addressed his fellow servants or the audience?
It is a part of defendant’s contention that, conceding the act of the brakeman to have been negligence, yet it was not the proximate cause of plaintiff’s subsequent action and resulting injury. This contention is based upon the fact that McPeak, one of the other passengers ih the caboose, jumped from his seat on hearing the brakeman’s exclamation, passed plaintiff in going to the door of the car and said, excitedly, “come
Eor errors heretofore mentioned, the judgment will be reversed and the cause remanded.