| Mo. | Mar 5, 1894
This is a suit prosecuted by plaintiff against the receivers of the St. Louis, Arkansas and Texas Railway Company, appointed by a United States circuit court, to recover damages for injuries received by reason of falling into a hole in the depot platform of said company at New Madrid, Missouri. Plaintiff charged defendants.with negligence in not keeping its platform in a reasonably safe condition, by reason of which, on leaving a train at said station, upon which he had been a, passenger, he was precipitated
It appeared from the evidence that the platform was about four feet above the ground and from which one plank about six feet long and eight inches wide had been broken out. The agents of defendants testified that the plank had been broken by one of themselves, in moving a heavy box of goods, at least four days before the injury. Other evidence tended to prove that it had been out as long as two weeks. Plaintiff arrived on the train in the nighttime, neither the station nor the platform being lighted, and after leaving the cars walked across the platform to take a hack to a hotel, and not knowing of the hole and being unable to see it, he fell therein, by which he received the injuries for which he sued.
Defendant objected, in a proper manner, to the sufficiency of the petition. The grounds of the objection were that it nowhere appeared from the petition that plaintiff had leave, from the court appointing the receiver, to prosecute the action; and that the receivers were not liable, officially, for neglect in keeping the platform in repair unless authorized by the court to do so, which authority should appear from an averment in the petition. These objections were overruled. Objection was made to the ruling of the court in refusing to require plaintiff to submit to an examination by physicians, and to the giving of certain instructions. The other facts necessary to an understanding of the points discussed will sufficiently appear in the opinion. The verdict and judgment were for plaintiff for $15,000 and defendants appealed.
I. Receivers who have exclusive charge and control of the property belonging to a railroad company, and of the management of its business, are bound to the same degree of care as the corporation itself would have been under the management of its board of direc
II. Previous to the act of congress of March 3, 1887, the generally accepted doctrine was that an action could not be maintained against a receiver, except by leave of the court wherein the receiver was appointed. That act declares that “Every receiver * * * may be sued in respect of any act or transaction of his, in carrying on the business connected with such property without the previous leave of the court in which said receiver or manager was appointed.” The language of this statute is broad enough to include actions growing out of the negligence of the receiver, or his agents or servants. So it has been held by the supreme court of the United States that such suits are within the contemplation of said act. Railroad v. Cox, 145 U. S. 601; McNulta v. Lochridge, 141 U.S. 327" court="SCOTUS" date_filed="1891-10-26" href="https://app.midpage.ai/document/mcnulta-v-lochridge-93154?utm_source=webapp" opinion_id="93154">141 U. S. 327.
III. After plaintiff had concluded his evidence in chief, defendant filed a written application, asking an order of the court against plaintiff to have plaintiff submit himself to a personal examination by competent and special surgeons, appointed by the court, giving as reasons therefor that the real extent of plaintiff’s injuries could only be ascertained by such an examination. The court declined to make the order for the reason, as stated, that the application was not made in time. There is no doubt of the power of the court to make and enforce such an order; but to do so is held to be a matter within the discretion of the court, which
There may be reasons which do not appear on this record why an examination should not have been ordered at the time it was applied for and we are unwilling to say that the court abused its discretion in declining to make the order. This is certainly a case which calls for the opinion of disinterested and unbiased physicians after a careful, intelligent and thorough examination has been made. The physicians who testified are friends of the respective parties and their opinions are necessarily more or less biased. They differ upon matters which seem to me to be capable of positive ascertainment. As the case will have to be retried the court can have an examination made, if proper and timely application is made therefor.
IV. A carrier of passengers owes to those approaching or leaving its trains the duty of keeping its station platforms in reasonably safe condition for convenient use, and is liable’ to such persons, who are themselves duly careful, for damages sustained by reason of its negligence in not observing this duty. This duty and the liability of the carrier for its neglect are well settled. Hutchinson on Carriers, sec. 517; 1 Rorer on Railroads, p. 476.
It also follows from this obligation imposed by law, that a passenger, in leaving a train, has the right to assume, in the absence of information to the contrary, that he can safely pass across the depot platform to take a conveyance to his destination, and there was no error in the instruction which told the jury-that plaintiff had the right to assume that the platform was reasonably safe and convenient for his use.
V. It being the duty of' the receivers of this corporation to use reasonable care to see that their platform was kept in a safe and convenient condition for
It is true, in general, that the question of negligence in such case is one of fact for the determination of the jury; but the evidence in this case shows that the defect was made by one of defendant’s agents, in moving heavy freight, at least four days before the injury, and the station agent testified that he knew of the defect for that length of time. The most ordinary care would have prompted the repairing of the defect, or at least that some warning should be given. Necessary repairs could have been made in a few minutes and at the cost of but a few cents. We must, therefore, hold that the evidence conclusively shows that defendants had ample time after notice of the defect in which to have made necessary repairs, and it was not reversible error to give the third instruction, to the effect that, if there was a hole in the platform, which was known by defendant’s agents, or might have been known by -the use of ordinary care, and the same was not safely repaired, and no danger signals were put up to warn passengers, then such neglect and failure was negligence on the part of defendants.
The complaint that the instruction did not allow defendants a reasonable time in which.to make repairs, can not avail them in a case like this, in which the defect was manifestly dangerous, and its existence was known for so long a time. The court might well-have declared, as a matter of law, that this omission of duty was negligence.
VI. The judgment in this case is the largest one, for personal injuries, that I have been called upon to
The petition does- not specify any special injury except that plaintiff, suffered rupture from falling through the platform and “other severe, painful and permanent injuries.” The evidence shows that plaintiff’s body fell through the hole to his hips, upon which he lodged. This was on Monday, in the month of July. Plaintiff was a traveling commercial agent engaged in his business. He continued in the performance of his duties until he arrived at home, on Saturday thereafter, before calling in a physicians During this time he testified that he suffered from rupture and bruises on his hips. It does not appear that he was confined to his bed or room any considerable time, though he claimed he had difficulty and inconvenience in traveling and transacting his business. In February or March, after his fall, ulcers formed on one of his hips, and for a short time after his injury he complained of pains and weakness in his back. Plaintiff introduced three doctors, and defendants two, who testified as experts. All these physicians had examined plaintiff previous to the trial and had applied all the usual tests to ascertain his condition. . Those introduced by plaintiff testified that they found rupture; that there were ulcers on the hip, which may have involved the hip bones; and that he was suffering from nervousness caused by injury to the spine; that this injury to the spine would likely be permanent and might result in paralysis and death.
With this evidence of injury and damage the court gave this instruction:
<£4. If you find for the plaintiff you will allow him such sum as will compensate him for bodily pain and suffering, mental anguish and inconvenience, in the parts that have resulted from his injury. You will also take into consideration the present and prospective condition of his rupture, if you believe from the evidence he was ruptured, and of the injuries to his hips and spine, resulting from the accident; and to the same above found, you may add compensation for the future effect of the injuries upon the use of his hips and spine, and upon his health that-you believe will be occasioned by the accident, providing you believe that he has not recovered, or that his injuries are permanent.”
It will be seen from the instruction that the jury was left to determine, from the evidence, whether or not plaintiff was ruptured; but the court assumed that he was injured in the hip and spine. This was more than a comment upon the evidence. It was taking entirely from the jury a vital issue upon which the evidence was conflicting and irreconcilable. The court may in its instructions to the jury assume the truth of a proposition which is established by the undisputed testimony, but it is manifestly improper to do so where there is any conflict in the evidence. Hall v. Railroad, 74 Mo. 302; Barr v. Armstrong, 56 Mo. 589; Caldwell v. Stephens, 57 Mo. 595. The fact that the jury was
One of plaintiff’s physicians placed before the jury his gloomy prospects in the following graphic language: “State if any other r.esult follows from the spinal trouble you have described? A. Yes, sir; of course it depends altogether upon the extent and location of the nervous lesions; he may be paralyzed, he may have paralysis of his whole body; he may have loss of speech, and loss of hearing, and loss of eyesight, and loss of sexual powers, and loss of digestion— all those functions depend upon the nerves sometimes.”
It may be that all these results will follow an injury to the spine and the jury could so conclude from this evidence; and it becomes, therefore, more important that they should first conclude, from the evidence, that plaintiff suffered such an injury. The instruction was improper and prejudicial and should reverse the judgment. Reversed and remanded.