| Mo. | Oct 15, 1890
— It is conceded by defendant that the case made by plaintiff entitled her to its submission to the jury, and no question of her contributory negligence was raised at any time. The exceptions now urged are only those bearing on the correctness of the instructions and on the amount of plaintiff ’ s damages.
It should first be noted that the instruction, given (of its own motion) by the court, defined the care required of defendant toward passengers as the “highest practicable care, caution and diligence which capable and faithful railroad men would exercise under similar circumstances.”
This instruction was given without objection from any quarter and, therefore, must be accepted as the law for the case in hand, without regard to its correctness or incorrectness in the abstract. And, since it states the rule substantially as laid down in the other instructions, there is serious doubt whether defendant is in position to question the latter now. But we do not deem it necessary to dispose of the question upon any such narrow ground of practice. Being satisfied of the soundness of the rulings of the trial court on this subject, we think it opportune to consider them from a standpoint of wider range.
Throughout the instructions it is asserted that the duty, owing by a steam railway carrier to its passengers, is to furnish reasonably safe and sufficient roadbed, track, cars and engine “ so far as human skill, diligence and foresight could provide ; ” and that defendant “is responsible for all injuries resulting from slight negligence” on its part. In another part of them the import of the words, “ utmost human skill, diligence and foresight,” as used by the court, is explained to be “ such skill, diligence and foresight as is exercised by a very cautious person under like circumstances.” This is substantially and almost literally the same language as is approved by text-writers of high authority in summarizing the law deducible from all the precedents. Story’s Bailments, sec. 601; 2 Greenleaf’s Ev., sec. 221; 2 Kent’s Com. 601.
Taking the declarations of law together, we think they stated the obligations of defendant to plaintiff as its passenger with great accuracy. To exercise the highest practical care which capable and faithful railroad men would take, in like circumstances, to provide a track, rolling-stock and service, reasonably fit and sufficient to perform the contract of transportation into which the carrier has entered, is the measure of defendant’s legal duty in such cases.
That rule does not rest upon any artificial or technical division of negligence into grades or classes, but springs naturally from an application to such facts of the general principle that a man of ordinary prudence is required to exercise a care proportionate to the risks he assumes in the business he has in hand. Where he undertakes a risk involving safety of life and limb to those with whom he deals, he is charged with a care proportionate to the peril.
When a passenger commits his person to a carrier for hire for transportation by railroad over rivers, across mountains, through cities, in the night — it may be while asleep, at a speed expressive of the progress of the age in which we live, he may justly demand the exercise of such care on the part of the carrier, against disaster, as in the nature of things such undertaking would imply. That degree of care has generally been defined in language such as was used in the instruction before us. It has been repeatedly approved by many courts, and we consider the rule so well established in our jurisprudence as to require no further argument to support it. Leslie v. Railroad, 88 Mo. 50" court="Mo." date_filed="1885-10-15" href="https://app.midpage.ai/document/leslie-v-wabash-st-louis--pacific-railway-co-8008568?utm_source=webapp" opinion_id="8008568">88 Mo. 50; Penn. Co. v. Roy, 102 U.S. 451" court="SCOTUS" date_filed="1880-11-22" href="https://app.midpage.ai/document/pennsylvania-co-v-roy-90259?utm_source=webapp" opinion_id="90259">102 U. S. 451; White v. Railroad, 136 Mass. 321" court="Mass." date_filed="1884-01-05" href="https://app.midpage.ai/document/white-v-fitchburg-railroad-6421184?utm_source=webapp" opinion_id="6421184">136 Mass. 321; Railroad v. Anderson, 94 Pa. St. 351; Caldwell v. Steamboat Co., 47 N.Y. 282" court="NY" date_filed="1872-01-23" href="https://app.midpage.ai/document/caldwell-v--new-jersey-steamboat-co-3588068?utm_source=webapp" opinion_id="3588068">47 N. Y. 282. As stated above, we dc not consider it in
The instructions of the court go no' further than to declare it in various forms of expression, the meaning of which, taken as a whole, is unmistakable.
Irrespective of any question of the burden of proof, there was, in the present action, abundant evidence to justify the inference that the injury to plaintiff resulted from a derailment of the cars occasioned by the giving way of rotten and unsafe ties in the roadbed at the place of the accident. That such a defect in the roadway could have been discovered by a proper discharge of defendant’s duty of inspection in time to avert the calamity, the evidence strongly tended to show.
That duty was an essential part of defendant’s obligation towards its passengers, and it was chargeable in its performance with any omission of the “highest practicable care of capable and faithful railroad men” (in the language of the court) in the circumstances. Miller v. O. S. S. Co., 118 N. Y. 200.
II. Regarding the instruction (marked “I)”) placing the burden of proof upon defendant to show that the injury did not occur through any omission to discharge its legal duty in the premises, it should be remarked that the same instruction first required plaintiff to establish that the car in which she was a passenger “ranoff the track of defendant’s railroad and fell down the embankment thereof” and that she was thereby injured.
Thus framed the instruction correctly expressed the law on the subject. The mere injury of plaintiff while a passenger did not ’call for explanation or proof from defendant. It first devolved on plaintiff to show some fact with reference to it from which negligence on defendant ’ s part as a carrier might be fairly inferred. Here it was shown that the car ran off the track and over the embankment. The condition of the roadway at that point warranted the inference that the injury was
This is what the court said in effect, and it committed no error in so doing. Hipsley v. Railroad, 27 Am. & Eng. R. R. Cas. 287, and 88 Mo. 348" court="Mo." date_filed="1885-10-15" href="https://app.midpage.ai/document/hipsley-v-kansas-city-st-joseph--council-bluffs-railroad-8008621?utm_source=webapp" opinion_id="8008621">88 Mo. 348; Breen v. Railroad, 109 N.Y. 297" court="NY" date_filed="1888-04-10" href="https://app.midpage.ai/document/breen-v-new-york-central--hudson-river-railroad-5478979?utm_source=webapp" opinion_id="5478979">109 N. Y. 297; Seybolt v. Railroad, 95 N.Y. 562" court="NY" date_filed="1884-04-15" href="https://app.midpage.ai/document/seybolt-v--the-ny-le-wrr-co-3580793?utm_source=webapp" opinion_id="3580793">95 N. Y. 562.
It may not be entirely in accord with technical nicety to instruct that the burden of proof shifts to defendant in the course of such a trial. It might be more accurate to say (in proper form for the purposes of a jury trial) that the facts of the derailment of the car and of plaintiff’s injury thereby make out a prima facie case of defendant’s negligence, which, unexplained, would justify a recovery ; but, in the ordinary course of administering law, it has become usual to declare that, on a certain showing by plaintiff in such cases, the burden of proof then rests on defendant to prove that it has not been negligent. W e are not prepared to condemn that form of expression at this day, in view of our statute to the effect that, in all proceedings, we should regard substance rather than form (R. S. 1879, sec. 3586), and should not reverse for any error not affecting the substantial rights of the adverse party. R. S. 1879, sec. 3569.
III.. Defendant’s next contention is that the court erred in refusing certain instructions requested by it. They are recited in the statement accompanying this opinion. We will consider them separately.
That, numbered 1, declared that the plaintiff could not recover on the evidence. It. is not argued here. Obviously there is nothing in the exception to its refusal.
That, numbered 2, is defective in holding defendant to the “exercise of reasonable skill and diligence”
That, numbered 3, is almost literally the same as that marked A, given by the court of its own motion, except that the words “aforesaid care” are substituted by the court for “reasonable care.” As the instruction A was not objected or excepted to, it is difficult to see how defendant can now avail itself of the refusal in question. But, irrespective of that, we think the change made by the court was proper to bring the instruction into harmony with itself. Without that modification two diferent degrees of care would have been stated in the same declaration of law as measuring defendant’s liability. The court adopted the first one, .as defined by defendant, and brought the rest of the instruction into consistency with it. To this defendant took no exception and is now concluded by the action of the trial court in that regard.
No point has been made in this court in any w'ay upon the refusal of instructions, numbered 4 and 5, as asked by defendant, There is, hence, no need to consider them. The court, in the instructions marked B and 0 (unexcepted to), gave to the jury as much of the requests, referred to, as the law warranted.
IV No complaint is entered against the instructions fixing the measure of damges ; but it is earnestly insisted that the assessment by the jury of plaintiff’s compensation of $15,000 is excessive.
This court has no hesitation in setting aside a verdict when clearly satisfied that the evidence does not support the assessment of damages, as in other instances of failure of proof.
But many cases arise in which, at this distance from the trial court room, we feel ourselves disposed to defer to the action of the circuit judge on this point, and to resolve any reasonable doubts on the subject in favor of the correctness of his ruling approving the finding.
In the case before us there is evidence that the plaintiff is probably crippled for life, owing to the injury of her spinal cord; that she suffers pain intermittently ; that she was not able to walk before or at the time of the trial; was fifty-three years of age and had left her house but once since the accident; that she was then carried out for fresh air, but was so pained that she did not go out again. She was examined at various times by several eminent physicians, among them by Dr. King, of Sedalia, one of the leading sur.geons of the defendant; but defendant did not give the jury the benefit of Dr. King’s observations of the case.
The plaintiff’s injuries seem to me of such serious nature and exteiit as should preclude us from pronouncing excessive the damages awarded therefor in view of former rulings as to the proper occasions for such interference. Whalen v. Railroad (1875), 60 Mo. 323" court="Mo." date_filed="1875-05-15" href="https://app.midpage.ai/document/whalen-v-st-louis-kansa-city--northern-railway-8005033?utm_source=webapp" opinion_id="8005033">60 Mo. 323; Porter v. Railroad (1879 ), 71 Mo. 66" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/porter-v-hannibal--st-joseph-railroad-8006389?utm_source=webapp" opinion_id="8006389">71 Mo. 66; Klutts v. Railroad (1882), 75 Mo. 642" court="Mo." date_filed="1882-04-15" href="https://app.midpage.ai/document/klutts-v-st-louis-iron-mountain--southern-railway-co-8007089?utm_source=webapp" opinion_id="8007089">75 Mo. 642. Approved precedents have sanctioned many larger findings in cases of injuries of somewhat similar nature. Harrold v. Railroad, 24 Hun. 184 ; Railroad v. Holland, 18 Bradw. 418, affirmed
But my learned • associates differ with me on this branch of the case and desire the announcement of their conclusion that the judgment be reversed and the cause remanded on the ground of excessive damages unless plaintiff will remit $5,000 thereof within thirty days. From that conclusion my dissent is entered.