31 Mo. App. 614 | Mo. Ct. App. | 1888
This is an action for personal injuries. The petition alleges, in so far as is here material to be stated, that, on the tenth day of October, 1885, the plaintiff took passage on one of defendant’s freight trains to be carried from Pleasant ITill to Harrisonville, a distance of about twelve miles; that he paid the usual fare and that when they had arrived near the depot station at Harrisonville the conductor, or some agent or servant of the defendant, in charge, etc., announced “Harrisonville” station, and said “get off here,” the train then having come to a standstill; that plaintiff, in obedience to this direction and information, arose from his seat, with all convenient speed, and started to leave the train ; when without any warning the defendant’s servants in charge of the train suddenly started the same with a violent jerk, throwing plaintiff down, and greatly injuring him, specifying the nature and character of his injuries; and laying the damages at ten thousand dollars.
The answer tendered the general issue, with a plea of contributory negligence on the part of plaintiff.
The evidence tended to show that defendant was in the habit of carrying passengers on this train between the designated points. The train had a caboose attached to the freight cars in which passengers rode. On this occasion there were several passengers on this train. When the caboose had reached a point about one hundred and fifty yards, or less, from the depot at Harrisonville station, it came to a stop. The plain tiff was then seated near the stove in the caboose. Some one, either the
The only pertinent evidence offered by defendant tended to show that in the handling of freight trains, or mixed trains, so called, more or less jerking is quite unavoidable ; that this is caused by making the slack preparatory to uncoupling and shifting the cars, and starting.
For the plaintiff the court gave the following instruction, which is complained Of:
“ If the jury shall believe and find from the evidence that the plaintiff, at the time alleged in the petition, was a passenger upon one of defendant’s freight trains from Pleasant Hill to Harrisonville, in Cass county, Missouri, and had paid his fare, and was received by defendant as such, without objection upon its part; that while plaintiff was a passenger as aforesaid, defendant’s train, in charge of its agent and servants, came to a stop before reaching the depot or platform at its station at Harrisonville, and that one of defendant’s agents and servants while said train was standing still, called out the name of said station of Harrisonville, and directed plaintiff and other passengers to get off there ; and the plaintiff, believing that said announcement was intended as a direction for him to alight at said place, in obedience to such direction, arose from his seat, and started to alight from said train, and while so attempting to alight, the defendant, without giving plaintiff sufficient*620 time to alight, negligently and carelessly ran its engine and car violently against the said caboose,, jarring it so that' the plaintiff; was knocked down and injured without any fault or negligence upon his part, your verdict should be for the plaintiff, in such sum as you may believe from the evidence he has sustained by such injuries.”
The court gave every instruction asked for by defendant, presenting every phase of the law to which it was entitled.
The jury returned a verdict for plaintiff, assessing his damages at two thousand dollars.' Defendant has ..appealed.
i! Appellant makes complaint of the action of the trial court in requiring him to go to trial immediately after an amendment of the petition as to the date of the injury. No such error is assigned in the' motion for new trial; without which we cannot consider it. This has been so repeatedly held that we need not cite any of the numerous decisions.
II. The instruction given for plaintiff is criticised, because it ignores the contributory negligence set up in the answer. There are two sufficient answers to this: first, there was no evidence in the case on which to predicate such issue in an instruction, and, second, the matter is sufficiently submitted, because the instruction expressly directed the jury to find that plaintiff was “injured without any fault or negligence upon his part.” This instruction was sufficiently fall, as applied to the facts in this case. McGee v. Railroad, 92 Mo. 208, 219.
III. The only other contention made is, that plaintiff, in taking passage on a freight train, took upon himself all the hazard, inconveniences, and rules of the company incident to the running, management, and jerking of such trains. Concede it; the defendant had every advantage of such propositions of law in the instructions asked by it and given by the court. It is, however, a sufficient and complete answer to the whole argument of counsel, that the facts of this case do not
IV. Respecting the amount of damages allowed by the jury, we cannot say, in view of' the evidence, that they were so excessive as to justify our interference with the proper discretion of the jury, and the trial court. 'Greater damages for much less serious injuries than the plaintiff’s have been upheld by the Supreme Court. This verdict bears no evidence of prejudice or passion, to invoke our interference.
The judgment is affirmed.