42 Mo. 79 | Mo. | 1867
delivered the opinion of the court.
This was an action for damages for an injury done to a passenger by reason of the carelessness and negligence of the driver of the car. The answer denied the material averments of the petition, and alleged that the plaintiff’s injuries were the result of his own negligence. It set up a defense also under the statute entitled “An act concerning street railroads in the city of St. Louis,” approved January 16, 1860. This act provided that “ said railroad companies shall not be liable for injuries occasioned by the getting off or on the cars at the front or forward end of the car.”
We have examined the evidence in order to see upon ujbat basis of facts the instructions were given or refused. It is not our province to weigh evidence or to determine the force or effect of conflicting testimony, but we may consider what the evidence on either side tended to prove, and what not. Instructions should be given or refused upon the case made by the evidence. Theoretical propositions, for which there is no proper foundation in the'evidence, or which suppose a different .state of the case from that which is proved, should not be given, for they directly tend to mislead the jury.
The case made upon the evidence contained in the record, so far as it is necessary to be stated for the purpose of determining whether there was any error in giving or refusing instructions,
The mass and general tenor of the whole evidence would seem to shoAV clearly enough that the horses were scared in the noise and confusion, and started forward AYithout fault of the driver, while the expressions used by some of the plaintiff’s witnesses might imply, but do not distinctly say, that the driver of his own motion started the horses and drove on. My own impression would be that the jury could not have believed, upon the evidence, that the driver intentionally and willfully drove on while the man was under the car, at the risk of killing him, much less Avith any intent to do him harm. But the instructions will be considered upon the theory that there was some evidence before the jury from which they might be warranted in inferring negligence on the part of the driver in allowing the horses to start forward.
The effect and intention of the statute would seem to be that where the injury to the passenger is occasioned by his getting off or on the car at the forward platform, it shall be presumed, as a matter of law, that the negligence of the passenger himself contributed to produce the accident and injury, and it is therefore declared that the company shall not be liable in such case. A like construction was given to a somewhat similar statute provision in the case of Higgins v. Hann. & St. Jo. R.R. Co., 36 Mo.
The evidence clearly shows that the man was intoxicated, and that he imprudently attempted and persisted in his attempt to get off the car while it was in motion, and that the driver did all he could to prevent him and to save him from falling under the wheels. We find nothing in the evidence that could properly be taken as tending to prove that the driver intentionally and willfully or maliciously started the horses forward. The most that can fairly be claimed for it would be that some vague expressions, might tend to show negligence in the driver, or a want of that extraordinary care which the state of things would require in a prudent and careful man under like circumstances.
The first and third instructions given for the plaintiff, besides that they assumed some facts not warranted by the evidence, were directly in contravention of the statute as above explained. The seventh was erroneous, for the reason that there was nothing in the evidence that could justify such an instruction, and it tended to mislead the jury. To the ninth instruction we see no objection.
The first instruction refused for the defendant reads as follows:
The refusal of the other instructions asked for the defendant, considered with those which were given for him, would riot amount to any error by which he could have been seriously prejudiced, and some of them were objectionable as placing the whole issue on particular facts.
The sixth instruction given for the plaintiff requires a particular notice. It told the jury, first, that if the negligence or misconduct were not gross, they would assess the damages at a reasonable compensation for the injury, suffering, and expenses, caused by such negligence; but, second, that if the negligence wrere gross, then they would find “liberal or exemplary damages, in their discretion, beyond the actual injury sustained by the plaintiff, for the sake of the example and punishment for such gross negligence.” This second proposition carries the idea of exemplary damages entirely beyond a full recompense for the injury sustained, and authorizes vindictive and punitory damages. This goes further than the law over allows in a case of this kind. Such damages certainly can he given, if ever in a civil case, only in cases where the injury-is intentionally, willfully, and maliciously done. (Goetz v. Ambs, 27 Mo. 33.) This instruction awards them upon gross negligence merely. In the case of Goetz v, Ambs, such damages were spoken of as exemplary damages. In Freidenheit v. Edmondson, 36 Mo. 226, we had occasion to consider what was properly meant by exemplary damages. It was a case of willful injury, and exemplary damages were defined to be merely a round compensation or an adequate recompense for the injury sustained. Such damages may serve for an example to others in like cases, and may so far be called exemplary. The question of punitory damages was not necessarily involved
The case not having been fairly tried under instructions which can ho regarded as correct, the judgment will he reversed and the case remanded.
I dissent from so much of the above opinion as refers to the question of damages. David Wagner.