255 Mo. 420 | Mo. | 1914
Suing in the Jackson Circuit Court on a cause of action originating in Kansas, and bottomed on a Kansas statute, plaintiff, as administratrix of Frederick Powell, deceased, sues for his death from injuries wrongfully received while a passenger on one of defendant’s trains. She had a verdict for' $7500, for the benefit of herself as widow and her minor child,
Attend to such a summary of the pleadings as will intelligently outline the issues, to-wit:
The petition.
After alleging her residence in Washington county, •Kansas; the death of her husband on the fourth day of October, 1909, intestate; her appointment as administratrix by the probate court of that county and her assumption of the burden of administration; that he left plaintiff as his widow and an only child, Marjory, of tender years (together with plaintiff his only heirs); that plaintiff lived for several years with said Frederick in lawful wedlock and that he continuously and suitably supported her and his child until he was injured by the negligent acts of defendant; that defendant was incorporated under the laws of Utah and owned and operated a railroad in Kansas — we say, after the foregoing averments, the petition goes on to allege the existence and to set forth the terms of a statute in Kansas. (Note: This is the statute on which the action is based and it will appear further on in the opinion.)
Plaintiff further charges that decedent was a passenger -upon one of defendant’s regular passenger trains upon the 18th of December, 1907; that at a certain point in Kansas near a station, Lawrenceburg, on said date said train was wrecked through the negligence of defendant, its agents, servants, and employees; that the train, thereby thrown from the track, was turned upon its side; that said Frederick was violently thrown head foremost, striking the edge of a seat and the car window some ten feet from the place he had been seated and out of the car window, striking head-foremost in a ditch beside the track and under the car and therefrom receiving painful and permanent injuries from which, never recovering, he suffered great pain and died on said day in October, 1909; that if he
The answer.
The trial answer, filed when the case was called for trial, was a second amended answer denying all allegations of the petition excepting that relating to defendant’s incorporation. For a further defense, it averred that the first of January, 1907, defendant and decedent entered into a contract of employment whereby Powell agreed to act as local attorney for defendant in Washington county, Kansas, for the year 1907; that as “part of the contract” defendant agreed to. issue Powell an annual pass good in Kansas “and the said Powell agreed to accept said annual pass as part of the contract of employment;” that such pass was issued on January 1, 1907, was signed by said Powell and accepted as part of his contract of employment. One of the conditions printed on the back of the foregoing pass is here pleaded in, haec verba in the answer. (Note: The back and front of the pass will appear in due course in this opinion together with the written contract of employment in pursuance to which the pass purported to be issued. Q. v.) ' The answer then goes on to aver that at the time of his injury Powell was an employee of defendant riding upon said pass; and the terms and conditions of the pass (relieving defendant from liability for negligence, or for any injury to his person and providing that the company should not be considered as a common carrier or liable as such) are pleaded as a defense to the action, coupled with an averment that to permit recovery or
As a third defense defendant pleaded a subsequent .suit instituted by plaintiff in the district court of said Washington county, for the same sum on the same injuries and accident, for loss and damages ' to the estate of said Frederick Powell, under a section of the Kansas statutes which, if alleged, gives a right of action to a person’s estate who is injured but who thereafter dies from some other cause not connected with such injury. (Note: There are two.sections of the Kansas statutes referred to in the answer, to-wit, sections 420 and 422, Kansas G. S. 1901, secs. 4869, 4871, the one (420) it is alleged in the answer gave a right of action for the depletion of the estate when death does not occur from the injuries. The latter (422) is the same section pleaded in the petition. The other section will appear in due course on the consideration of a ruling on the admission of evidence.) The answer then pleads an admission of record by the bringing of the second suit and an estoppel, thus (quoting) :
“ ... that by bringing such suit under and by virtue of the provisions of section 420 of the*432 Statutes of the State of Kansas, plaintiff has admitted of record that the deceased Frederick Powell did not die from the injuries received at the time and place mentioned and set forth in plaintiff’s petition herein; and that the plaintiff herein is now estopped by reason of such suit to allege and aver in this petition that the said Frederick Powell did die of such injuries. That under and by virtue of the decisions of the Supreme Court of Kansas, construing sections 42Ó and 422, a right of action arising under section 420 exists only when the deceased did not die as a result of' the injuries received, if any, at the hands of the defendant; and that in bringing such suit in the State of Kansas for damages to the estate of Frederick Powell, deceased, as provided in section 420, the plaintiff herein admits of record that the deceased Frederick Powell did not die of the injuries alleged to have been received at the time and place mentioned in plaintiff’s petition herein, and she is therefore estopped to deny the allegations and effect of the suit instituted in the State of Kansas under section 420 aforesaid.”
For a fourth defense defendant renews its general denial and next specifically denies that plaintiff is the administratrix of the estate of Frederick Powell “with authority vested in her to bring suit in the State of Missouri.” (Note: Tier appointment as administratrix was proved and we do not find that her authority to sue in the State of Missouri is questioned in briefs, hence the fourth defense, hinging on the specific denial, drops out of the case and will receive no further attention.)
The reply.
To the foregoing amended answer, plaintiff replied, admitting that Powell acted as local attorney for defendant during the year 1907 in Washington county; that defendant issued an annual pass to him on the first day of that year and that at the time of
By way of affirmative matter the reply avers a written contract of employment between Powell and defendant whereby in January, 1907, he was appointed defendant’s local attorney for a period of a year and accepted the employment. (Note: The terms of the contract itself will shortly appear in due course. Q. v.) It is nest averred that deceased accepted the pass as a “retainer” in consideration of which he agreed that he would take no cases against said defendant and would assist defendant’s attorneys in their local legal affairs and aid in'the preparation for trial of all cases pending in Washington county without any other or further consideration than the said pass; that the pass was issued by defendant in compliance with the contract; that during the year 1907 Powell acted as the local attorney for the defendant under the contract, complying with all its terms, and that at the time of his injuries the contract was in full force. It then pleads a certain statute of the State of Kansas to the effect that railways in that State are liable for all damages done to persons or property when done in consequence of any neglect on the part of the railway company, and nest certain decisions of the Supreme Court of Kansas alleged to be to the effect that the provisions of the pass making defendant not liable to the holder under any circumstances whether for negligence or otherwise of its agents or others, for injuries to the person, were null and void and constitute no defense.
The facts.
The following facts are either admitted by the pleadings or proved by uncontradicted evidence, to-wit: The Kansas statute on which the suit is bottomed is, to-wit:
*434 “Section 4871. When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”
Early in January, 1907, decedent, in full practice -as an attorney and loan agent at the county seat of Washington county, Kansas, entered into the following contract with defendant in writing (this is the contract referred to in the answer and reply), to-wit:
Union Pacific Company.
Attorney’s Contract.
This agreement made this first day of January, A. D. 1907, between Union Pacific Railroad Company, as party of the first part, and Fred Powell, party of the second part,
Witnesseth, That the said railroad company, has this day, and by these presents doth hereby appoint said party of the second part as -local attorney at Washington, Kansas, the terms and conditions of said employment to be as follows:
First. Said railroad company to furnish said attorney an annual pass during- the term of his employment, good over all lines operated by Union Pacific Railroad in Kansas.
Provided, however, that said railroad company reserves to itself the right to limit such annual pass to' any trains or class of trains, and to refuse to honor said pass upon any special, limited, fast mail or other trains.
Second. Said attorney agrees to accept said pass as a retainer, in consideration of .which he agrees that he will take no cases against said railroad company; that he will assist the attorneys of said railroad company touching their and each of their local legal affairs and will aid in the preliminary preparation for trial of all cases pending in his county, without any other or further consideration than the said pass.
Third. Said attorney also agrees that he will when directed in writing by the-general solicitor or the attorney in charge of the legal business of said railroad company in Kansas attend to all legal business of which he may be directed to take charge.
Fourth. Said railroad company agrees to pay to said at*435 torney a reasonable compensation for all services actually performed in accordance with, such written directions given as above stated, it being understood that in case of any disagreement between said local attorney and the attorney of said rail-Toad company in charge of the legal business of said railroad company in Kansas as to what is a reasonable charge for any service performed the matter shall be referred to the general solicitor of the said railroad company whose decision as to the amount to be paid shall be final.
Fifth. This contract of employment is to terminate without further notice, on the last day of the current year and it is further agreed that this contract of employment may be terminated at any time by written notice from either party, and in case of a termination of said contract prior to the last day of any year, such attorney shall return to said railroad company the pass or passes .furnished to him as such attorney, as a retainer as heretofore stated.
In Testimony Whereof, the said Union Pacific Company has caused this instrument to be executed by its general attorney and the said party of the second part has hereunto set his hand this 1st day of January, A. D. 1907.
Union Pacific Railroad Company,
By A. H. Loomis,
General Attorney for Kansas. Fred Powell,
Attorney at Law.
Decedent complied with, the foregoing contract .and, in pursuance thereof, defendant issued to him the following pass — the “conditions,” we infer, being on its back — to-wit:
Union Pacific 1907.
Pass Fred Powell Within the State of Kansas
Local Attorney
Until December 31, 1907, unless otherwise ordered.
Void unless • countersigned on back.
A. L. MOHLER,
Vice President and General Manager.
Good on Lines East of Green River, Wyo.
Union Pacific Railroad Company.
CONDITIONS.
This pass may be revoked at any time, and if presented by any other person than, the individual named hereon, or if any alteration, addition or erasure is made upon it, it is forfeited and the conductor will take it up and collect full fare. This is a free pass, based upon no consideration whatsoever. The*436 person, accepting and using this pass in consideration of receiving the same, agreed that the Union Pacific Railroad Company shall not be liable under any circumstances, whether for negligence; criminal or otherwise, of its agents or others, for any injury to the person, or for any loss or damage to the property of the individual using this pass, and that as to such person the company "shall not be considered as a common carrier or liable as such.
X hereby assent to the above statments and hereby agree that this pass is subject to the above conditions, and that I will make my signature whenever required by the company’s agents or conductors.
Fred Powell.
(Sign in ink.)
On right hand margin.
On left hand margin;
Not good on Overland or Los Angeles limited trains.
No. B 1759.
Void unless countersigned by T. M. Orr.
T. M. ORR.
"When injured decedent was riding on that pass on one of defendant’s passenger trains on his own business. While so riding hard by the station of Lawrencebnrg on one of defendant’s branches connecting with its main stem in Kansas, at about ten-o’clock a. m. on December 18, 1907, during zero-weather, the train (running east at from twenty to-twenty-eight miles per hour) was derailed at or nigh the point of a curve. The engine, pulling a combination mail, express and baggage car, a smoker and a day coach, stayed on the track and broke from the train. The latter pounded along on the ties a hundred feet or so and then careened over into a ditch, no little smashing itself, destroying the track and supplying the usual phenomena incident to a wrecked train. Decedent, thrown forward several feet, was pitched violently headlong out of the car window into the ditch. Just what he struck is not clear, but there is no dispute-about the character of his grave injuries. He was cut to the bone in several long slashes about the head,, above the ear, across the eyebrow and cheek, and pieces of his scalp torn out. He was hurt in the back, under
The track at the place of the accident ran east and west. There is no controversy among the witnesses but what the south rail broke about fourteen inches from a suspended joint, by which is meant a joint with no tie under it, a joint spliced with an angle bar bolted on each side, and, where possible, spiked to the ties on each side of the joint. The broken rail was made in 1881 and was a sixtv-pound steel rail thirty feet in length. It had been in use on defendant’s main track, but was transferred to the branch in question in 1896, at a time sixty-pound steel rails were laid there to take the place of fifty-four-pound iron rails hitherto used.
In canvassing a voluminous abstract and counter-abstract (the product of a ten-day trial) and doing the best we can, we conclude the foregoing facts are practically uncontroverted.
¥e now come to a set of facts about which there is controversy, to-wit, plaintiff introduced evidence tending to show that some of the ties at the place of the accident were unsound from rottenness. 'It seems some of them were soft-wood ties and some were oak. Some of the evidence indicates that the soft-wood ties were hard pine and some of it that they were white pine — all treated with creosote. Plaintiff also . introduced testimony to the effect that at the first break in the rail, the one next to the suspended joint, there was an old rusty fracture and that only a part of the rail was sound at that point. It seems the rail broke in six or seven pieces; one, twenty-one feet long and the others varied from a foot and one-half to two feet or over, and there is no accounting for the wreck except by the breaking of this rail. Attending to these
There was uncontradicted evidence put in by defendant that the train was well equipped and in perfect condition. It seems it was a sandy country and the natural sand of the country was used instead of cinders, burnt gumbo or rock for ballast. There was testimony that intense cold makes steel rails much more brittle than when the weather is warm. In short, the substantial trend of defendant’s proof on the facts was to show no negligence in the construction and condition or maintenance of its track, roadbed or train equipment.
So much for the facts.
Questions are here on the giving and refusing of instructions and on rulings on the admission and exclusion of evidence. Any further facts or record essential to an intelligent understanding and disposition of such of those questions as seem material will appear in connection with their determination.
Defendant’s learned counsel having assigned twenty-five errors and having pretermitted ten of them in their “points,” it may be an appellate court (presumably no little adept in ruminative contemplation and condensation) will be able to accomplish a further reduction.
I. Of rulings on evidence.
(a) Certain evidence was admitted over objection and error is assigned on that head. Thus:
(1) Plaintiff on cross-examination of some of defendant’s witnesses was able to show that an angle bar at the point the rail broke was found cracked or broken and then was allowed, over objection, to show that broken or cracked angle bars were found a little ways (say, three rails’ lengths) ahead of the engine after the wreck. It is argued that the admission of that testimony was error. As to that contention we say: It stands to reason that usually the condition of the track and roadbed at the place and in the immediate vicinity of the accident is the principal subject of inquiry, on the head of track conditions, in á case like that at bar. [Hipsley v. Railroad, 88 Mo. l. c. 354.] Defects in the track disconnected and remote from the place of the accident are not admissible in chief; for they have no tendency to prove the track out of repair at the point of the accident. Hence, evidence of that character should be rejected unless (as often happens) defendant relies on the fact that its whole track for some distance, fore and aft, was carefully inspected and that it was all in good condition, thereby seeking to show its condition at the point of the accident by proof of general inspection and general condition in the region. In such case plainly a plaintiff would be entitled to cover the same ground to controvert the character of the inspection and the general condition of the track. And in cross-examination, as here, plaintiff should have the same latitude and be allowed to cover the same ground defendant properly took the witness over, to sift the witness and test his testimony.
The assignment, being without substance, is disallowed.
(2) When plaintiff was on the stand she was asked this question: “What were your expenses of the household at the time of the wreck?” This was objected to by counsel “as incompetent, irrelevant and immaterial.” Then the court: “The condition in which people live has something to do with the wife’s rights and expectancy from the’husband and the way he has taken care of her.” Then defendant’s counsel: “The amount of money that they had would be the test and not what they spent.” Thereupon the objection was overruled, and.the witness answered: “About $1,200 per year.”
Waiving the generality of the objection and passing on its merits, we can not say that the household expenses of a family, where the wife and child are without means of support and where the husband and father is furnishing the whole of it, as here, would not throw some light on the pecuniary loss of the family in the death of the husband — pecuniary loss being the measure of damages and the latter being strictly compensatory in character, as they are under the
“In an action for damages for death by wrongful act, if is proper to receive evidence of whatever facts made the life of the deceased of pecuniary value to the survivors entitled to sue and recover damages for the death, including the ability of deceased to earn money or accumulate property; his disposition to contribute support; his condition of health; the probable duration of his life; and also the number, age, sex, health or condition in life of his surviving children dependent on him for care, support, education, and maintenance.”
That pronouncement seems acceptable doctrine and broadly sustains the ruling made by the trial judge.
Counsel hazard the suggestion that “what money they had was the test, not what they spend.” So? There is quicksand there and one should sound at every step for firm ground. Does the pecuniary value of a father’s life to his household hinge on the cash he has and not on what uses he puts" it to — i. e., on what he spends for the household, in this case $1,200? That concept not only opens a philosophical vista for the mind’s eye to gaze down, but provokes at least one inquiry, thus: Is a cheeseparing, closefisted father who hoards like a miser of more pecuniary value to a mother and child than an open-handed, great-hearted gentleman whose earnings during life flow for his household as unchecked and ungrudgingly as does the love he bears them?
There is a philosophy about keeping, as over against giving, hid away as a kernel in a nut in the epitaph on an old tombstone in Doncaster, Yorkshire, worth something on the thought, to-wit:
*444 “That I spent, that I had;
That I gave, that I have;
That I kept, that I lost.”
The point is ruled against appellant.
(b) Defendant having tendered certain evidence, which was refused, assigns error on that score, thus:
(1) An objection was sustained to a question asked of plaintiff on cross-examination, to-wit: “Now, do you know of his (decedent’s) attending to a single case in that county for the Union Pacific in the year 1907.” On inquiry by the court, vis., What is the purpose of it?, counsel answered: It bears on the question of the pass being “a gratuity.”
We see no vice in the ruling. It was not shown that plaintiff was familiar with her husband’s court business during that year in the particular in hand.
Furthermore, it stands conceded decedent got the pass in consideration, or in part consideration, for bis not taking any cases against defendant during that year. So the contract runs. Decedent made a promise of that sort and kept it. In return defendant promised him a pass and gave it. These mutual and executed promises were a sufficient consideration one for the other. 'So that; if the witness had answered that decedent tried no cases at all for defendant during that year, that answer would not tend to show the pass was a gratuity. A promise may be a consideration for a promise. So, an executed promise by A is a good consideration for performance of an offer by B. [Underwood Typewriter Co. v. Realty Co., 220 Mo. l. c. 526 et seq.]
Moreover, when the question was held improper, there was no tender of proof from which we could judge whether or no the merits were affected. Did he try any or did he not? Shall we reverse on a guess on what the answer would be?
The point is ruled against appellant.
We rule this point, also, against appellant.
(3) When Mr. Eoberts, one of defendant’s master mechanics, was on the stand he was asked this question:
“Take a sixty-pound rail, similar to the one before you there, and such as the one you found broken at the point of the wreck, which we have inquired about and assuming that there was an old rusty crack clear across the base of the rail, an old rusty crack across the ball of the rail, and the only part of the*446 rail which was not broken off showed a piece about an inch in diameter in the ball of the rail, and state whether or not a rail in that condition would hold together so as to bear an engine, such as was attached to the train which was wrecked, to pass over it.”
The same question was asked of Mr. Brinkerhoff, one of defendant’s superintendents, and neither was allowed to answer. We will not disturb the judgment on this ruling, because:
In the first place, there was no offer of any proof in connection with the ruling by which we can see that the merits of the case were in anywise affected. The witness might answer no, he might answer yes, or say he didn’t know, or that he was not an expert, and so on “ad lib.” as they say in music. To reverse a judgment on the mere exclusion of a question unless thereby evidence is excluded which is shown to be material either by the context, or by the question itself, or by a direct offer of proof, is to do a hazardous and foolhardy thing. When the case goes below on such reversal the evidence elicited at the new trial on the same question may turn out to be worth nothing at all— whereby justice suffers by our action and courts are brought into reproach. We have uniformly so ruled, and the reasoning of a line of cases supports that view, e. g.: Hickman v. Green, 123 Mo. l. c. 179; Bank v. Aull, 80 Mo. l. c. 202; Berthold v. O’Hara, 121 Mo. l. c. 98; Kraxberger v. Roiter, 91 Mo. l. c. 408; State ex rel. v. Leland, 82 Mo. l. c. 264; Ruschenberg v. Railroad, 161 Mo. l. c. 81.
In the next place, while neither the objection nor the ruling’, nisi, covers the question of the competency of the witnesses to testify as an expert, yet we find the record barren of any proof of such competency. The mere fact that a witness is a master mechanic or a railway superintendent does not qualify him to testify on the highly technical points of either the shearing strain or strength, or the tensile strain or strength, or
In the next place, while the court did not put its exclusion of the testimony on such ground, yet it is obvious that necessary elements are omitted from the question; for example, the condition of the angle bars, the state of the weather and the distance of the fracture from a supporting tie, the age and use of the rail, etc.
The premises considered, we rule the point against appellant and reserve the question as to whether the testimony of eyewitnesses to a fracture could be overthrown or weakened in the way indicated by the hypothetical question, to be ruled in some other case.
In leaving the matter we make this further observation: The broken parts of the steel rail were carefully collected by defendant and carried away for the purpose of examination to determine the cause of the accident and fix responsibility and liability. Now, those broken parts were not produced by defendant at the trial nor was their absence accounted for. In Kirk v. Middlebrook, 201 Mo. l. c. 288, Lord Mansfield’s maxim (Blatch v. Archer, Cowper, 63, 65) was quoted with approval, viz.: “All evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.” That maxim is solidly fixed in jurisprudence (1 Moore on Facts, sec. 562 and cases cited), and is apposite here.
(4) Defendant offered a certain section of the Kansas statutes of 1901 adopting the common law in that State, viz.:
“The common law as modified by constitutional and statutory law, judicial decisions and the conditions and wants of the people, shall remain in force in*448 aid of the general statutes of this state; but the rule of the common law that statutes in derogation thereof shall be strictly construed shall not be applicable to any general statute of this State, but all such statutes shall be liberally construed to promote their object.”
That statute was excluded, defendant excepted, and now argues that ruling was error. We agree to nothing of the kind, because: The cause of action was a statutory one and not a transitory common law action. If it had been the latter, we would be confronted with the question of whether we would take our own view of the common law or the view entertained by the highest court in the State of Kansas. [Root v. Railroad, 195 Mo. l. c. 370.] It is argued that the place where the common law enters into the controversy is in the proper construction, of the contract for a pass and of the terms of the pass itself, touching the exemptions from liability in the “conditions” of the pass on the vital issue of passenger vel non. No decisions of the Supreme Court of Kansas were introduced tending to show that such court took any other view of the common law than that entertained in Missouri and generally elsewhere in the United States. We are pointed to no such decision holding that a person traveling on such pass is not a passenger, but is an employee, or is riding free. Eyed however critically, we can not see that the exclusion of that statute did defendant any harm. When we come to defendant’s instructions we will presently see that it put to the court its construction of the contract and pass anent the exceptions in the “conditions,” and the question of passenger or not, and the court refused to follow the lead therein suggested. If that refusal be error defendant has the advantage of it on this record (of which more presently when we come to instructions) but barring decisions of the Supreme Court of Kansas (as here) on its construction of the common law in
At the instance of defendant the court ruled out the following statute off erect by plaintiff, viz.: ‘ That the railroads in this state shall be liable for all damages done to persons or property when done in consequence of any neglect on the part of railroad companies.” It also ruled out decisions offered by plaintiff construing that and. other statutes disconnected from the one forming the basis of the suit, and seems to have earnestly tried to confine the issues to the one statute involved.
We rule the point against appellant.
(5) After bringing the instant suit in Jackson Circuit Court, plaintiff instituted another in the district court of Washington county, Kansas, on the same accident and injuries for the same sum for damages in depleting the estate of Frederick Powell, deceased. There is a section of the Kansas statutes, read into the record by defendant, in pari materia with the section on which the Missouri suit is based, reading: ■
"In addition to the causes of action which survive at common law causes of action for mesne' profits, or for injury to the person or to real or personal estate, or for any deceit or fraud, shall also survive; and the .action may be brought notwithstanding the death of the person entitled or liable to the same.”
It will be observed, as a condition precedent, that ■said section requires death, but does not require such ■death to result from the injuries, whereas the section ■sued on in the Missouri case relates to a death “caused by a wrongful act or omission of another,” to-wit, the injuries. On the profert of that statute and in connection therewith defendant offered the petition in the Kansas suit as an admission and an estoppel, to-wit, an admission that the injuries did not cause ■death and an estoppel against denying that fact. In
“ ... that as a result of such injuries he suffered great pain and mental anguish from the date of said injuries and until his death on October 4, 1909.
“Plaintiff further states that prior to said injuries, to-wit, December 18, 1907, deceased was an able-bodied and industrious man, forty-six years of age, and a practicing attorney at law, at Washington, Kansas, and capable of earning and earning in the practice of his said profession from two thousand to three thousand dollars per year, but that after said injuries deceased was rendered, on account thereof, incapable of following his profession.
“Plaintiff further states that on account of said injuries deceased expended a large sum of money for medical services, medicines, hospital bills, nursing, and traveling in an attempt to be cured from such injuries in the sum of twenty-five hundred dollars.
“Plaintiff further states that the negligence of defendants consisted in allowing the track, roadbed, ties and rails to be and become in an unsafe condition for travel over the same and in operating a train upon.*451 such track, roadbed, ties and rails which were in an unsafe condition, at an unsafe and dangerous rate of speed.
“Plaintiff further states that by reason of said injuries so received by deceased by reason of the carelessness and negligence of defendants, his estate has been depleted and damaged in the sum of ten thousand dollars.
“Wherefore plaintiff prays judgment against defendant in the sum of ten thousand dollars and for costs.”
The averments of that petition do not constitute an estoppel under any definition known to us. By the same token they do not constitute a direct admission that the death occurred from other causes than the injuries received in the wreck. Indeed, if put to it we might say that a very liberal construction of the petition might be that the pleader intended to charge, and does inferentially and argumentatively charge, that death resulted from the injuries. In that view of it, the petition would be demurrable as the statement of a cause of action for the depletion of the estate of Frederick Powell. The “admission,” to the contrary, if any, must be got at by inference — nay more, by piling one inference on another. It is only through the fact that the Supreme Court of Kansas has held that where death ensues from the injuries the action is on one statute, and where death ensues from other causes the action is on the other statute, and by reading those decisions into the petition, and inferring that plaintiff intended to count on the last, that an argumentative admission of the cause of death is airily built up. To be worth while for jurisprudence, an admission must admit. An admission in writing must admit by the writing itself. The touchstone is: Thus saith the writing, or thus meaneth the writing by necessary implication from the words of the writing. Now, the Kansas petition actually admits neither one way
The point is ruled against defendant.
II. Of the instructions.
The court on defendant’s prayer instructed the jury that they should not find against defendant because its roadbed was of sand; that if they found the derailment was the result of an “accident” they should find for defendant; and that if they believed from the evidence that in his lifetime decedent could not have maintained an action against defendant, they should find for defendant; and refused to gave a series of mandatory instructions and others — some of them construing the pass and contract on defendant’s theory of non-liability. The court gave for plaintiff two instructions. Error is assigned in refusing defendant’s and giving plaintiff’s instructions. Attend to that phase of the case.
(a) Plaintiff’s instructions read:
“1. Thé court instructs the jury that if you find for plaintiff then you should assess her damages, if*453 any, at suck sum, if any, as you believe and find from tke evidence to be a fair and just pecuniary compensation, only, for damages, if any, to ker and ker daugkter, Marjorie Powell, occasioned by tke deatk of Frederick Powell, not exceeding tke sum of ten thousand dollars.
“2. The court instructs the jury that Frederick Powell was a passenger upon defendant’s train on the 18th day of December, 1907, at the time it is claimed he was injured; then having received him on board such train, the defendant was under obligation to him to use the highest degree of care practicable among prudent, skillful and experienced men engaged in the same kind and character of business in which defendant was engaged to carry him safely, and a failure of defendant (if you believe there was a failure) to use such highest degree of care would constitute negligence on its part; and if you believe from tke evidence that the train upon which deceased was riding was wrecked, the presumption is that such wreck was occasioned by some negligence of the defendant, and the burden of proof is cast upon defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part and that the injuries to Frederick Powell, if any, was occasioned by inevitable accident or by some cause which such highest degree of care would not have avoided. ’ ’
(1) It is argued that the first instruction assumes the injuries caused the death of Frederick. We may be pardoned for not agreeing with counsel. It says “if you find for plaintiff, then,” etc., and makes no assumption at all. It is only an instruction on the measure of damages in the contingency and on the hypothesis the jury first find for plaintiff. The elements to be considered by tke jury in making this finding for plaintiff, if they do, are not dealt with at all by tke instruction and are not usually dealt with
Furthermore, and most of all, defendant below stood mute and asked no instruction on the measure of damages. It pitched its battle at other points. It exhausted its solicitude elsewhere and on other questions. It may not now, with its corporate heart bowed down with the woe of defeat, and its corporate eyes washed and brightened by the tears of affliction, elicit appellate interest in a matter it cared nothing about below. Browning v. Railroad, 124 Mo. 55, was in Banc. We copy as apposite the unanimous pronouncement of all the sitting brethren (pp. 71-72):
“The instruction on the measure of damages is also assailed as error.
‘ ‘The instruction was in these words: ‘If the jury find for the plaintiff they will assess her damages at such sum as in their judgment will be a fair and just compensation to her for the loss of her.husband, not exceeding the sum of $5,000.’
‘ ‘ The defendant asked no instruction on the measure of damages whatever. No attempt was made by it to point out the proper elements of damage in such cases or to modify the general language of the instruction.
“The instruction is not erroneous in its general scope; and if, in the opinion of counsel for defendant, it was likely to be misunderstood by the jury, it was the duty of the counsel to ask the modifications and explanations, in an instruction embodying its views.
“The court is not required in a civil case to instruct on all questions, whether suggested or not, and as there is nothing in the amount of verdict to indicate that the jury were actuated by any improper motive in their assessment, the general nature of the instruction is no ground for reversal.”
The Browning case has been followed early and late on the identical point—e. g. King v. St. Louis, 250
In Wheeler v. Bowles, 163 Mo. l. c. 409, there was an instruction couched in as general and “chameleon-hued words” (to borrow a phrase from Professor Hohfelt) as the one in judgment. It was challenged and to that challenge (referring to the Browning case) we said:
“As to this point it is only necessary to remark that this is a civil action and mere nondirection is no ground of error in this court. The defendant did not submit any instruction on the elements of damages, neither did plaintiff. If defendant desired the jury restricted to certain elements he should have offered an appropriate instruction on that subject.”
In Minter v. Bradstreet, 174 Mo. l. c. 491, the following instruction, given in Tetherow v. Railroad, 98 Mo. 74, on the measure of damag’es (omitting all elements) was approved, arguendo-.
“The jury are instructed that if you find for the plaintiff, you may, in your verdict, give her such damages, not exceeding five thousand dollars, as you may deem fair and just under the evidence in the case, with reference to the necessary injury resulting to her from the death of her husband.”
In Barth v. Railroad, 142 Mo. l. c. 555, the following instruction was approved:
“The jury were instructed that if they found for plaintiff they would award her ‘such damage not exceeding five thousand dollars as you may deem fair and just under the evidence in this case with reference to the necessary injury resulting to her from the death of her husband.’ ”
It is argued that the jury, under the loose languhge of the instrúction, might have included in their estimate pain and anguish suffered by decedent as well as the sorrow plaintiff suffered over his death, etc.
In Morgan v. Mulhall, 214 Mo. 451, our statute regulating instructions was under exposition (Sec. 1987, R. S. 1909). We there held that its language was. permissive. In other words, a party had the option to ask or not ask instructions, that the court owed no duty to either party to give instructions either on its own initiative or in lieu of those refused. Indeed, it has always been held that the rule in criminal cases in that regard did not apply in civil. Take, to illustrate, the case of Clark v. Hammerle, 27 Mo. l. c. 70: “In the trial of causes,” says Judge Scott, “neither party is bound to ask instructions. If they are not asked, the giving them or not is at the discretion of the court.” Cases at law frequently come to this court without any instructions at all asked or refused on either side. In such event the only issue on appeal may be whether the petition states a cause of action, or whether a demurrer to the evidence should have.been sustained, or whether the judgment is responsive to
“In construing that section, the better view is that it is permissive, not mandatory. Doubtless it conduces to the science of jurisprudence and the orderly administration of the law to have instructions defining the issues, putting it to the jury to find the fact and declaring the law on the fact when found, but it is within the knowledge of the profession (and our decisions show) that cases are not infrequently tried, nisi, without them. That mere nondirection is not misdirection is a familiar, settled rule of appellate procedure. Under that rule, before appellant can predicate reversible error on what a trial court does not say to the jury, he must first put the court in the wrong by asking it to say something, or else the court in trying to cover the case by instructions holds a false voice, or omits in general instructions essential elements of the case.”
The point is ruled against appellant. But in ruling after that fashion, nothing we have said is to be construed as favoring the submission of a cause to a jury without proper instructions on the rules of law applicable to the evidence and covering the whole case on issues essential to recovery. By virtue of the statute cited, instructions must be in writing. So, observe, no' matter which side asks them, they are, when given, the instructions of the court. In other words the court is the preclusive mouthpiece of the law on the law. The question is not here for decision, therefore, a ruling thereon is reserved; but if the question were here, whether an attorney could argue the law (and thereby virtually orally instruct the jury on the law), absent instructions on the law by the court, we would hesitate long and ponder well before we
(2) Plaintiff’s instruction number two is challenged, because, as we gather, it does not cover all the issues and because it erroneously declared the law on the issue as to whether decedent was a passenger at the time of his injury. As to that we say: The instruction does not purport to be a general instruction coercing a verdict whether or no if the facts hypothesized therein are found by the jury, to exist. In a demurrer to the evidence, in the form of a mandatory instruction, defendant challenged plaintiff’s right to a verdict on the pleadings and facts. "When we come to the mandatory instruction the question whether decedent, as a matter of law, was a passenger (as declared by the instruction) will be considered. Barring for the present that view of it, we see nothing- wrong with the instruction. It is a replica of an approved instruction in Price v. Railroad, 220 Mo. l. c. 444. In plaintiff’s brief it is presented in a parallel column with that in the Price case and, on inspection, they disagree ip nothing material. It states the law on the doctrine of res ipsa loqidtur, the shifting of proof and the character of care due from a carrier to a passenger in an acceptable way. [Stauffer v. Railroad, 243 Mo. l. c. 316 et seq.; Railroad v. Elder, 57 Kan. 312.] So that, barring the question whether decedent was a passenger, the instruction was well enough.
(b) The court, as said, refused a mandatory instruction in the nature of a demurrer to the evidence coercing a verdict for defendant. It also refused for defendant a series of instructions approaching the issue of the relation between decedent and defendant carrier from several angles, but all of them meaning as a matter of law decedent was not a passenger.
(1) In the matter of the suspended joint it is argued there was no evidence showing’ it had anything to do with the derailment. We do not read the record in that way. There was evidence that suspended joints, under certain circumstances, were allowable construction, when the ties on both sides were sound and when the angle bars were spiked to them. But there was also evidence tending to show that to have a joint spliced with angle bars and directly over a solid tie would be better than a suspended joint. But in this case, there was evidence of bad ties close to the joint, and no evidence that the angle bars were spiked to the ties. So, there was evidence of imperfect angle bars at the place. Hence the court did right in not taking the suspended joint from the jury. It was a fact belonging in the case to be considered for what it was worth.
We rule the contention against appellant.
(2) We now come to the demurrer. Let it stand conceded that plaintiff cannot recover unless the evidence connected decedent’s injuries received in the wreck with' his death. The evidence did that emphatically and to an eminent degree. The justice of the verdict in that particular is entirely consonant with the broad, uninterrupted and irresistible current of the evidence. I can add nothing on that score to the observations made in MacDonald v. Railroad, 219 Mo. l. c. 480 et seq., and in Sharp v. Railroad, 213 Mo. l. c. 531 (q. v.).
Moreover, one would read this record with flippancy, if he did not see writ large there the pregnant fact that defendant refused to take militant issue on the question whether the injuries of decedent caused his death, and did not see that the defendant was
But it is said that the question whether the injuries caused the death was not put to the jury in any instruction. That is true, and if the testimony did not satisfactorily connect the two events in the relation of cause and effect, the demurrer would search the fact and lie. But such is not the case. The demurrer was, therefore, well ruled in that particular, and if defendant thought that issue should have been presented to the jury, to find as a fact, it was as much to blame as was plaintiff for not presenting it. It is a typical case of »o»direction not misdirection, and therefore not reversible error under any rule of law known to me in this jurisdiction.
But it is argued with animation and ingenuity that decedent was not a passenger, ergo, the demurrer lay and plaintiff’s instruction number two was bad.
•Attend to that view of the matter. The contract between defendant, acting through Loomis, its general attorney, and decedent, was silent on the peculiar “conditions” emblazoned on the back of the pass. It called for a pass with geographical and train limitations alone. Decedent agreed to accept such a pass as a “retainer.” In consideration for the pass decedent was to take no cases against defendant in Washington county and was to aid defendant’s attorneys in “local legal affairs.” The gist of the matter was that defendant offered and issued transportation in return for decedent’s promise of service in local legal affairs and as a consideration for his taking no cases against defendant. As already said elsewhere in this opinion, the consideration was ample and legal, and, so far as this record shows, the contract was fully performed on
It appears the Kansas doctrine is not out of line with our own and our own is well formulated in the Cherry case supra, thus:
“ A multitude of cases could be cited bearing upon the question under consideration, but as there is an irreconcilable conflict between the adjudications, the foregoing is sufficient to show that whilst in England it is held that a railroad company may by special contract, either expressly or impliedly agreed to by the passenger, limit its liability, and prescribe rules of procedure in cases like the case at bar, still the American rule has long been settled that a railroad company cannot, even by an express contract, signed by*463 the passenger, limit its common law liability for negligence, and the rule is equally as well settled that no provision contained in the ticket will be binding upon the passenger whether expressly or impliedly accepted, unless such provision is a just and reasonable one in the eye of the law. The reason underlying the rule is, that while, ordinarily, the courts will enforce contracts made by persons who are sui juris, still the public has an interest in contracts for carriage of passengers, and the law will require them to be just and reasonable, even if the passenger had not so required or had otherwise expressly agreed.”
We hold the demurrer well ruled.
With the foregoing ruling made on the demurrer, there fall out of the case all questions on the other instructions asked and refused for defendant; for singly and as a body they one and all presented views contra to those expressed.
We have not followed counsel in all the ramifications of their elaborate and skillful argument, but have considered them all and announce our conclusion to be that the case was well decided. Let the judgment be affirmed. It is so ordered.
