Sawyer v. Hannibal & St. Joseph Railroad
37 Mo. 240
Mo.
1866
Check Treatment
Hqumbs, Judge,

delivered the opinion of the court.

fThe" cause of action is based wholly on the ground of neg*257ligence. A new trial is asked mainly for the reasons that the court below erred in the giving and refusing of instructions, and thai the damages were excessive. It is also urged that there was misconduct in the jury respecting the manner in which the verdict was made up. The allegation of negligence in the petition was, that the train of cars was precipitated into the Platte river, and the plaintiff injured, by the negligence and unskilfulness of the officer or agent employed by defendant to manage, conduct, or run the same, on the night of the third day of September, 1861, whilst 'running carelessly, recklessly, and at full speed, when danger was, or should have been, apprehended; that the railroad was at the time defective and insufficient, by reason of the bridge over the Platte river having been burned down and destroyed between one and five o’clock of the afternoon preceding; and that by reason of such negligence and unskilfulness of the agent or officer of defendant, so, as aforesaid, running, managing and conducting the said train of cars, and by reason of said defect and insufficiency in the railroad and bridge, the plaintiff suffered the injuries complained of. The answer denied all negligence, and alleged in substance that the bridge had been burned down by the public enemy, a few hours previous to the passing of the train ; that the section agents along the road in that part, whose duty it was to watch the condition of the track, had been overawed and driven off, so that no notice of the burning of the bridge had come to the knowledge of the officers in charge of the train; and that the defect or insufficiency of the road complained of was not a negligent defect or insufficiency.

It is clear from the evidence that there was no other defect or insufficiency in the bridge or the railroad than what arose from the fact that the bridge had been burned down by the public enemy, a few hours previous to the passing of the train. The accident happening solely in con sequen cA^pf the bridge having been destroyed in this manner, it is plain that this was not what is ordinarily understood by a defect;_qr ¡insufficiency in a railroad. The question of megligence that,Vas *258really in issue in this trial, must be regarded as having reference solely and exclusively to the acts and conduct of the.' officer who had charge of the train upon (¿hat occasion. There was much evidence and some argument in the case, touching the operations of the public enemy, the insurrectionary state and condition of the country, the military orders,' and the policy of the Government with regard to keeping the railroad open, the propriety of the action of the railroad company in continuing to run passenger trains when the railroad and trains were threatened with danger, the duty of the company to take all passengers who offered to go on the road, and the risks which passengers voluntarily undertook in the face of dangers known to them, and for which they were to be-held alone responsible. This kind of evidence was not pertinent to the issue, and it should properly have been excluded. The question was not whether the train should have been run at all on that day, but whether • there was any such negligence, or want of care, prudence, and foresight, on the part of the officer who was engaged in running and conducting the train on the particular occasion, as would render the defendant liable for damages for the injuries sustained by a passenger; and on this issue the acts and doings of the public enemy were in no otherwise important than as showing when and how the bridge was destroyed, and that it was done by a power beyond the control of the defendant, or of the officer in charge of the train, or that it was burned down at such a time and under such circumstances that they might and ought to have had knowledge of it, and so were to be held responsible for their ignorance of the fact, as amounting to that degree of negligence or want of care, diligence, and foresight, which the law required of them. It is a well established rule of the law of carriers of passengers, that whore an accident and injury occur by reason of the breakage of carriages, cars,.'or machinery, or by reason of any defect of construction^ or any insufficient condition or state of repair of the railfoad or its bridges, these facts alone import some degree of i/egli*259gence, and make a prima facie case of negligence for the plaintiff sufficient to shift the burden of proof upon the defendant. (2 Greenl. Ev. § 222.) And when the simple facts were shown that' a railroad bridge was down, and that the train was precipitated into the chasm, and the plaintiff injured, it may be said that a prima facie case for the plaintiff was made out. On that evidence alone, there would certainly appear to be a negligent defect or insufficiency in the railroad; but when it was made to appear further that the bridge was down by reason of the sudden inroad and hostile act of the public enemy,«nd not by reason of any deficiency of construction or any insufficiency in the condition and state of repair of the road, that prima-facie case, so far as resting upon this ground alone, was completely rebutted and disproved. The only question that would remain for inquiry under this petition would be, whether there had been any negligence, or want of proper care, diligence, skill, and foresight, on the part -of the conductor or officer engaged in running, managing and conducting the train. There was no allegation of negligence in any other officer or agent of the company on this occasion, whether engineer, station agent, or section man. The evidence tended strongly to show that that the men whose duty it was to watch the condition of the road in that part, and report any insufficiency, had been driven off by hostile armed bands of the enemy, so that they, as well as other persons in the neighborhood, who had knowledge of th£ fact, were afraid to risk their lives by undertaking to inform the agents of the company to the east of the bridge of the fact that the bridge had been destroyed; and no such information had reached them. The inquiry was thus narrowed down to the actual conduct of the conductor of the train, on such facts as he knew, or might have learned by any reasonable diligence in making inquiries. In a case of this kind, it is only on the ground of actual negligence that even a carrier of passengers is to be held liable ; the burden of proof is on the plaintiff; and he must establish the fact of negligence by competent evidence, *260otherwise he cannot recover. Carriers of passengers not being insurers of their safety, are not responsible where all ’ reasonable care, skill and diligence, prudence and foresight have been employed. (2 Greenl. Ev. § 222; Sto. Bail. § 602; Railw. 323-9 and notes; Holbrook v. Ith. & Schenec. R.R., 2 Kern. 236.) They are not liable for mere accident or misadventure, any moye than for the act of God, or the public enemy, for any sudden convulsion of nature, or an unknown or unforeseen destruction, or an unknowable, insufficiency of some part of the railroad. In addition to this,| there must be some actual negligeiice, or want of strict care,! diligence and foresight. As to what constitutes such care, diligence and foresight, or what shall be the standard of judgment in such cases, the law does not seem to have defined any positive and unbending rule. Various expressions are used by different authorities. The terms utmost, strictest, all humcm, extraordinary, have been employed; and it has been said, by very high authority, that “when carriers undertake to carry persons by the powerful and dangerous agent of steam, public policy and safety require that they be held to the greatest possible care and diligence;” and that “ any negligence in such cases may well deserve the epithet of gross.” (Philad. & Read. R.R. Co. v. Derby, 14 How., U. S., 468.) These are very strong, but somewhat indefin ite terms. Numerous decisions have held that the matter negligence, or care and prudence, is in some degree relative, and that they must be in proportion to the native, difficulty and peril of the business (Notton v. Western R.R., 15 N. Y. 444); and it can scarcely mean anything more than such care, diligence, skill and foresight as careful and prudent] men are reasonably expected to exercise in the particular business, under like circumstances of difficulty and danger. More than this would come near to rendering railroad companies liable in all cases of accident and misadventure. Oftentimes after an accident has happened it is easy to see how it might have been avoided; but if the company were to be held liable in all such cases, it would never be safe for them *261to run a train at all. Care and foresight must be taken in reference to the business, the time, the occasion, and the nature of men, or they can have no definite meaning whatever. In this case it does not'appear that there was evidence of any positive act of carelessness, omission or remissness of his ordinary functions and duties on the part of the conductor, unless it were a lack of the requisite degree of prudence and foresight in view of the dangers to' be anticipated ahead on the road. He had no knowledge of the presence of the enemy in force about the bridge, nor of the fact that the bridge had been burnt, nor does it appear that the station agent at Easton had any intimation of that fact, which he might have communicated to the conductor. He seems to have believed that the train had passed the region where danger was most to be apprehended. The train was running at a speed not above fifteen miles an hour, when the card time required twenty miles an hour. A passenger had intimated to him that he had been uneasy all day, and was fearful that something might be wrong at the bridge which they were approaching, and suggested to him that it would be safer to stop the train .before attempting to cross; but he had no particular reason for his apprehension, and the conductor supposed himself to be better acquainted with the actual state of affairs along the road than the passenger. A train had gone safely through the day before, from St. Joseph to Hannibal. More danger seems to have been expected from men firing into the train, than from the burning of the bridges, and that peril would be increased by stopping the train. All the circumstances were to be considered, and the question of a reasonable degree of care, prudence and foresight was a matter for the jury to decide, under the instructions of the court as to the rules of law governing such a question, so far as any such rules have been established. The instructions which were given for the plaintiffs were expressed in broad and general terms, and, so far as they went, laid down the rule accurately enough on the side of plaintiffs. They adopted the language of the best writers on the subject, and they *262can hardly be considered as in any way materially objectionable. The instructions given for the defendant, which were also couched in very general terms, would seem to be free of serious objection. Of those that were refused, it can scarcely be necessary that we should particularly notice more than the seventh, eighth, ninth and eleventh. The seventh confined the inquiry to the issue of negligence in running the train of cars on the particular occasion, and told the jury that if the train was conducted and managed with as much care and diligence as a very prudent and careful man would have conducted the same where his own interest and safety were concerned, taking into consideration all the circumstances surrounding the case, and that the injury complained of was the result of mere accident, then the defendant was not liable. This instruction would seem to be entirely correct and proper, and we think it should have been given. It presented a correct view of the question on the side of the defendant, and it enunciated distinctly the important principle that the defendant was not to be held liable for mere accident, in the absence of any want of that degree of care and prudence which the law requires. If it were not the negligence of the conductor, or his want of care and foresight, that was the cause of the accident and injury, proximate or remote, the defendant was not liable. If the burning of the bridge were the act of the public enemy, and the fact were unknown and unknowable to the conductor by the degree of care and foresight propounded in the instructions, then it was the burning of the bridge that was the sole cause of the accident and injury, and in reference to the conductor and the defendant it was pure accident or misadventure.

The eighth instruction was sufficiently in accordance with this last proposition, except in so far as it left out of view the consideration of the question for the jury whether the Conductor, in the absence of any knowledge or means of information concerning the burning of the bridge, had exercised the requisite degree of care and foresight, in view of *263the information which he had concerning the state of the country, and the probable dangers to be apprehended ahead on the road. This last was a matter for the jury, if there were any evidence before them bearing upon the question. If there were no evidence tending to prove such want of care and foresight, such an instruction might be given ; otherwise not. The eleventh instruction contained and submitted this question of care and foresight to the jury, in addition to the same matter embodied in the eighth instruction, and so was free from the same objection; and we think it should have been given. It presented the issue fairly on the side of the defendant, and more definitely than the other instructions which were given in general terms only. The ninth instruction, in reference to the state of tire evidence before the jury, contained a correct proposition of law, and might have been given. We think the defendant was entitled to have the benefit of these instructions. The instructions that were given on either side, indeed, placed the whole issue substantially before the jury, but in the most general terms, and mainly on the plaintiffs’ side; and by the refusal of these particular instructions for the defendant, undue prominence was given to the plaintiffs’ view of the case, and the precise and especial ground of the defence was in a great measure withdrawn from the consideration of the jury, thrown into the background, and apparently negatived altogether. Instructions should not be so framed, nor given and refused, as to exclude from the jury the consideration of the points which are fairly raised by the evidence on either side. (Clark v. Hammerle, 27 Mo. 70.)

In support of his motion, for a new trial, the defendant pro-, duced the affidavit of Jacob Hursch, one of the jurymen, to the effect that the jury had arrived at their verdict by agreeing that each juror should write down the sum which he wished to give as damages, that the aggregate amount should be divided by twelve, and that the sum so ascertained should be given as the aznount of their verdict; that he was deceived by the fact, that some of the jurors, under this arrange*264ment, put down larger sums than he had anticipated, and that he never would have agreed to the verdict, if he had not been bound by his previous agreement. This was undoubtedly an improper mode of making up a verdict, and it would amount to misbehavior on the part of the jury; but the law seems to be settled that a traverse juror cannot be a witness to prove misbehavior in the jury in regard to their verdict; nor can affidavits of jurors be admitted in support of motions to set aside verdicts on such grounds, thus placing the verdict of the jury in the power of a single juryman. (1 Greenl. Ev. § 252, a.; Pratte v. Coffman, 33 Mo. 71; 1 Waterman’s Gra. on New Tr., 2d ed., 111-15.)

Another ground for the motion for a new trial was that the damages were .excessive. The evidence shows that the plaintiff was precipitated into the wreck of material, and lay buried there until morning, amidst wounded and dying men, in a situation of great horror and distress; but her actual injuries were not serious, consisting chiefly of a cut in the scalp, and bruises on the arms and shoulders. She received medical aid for about ten days, and in two or three months was entirely recovered. She was not permanently crippled or disabled, though receiving a severe nervous shock. The damages were $6,900. In Collins v. Alb. & Schenc. R.R., 12 Barb. 492, this subject received an extended examination. The plaintiff had been injured in the head and foot. The outside of the feet and one toe had to be removed; he was seriously ill for several days,-and his' life despaired of; he could not be removed home for three months; and he was rendered a cripple for life. The verdict was for $11,000, and it was reduced to $5,000. So, also, in Clapp v. Hudson Riv. R.R., 19 Barb. 462, a verdict of $6,000 was reduced to $4,000, under conviction that a new trial would be granted otherwise. The bone of the plaintiff’s leg had been broken between the knee and the ankle, and he had received some flesh wounds in the head. It was four months before he could be carried home, and five months more before he could dispense with the use of crutches; the injury had produced a *265curvature in the leg, making one leg an inch or more shorter than the other; and it was probable he would be lame for life. After much' consideration, these verdicts were regarded not only as excessive, but to such a degree as to show that there had been some improper influence operating upon the minds of the jury, whether prejudice, a desire to punish the defendants for the carelessness of their agents, or some misconception of duty, or some perversion of judgment. We think the damages in this case are so exhorbitantly excessive, when considered with reference to the actual injuries sustained, and the pain and anguish suffered, for which only the law undertakes to make pecuniary compensation by way of damages, as almost necessarily to imply some misconduct, undue feeling or prejudice, or some misapprehension of the proper measure and lawful object of damages in such cases. They are excessive enough to raise a strong conviction in our minds that the jury regarded more the terrible nature of the accident than the degree of carelessness which they could properly have attributed to the conductor of the train, or the actual amount of injury sustained by the plaintiff. But on this subject we need do no more than indicate our opinion. We think the error of the court below in refusing the instructions of the defendant, as above pointed out, is sufficient to justify a reversal of the judgment.

Judgment reversed and the cause remanded;

Judge Wagner concurs; Judge Lovelace absent.