87 Mo. 74 | Mo. | 1885
Lead Opinion
The defendant appealed from a judgment of eight thousand dollars in favor of the plaintiff. The substance of the complaint is, that while plaintiff was a passenger on one of the defendant’s trains, certain other persons, passengers on the same train, and the conductor, pretended and said to him and in his hearing that they intónded to tie him with straps, rob him of his money and throw him out of the car while in motion, thus working upon his mind until he became frightened, believed, and had good reason to believe, they would commit the threatened violence, and to save his life, he jumped from the car while in motion and was injured.
The officers and employes in charge of railroad trains have the right and power to preserve order and decorum, and to that end may eject all drunken, riotous, and disorderly persons, and all persons violating the reasonable rules of the company. This right and power is. everywhere conceded by the courts. Prom this power, and from the obligation resting upon carriers of persons to transport their passengers safely to their destination, arises a duty to exercise that power and authority. It is the duty of the railroad company and of its conductor to use the utmost vigilance and care in maintaining order, ■ and in protecting passengers from violence and insults from others, though such other persons be passengers, and a failure so to do will render the company liable for damages to a passenger injured by reason of such neglect. The company is as much liable for an omission in this respect, as it is for a negligent failure to provide safe machinery. Flint v. Norwich & N Y. Trans. Co., 84 Conn. 554; New Orleans, St. Louis & C. Ry. v. Burke, 53 Miss. 200; Pittsburg & C. Ry. v. Pillow, 76
■ Where the injury comes from or is threatened by one passenger to another, it is, of course, necessary to-show that the conductor, or other person in charge, knew of the threatened injury, or, from the character and number of persons on board and the surrounding-circumstances, might reasonably have anticipated the injury. He must, when the occasion arises for his interference, bring to his aid all the force at his command.-
It is unnecessary to review the instructions in detail. Those given at the request of the plaintiff, tested by the principles, of law before stated, are not objectionable, when considered in the light of those given at the request of the defendant; the defendant had no just ground of -complaint on the score of instructions given. Much reliance for a reversal is placed- upon the refusal of the court to give an instruction to the effect, that if the conductor took a seat in the same car with the plaintiff, and entered into a conversation with Connelly, and while thus engaged, plaintiff said to them, “if you<l’ón’t hurt me, I will give you alii have got,” and thereupon one of them assured him that he would not be hurt and w;as in no danger; that the conductor then left the car in the discharge of his duties, and did not miss the plaintiff until after Ewing’s station was passed, and then made diligent search for him, the finding should be for the defendant. It must be remembered, the plaintiff says, following this conversation, the conductor said: “We will get it after we tie him, anyhow.” It is enough to
In the motion for a new trial, it is alleged that the verdict is against the evidence, and that it is not the result of a free and unbiased judgment on the testimony. Plaintiff says he was thirty-five years of age; had been engaged at labor in and about New York City and Philadelphia ; coming west he stopped at the latter place, and there .got acquainted with a woman, who gave him some whiskey. He got tired of riding in the cars, and at Columbus got off and walked. While walking, he met some men with whom he shared his whiskey. He again took to the train, and at St. Louis showed his ticket to a colored man, who put him on defendant’s train ; other evidence shows this train left at 8:52 p. m. 'Three men who got on the train at St. Louis, he says, black-guarded him ; called him a son-of-a-bitch, and wanted to know what he was going to Kansas for. One of them said : “We ought to rob him, so that he cannot get back, and if he does, we will kill him.” He further testified: “ I stopped listening after awhile ; this kept up for an hour and a half; train stopped and another passenger came, in and sat behind me ; when the train commenced going, conductor came in and sat down by him, and told him : £ that must be an onery son--, an onery man.’ The conductor was talking about me. ‘He ought to be punished.’ The other man said, ‘can’t we punish him, haven’t you got straps to tie him and rob him.’ The conductor said, ‘ there is a place.’ He said, ‘that was a pretty good place to throw him out,’ and said I must have.a good .bit of money. I then wanted
He then says the conductor went out one way and the other man the other way, and he thought they were going to get the straps ; that he then stepped out and stood on the platform step ; that as soon as he saw the conductor coming, he jumped off, because he thought they would tie him ; his foot was cut across the middle. He says there were eight men in the car, including himself and conductor; that he did not tell them where he was going, and don’t know how they knew he was .going to Kansas. On a subsequent day he further testified : “ Saw these men as often as I did the conductor. 'The remarks, at first, did not frighten me, I thought they would not hurt me, because the conductor was there. I did not tell the conductor about it. These three - men were asleep when the conductor came in and sat down behind me. They were asleep when I jumped off.”
The conductor says his attention was first called to the plaintiff after passing Chamois, when sitting with Connelly two seats behind plaintiff. The latter appeared to be asleep. He then jumped up and said: “If you don’t hurt me, I will give you all I have got.” Connelly told him to sit down, that no one wanted his money, and that he would not be hurt. He then sat down. The -conductor, also, says he did not speak to plaintiff, and did not miss him until after he had passed Ewing’s station. Some other evidence of the plaintiff’s condition, when found, tends' to show that he had been in a delirium from drink. The evidence of the conductor and other witnesses, including a passenger on the same train, contradict the truth of the plaintiff’s entire evi
It appears the train was going at about forty mile® an hour where plaintiff was found,, and t 's quite unreasonable that he should have there jumped off and not been instantly killed. It would seem to be more reasonable that he g'ot off at Ewing’s station. In any view of the case, plaintiff’s statements of wha.t transpired on the train presents a most remarkable case. It is, of course, possible that such things should have been said and done by the conductor and passengers, but the story is a most improbable one. Wholly unsupported, as the plaintiff’s evidence is, it taxes the mind to the utmost to believe that any threats of violence were made. His own evidence, examined as a whole, leads to the conclusion that his statements in the main as to threats of violence, are the result of a disordered mind. The evidence, taken as a whole, leaves it difficuR to account for the verdict. We recognize- and affirm the right of the jury to determine for themselves the weight of the evidence and the credibility of the witnesses. Trial courts-may justly and rightfully award new trials, where this-court cannot, ■ and has no right to say it was error not so to do. It was said in Baker v. Stonebraker's Adm'rs, 36 Mo. 345, that “it has been often held, that the court will not disturb a verdict on the ground merely that it is against the weight of the evidence, unless it can be seen that the preponderance is so great as to imply some gross partiality, or some prejudice or misconduct on the part of the jury.” To the same effect is Price v. Evans et al., 49 Mo. 396. Reluctant as we are, and should be to interfere in such matters, as this record now stands, we can come to no other conclusion than this, that the verdict is the result of passion or prejudice, or that the instructions given by the court were wholly disregarded. This is an extraordinary case, as it is presented here.' A proper administration or the law de
Concurrence Opinion
I concur in reversing the judgment. But, if reversed, why remanded ; if remanded, why- reversed ? Is it within the.range of human probabilities that the testimony of the plaintiff will be any stronger in his own behalf than as now presented? If no stronger on a re-trial of the issues, and the cause comes here again, will we not stultify ourselves if, on the same testimony. we affirm the judgment where we now reverse it ? Cases are not unfrequently in this court where we have reversed the judgment, and yet, because- on plaintiff’s own showing, he was not entitled tó recover, have, in terms, refused to remand the cause. In my opinion, it makes no difference, in point of principle, whether you refuse to'remand because there’is absolutely no evidence to support the verdict, or whether your refusal be based on the theory that upon evidence so highly' and intrinsically improbable, no verdict should be permitted to stand.
