Spohn v. Missouri Pacific Railway Co.

101 Mo. 417 | Mo. | 1890

Lead Opinion

Barclay, J.

At the previous hearing in this court

the first judgment was reversed and the cause remanded for a new trial. Spohn v. Railroad, 87 Mo. 74. Since then another trial has been had accordingly, and the present record furnishes a detailed account of the last hearing in the circuit court. The facts are now presented in much more intelligible manner than on the former appeal.

I. It is urged that the petition does not state a cause of action, but we do not concur in that view.

A carrier of passengers by railroad is bound to use the utmost practicable care, not only to safely transport its passengers, but to protect them in transit from violence and insults from those on the train, including fellow passengers. A failure to do so will render the carrier liable for any damages naturally and directly resulting therefrom. Spohn v. Railroad, 87 Mo. 74; 26 Am. & Eng. R. R. Cas. 252.

If the facts stated in the petition were sufficiently established by proof, they would constitute a meritorious cause of action.

II. Next, it is asserted that the demurrer to the evidence should have been sustained, and that such is the necessary effect of the ruling on the prior appeal.

It may be granted that the plaintiff’s account of his.experience smacks somewhat of the incredible. His story certainly borders closely on the marvelous. But truth is sometimes stranger than fiction, and we are not prepared to say, sitting in the cause as reviewing judges only, that the verdict, approved by an able judge of great experience and knowledge of men, should now be set aside because of the apparent improbability of plaintiff’s testimony. He is evidently a man of very simple mind, a foreigner by birth, far from his friends and was alone in a country unfamiliar to him. That he was on the train in question is not disputed. That he either got off at Ewing Station, as defendant claims, or jumped off soon after as he says, must be conceded. Why did he get off % The conductor of defendant admitted that before the train reached Ewing’s, plaintiff had offered him all his money not to be hurt, and, without some such explanation as plaintiff’s testimony affords, his act in jumping off would simply be one of madness. Even accepting his story as true it shows lamentable credulity on his part in believing what strangers told him of their intent to rob him, tie him and throw him off the train ; but if, in fact, he believed them and offered the. conductor money to avoid being hurt, it was certainly the duty of the conductor to then assure him of protection against the threats that seemed so real and to insist on the discontinuance of a joke (for if plaintiff ’ s statements are true it probably was such) so seriously taken.

Viewing the plaintiff’s testimony as a whole, in the light of that, given by other witnesses, we are not prepared to say that his story is too incredible to be possibly true, or to finally close the doors of the. courts upon him for that reason. It must be borne in mind that the first verdict was set aside because of the great improbability of his statement as shown by that record and that the present is the second finding in his favor. The judge and the jury before whom plaintiff appeared have both approved his story as true, and have rested a substantial verdict and judgment upon it. Our statute law forbids, by clear implication, the granting of a second new trial by the trial court on the weight of evidence (R. S.'1879, sec. 3705), and no jurisdiction is given us on appeal in such cases to determine any other exceptions than those expressly ruled by that court. R. S. 1879, sec. 3774. This being the state of our law and there being a constitutional guaranty of 'a jury trial we do not feel at liberty to sustain the defendant ’ s point now under consideration.

III. Error is assigned upon the admission in rebuttal of certain testimony for plaintiff intended to contradict statements made by conductor Gallagher, as a witness. This testimony consisted, of the evidence of conversations had by witnesses with Mr. Gallagher a long time after the accident. The. court by an instruction for plaintiff (numbered 8) limited the bearing of this testimony to its effect on the credibility of Mr. Gallagher ; but defendant contends that it should have been altogether excluded, as requested by its instruction numbered ten, refused.

Declarations by an agent are usually inadmissible against his principal as original evidence when made after the event as mere narratives of it. Nor can such declarations be made evidence because of a mere denial of them by the agent as a witness in the cause. But where such statements or declarations relate to facts material to the issue on trial, concerning which the agent has testified, he may be contradicted by evidence of them, the same as any other witness, the proper foundation having been first laid for introducing them. Here plaintiff offered in rebuttal proof of statements by the conductor to the effect that parties were “codding” plaintiff and frightening him with “bugaboo stories,” and that he jumped off the train. These statements were contradictory of the evidence of the conductor on his direct examination, that plaintiff did not jump off the train, and of his testimony that to his knowledge no. one had badgered plaintiff while on the train. These facts bore materially on the vital issues in the case. As sufficient foundation was laid for the contradicting testimony, by proper reference to time and place in the cross-examination of Mr. Gallagher, we see no error in the ruling of the trial court on this point.

IY. It is further insisted that the court erred in allowing the plaintiff to answer the question : “Why you jumped off the train and where you .jumped.” The answer given was : “ They wanted to throw me off, and I thought it would be better for me to jump off if I wanted to save my life. That is the reason I jumped.”

No objection was made to the answer, other than that entered against the question of incompetency and irrelevancy. It certainly was relevant for plaintiff to explain the reason for such an' act on his part, in view of the important bearing which his belief at that time had on the issues in the cause under defendant’s instruction numbered 3.

Y. Defendant next insists that the instruction number 9 given for plaintiff is erroneous, and, incidentally, that it is in conflict with instructions given for defendant. Plaintiff’s ninth instruction reads as follows : “ Reasonable cause to jump from the train, as used in the instructions given in this case, means a cause sufficient to have induced plaintiff having regard to his intelligence, experience in life, situation and surroundings at the time of his injury, to have jumped from the brain while the same was in motion and under the circumstances in evidence in this case.”

This instruction undertakes to furnish an interpretation for all the other instructions. It is, hence, of vital importance in its bearing on them and on the result of the case. By it the jury are authorized to consider the “intelligence and experience in life” of the plaintiff in determining whether he had reasonable cause to jump from the train, whereas instruction numbered 3 for defendant required the cause to be such ‘ ‘ as reasonably to. have induced a man of ordinary prudence to believe his life wras in danger, or that he was in danger of suffering great bodily harm,” etc.

Instruction numbered 7, for defendant, also required the jury to find (as necessary to plaintiff’s recovery) that the conduct of the passengers, etc., “was such as to convince a reasonable man that such threats would be carried into immediate execution.” .

We have been unable, after most thorough consideration, to harmonize these declarations with the ninth instruction for plaintiff. We think the defendant’s instructions establish a different standard for gauging the conduct of plaintiff from that defined in his instruction. The reasonable apprehensions of a man of ordinary prudence furnish an entirely different guide, by which to judge the plaintiff’s act in jumping off the moving train, from one based upon his “intelligence and experience in life,” as mentioned in his ninth instruction.

We shall attempt, before we conclude, to indicate the proper standard for his conduct in that regard, but certainly both of those mentioned cannot be correct.

The defendant is not necessarily responsible for any act a passenger may do- in consequence of some breach of duty on the part of its employes. It is liable only for such results as are natural and probable consequences of such breach of duty. The agents of defendant are not chargeable with knowledge of a passenger’s “intelligence and experience in life.” They are authorized to act upon the appearances before them where they have no other notice of the facts. They may have in charge an insane passenger, but unless that condition is obvious or is made known to the carrier, the latter would be justified in assuming him to be as he appeared.

Hence, if the language of instruction numbered 9 had been “apparent intelligence” it would have been nearer to.the true rule ; but any reference to plaintiff’s “experience in life,” in the connection mentioned, was obviously improper, in the absence of any evidence of defendant’s knowledge or notice of it.

In the case before us, defendant is liable for such natural and probable consequences of the acts of its conductor, as might have been reasonably anticipated, by a person of ordinary prudence and experience, to result therefrom, in view of the facts within his knowledge or open to his observation.

The apprehension of peril, which would excuse plaintiff’s act in jumping off the moving train, must have been such as created in his mind a fear of greater risk to life or limb by remaining on the car than he encountered by his said act in attempting to escape ; and defendant would be liable for such conduct of its conductor (already described) as might have occasioned such act of the plaintiff only in event it might reasonably have been anticipated in the circumstances as the natural and probable consequence thereof, regard being had to the apparent intelligence of plaintiff and the circumstances of his conduct in the presence of the conductor before the injury.

The instruction numbered 9, for plaintiff, was more favorable to him than the law warranted, and on a retrial the instructions can be conformed generally to the views we have expressed.

YI. In view of the result reached it is unnecessary to consider the points made regarding the special issues submitted to the jury, the law on that subject having been repealed since the trial in the circuit court.

From what has been said, it follows that the judgment should be reversed and the cause remanded.

It is so ordered,

in which all the judges concur, except Judge Sherwood, who concurs specially, as stated by him below.

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Concurrence Opinion

Sherwood, J.

I concur in reversing the judgment, and refer to what I have said in 87 Mo. 85.