86 Mo. 421 | Mo. | 1885
Lead Opinion
— This cause is before us for the second time on defendant’s appeal from a judgment of the circuit court of Buchanan county. Plaintiff, who was a passenger on defendant’s train, destined for Pickering, a station of its road, sued to recover damages for injuries sustained by him, by reason of the alleged negligent failure of defendant to stop its train a sufficient length of time at said station to enable him to get off at said station, and in prematurely starting the train while he was in the act of alighting, whereby he was thrown between the cars and platform of the depot and injured.
The opinion delivered in this case when it was first before the court, is reported in 75 Mo. 185. The evidence bearing on the point there raised by counsel, and,, also, now raised, that there was no evidence on which to-submit the question to the jury, that the conductor either knew, or had good reason to believe, that plaintiff was> in the act of alighting from the train, when he ordered it to start, is thus stated in the opinion: “ The plaintiff himself testified as follows : ‘ On the twenty-sixth day of November, 1877,1 was a passenger on the defendant’strain, going to Pickering. Just as the train whistled for
On this state of facts the judgment was reversed, not because there was no evidence on which to submit to the jury the question whether the conductor knew, or had good reason to believe, that plaintiff was in the act .of alighting from the train when he started it, but the judgment was reversed and the cause remanded for another trial on the distinct ground that an instruction which did submit that very question was erroneous only in that it ignored the question as to whether the train in fact was stopped a reasonable length of time to enable the plaintiff to get off, and the further ground that there was a conflict between an instruction given for •plaintiff and one for defendant. The point then made that there was no evidence upon which to submit the ■case to the jury was not sustained, but, on the contrary, in speaking.of the facts in evidence the court proceeded to lay down the law applicable, and for the guidance of the trial court on a re-trial, as follows: “If the servants of the defendant did not halt the train at Pickering station a sufficient length of time to enable the plaintiff, by the use of reasonable expedition, to get off before it was again started, and it was so startedNvhile plaintiff was an the act of alighting, whereby he was thrown down and injured, the defendant is undoubtedly liable.”
“If the train was stopped a sufficient length of time-for plaintiff, to conveniently alight, and, without any fault of defendant’s servants, he failed to do so, and the •conductor, not knowing and having no reason to suspect that plaintiff was in the act of alighting, caused the train to start while he was so alighting, the defendant would not be liable.”
An examination of the record now before us shows that the evidence, as to what took place with reference to stopping and starting the train when the accident oc
The conductor, in his evidence, stated that the train stopped thirty seconds, or less; “ that he stepped on to the platform at the depot and looked back southward to the passenger coach, and saw Straus on the steps of the passenger coach, as though coming down the steps to the depot platform; the train stopped a half minute, or less ;5 ’ that he walked on four or five steps to the corner of the depot, turned round facing the train, and looked northward toward the engine, and gave the signal to start. To hold, under these facts, that the failure of the conductor to ascertain that plaintiff had alighted from the train before he gave the signal to start it, which fact-he could have ascertained (and which, under the circumstances, it was his duty to ascertain), had he looked south where he first saw plaintiff on the steps, is no evidence of negligence, would be to hold that a conductor might shut his eyes, under circumstances which made it his duty to look. In the opinion in this case, in 75 Mo., supra, it is said that if a conductor “has reason to believe that any passenger, who has reached his destination, has not alighted, and, though dilatory, may be in
Another ground of objection is that defendant applied for a continuance on account of the absence of one Wallbridge, a material witness, setting out in the application what it expected to prove by him, and thereupon plaintiff admitted that said Wallbridge, if present, would testify as stated in the application, whereupon ¡the court overruled the application, and the trial proceeded, during which the evidence of said Wallbridge, •as set out, was read to the jury. After all the evidence was put in and instructions given, Mr. Green, one of plaintiff’s counsel, in his opening speech to the jury, •said: “ Why is not witness Wallbridge here to testify .and let us cross-examine him ? He lives here in this city; he has left defendant’s employ. They (meaning defendant’s counsel), tell us he has been sent for and won’t •come. Why won’t he come % While he was in their service he swore to suit them. He will not come now and •swear to the truth for fear of being prosecuted for perjury by this soulless railroad corporation,” or language
The court did interfere, and- what was said by the judge to.the jury was equivalent to telling them to disregard the remarks made by Green. Can we say that the trial judge exercised his discretion improperly in not going further than this ? If so, what rule shall be laid down for the government and guidance of nisi priios judges in such cases ? Looking at it from my standpoint, and presuming, as I may (what the circuit court, perhaps, knew), that those who composed the jury were men of ordinary intelligence, and understood the obligations of-the oath they had taken, such remarks, if calculated to prejudice them at all, would be more likely to prejudice them against the plaintiff than defendant, because of his counsel having resorted to aliñe of argument so easily exposed and turned against him. This court has in sev
During the trial plaintiff read the deposition of Andrew Hose, who testified that “ he was on the train Avhen plaintiff was injured, and that the train came to a dead stop and started immediately; that he, Straus, as soon as the train stopped, walked out of the car to get off, and just as he Avas stepping off, the train started with a jerk and he fell; Straus was standing right in the car door, and as soon as it halted he walked out to get off; [the stop of the train was not long enough for him to step from the car door to the platform, in my opinion.”] The above statement, included in brackets, was objected to on the ground that it was the expression of the opinion of the witness ; the objection was overruled, and the evidence received. The deposition of Amanda Jackson Avas also read, who testified as follows : ‘ ‘ I was on the train at the time a young man by the name of Straus was injured; he was sitting in front of me; at the time the train came to Pickering I was about the center of the train, and he was in front of me. As the train approached the depot at Pickering, he started to get off; the train did not come to a stand still, at all, to the best of my knoAvledge. [I don’t think it stopped long enough for any one to get off with safety.] I don’t think it stopped at all.” The same objection was made to such
If these witnesses had been allowed simply to give their opinion, without more, that the train did not stop long enough for plaintiff to get off, the rule invoked by defendant that a witness should not be permitted to give his opinion, but should state facts, would apply, and might justify an interference with the judgment. But in this case, Mrs. Jackson expressed the opinion that the train did not stop long enough for plaintiff to alight, and swore as a fact that the train did not stop at all, and emphasizes this fact by repeating it. Witness Hose expressed the same opinion, and in the same connection swears positively to facts conclusively showing that the train did not stop long enough for plaintiff to alight; he testified that as soon as the train stopped he saw the plaintiff walk out of the car door to get off, and, just as he was stepping off, the car started with a jerk, and he fell. In face of the facts thus sworn to by these witnesses, and the statutory prohibition (section 3775) that no judgment shall be reversed unless error has been committed materially affecting the merits of the action, to reverse this judgment for the last error assigned would be wholly unwarranted. Besides this, the rule that the opinion of a non-expert witness is not to be received in evidence, has its exceptions. Where the value of property is in question, a witness, who states that he is acquainted with the value of that kind of property, may give his opinion of the value of the property in dispute. So, where the question of the sanity of a person is involved, a witness may give his opinion, provided he states the facts upon which it is founded. The length of time that the train stopped, to some extent, involved an expression of opinion. When the conductor
The instructions given in the case, being in strict • harmony with the law as laid down in 75 Mo., supra, and finding nothing in the record justifying an interference with the judgment, it is hereby affirmed.
Dissenting Opinion
Dissenting. — Called upon as one of the judges of this court to say whether I concur in the foregoing opinion, I say I dissent, and I say so for these reasons:
I. There is not a scintilla of testimony that the conductor lenew that plaintiff was in the act of alighting when he gane the signal for the train to start.
The tendency of the testimony, and its only tendency, is to show that the conductor had every reason to believe that the plaintiff, seen by him on the steps of the rear passenger car, and in the apparent act of alighting on the platform, had stepped down from the car, before he gave the starting signal. The conductor was in the baggage car when the train stopped; he stepped out of the side door of the baggage car, and as he did so, looking southwardly, he saw plaintiff on the steps, etc., and then the conductor, being on the depot platform, walked four or five steps or more across that platform to the corner of the depot building, then turned around, facing the train and looking northward toward the engine, called out, “all aboard,” and raised his hand, gave the signal to the fireman for starting, then walked back across the depot platform to the baggage car from which he had come, mounted into it, and after he did so, the train, which had stopped its usual length of. time, started; and after the train had moved some sixty feet it was stopped by the ringing of the bell.
The testimony of the conductor is supported by that of the station agent Hannon, who testified that the
The foregoing is substantially a coiTect resume of the evidence on the point of the conductor’s knowledge of the plaintiff’s status at the time he signaled the train to start. If there is in the record before me the slightest trace or indication of such knowledge, a patient reading of the evidence has failed to disclose it. If this be true, then it must follow that the second instruction given on behalf of plaintiff, was fatally erroneous, and that there was no evidence on which plaintiff could base a recovery. In my opinion, the plaintiff’s sworn admission, that the conductor was not to blame, is intrinsically sufficient to send the cause out of court, a& much so as if the plaintiff had in terms admitted that the defendant company was not in fault. If the conductor was not to blame, who was, pray ? This is sufficient to dispose of this cause without more. When it was here before, the evidence was not discussed, so far as we can judge by the report in 75 Mo. 185. But it was-then and there declared ‘ ‘ as the settled law of this state that when the concurring negligence of a plaintiff proximately contributes to produce the injury complained of, there can be no recovery, unless such injury is, also, the direct result of the omission of the defendant, after becoming aware of the danger to which the plaintiff was exposed, to use a proper degree of care to avoid -injuring him.” Applying that principle now, and bearing in mind the evidence, what becomes of plaintiff’s case?
II. I have not the time to discuss the instructions in detail. Of those for the plaintiff, the first one will be found, on examination, to violate the rule so frequently and so recently announced by this court, that hypothetical instructions, which authorize a recovery, must set forth all the facts authorizing such recovery. Sullivan v. Ry., Oct. Term, 1885, and cases cited.
III. If it be said of the evidence in this cause that
A noted example of this kind, in this court, is found In the case of Hamilton v. Marks, 63 Mo. 167, where the trial court having tried the cause on a correct view of the law, this court, in 52 Mo. 78, reversed the judgment •and sent it back for re-trial on an incorre it doctrine, and it was thus re-tried, but on coming back here, the law was correctly declared, just as the circuit court first held, and the judgment was again reversed. And that case by no means stands alone in the judicial annals of this court. And, in my opinion, it makes no matter that the error was •one in páis, instead of one in law. If gross and palpable injustice has been done, such as I think has occurred in this case, it should be corrected, and it will be a reproach on the administration of justice if it be not done.
Let me mention another case where this court, being •apprised thereof, has confessed and forsaken its error; •error committed arid error forsaken in the same cause.
But in this case it is said that, “the point then made* that there was no evidence upon which to submit the case to the jury was not sustained,” etc. In Bell’s case, such a point was not taken until the cause was argued here the second time. Is it right to punish the vigilant and reward the negligent ? Queer law and justice that.
IY. The judgment should be reversed because of the admission of testimony of witnesses, non-expert, that the train did not stop long-enough for any one to get , off with safety. This was incontestably erroneous; a mere guess at best, and usurped the province of the triers of the facts. This point was not passed upon when the cause was here before, and the same observation applies to some other points I have touched upon.
Y. The judgment should be reversed because of the
VI. The judgment should be reversed because counsel were permitted to palpably and grossly mis-state the facts in evidence. The views of this court in the State v. Emory, 79 Mo. 461, as to all proper invective that can be indulged in by counsel in the course of argument, I regard entirely correct, but counsel must not go further than this; must not travel entirely out of the record, and appeal to the prejudices and passions of the jury by invective, based upon simulated facts; and do this,
For these reasons, I am for reversing the iudgment.