32 Mo. App. 682 | Mo. Ct. App. | 1888
delivered the opinion-of the court.
, The plaintiff in this action seeks to recover the sum of six hundred and seventy dollars, which he alleges was either stolen from him during the night by defend-. ant’s servants, or, in consequence of their carelessness and negligence in not keeping a sufficient watch, stolen from him by persons unknown, while he was a passenger on the defendant’s sleeping car between Cincinnati and St. Louis. The answer was a general denial. The plaintiff had a verdict and judgment for the sum of six hundred and seventy dollars.
The evidence showed that the plaintiff was a farmer ; that he left Franklyn, New York, where he had formerly resided, for the purpose of going by way of St. Louis to Benton, in Arkansas, where he intended to stop and look for a farm or dairy to purchase, if he could find a place to suit him; that he was accompanied by his wife and two small children ; that when he left Franklyn, he took in his pocket-book, which he carried in his trousers pocket, enough money to carry him and his
The principles which must govern this case were carefully laid down by this court in the late case of Root v. N. Y. Cent. Sleeping Car Co., 28 Mo. App. 199. Under the principles laid down in that case, the plaintiff could not charge the defendant with liability, either on the theory of loss through negligence or by the theft of its servants, with a greater sum than was reasonably necessary for his travelling expenses, regard being had to the purpose of his journey and to his circumstances in life. This, of course, would include the necessary travelling expenses of himself and his family. There was no evidence that he had any objective point in view beyond Benton, Arkansas, to which point he had shipped such effects as he did not take with him. There was no evidence of the distance between St. Louis and that place; nor of the railway fare, nor of the probable expenses which such a party as that of the plaintiff and his family would have to incur on such a journey. There was therefore no evidence to justify the jury in finding that any sum was necessary for this purpose, and we have often said that we will not sustain verdicts based upon mere conjecture and surmise. Especially was there no evidence which could justify the jury in finding that the sum of six hundred and seventy dollars was reasonably necessary for this purpose. It is true that what is a reasonable amount of money for a traveller to take with him on a journey is a question of fact for a jury (Root v. Sleeping Car Co., supra, and cases cited); but it is a question of fact which they cannot decide without evidence, and as there was no evidence on the point, the verdict should have been limited to nominal
As the case must go back for another trial, we deem it proper to make some further observations on the record. The evidence in this case eliminates the question of negligence from it entirely, because the plaintiff ’ s own evidence shows that he was grossly negligent in leaving his pocket-book containing the large sum of six hundred and seventy dollars in currency in his vest-pocket under his pillow while he went to the water-closet, when the most ordinary dictates of prudence would have suggested to him the precaution of putting his vest on and taking it with him. On this point we do not deem it necessary to do more than repeat the observations which we made in the case of Root v. Sleeping Car Co., supra. Although contributory negligence was not pleaded, yet an unavoidable inference of it arose out of the plaintiff’s own testimony, and if his action had been grounded upon negligence alone, it would have been the duty of the court to direct a verdict for the defendant, as was prayed at the close of his case. For the same reason, in instructing the jury at the close of the whole case, it would be the duty of the court to exclude the element of negligence entirely.
We cannot say that there was no evidence which would authorize the court to put the case to the jury on the question whether or not the plaintiff’s money had been stolen by the defendant’s servants. A loss under such circumstances must generally be proved, if at all, by circumstantial evidence ; and we are not prepared to say that, for the purposes of a civil action, there was not evidence sufficient to take the case to the jury, though in a criminal case, where guilt must be established beyond a reasonable doubt, it would not be so.
We see no error in refusing the defendant’s eighth instruction, as it was a mere argumentative extension of an instruction which the court gave.
With the concurrence of all the judges, the judgment must be reversed and the cause remanded.