Ephland v. Missouri Pacific Railway Co.

57 Mo. App. 147, 1894 Mo. App. LEXIS 163

• Court: Missouri Court of Appeals
• Decided: March 5, 1894
• Status: Published

Opinion

Ellison, J.

— The plaintiff was injured by jumping from one of defendant’s caboose cars attached to a mixed train, carrying passengers and freight on defendant’s railway. He instituted this action to recover damages alleged to have resulted to him, and recovered in the trial court.

Since the verdict was for plaintiff we will state as the facts what the evidence tended to prove. He was a passenger with three others and was riding in the caboose. While the train was running at a moderately rapid rate of speed the brakeman in the car, upon a whistle signal from the engineer (though plaintiff .did not hear the whistle) called out in a loud and excited tone to jump off, for Hod’s sake, and began, immediately, in an excited way, to set the brake. This excited the plaintiff and two of the other passengers. All three jumped up and one of the others called out to come on, when they all started for the car door. They all three jumped off while the train was running at from twelve to fifteen miles per hour. It was from this jump that the. plaintiff received the injuries complained of.

In point of fact there was no danger or peril at hand and if the brakeman did give the alarm as claimed, it was a “false alarm.” So that plaintiff’s recovery must be defended upon the ground of defendant’s servants having negligently given the false alarm and negligently called upon the passengers to jump off, thereby causing plaintiff to believe in the imminence of danger in remaining upon the train. This belief must have been such as an ordinarily prudent man would have entertained under the same circumstances, and plaintiff’s action resulting therefrom must have been such as would probably have been taken by an ordinarily prudent man and must have been unaccompanied with any contributory negligence. There being no danger impending' at the time of plaintiff’s conduct resulting in his injury, the question of such appearance and belief of danger becomes the principal factor in plaintiff’s cause of action. In this connection the court gave the following instruction for plaintiff, over defendant’s objection: “The court instructs the jury that, if they shall believe from the testimony that a signal whistle to stop the train was sounded at a place remote from a station, switch or siding, and that William Lamb, the brakeman, responded to the signal in an excited or unusual manner and called out to jump, or jump for God’s sake, or similar words, and the circumstances of the place, manner of the employees, together with the order and command, or exclamation, if you believe any such was made by said Lamb, induced plaintiff to jump front the train and he was injured thereby, then you will find for the plaintiff, and assess his damages at a sum not exceeding $5,000.”

This instruction recites the facts and “circumstances of the place,” which, if they induced the act, would justify plaintiff in jumping from the train. There was no evidence that plaintiff heard the sound of the whistle, or that he knew the train was remote from any siding, switch or station. The instruction therefore embraced erroneous matter materially affecting the merits of the case. For, as before stated, it was the appearance of things inducing a belief in an unreal danger that gives plaintiff any standing. It is quite apparent that under such state of the case it was greatly prejudicial to have submitted to the jury grave circumstances which would tend to induce the belief of peril, when no such circumstances appeared in evidence. If plaintiff was alarmed and made to believe there was danger impending, it must have been from matters appearing to, or operating upon, his mind. Therefore matters of which he knew nothing could not have had any effect upon his conduct and should not have been included in the instruction. The question of danger must be determined by the circumstances as they ■appeared to plaintiff.

The instruction was furthermore erroneous in practically excluding from the jury a consideration of whether the act of the brakeman in giving the alarm was negligence. It can not, from the evidence presented, be said to be negligence as a matter of law and therefore the hypothesis of negligence should have been included in the instruction. Welburn v. Railroad, 36 Mo. App. 210. The act of the defendant’s servant in causing the alarm must have been a negligent act. Kleiber v. Railroad, 107 Mo. 249.

The instruction is likewise objectionable in that it omitted to submit the question whether the alarm given was such as was likely to cause an ordinarily prudent man, under the same circumstances, to act as plaintiff acted; and in this connection it is well to remark that it did not submit to the jury the question whether plaintiff believed there was impending danger. It may be suggested that these objections were covered by defendant’s instruction similarly to that pertaining to .the next objection, but we think they are not sufficiently cured thereby. Defendant’s instructions in a recitative way, refer to these matters, but not in that direct manner that they should have done. If one party relies upon the instructions of his opponent to cure errors in his own, the cure should be complete and direct.

The further objection made to this instruction is that it omitted any question of contributory negligence of plaintiff. There is such omission; but the question of plaintiff’s contributory negligence is submitted in' an instruction for defendant, and under the dissenting opinion of Black, J., in Sullivan v. Railroad, 88 Mo. 169, as approved by the supreme court in Owens v. Railroad, 95 Mo. 181, we must hold this to be sufficient, notwithstanding that a verdict is directed for plaintiff in the first instruction on the matters therein contained, without reference to matters omitted, but which are contained in other instructions.

As the instructions were presented to the jury, the second one is subject to much of the criticism we have made of the first. But if the first had been as we have indicated it should have been, the second, following thereafter, would be properly understood by the jury and would in such ease be free from any substantial error.

Plaintiff had included in his instruction as to the measure of his damages the item of loss of time. His testimony was that he was in the employment of a banking company and that during the period of his suffering from his injury he was paid his regular monthly wages or salary — no deduction or diminution thereof was made by his employers. He did not, therefore, lose his wages and was, of course, not damaged in this respect. The instruction contemplates a loss— a pecuniary loss. The case does not seek to punish defendant by the infliction of exemplary damages; it merely seeks compensation; if plaintiff did not lose there is nothing to compensate. This question has received consideration from the supreme court of New York in Drinkwater v. Dinsmore, 80 N. Y. 390, where it was decided that damages on this head, under such circumstances, could not be recovered. The question came before the St. Louis court of appeals in Lee v. Western Union Tel. Co., 51 Mo. App. 375, and was decided adversely to the claim of wages. In the case last mentioned several of the authorities which are relied upon as maintaining a different view are commented upon. Some of them can not be reconciled with our conclusion here, though some of them are not necessarily inconsistent. Thus, in Indianapolis v. Gaston, 58 Ind. 225, the plaintiff was a physician and he was permitted to recover for expenses in effecting his cure, though, in .fact, a custom among physicians, when one of them needed .medical attention, was to render such attention free of charge. This ease might tie defended, perhaps, on the mutuality of the application of the custom, so that the duty which devolved upon each had its consideration in the return of like services each was ready to make. So in Bradburn v. Railroad, 10 L. R. Exch. 1, the fact that the plaintiff received the amount of his accident policy was held not a subject of consideration to reduce his damages. For in such case, an independent consideration, moving from him, has brought to him, the sum named in his accident policy. He purchased the policy, and had aright to the proceeds of his purchase or contract. But whatever may be said of those cases, we are confident that in a case where mere compensation for loss is sought, there can not be allowed, under the name of compensation, a sum which has not been lost.

Passing to the defendant’s refused instructions, we find some just cause of 'complaint. His instruction number 4 should be given. It is but a proper admonition to the jury not to look to one instruction, but to consider them all as embracing the whole law of the case. Under the phraseology of some of the instructions in calling for a verdict, while not presenting within its terms all the issues for determination, it is well to give an instruction, as was asked here, though we do not say that, standing alone, it would be reversible error.

Instruction number 7, as to mutual negligence, by omitting the words, “in any degree,” and substituting the word, “directly,” would be proper to submit to the jury. If number 7 is given as indicated, number 8 will, perhaps, be unnecessary, m view of other instructions.

We are not prepared to approve of instruction number 3, offered by defendant and refused by the court. By it the jury would have been directed to consider the plaintiff’s interest in the cause in passing upon what weight they would give that part of his testimony which was in his favor, and that in the instances, if any, where he had testified against his interest it should be taken by the jury as trae. The amount of this would be, that all which the plaintiff, as a witness, might say in the course and run of his testimony, which was against his interest, was to be taken and accepted as a solemn admission of its being a fact, and should be so accepted. This is not a proper statement of the law. There are admissions or statements of fact which a party to a cause may make while upon the stand as a witness, which will bind him, but this is an entirely different proposition from that contained in the instruction. An honest party to a cause may make statements as a witness against his interest which he believes to be true and yet the entire balance of the testimony in the case show that he was mistaken.

The instruction given' by the court of its- own motion is not properly subject to criticism. That portion relating to false swearing is necessarily left much to the discretion of the court. White v. Lowenberg, 55 Mo. App. 69. The remainder which relates to the interest of witnesses, their appearance, manner, etc., was entirely proper and found full application to the case in hand.

In cross-examining one of defendant’s witnesses with a view of locating him at a distant point in Kansas, so as to show that he could not have witnessed the accident, the witness was asked if he was not at the place in Kansas attending a trial for divorce on the charge of adultery, in which he was a co-respondent. He answered that he was not. He was then further asked if he did not have such a case. There is much liberty allowed to the cross-examiner, but it must be utilized bona fide for the purpose of eliciting the truth as to the point being examined. It is apparent, from the record, that this question was not put to the witness in this way for the purpose of reminding him that he was in Kansas at the time of the accident, but rather to get a discreditable matter before the jury for purposes not allowable.

Defendant insists that plaintiff has no standing in court on the facts and that its demurrer to the testimony should have been sustained. The train, as has been stated, was a mixed train, composed of several freight cars, a regular passenger coach and a caboose. This caboose, as is well known, is a necessary attachment to a freight train, and is necessarily used and occupied in the running, manipulation and management of freight trains. The defendant permitted passengers to occupy it for smoking purposes, and it was for this purpose that plaintiff and the three other passengers were occupying it at the time of this .accident. We are willing to concede to defendant’s counsel that he makes a proper statement of the law when he says, in effect, that when plaintiff chose to enter the caboose, though with the permission of the company, he took upon himself the necessary inconveniences and risks which accompany that sort of a car in its relation to the management of a freight train. The fact that there was a passenger car on which passengers were carried and from which access to the caboose was permitted, will not alter the question from what it would have been had the train been a regular freight train on which passengers had taken passage. Notwithstanding this, we have not been able to bring ourselves to the conclusion -that it will interfere with the plaintiff’s right of recovery if his contentions as to the facts are believed to be true. By separating the statement of the facts as made by plaintiff’s testimony, we will find in its separate condition, much to shake our belief in there being any thing to excite great fear of impending danger. For instance, the fact that on a signal from the engineer, a brakeman quickly left his seat, going rapidily to the brake at the end of the car and hurriedly “setting” it, standing alone, amounts to little, if any thing, in plaintiff’s favor-. It is perhaps true that a brakeman rarely ever acts in any other way, indeed he might be fairly blaimed if he did not move alertly and rapidly. A jury would probably be slow to believe that such action alone on the part of the brakeman would excite any apprehension on the part of a passenger who had ever ridden on a freight train. But the whole statement in plaintiff’s behalf should be considered together. It will be found to include conduct upon the part of the brakeman not usual in the performance of his usual duties. He was sitting up in what is called the cupola where he could see over the train and beyond. Allowing that plaintiff did not hear the signal from the 'engine, he yet heard the brakeman cry out in a loud voice, “for Grod’s sake jump,” or “jump for your lives,” and immediately and hurriedly start to the brake. This conduct of the brakeman was certainly extraordinary — was not in the usual performance of his duties, and if there was nothing in the situation, or its appearance, to justify such conduct, it was negligence, if it was calculated to disconcert the passengers, and induce them to believe, as ordinarily prudent people, that danger was imminent.

Nor are we willing to say, as a matter of law, that plaintiff should have investigated for himself as to outward appearances of danger under the circumstances in which his testimony places him. It is for the jury to say, under all the surrounding circumstances which may be shown, whether such conduct, in that situation, was sufficient to cause apprehension of immediate danger in the minds of prudent men; and whether the conduct of plaintiff was the reasonable result of the brakeman’s conduct.

Defendant insists and the evidence justifies the insistence, that the brakeman was in the cupola, while plaintiff was in the car with his back to him. That plaintiff could not have known the brakeman was addressing him; that the brakeman may have been addressing his fellow employees. We see nothing in this which ought to affect the question. Allowing that the brakeman was not addressing the passengers, or that he was not addressing the language to any one, yet if he used the language without sufficient cause, it may just as readily have produced the result which .plaintiff says it did produce, as if it had been addressed to the passengers or the plaintiff direct. If the servant in charge and control of a crowded theater, in the presence and hearing of an audience, negligently, falsely and loudly cries, “fire, run for your lives,” would not the proprietor be liable for the damage resulting from the conduct consequent upon the terror which this might excite, whether he addressed his fellow servants or the audience?

It is a part of defendant’s contention that, conceding the act of the brakeman to have been negligence, yet it was not the proximate cause of plaintiff’s subsequent action and resulting injury. This contention is based upon the fact that McPeak, one of the other passengers ih the caboose, jumped from his seat on hearing the brakeman’s exclamation, passed plaintiff in going to the door of the car and said, excitedly, “come on boys, let’s get off.” And that plaintiff testified, that “after hearing what I heard Mr. McPeak say, I followed.” We are not required by the record before us to say that if McPeak’s exclamation and excitement (though caused by the negligence of the brakeman) was the sole cause of plaintiff’s leaping from the car, plaintiff could not recover. We must view the matter from the standpoint of the evidence presented. Plaintiff heard the exclamation of the brakeman and instantly sprang to his feet' and turned towards the brakeman. At that time McPeak was passing him, or had passed him, on his way to the door and made the exclamation above stated. The entire evidence in plaintiff’s behalf fails to show that the statement made by McPeak was the sole cause of plaintiff leaving the car. The utmost it can be said to show is that the brakeman’s exclamation and acts together with McPeak’s excited statement immediately following on the brakeman’s exclamation, caused him to make the leap. If therefore the negligent action of the brakeman was such as might ordinarily be expected to produce panic among the passengers and a belief' of impending danger, the fact that the resulting action of the passengers, added to plaintiff’s terror and operated as additional inducement for his action will not relieve the defendant. 2 Thompson on Negligence, 1088, 1099. If the brakeman’s actions were as stated, nothing could be more natural than to expect, under such circumstances, that passengers would give voice to their terror and apprehended peril.

Eor errors heretofore mentioned, the judgment will be reversed and the cause remanded.

All concur.