Madden v. Missouri Pacific Railway Co.

50 Mo. App. 666, 1892 Mo. App. LEXIS 379

• Court: Missouri Court of Appeals
• Decided: October 25, 1892
• Status: Published

Opinion

Thompson, J.

— This action is brought by a passenger against a railway carrier for a negligent injury. It was commenced before a justice of the peace, and, on appeal to the circuit court and a trial de novo, there was a verdict and judgment.for the plaintiff for $300, the full amount claimed, from which the defendant prosecutes this appeal. The statement filed before the .justice, upon which the action is prosecuted, is in the following language:

“Plaintiff states that defendant is a corporation, and, at the dates hereinafter named, owned and operated a line of steam railway extending across the state •of Missouri 5 that, on the twenty-sixth day of October, 1891, plaintiff took passage on one of defendant’s trains of passenger cars at St. Louis to go to Edge-brook, a station on defendant’s line of railway, and situated in the county of St. Louis, and state of Missouri ; that, when said train arrived at Edgebrook, it ■slacked and stopped, and plaintiff attempted to alight therefrom, but before she could do so, and as soon as •she reached the platform of the car oh which she was riding, said train was by defendant carelessly and negligently put in motion, and in an instant thereafter •carelessly and negligently brought to a sudden stop, which caused plaintiff to fall against the frame of the •door of said car; the door swung shut with great violence, hitting plaintiff’s right hand and injuring the forefinger thereof, so that she will be permanently injured in said hand, causing her great pain, loss of time, and expense for medicine and medical treatment; that her injuries were caused by the negligence of •defendant as aforesaid, to her great damage in the .sum of $300. Wherefore, plaintiff prays judgment for this sum, with her costs made herein.”

It is perceived that the negligence alleged in this ■.statement consists exclusively in carelessly and negligently putting the train in motion, and then carelessly .and negligently bringing it to a sudden stop, causing the plaintiff to fall against the frame of the car door, so that her hand was hurt by the door swinging shut. It is also perceived that the fact of the door being left unfastened, to swing on its hinges at the time when the train entered the station at which passengers were to be put off, is not alleged as an act oí negligence. At the trial in the circuit court the issue was confined to the negligence thus predicated in the statement. The evidence tended to show that the plaintiff, a little after eight o’clock in the evening, took passage at St. Louis on a train of the defendant, known as the Kirk-wood accommodation train, for Edgebrook, a suburban station on its line; that, when the train arrived at Edgebrook, she arose from her seat and walked along the aisle of the car toward the door; that, when she got about opposite the first seat from the door, the train stopped at the platform of the station, but immediately-started up again; that about the same time a brakeman who was on the platform of the car saw her approaching the door, and pulled the bell cord three times, giving the customary signal to stop the train; that by this time she had reached the door, and was standing therein with one foot on the platform and the other on the threshold of the door; that the train stopped suddenly after this signal had been given, which sudden stoppage caused her body to sway toward the door, against the jamb of which she placed her hand to steady herself; that just at this time the door closed and caught. the forefinger of her hand, cutting off a small portion of the fleshy part together with a bit of thepiail; that she then got off the car with the assistance of the brakeman, and did not discover the injury to her finger until she got some distance from the station, when she felt the moisture of the escaping blood and also a prickling sensation; that her vocation was that of a milliner, which vocation she was by the wound precluded from following for a space of some four months, and that she was put to expense for medical attendance, the amount1 of which was not proved.

On cross-examination she testified that, when the-train started after the first stop she was in the aisle of' the car opposite the first seat, and could have sat down there until the train was stopped without any inconvenience ; that she had been riding on the accommodation trains of the defendant for several years and was-familiar with their mode of operation; that she saw the brakeman pull the bell cord for the purpose of stopping' the train, and saw the door open and knew that it was-not fastened when she went through-it; that it was an ordinary car door that swung on hinges, and that the train ran only three or four feet after it started up.

The defendant’s evidence tended to show that the train made the ordinary stop at Edgebrook on the night in question; that the brakeman announced the station and got down upon the platform to assist the passengers off; that several passengers got off, after which the train started up; that, on ‘mounting the train, the brakeman saw the plaintiff in the aisle walking toward the door of the car; that, knowing that Edgebrook was the station at which she usually got off, he pulled the bell cord to stop the train; 'that he then got-down upon the platform by the time the train had stopped, and helped plaintiff off, after which the train went on; that she said nothing to him aboiit receivng-any hurt, and he knew nothing about it until told of it. the next day; that the train was stopped in the usual manner, the conductor being at his usual place on the forward platform between the first and second coaches, looking through the train to see if everybody was off' before he started up; that two or three other passengers got off at that station, and that he did not see the plaintiff in the aisle of the rear car at the time he gave the signal to - start. " He also stated that the plaintiff was in the habit of reading on the train while riding: out to her home.

I. The first assignment of error is that the court on the objection of the plaintiff refused to allow the brakeman, already spoken of, testifying as a witness, to answer the following question: “Did your train stop long enough for her, if she had exercised diligence, to go from the place at which she was sitting to the platform and get off before it started?” If the court hail allowed this question to be answered, it might not have been prejudicial error; but we are not prepared to say that prejudicial error was committed in ruling it out. The general Tule is that witnesses, who are not called upon to testify as experts, must state facts and not conclusions. The reason rests upon the obvious principle that it. is for the jury, and not for the witness, to draw conclusions. Recent cases in this state, affirming this rule, are Gregory v. Chambers, 78 Mo. 294, 299; Hurt v. Railroad, 94 Mo. 255, 260; King v. Railroad, 98 Mo. 235; Muff v. Railroad, 22 Mo. App. 584. An exception to this rule, founded upon a principle of necessity, exists in a limited class of cases; and, perhaps, the cases which admit of this exception have nowhere been better stated than in the following language of the supreme judicial court of Massachusetts : ‘ £The competency of this evidence rests upon two' necessary conditions: First. That the subject-matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time; and, second, that the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending and understanding. ” Commonwealth v. Sturtevant, 117 Mass. 122, 137. This language was quoted with approval by the Kansas City Court of Appeals in Muff v. Railroad, supra. . A class of cases, which fall within this exception, are those which admit of the opinions of witnesses as to appearances — as that a person appeared to be drinking (Choice v. State, 31 Ga. 424), or to bave been intoxicated at tbe time of tbe act in question. People v. Eastwood, 14 N. Y. 562. It is upon tbis ground than non-expert witnesses may give tbeir opinions as to tbe sanity or insanity of a person, provided tbat sucb opinions are accompanied with a •statement of tbe grounds upon which they formed tbeir conclusions. Within tbe same exception is tbe point tbat it is competent to allow a non-expert witness to testify whether there was time enough to do a certain thing. Thus, in a trial for murder occurring in an affray, a witness who was present may be asked whether, w;hen tbe deceased rushed upon tbe defendant, there was time enough for tbe latter to escape and get out of tbe way. Stewart v. State, 19 Ohio, 302. But, in an action on a building contract, it has been held proper not to allow tbe architect, testifying as a witness, to state whether certain extra work which had been ordered was of such a character as to render it impossible for the plaintiff to complete the building by the date named. Campbell v. Russell, 139 Mass. 278. This statement of doctrine and these illustrations clearly point to the conclusion, that this species of evidence will not be admitted in any case when the fact is susceptible of being proved in the ordinary way. The question which the court ruled out in the case before us is objectionable, in that it involved a submission to the witness of the question whether the plaintiff had in fact exercised diligence in rising and moving toward the door of the car to get off the train. This was tantamount to subjecting the whole case to the opinion of this particular witness; and it is a general rule, even in relation to expert evidence, that questions are not admissible which call upon the expert witness to decide the whole case in the place of the jury. Jameson v. Drinkald, 12 Moore, 148; People v. Lake, 12 N. Y. 358. It cannot escape attention that the question was so framed as to involve a decision by the witness of the question of the contributory negligence of the plaintiff; and it is too obvious for further discussion that such a form of question is inadmissible.

II. The next assignment of error is that .the court should have sustained a demurrer to the evidence. This assignment of error is, in our judgment, equally ill-founded. To show that this contention is not tenable, it is only necessary to refer to a leading principle in regard to the liability of common carriers of passengers. That principle, stated and repeated again and again by the supreme court of the United States, is that, when carriers undertake to convey passengers by the powerful and dangerous force of steam, public policy and safety require that they shall be held to the • greatest possible care and diligence — that the personal safety of passengers shall not be left to the sport of chance or to the negligence of careless agents. Philadelphia, etc., Ry. Co. v. Derby, 14 How. 468; Steamboat New World v. King, 16 How. 469. And that court has steadily adhered to the principle first announced by Chief Justice Taney at circuit, that, although the carrier does not warrant the safety of his passengers, at all events, yet his undertaking and liability as to them go to the extent that he, or his agents where he acts by agents, shall possess competent .skill, and that they shall, as far as human care and foresight can go, exert themselves to transport the passengers in safety. Stokes v. Staltonstall, 13 Pet. (U. S.) 181; Railroad v. Pollard, 22 Wall. (U. S.) 341; Pennsylvania Co. v. Roy, 102 U. S. 451, 456. Continuing the statement of this proposition, it is said by the court, speaking through Mr. Justice Haelan, in the last-named case: “These and many other adjudged eases, cited with approval in elementary treatises of acknowledged authority, show that the carrier is required, as to passengers, to observe the utmost caution characteristic of very careful, prudent men. He is responsible for injuries received by passengers in the course of their transportation which might have been avoided or guarded against by the exercise, upon his part, of extraordinary vigilance,' aided by the highest skill. And this caution and vigilance must necessarily be extended to all the agencies or means employed by the carrier in the transportation of the passenger. Pennsylvania Co. v. Roy, 102 U. S. 456. This doctrine has been adopted by the supreme court of this state in its fullest extent, and that court has quoted with approval the enunciation of’it given by Mr. Justice Stoby in his work on bailments : “That passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go; that is, for the utmost care and diligence of very cautious persons; and, of course, they are responsible for any, even the slightest neglect.” Story on Bailments, sec. 601; Lemon v. Chanslor, 68 Mo. 340; Gilson v. Railroad, 76 Mo. 282, 287; Leslie v. Railroad, 88 Mo. 50, 55.

This rule would be of little practical value, if it were not enforced in judicial administration by a correlative rule of evidence. That rule is that, when an injury has been shown to be occasioned by an error of the carrier or his servants in operating the instrument-alities employed in the business as carriers, a presumption of negligence arises against the carrier, which casts on him the burden of showing that the accident happened notwithstanding the exercise on his part of the high degree of care which the law thus imposes upon him. Coudy v. Railroad, 85 Mo. 79, 85, and cases there cited; Dougherty v. Railroad, 9 Mo. App. 478, as affirmed by the supreme court in 81 Mo. 325, 329. Out of this rule of evidence springs another which is sometimes said to refer itself to the maxim, res ipsa loquitwr. That rule is that, where the vehicle or conveyance is shown to be under the control or management of the carrier or his servants, and the accident is such as under an ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of proper care. Dougherty v. Railroad, 9 Mo. App. 478; s. c., affirmed, 81 Mo. 325, 329, and cases cited. When, therefore, a passenger on board the vehicle of a carrier, without fault or negligence on his part, receives an injury proceeding from the vehicle of the carrier, or something connected therewith, this presumption of negligence arises. Unless, in such a case the injury proceeds from without, as where a shot is fired or a missile thrown by a trespasser, the only questions which arise relate to the negligence of the carrier and the contributory negligence of the passenger ; and, if the latter is put out of the way, a presumption of negligence rests upon the carrier which he must explain to the satisfaction of the jury, or pay damages. From those principles it is plain that the plaintiff in this case cannot properly have been nonsuited, unless a conclusive presumption of contributory negligence arose' out of her own testimony, or that of her own witnesses.

III. The contributory negligence of the plaintiff is, therefore, the next question to be considered in the case. From the statement of facts above given it cannot be said, as a matter of law, that she was guilty of contributory negligence. It has frequently been decided by the supreme court of this state, and by other courts, that it is not, as matter of law, contributory negligence for a passenger to attempt to alight from a train, while in motion; but that it may or may not be contributory negligence according to the speed of the train or other attending circumstances (Doss v. Railroad, 59 Mo. 27; Kelly v. Railroad, 70 Mo. 607; Leslie v. Railroad, 88 Mo. 50, 56) — considerations which generally take the question to the jury. Here the evidence adduced by the plaintiff tends to show that the train stopped at the platform of the station for the briefest possible period. One of her witnesses testifies that it did not stop at all, and that he was obliged to get off while it was still moving. Her petition, however, concludes her upon this question, and it must be taken that it did stop, although for a very brief period; long enough, however, to allow two or three passengers to get off. Before she could do so, it began to move, and, when it thus began to move, she was in the act of moving from her seat along the aisle toward the door for the purpose of getting off. The brakeman saw her in this attitude, and immediately pulled the bell cord three times, giving the customary signal for the train to stop. In this act of the plaintiff, under the circumstances, there is no rule of law with which we are acquainted that imputes contributory negligence to her. On the contrary, it appears that she did what an ordinary passenger, finding herself likely to be carried past her stopping place, would be apt to do under the circumstances. The most that can be said in favor of the defendant on this branch of the ease is that the question of contributory negligence was a question for the jury, and the court submitted it to the jury.

IY. For these reasons .the assignment of error predicated upon the refusal by the court of the following instruction tendered by the defendant is not well taken, since this requires the jury, upon the hypothesis of facts therein stated, to find that the plaintiff was guilty of contributory negligence as matter of law: “The court instructs the jury that, if they believe from the evidence that the train, on which the plaintiff was •at the time-of her injury, stopped at Edgebrook station immediately before she was injured, and was immediately set in motion again, and, at the time it was thus put in motion, plaintiff was in the aisle of the car opposite the first seat from the car door and several feet from said door, and could have sat down on said seat or remained in the car until it was stopped, but instead of doing so walked out upon the platform of the car through said door, knowing at the time that it was not fastened, and that the train was about to be stopped, and while on said platform, either voluntarily or involuntarily, put or-got her hand in such a position as to be injured by the closing of said door, she was guilty of such contributory negligence as bars a recovery herein, and your verdict will be for the defendant.”

Y. . "We are not impressed with the argument that the court erred in not refusing to give the first and second instructions requested by the plaintiff. They are in the nature of advisory instructions applicable -to the evidence, explaining to the jury the principles of law upon which they are to proceed in arriving at their verdict ; and while they are not drawn upon hypothetical states of fact, and do not point the jury to the conclusion at which they are to arrive if they find the existence of certain hypotheses of fact, and, might, for that reason, have been refused without error, yet it is not apparent to us that prejudicial error was committed in giving them.

YI. We have come to the same conclusion in regard to the first instruction, given by the court of its own rPotion, which was as follows: “If you believe and find from the evidence that the plaintiff was a passenger on the defendant’s train, as explained in the other instructions given to you, and that when said train reached Edgebrook, the point of her destination, the train stopped, and that she exercised ordinary diligence to leave the car in which she was; and if you further find from the evidence that, when she reached the platform, and, before she did alight from said car, the train was put in motion, and that she could not alijght, and that then the said train was immediately brought to a sudden stop with a jerk, and that by reason of this plaintiff lost her balance and fell against the train or jamb of the door of the car, and that said door was, by reason of the sudden stop or jerk, swung shut, and the plaintiff’s right hand was thereby caught, causing the injury to her finger complained of in this case, then your verdict should be for the plaintiff, provided that you also find and believe from the evidence that she was at the time exercising ordinary care and caution to avoid any injury.”

It is perceived that this instruction does not separately submit to the jury the question of negligence in leaving the door ajar and unfastened, so that it might be suddenly closed to the injury of a passenger making an egress from the car at the stopping place; nor could it properly have embodied such an element, because that ground of negligence was not laid in the plaintiff’s statement. This was proper; for, although particularity of statement is not required in proceedings before justices of the peace, yet, where in such a statement the plaintiff chooses his ground, he is properly confined to that ground. Indeed, no complaint is made of the court’s action under this head. It is evident that to stop a railway train under the circumstances detailed by the evidence in this case with a sudden stop or jerk is not only not negligence, as a matter of law, but it is extremely doubtful whether it can be regarded as negligence as a conclusion of fact — in other words, whether in such a fact there is evidence of negligence to go to the jury; since, from the nature of the case, the engineer could not know the reason of this signal, or why he was called upon to stop the train. For aught he could know a passenger may have fallen under the wheels, making it necessary to stop immediately in order to avert or minimize the danger. We dwell upon the fact that there is no evidence in the case tending to show that the engineer in charge of the train knew for what cause he was signaled, to stop it, and no evidence tending to show that it was not stopped in the ordinary and customary manner, with which custom the plaintiff, who had long been a passenger on the train, must have been familiar. If, then, this instruction had predicated negligence, as a conclusion of law, upon the fact alone of stopping the train with a sudden jerk, it would have 'been manifestly erroneous.

It is perceived that the instruction does not predicate negligence upon the fact alone of the train being stopped with a sudden jerk, but that it states a hypothetical collection of facts which first require the jury to find that the plaintiff was proceeding with ordinary diligence to leave the car, and that she was exercising ordinary care and caution to avoid injury, and that, while she was leaving the car and before she could alight, the train was put in motion and then brought to a sudden stop, by reason of which she lost her balance and fell against the jamb of the door, receiving the injury in the manner stated, etc. Under the collection of facts thus stated in the instruction, the proximate cause of the injury was the act of the defendant in starting the train before the plaintiff had sufficient time to alight, and the sudden starting of the train and the slamming of the door were mere incidents. The failure to stop the train long enough to allow her with reasonable diligence to alight was a failure to exercise the care of a very cautious person, which our laws demand of carriers of passengers, and was, hence, negligence as-matter of law; and it is not necessary that there should have been negligence in stopping the train, or in leaving the door swinging on its hinges, in order to support the conclusion of law that the defendant is liable on the collection of facts stated in the instruction.

YII. It appeared from the evidence adduced by the-plaintiff that she had been visited three times by a. physician in consequence of the hurt which she received in alighting from the train, that she had visited his office four or five times, and that he had furnished the medicines used in his treatment, but it appeared that he had not rendered a bill for his services and medicines, and that she had not paid him anything for them; nor did it appear what the reasonable and customary value for such services and medicines was. Nevertheless, the instruction which the court gave upon the request of the plaintiff upon the measure of damages authorized them to ‘ ‘reimburse her for any money paid out by her for medicine or medical aid.;; As the jury gave her the full amount of damages claimed in her statement, $300, it is a reasonable conclusion that they must have allowed something under this instruction for' the supposed value of the medical aid which she had received, of which there was no evidence. The giving of this instruction, in so far 'as it contained this element, was, therefore, erroneous.

As the case must go back for another trial, we add that it will be competent for the court to allow the plaintiff, if she shall so move, to amend her statement so as to predicate negligence upon the act of the defendant in leaving the door open, so that it could swing shut, under the circumstances alleged in her statement.

Eor the giving of the last-named instruction the judgment of the circuit court must be reversed, and the-cause remanded. It is so ordered. All the judges concur.