Potter v. St. Louis & San Francisco Railroad

117 S.W. 593, 136 Mo. App. 125, 1909 Mo. App. LEXIS 15

• Court: Missouri Court of Appeals
• Decided: March 9, 1909
• Status: Published

Opinion

REYNOLDS, P. J.

(after stating the facts).— The principal errors relied upon for a reversal of the case, in the very earnest argument which was made before the court by one of the able counsel for the defendant, and which have been elaborately briefed, are the refusal of the court to direct a verdict in favor of the defendant at the conclusion of the case, and to giving the defendant’s fourth instruction after, having given the first and second instructions at the instance of plaintiff, it being claimed that the first and second instructions ■ given at the instance of plaintiff are in confiict with the fourth instruction given at the instance of defendant. It is claimed that these are reversible errors.

The first instruction refused, in which the court was asked to instruct the jury that if they found for plaintiff they could not assess her damages at more than the sum of $2,000, is contended for on the ground that there was no evidence of wantonness or aggravation, but that all of the circumstances were mitigating and that the jury, in cases of that kind, must consider the mitigating circumstances and cannot, in their own discretion, and in the absence of a showing of aggravation or wantonness, impose anything more than the minimum penalty. There are two objections to this argument. In the first place the statute itself (Acts 1905, p. 136) fixes the penalty for cases in which death results from the fault or negligence of the defendant at the sum of not less than $2,000 and not exceeding $.10,000, “in the discretion of the jury.” We do not think that this changed the law as it existed before, any further than that instead of a fixed sum, as provided in section 2864, Revised Statutes 1899, before the amendment, the sum authorized by the amendment is a sliding or variable one; that sum left to the discretion of the jury, and the court is no more vested with power, by this section, to fix the amount at $2,000 in any case than it is authorized to sustain a verdict for an amount in excess of $10,000. Section 2864, as amended in 1905, remains as before in that it imposes a penalty on one coming within its provisions, the only difference being that the penalty is any sum in the discretion of the jury, within the limits provided.

In the next place, if it is the law that the discretion of the jury, in the matter of damages, is to be controlled by the court by Avay of instructions, it was incumbent on the defendant, if it desired to have the jury controlled in the exercise of its discretion, to have asked for an instruction to that effect. No instruction as to the measure of damage was asked by defendant, other than this first instruction, and the only instruction as to the damages asked by the plaintiff, and given at her instance, was the fourth instruction, which told the jury that under the laAAr, if they found for plaintiff, their verdict must be in a sum not less than $2,000 and not more than $10,000.

Our Supreme Court has determined that Avhere a party has neglected to ask for an instruction setting out the proper measure of damages, he cannot be heard to complain that the jury were not properly directed as to the amount or measure. [Wheeler v. Bowles, 163 M’o. 398, l. c. 409; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, l. c. 679.] The instruction as to the measure of damages within the limits not having been asked, the propriety of an instruction of that kind, under this amendment to the section, is not before us. We do not express any opinion as to whether it is proper for the court, under the amendment to section 2864, to endeavor to control the jury as to the amount, any further than that they are to he kept within the limits fixed by that section as amended. It is, however, as much the law since the amendment, as it was before, that it is a defense to the recovery of any amount, to prove that “the injury received was not the result of unskillfulness, negligence or criminal intent.” The Act of 1905 made no change in this. The present action is under section 2864, not under section 2866.

Moreover, if we are at liberty to inquire into the amount of the award, our right to do which we are neither deciding or considering for the reasons before given, we are not at all impressed with the argument, that $8,000 was an excessive award, assuming that a verdict for plaintiff was proper. In a case of this kind and under the testimony in it, if the jury found for plaintiff, before the amendment of 3905, to section 2864, she would undoubtedly have been entitled to $5,000 for the death of her husband. In this case the defendant itself brought out the fact that the husband was practically the sole support of his wife and three children, and we are all of the opinion that the defendant has no cause whatever to complain of the amount of this verdict. A careful consideration of the testimony of the engineer and fireman alone, discarding all testimony offered by plaintiff, in our judgment, shows such negligence as to closely border on criminal carelessness. The very fact that an old man was slowly walking along the track, head down, making for the outer rail, obviously unconscious of the approaching danger ought to have put those in charge of the train on guard. Indeed, facts in this case, as disclosed by all the testimony, strikes us as one so close to the borderland of criminal recklessness as to suggest a doubt whether the responsibility for it should not be lifted from the defendant and placed upon those responsible for the death'of a human being. [Kinlen v. Met. St. Ry. Co., 216 Mo. 145.]

The first and second instructions given at the instance of plaintiff are claimed to be inconsistent with the fourth instruction given at the instance of the defendant. To fully appreciate this proposition, it will be necessary to set out these three instructions in full. Numbers 1 and 2 given at the instance of plaintiff are as follows:

“I. The court instructs the jury that if you believe from the evidence, that the engineer or fireman, or other employees in charge of the train which struck the deceased, saw the deceased on the track, and if you further believe that the deceased was unaware of his peril, and was proceeding along the railroad track unconscious of the approaching train, then it was the duty of such engineer or fireman, or other employees of defendant, so observing the deceased, to give him proper warning of the approaching train, and it was his duty to give such warning by such a signal, as was within his power as could be likely heard and would be likely heard by any person possessing in an ordinary degree the sense of hearing in the position the deceased occupied. And if such signal was given and unheeded, then it was the duty of such employee to stop said train, provided said train could be stopped with safety to those on board of the same, and unless, at the time of the injury, the employees of the defendant in charge of said train used the means at their command to provide for the safety of deceased, after they discovered his imminent peril, the jury may find a verdict for the plaintiff in this case, although you may believe the said Jonathan Potter was guilty of negligence in being upon the track of defendant and in permitting himself to be inattentive to the danger surrounding him.

“II. The court instructs the jury that if you believe and find, from the evidence, that Jonathan Potter, at the time he was killed, was the husband of the plaintiff, and that this suit was brought within six months after his death, and shall further find from the evidence that the place of defendant’s track where the deceased was struck by defendant’s train was in the town of Holland and between a public street crossing of said railroad track and defendant’s depot and railroad station at which all of defendant’s passenger trains made regular stops, and that the track at the time was in such a condition and position for a long distance northeast from the point of the catastrophe that a person walking thereon could have been seen by the persons in charge of said train by the use of ordinary care and diligence, and that said track at the place where Potter was killed and northeast up said track to the public street crossing, from the time said railroad was constructed and up to and was at the time said Potter was struck and killed, frequently used by pedestrians in going to and from' said public street crossing, and the depot and the railway station of defendant; ana that said Jonathan Potter, while walking on defendant’s track, became in imminent peril of being struck by defendant’s' train, and defendant’s employees in charge of said train became aware of his peril of being struck in time to have enabled them, by the exercise of ordinary care, to have stopped said train and to have averted the injury to deceased, and they failed to exercise such care and stop said train, and that by reason tof such failure to exercise such ordinary care and stop said train, and that by reason of such failure to exercise such ordinary care said train was not stopped, and said Potter was struck and killed by said train, then the jury must find for the plaintiff, though you may find that the deceased, Jonathan Potter, was guilty of negligence in walking on defendant’s track at the time. And by ordinary care is meant such care as an ordinarily careful and prudent person would exercise under the same or similar circumstances.”

The fourth instruction given at the instance of the defendant is as follows:

“IV. The court further instructs you that it was the duty of Jonathan Potter, plaintiff’s deceased husband, to look in both ways and listen for the approach of the trains on the railroad track. And if, at any time before he was injured, he could either by looking or listening, have known of the approach of the train in time to have got off of the track and avoided the accident, then plaintiff is not entitled to recover in this case, and your verdict must be for the defendant.”

It is, possibly, necessary, even at the risk of being prolix, in passing on this fourth instruction, to notice as briefly as possible, the remaining fifteen instructions, which were given at the instance of the very industrious counsel for defendant.

The first instruction told the jury that the burden of proof in the case devolved on plaintiff; that she must establish her case by the preponderance of the evidence and unless she had done so they must find for the defendant.

In the second instruction the jury were told that the fact that the unfortunate defendant was a corporation should make no difference in their consideration of the case.

The third instruction told the jury that in determining the negligence of the defendant and the contributory negligence of the deceased, the jury were to take into consideration all the facts and circumstances detailed in the evidence, the interest of the witnesses in the result, the means that they had for observing the transaction as to which they testified, the attention they were paying to the transaction and their capacity to receive correct impressions.

The fifth instruction told the jury that if they believed that the deceased’s hearing was impaired at the time of the injury, it was improper for him to go on the track and Avalk thereon at the point where he did, “without first ascertaining whether or not any train was approaching; and if you believe from the evidence that after he stepped on the track the engineer sounded the whistle and rang the bell, or did either, and thereupon the deceased Avalked as though he was going to leave the track, then the engineer was justified in believing that he wras leaving the same and wmuld go to a place of safety, and under the circumstances the engineer was not required to do anything more to avoid injuring him, even though you may further believe from the evidence that the deceased had not entirely got off the track or if he got off the track he was not far enough away to be out of danger.”

The sixth instruction told the jury that if they found that the deceased resided in the town of Holland, near the place where he was injured, was familiar with the track at that point, knew that trains and engines were passing daily thereon and was familiar with the time wrhich the train which struck him would arrive, that he was hard of hearing, “and that there was no obstructions for some distance before he reached the railroad track, or after he got thereon, to prevent him from seeing the train approaching, if he had looked in that direction; and that he walked on the road and on the track and got in the way of the train, without looking to see if the train was approaching;” and that the engineer sounded the whistle and rang the bell, or did either, and that persons called on him to get out of the Avay of the train and that he moved as though he was going to leave the track but did not get off of the track, or far enough away to avoid being struck, they should find for the defendant.

The seventh instruction told the jury that the engineer in charge of the train was not required to make an effort to stop the train to prevent injuring him until he had placed himself in imminent peril on the track, and if after he had done so it was too late for the engineer to stop in time to avoid the injury, plaintiff could not recover, and that. no rate of speed in running the train was negligence on the part of the defendant under the issues in the case, “however fast the same may have been.”

The eighth instruction told the jury that the engineer in charge of the train owed the deceased only that degree of care which an ordinarily careful and prudent man, engaged in the same business, would have exercised under like and similar circumstances, after h:e discovered or by the exercise of ordinary care might-have discovered the perilous position of the deceased on the track, and if they believed that the engineer exercised that care they should find for the defendant.

The ninth instruction told the jury that if the engineer used ordinary care in the management of the train and as soon as he saw the deceased in a perilous position on the track, or by the exercise of ordinary care might have seen that he was in a perilous position, he used such care and caution in stopping the train to avoid the injury to the deceased as a person of ordinary care and prudence would have exercised under like and similar circumstances, they should find for the defendant.

The tenth instruction told the jury that although they might believe from the evidence that the engineer in charge of the train saw Potter on the track in time to have stopped the train and avoided injuring him, and did not know Potter was hard of hearing or deaf or infirm in body, if those were facts, still the engineer had a right to presume that Potter would at once step off the track and avoid injury and the engineer was not required to stop the train until he discovered that Potter was in a position of peril, and if, after discovering his perilous position, he warned him by sounding the whistle or ringing the bell and used all means to stop the train consistent with the safety of himself and the train but could not do so in time to avoid injuring. him, they should find for the defendant.

The eleventh and twelfth instructions repeat this in a stronger form, if possible, in favor of defendant.

The thirteenth instruction was as to the weight to’ be given to the statements of two absent witnesses for defendant, the jury being told that they were to consider those statements as if the witnesses had been present and had sworn to them.

The fourteenth instruction told the jury that it was not negligence on the part of the employees of the defendant in running its train at the place where Potter was killed at a high rate of speed, if they found that it was running at a high rate of speed, and that they could not find a verdict for plaintiff on account of the rate of speed at which the train was running.

The fifteenth instruction told the jury that even if they found that there was water alongside of the railroad dump, or that the ground was muddy, these facts, if they were found, did not excuse Potter from stepping off the track and out of the way of the train, if it was necessary for his safety.

The sixteenth instruction told the jury that if Potter was deaf, or his hearing was defective and his eyesight impaired, and he had bodily infirmities and was aged, this did not excuse him in going upon the railroad track (in the language of the instruction, “from going upon the railroad track”), and exposing himself to the danger of being struck by the train, but that the law under such circumstances would require him to be more vigilant and prompt to employ all his faculties so as to compensate as far as possible for his lacking ones in order that he might protect himself from danger.

We are unable to see where there is any real conflict between the fourth instruction given at the instance of the defendant and the first and second given at the instance of the plaintiff. It might have been, with a few verbal changes, incorporated into those instructions, without varying the law as set out in those instructions, although rather too harshly as against plaintiff. The fourth instruction, as asked, involves a physical impossibility, if it is to be taken literally. It assumes that it is possible for a man, walking along a railroad track or for that matter a public highway, to be looking both ways at once, and listening. The listening is practicable, — to look in both ways at once while .a man is walking along would require a change in the human anatomy. Taken literally, the instruction was erroneous. As applied to the facts in this case it was erroneous. It was an error of defendant, and one cannot invite error and then complain of that error. [Phelps v. City of Salisbury, 161 Mo. 1, l. c. 14; Wolfe v. Supreme Lodge, 160 Mo. 675, l. c. 686.] Over and above this, however, if there was a case in which a defendant had no right whatever to complain of the action of the court in giving instructions, this is one of them. Every proposition that by any possible theory it was entitled to have presented to the jury, wras covered by these instructions, and that too, defendant’s own viewr of the law as applied to the facts. They are so radically favorable to the defendant that we refuse to go on record as indorsing them, not because wrong in their statements of the law, but because entirely too favorable to defendant under the facts in this case. We are not obliged to go into an examination of them,, however, any further than we have, as the plaintiff, with all this burthen thrown upon her by these- instructions, is not here complaining.

Complaint is made that a witness not shown to have, been an expert as to speed, was permitted to testify as to the speed of the train, and that on his estimate of the speed, another witness, who was an expert but not an eyewitness of the accident, was, in answer to a hypothetical question, allowed to give his opinion as to the time in which a train going at that rate of speed, could have been brought to a stop. It is not necessary to qualify a witness to testify in regard to the speed of a train, that he be an expert; if he is familiar with trains and accustomed to seeing them run, that is sufficient. [Donaldson v. Railroad, 128 Mo. App. 245, l. c. 247.] That was shown to be the case with the witness who had testified to the speed at which this train was going when the accident occurred.

Complaint is made of allowing a lady passenger to testify that she felt no jar from any sudden stopping of this train. The engineer himself testified that the application of the air and the sudden stopping of the train wrould have resulted in as sharp a jar as in case of a collision. Surely the testimony of a lady passenger, sitting in the rear coach at the time of the accident, that she had felt no jar, was competent in determining the fact whether or not the engineer’s testimony was true when lie had sworn that he did apply the air and bring the train to a sudden stop.

Other points are made which do not consider necessary to take up. None of them involve error to the manifest prejudice and hurt of the defendant. On careful consideration of the facts' in evidence, of the rulings of the trial judge, of the instructions given, we are all of the opinion that this case comes distinctly within the decisions of this court and of the Supreme Court in the cases of Klockenbrink v. Railroad, 81 Mo. App. 351, approved in the same case by the Supreme Court in 172 Mo. 678, and of the case of Barrie v. Transit Co., 119 Mo. App. 38. The doctrine adopted and announced in' these cases, taken from Shearman & Redfield on the Law of Negligence, is the law of this State. We can do no better than to quote from that accepted authority this language, for it will bear reiteration in cases where human life has been lost: “It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding the injury to him. We know of no court of last resort in which this rule is any longer disputed; although the same rule, in substance, but inaccurately stated, has been made the subject of strenuous controversy. But, furthermore, the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains -was more immediately caused by the omission of the defendant, after having such notice of the plaintiff’s danger as wmuld put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually knowr of the danger to which the plaintiff is exposed. It is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precautions as a prudent man -would take under similar notice. This rule is almost universally accepted.” Referring to the case of Davies 'v. Mann, 10 Mees. & W. 546, for the principle underlying the rule, the learned commentator continues, “That principle is that the party who has the last opportunity of avoiding accident, is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury.” [1 Shearman & Redfield, Law of Negligence (5 Ed.), sec. 99, top pp. 153 and 154.]

The man in the case before us who had the last chance of avoiding the danger, the last opportunity of avoiding the accident, cannot be excused by the prior negligence of this unfortunate old man who met his death. The negligence of the servant and employee of the defendant, not that of this old man, was the direct, immediate, proximate cause of the injury. There was evi* deuce in this case tending to prove, that by the exercise of ordinary care, the engineer could have seep the deceased on the track in time to have saved his life by the exercise of ordinary care thereafter and, to repeat, in such cases, it is the settled law in this State that the plaintiff may recover. [McQuade v. Suburban Ry. Co., 200 Mo. 150, l. c. 158, and cases there cited.] The last reference to the Klockenbrink case by our Supreme Court which has come to our knowledge, is in Sander v. Transit Co., 206 Mo. 445, l. c. 463, where it is cited approvingly.

We hold that the trial court was entirely right in overruling the demurrer interposed by the defendant at the close of the case and that the verdict is a righteous verdict, under the facts in evidence, and the action of the trial court in refusing to set that verdict aside and grant a new trial is correct. Its judgment is affirmed.

All concur.