Hyatt v. Hannibal & St. Joseph Railroad , 1885 Mo. App. LEXIS 220 ( 1885 )

Ellison, J.

A trial of this cause in the circuit court resulted in a verdict for plaintiff for five hundred dollars, and defendant.appeals. The evidence on the part of the plaintiff showed that defendant, through its agent, Lewis, employed plaintiff, with seventy-five or one hundred others, to shovel snow drifts from its track, and agreed to give him one dollar and a half per day and three dollars per. night, for Ms work. The weather being intensely cold, and trains blockaded, defendant was anxious to get the track cleared. Plaintiff and others went to work, and got out as far as Cameron by six o’clock that night. As the evening advanced it began to snow and grow colder. Under these circumstances, plaintiff - and his fellow laborers hesitated about going up the track that night. One Woodard, who was general superintendent of defendant’s railway, upon learning of this objection and hesitation, told them to go on with the work that night, that he had trains out in the drifts, and if they would go out, he would keep cars near them in which they might warm themselves during the night. Upon this statement, and relying on this inducement, plaintiff and others proceeded with the work. They were taken to a drift near a siding called Keystone, about nine miles from Cameron, worked there all night and until eleven o’clock next day. Appellant, after unloading the men, took the train back to Cameron, but left an engine on the siding at Keystone until about twelve o’clock. Before the engine was taken away, respondent having become very cold, went back to it for the purpose of warming himself, but those in charge of the engine refused to let him get on, and plaintiff returned to his work. -Next morning a train was brought out from Cameron by the superintendent, with breakfast for the men.. While breakfast was being passed out through the car window, respondent got in the cars, respondent telling the superintendent that he was freezing — -that his foot was frozen, and that he would have to get warm — but he “ Gr — d d---d us out of there.” On cross-examination of plaintiff, he stated that he knew that he was freezing as early as ten o’ clock that night; that he staid there all night, knowing he was freezing ; that when he found he would not be permitted to get on the engine he voluntarily went, back to work, because he did not want to leave the other men; that he went back of his own. choice; nothing prevented him from quitting work, and that nothing hindered bim except his desire not to leave the men. He made no inquiry for a house or place of shelter.; he supposed the section men who were among the crowd knew if there were any houses “handy,” but he made no inquiry. He did not see any material to make a fire with, and did not look for any. That there were cultivated fields on each side of the track, and that next day he, with others, broke timber off the fences and built a fire. In' consequence of this exposure, plaintiff’s feet were frozen, necessitating the amputation of his great toe and otherwise crippling him. ' .

At the close of the evidence the court gave the following instructions for plaintiff:

“6. If the jury find for the plaintiff, they may allow him for his loss of time, his expenses incurred in and about curing himself, and in making up the verdict, they may take into consideration his bodily and mental suffering and pain, the extent of his injuries, and allow him such sum as they may believe from the evidence plaintiff has been damaged, as herein stated, not exceeding the sum of three thousand dollars.”

“4. If the jury believe from the evidence .that about the time alleged in plaintiff’s petition, W. R. Woodard was the general superintendent of defendant’s railroad, with full power to hire and discharge the employes thereon, and to control the movement of the engines and cars used on said road, and that plaintiff was employed to shovel snow, and induced by said Woodard to go out on the night as stated in plaintiff’s-petition, under, and by an agreement between said Woodard and plaintiff, that said Woodard would keep one or more cars at or near the place where plaintiff was to work, so that he might warm himself, as occasion required, but that said Woodard failed to keep a car at said place (or provide means so that plaintiff could get warm), and that by reason of such neglect by said Woodard, plaintiff had one of his feet so badly frozen that it became necessary to amputate a portion of one of them, then defendant is liable in this case, and they should find for plaintiff.”

Appellant makes earnest objection to both of these instructions.- It will be seen that instruction number four ignores the question of.respondent’s duty to protect himself, if it was reasonably in his power to do so. If it had been an issue in this cause, whether respondent, notwithstanding defendant’s neglect to provide him with fire, might not with reasonable exertion have prevented freezing, we think the instruction would have been wrong in omitting that question. But while evidence seems to have been introduced on this subject without objection, contributory negligence is not pleaded, the answer being simply a denial, and there being no demurrer to the evidence, and no instructions offered on the question by the defendant, we cannot say the mere introduction of evidence without objection, would make an issue in the absence of a statement in the pleading, and instructions based on such evidence. Parties cannot be permitted to urge here questions not submitted below. It is evident that defendant has not chosen to submit the question of plaintiff’s conduct to the jury, and “he must stand or fall, in this court, by the theory on which he tried and submitted his case in the court below.” Walker v. Owen, 79 Mo. 568. It is undoubtedly true that if he could, by reasonable effort, have found a house near by, or if he could have thus found fuel with which to build a fire, it was his duty to do so. There was evidence to show that there were houses within reach, and that fuel might have been obtained, as the men did, in fact, make a fire for themselves next morning.

It is not the law, that if one hires another to work for him in the cold, promising to provide fire for his comfort, and fails to do so, that such person may deliberately permit himself to freeze, though surrounded with material to prevent it.

'Viewing this action as in tort, and not strictly for breach of contract, the sixth instruction for plaintiff is correct. Mental pain and suffering is recognized as an element of damage in nearly every state in the union, and in none more clearly than in Missouri. Porter v. H. & St. J. Ry. Co., 71 Mo. 66; Trigg v. St. L., K. C. & N. Ry. Co., 74 Mo. 147 ; Russell v. Town of Columbia, Ib. 480.

There are other points of objection made by defendant, and without stating them in detail, we think them not well taken.

The judgment is affirmed.

Philips, P. J., concurs in the result; Hall, J., concurs.