Howard v. Terminal Railroad ( 1905 )

BLAND, P. J.

(after stating the facts). — 1. The contention of appellant is that there is no evidence that the Chicago & Alton Railway Company expressly consented that its porters might sleep in its cars at terminal stations, and that there is a very important element of implied consent not present in the case as shown by the entire record, that is, the element of knowledge on the part of the Chicago & Alton Railway Company, through some of its officers. This contention of appellant, I think, is not borne out by the evidence. If plaintiff, as he testified, had been sleeping in these ears for five years, and other porters had been doing the same thing, these facts of themselves warrant an inference that the officers of the railway company had knowledge of the fact. It can hardly be supposed that these porters slept in the cars belonging to this company for four or five years and the officers of the company were ignorant of the fact. And the fact that the order was issued prohibiting trainmen from sleeping in the cars presupposes that the company had some knowledge or information that they were in the habit of doing so, and hence I do not think the court erred in submitting this question to the jury. If the plaintiff by expressed or implied permission of the railway company had been sleeping in its cars at terminal points for a long time, then he could not be rightfully ejected on the night he was shot, unless the prohibitory notice had been posted on the bulletin board at Chicago (where the evidence shows such notices are posted for the information of all trainmen) or unless he was informed by some one authorized to speak for the company that the order had been issued.

2. The proviso at the end of the instruction, to the effect that if the jury believed from the evidence that the watchman who shot plaintiff was not acting in obedience to any order given Mm by his foreman pursuant to request from the Chicago & Alton R. R. company, is in the teeth of the evidence, nor does it correctly declare the law of the case. The watchman, according to the evidence, was acting under orders from the defendant company and was, according to his evidence, attempting to carry out his orders and shot the plaintiff in self-defense. If he bad no orders to put persons out of the cars, then the defendant would not be liable, however wanton or reckless he might have been, for he would have been acting beyond and outside the scope of his employment. The proviso, however, is against the plaintiff and in favor of 'the defendant and for this reason furnishes no ground for reversal. The second instruction is in harmony with our view of the law of the case and is correct as far as it goes.

3. The following clause in the instruction on the measure of damages “for any injury the jury find from the evidence he suffered in his nervous system, if any, and for any reasonable sum paid out by him for medical attention,” appellant insists is not supported by any evidence. Speaking of tbe effect of bis injury, plaintiff said: “It has affected me very much; it bas affected my wind, very short-winded now, and at the inclemency of the weather I have severe pain right’ in that breast (indicating) it goes right through me. I am not as steady in my nerves as I were before, I know that. I always lisped a little in talking, but I am much worse since I have been shot.” I think this evidence was sufficient to authorize the jury to consider whether or not any injury to plaintiff’s nervous system had been caused- by the shock. In respect to medical attendance, plaintiff testified that he employed a physician in Chicago (to which city he went after leaving the hospital in St. Louis) who had paid him a great many visits; that he frequently went to the doctor’s office for treatment and was still taking a tonic prescribed by him; that he did not know how much he owed the doctor; that he had been his family physician for ten years and that he had paid him some on account of the treatment for his injury but not all that he owed him. Dr. Nietert testified that fifty dollars would be a reasonable charge for the services of the Chicago physician. The instruction authorized the award for what had been paid out by plaintiff for medical attendance and did not embrace the expenses incurred on account of medical attention made necessary by the injury. The evidence does not show what sum plaintiff paid out, and under the instruction the jury was authorized to guess at the amount or else entirely ignore this element of damages. Whether it guessed an amount and incorporated the same in its verdict or omitted to find anything paid out for medical services is left to conjecture. This portion of the instruction is clearly erroneous for want of any definite evidence as to the amount paid out by plaintiff for medical services.

The witness on whom defendant relied to prove that the prohibitory notice had been posted, on cross-examination, showed that his memory was not clear on the point and he was not positive that the notice was, in fact, posted. In its motion for new trial, defendant filed an affidavit to the effect that it was misled and deceived by the evidence of this witness in respect to the posting of the notice, and filed affidavits of other persons, not witnesses at the trial, showing that the notice had been posted and had been brought to the actual notice of the plaintiff, and on the strength of these affidavits moved for a new trial on the ground of newly-discovered evidence. The refusal to grant the new trial is assigned as error. The fight of plaintiff to recover is not dependent upon whether or not the notice was posted or. whether or not he had actual notice of it, but on the excessive force that was used to eject him from the car. In fact, his right to recover hinged, in the main, on whether the watchman shot him in necessary self-defense or acted wantonly and recklessly. That this was the controlling issue in the case is shown by the instructions given for both parties and it is not likely an opposite result would be reached on the merits if a new trial should be granted. Where this is the case it is not error to refuse to grant a new trial. [Mayor of Liberty v. Burns, 114 Mo. 426, 19 S. W. 1107, 21 S. W. 728; State v. Stewart, 127 Mo. 290, 29 S. W. 986; Dean v. Chandler, 44 Mo. App. 338; Madden v. Realty Co., 75 Mo. App. 359.] New trials on the ground of newly-discovered evidence are not favored. [State v. Bybee, 149 Mo. 632.]

The evidence shows that the value of the medical attention given plaintiff by the physician he employed in Chicago was fifty dollars. On this evidence fifty dollars was the maximum sum the jury could have allowed for medical services, hence if this amount is deducted from the judgment, the error in the instruction on the measure of damages will not prejudice the defendant. Wherefore it is considered that if within ten days the plaintiff, in writing, remit fifty dollars of the judgment, the same shall stand affirmed for $2,950; if the remittitur be not’made the judgment will be reversed and the cause remanded.

All concur.