Griffith v. Missouri Pacific Railway Co.

Brace, J.

— Action for personal injuries. Damages laid at fifteen thousand dollars. Motion to require plaintiff to elect. Motion overruled. Answer, general denial. Demurrer to plaintiff’s evidence. Demurrer overruled, and cause submitted to the jury on plaintiff’s instructions and evidence, defendant offering none. Verdict for plaintiff for nine thousand dollars. Defendant appeals and urges for reversal: That the court erred in overruling the demurrer to the evidence; in admitting illegal evidence; and that the damages are excessive.

I. While the petition contained a good deal of superfluous and redundant matter that might have been stricken out on motion, the facts therein stated constituted but a single cause of action, in a single count, and there was no error in overruling the motion to elect.

II. The facts appearing in evidence are as follows: At the time plaintiff received the injuries of which he complains, there was at Dewey switch on the defendant’s road, three or four miles west of Washington station, under the main track and switch and across the space of eight or ten feet between the tracks, a water way fifteen feet deep and el even feet wide at the top, between rock walls uncovered between the tracks. On the morning of the twenty-ninth of April, 1884, the plaintiff shipped two car-loads of cattle from Montrose in Henry county to St. Louis, and took passage on the same train with the cattle to see to and take care of them. About nine p. m. the train stopped for supper at Chamois, a station about ninety miles west from St. Louis. After supper plaintiff boarded the train, and discovered after it had moved a short distance, upon inquiry of the conduc tor, that his cattle were not in the train. By mistake they had been left at Chamois. The conductor said there was a tank twelve or fifteen miles further on, the mistake might be discovered and his cattle sent in the second section and he had better get off and wait for it. The train stopped at the tank. He got off, boarded the second section when it came along, inquired of the conductor and found his cattle were not on that section. At the next station, the conductor wired the agent at Chamois and afterward s informed the plaintiff that his •cattle had been unloaded at Chamois by mistake ; that there was a tank a few miles ahead, where west-bound trains watered ; that he had better get off there, where he would have to wait about an hour and a half for a .train from the east, that the cattle might needhisatten•tion, and he had better get off and look after them ; this plaintiff at first refused to do but afterwards consenting, the conductor said, “ you are too late we are past there now ; I will stop at W ashington and let you off there.” They were then about twenty miles west of Washington. The plaintiff laid down in the caboose to wait till the train got to W ashington. The night was very dark. About midnight, the train stopped, the conductor came to him and said “Here is your train.” He asked the •conductor for a pass or statement. The conductor said there was no time for pass or statement, “be-quick and get off.” Plaintiff went out at the rear of the caboose, the west-bound train had cómmenced to move; he .alighted on the ground, started for the moving train and .at the third step fell into the"creek at the bottom of the uncovered water way between the tracks at Dewey .switch >and received the injuries of which he complains.

III. The proximate cause of the injury to the plaintiff was the act of the conductor in stopping the train with the caboose, in which plaintiff was a passenger, in close proximity to a place of danger and directing him to get off, knowing at the time that it was not the place where he had promised the passenger to let him off, and where he was expecting to get off in order to pass from the one train to the other, which place was .at a regular station and presumably a safe one for him to get off and go from one train to the other, without either notifying him that he was at a different place, or warning him of the. danger to which he would at that place be exposed in going from the one train to the other, or .affording him any means of discovering its location, or of avoiding the peril to which he was being exposed. For this act of gross negligence of its servant the defendant ought to be held liable as in the case of McGee v. Railroad, 92 Mo. 208 to which this case is closely analogous.

I Y. That the plaintiff: by the light of the dim lantern which he had of his own, in attempting on this dark night to reach the moving train distant only some eight or ten feet from him, and to which his attention would naturally be directed, did not discover between the two tracks, where he had every right to presume he was safe, the yawning chasm into which he fell, is no evidence of negligence contributory to his injury. If' he had been warned of the existence of this peril, then there might be some ground for this suggestion of contributory negligence on his part.

Y. In many cases, where negligence consists in the condition of the locus in quo at the time of the injury, it is important to confine the evidence to the time, place and circumstances of the injury as near as may be, as was the case in Stoher v. Railroad, 91 Mo. 509, and Ely v. Railroad, 77 Mo. 34. In this case, there was no question as to the condition of the place at which the injury occurred, at the time of the occurrence and it was perhaps superfluous to show its condition either before or after the injury, and the court might well have excluded such evidence when offered in chief, but its introduction could not possibly have had any effect upon the result of the issue, and not affecting the merits of the case, its admission affords no ground for reversal. R. S. 1879, sec. 3775.

YI. The court by its instructions confined the j ury to compensatory damages for the injuries plaintiff sustained. He was a strong, healthy, active man, engaged in the management of a large farm of between eight and nine hundred acres, with from one hundred and seventy-five to two hundred head of cattle and other stock. By his fall his leg was broken at the thigh in two places, the lower break just above the knee. He was treated at the company’s hospital in Sedalia, without expense. He laid at Sedalia nine weeks, and at home a month before he got up. Was unable to do anything for a year or to go out except on crutches, suffered intense pain, did not get a good set, the broken leg is shorter than the other, and the knee stiff. These injuries are permanent and materially interfere with the active duties of his calling. The damages assessed are large, but in the absence of any evidence of passion, prejudice, favor or corruption of the jury we cannot undertake to presume their existence from the amount of the verdict alone, and unless we could, there is no ground for reversal for excessive damages.

No reversible error appearing in the record, the judgment is affirmed.

All concur, except' Sherwood, J., absent; Barclay, J., in the result.