Burdict v. Missouri Pacific Railway Co.

DIVISION TWO.

Burgess, J.

— Action for damages for injuries resulting from alleged negligence on the part of the defendant, in permitting a ditch to be and remain in *227 and across its track, by reason of -which it was unsafe for persons engaged in switching cars, that being the kind of work in which plaintiff, as an employee of defendant, was engaged in at the time of the accident.

The answer denied all allegations in the petition, and pleaded contributory negligence on the part of the plaintiff. On the thirty-ñrst day of August, 1887, the plaintiff, while in the. service of defendant as a switch- . man, was endeavoring to make a coupling in its switch yards, in Wyandotte, Kansas, he stepped into a-ditch which crossed defendant’s roadbed, causing- his left arm to be caught between the bumpers of the cars necessitating the amputation of his hand and a part of the forearm. The ditch was about ten inches wide, and twelve inches deep, and extended the entire width of the roadbed. • It had been there for at least a year before the accident; looked like a ditch to drain off water.

Plaintiff, at the time of his injury, was working under one Wardell, who was foreman of his crew, and who ordered him to go down the track and couple, some cars which were about to be pushed down to some cars that were stationary. They were then at work in defendant’s switch yard, known as the “Cypress yards.’.’ “He went down to the stationary cars and set the coupling pin on the drawhead so that when the link on the moving car should be entered into the drawhead of the stationary car, the pin would drop in and make the coupling. Plaintiff entered between the ears when they came together to enter the link. When they came together he entered the link and ‘stepped back,’ but intead of the pin dropping into the link it jumped up and rested against the bumper on the opposite side. Plaintiff then stepped between the cars, reached over and got the pin, and while in the act of dropping it into the link, he stepped into the ditch, *228 which, was under the stationary car, and his left hand going down with him was caught between the bumpers.” Plaintiff also testified that the way he made the coupling was the usual and proper way.

“The cars were moving at the rate of two or three miles per hour or ‘a very slow walk’ and had moved only five or six feet before reaching the ditch. After first coming together the slack ran out between the cars leaving a space between the bumper sufficiently wide to receive his arm, when he stepped into the-ditch. Plaintiff was pushed a car length and a half, with his hand between the bumpers when the slack again ran out of the cars and released him. He got out, was taken to the hospital, where his hand and the lower part of his arm -were amputated. He testified that his arm was wholly useless, ‘that'it bothered him all the time in winter, that it was cold all the time, and always bothered him.’ At the time of his injury he was thirty years of age, and had, since he was seventeen years old, worked for railroads, seven years of that period for the denfendant.”

Under the instructions of the court the jury returned a verdict in favor of plaintiff for $12,500. As a condition to the overruling of the motion for a new trial, the court required plaintiff to remit $2,500/ which was done. Defendant appeals to this court.

It is insisted by defendant that the court should have sustained the demurrer to the evidence: first, upon the ground that the accident occurred in Kansas, and that there could be no liability, except such as arose from the laws of that state, and that plaintiff was not-entitled to recovery without showing what those laws were, and that under them the facts of the case created a liability; second, that plaintiff’s own evidence showed that he was guilty of contributory negligence and he could not recóver for that reason.

*229 A careful examination of the authorities cited by counsel for defendant in his brief .in support of the first proposition shows that they do not support that contention. This is not a statutory action; if it were, the authorities cited would be in point. Upon the contrary, it is a common law action, transitory in its nature, and as the common law, in the absence of anything showing’ to the contrary, is presumed to exist in Kansas, where the injury occurred, as it does in this state, it was not necessary that plaintiff should introduce any evidence with reference thereto.

The case of LeForest v. Tolman, 117 Mass. 109, was an action brought in Massachussetts against the owner of a dog who had bitten the plaintiff in the state of New Hampshire, and it was held that plaintiff could not recover under the statute of the latter state, n'or could he at common law, without proof that the defendant knew that his dog was accustomed to attack and bite mankind.

Hyde v. Railroad, 61 Iowa, 441, was an action brought in Iowa by the administrator of one Hyde who was alleged to have been killed by the negligence of defendant in this state, purely a statutory action, and it was held that, as the administrator failed to show that by the laws of this state an action could be maintained for such injury by the administrator, such action could not be maintained in that state.

Davis v. Railroad, 143 Mass. 301, was also a statutory action and in that case the same rule is announced.

In Wooden v. Railroad, 126 N. Y. 10, relied upon by defendant, it is expressly held that an action for the injury to the person in another state is maintainable in New York without proof of the law of the place where the injury occurred, because permitted by the common law which is presumed to exist in the foreign state. It was also held that when the right of action depends *230 upon the statute conferring it, it can only be maintained in another state upon proof that the statute law, in the state in which the injury occurred, gives the right of action and is similar to the statute of the state where the action is brought. The question now under consideration was brought before this court in State v. Clay, 100 Mo. 571, and Sherwood, J., speaking for the court with reference to an instrument of writing executed in the state of Kansas, said: “In the absence of any showing to the contrary it will be presumed that the common law prevails in a. sister state.” See, also, Meyer v. McCabe, 73 Mo. 236; Benne v. Schnecko, 100 Mo. 250; Wooden v. Railroad, supra. Moreover, the question was not raised by answer, on the trial, nor by motion for a new trial, and can not how be raised for the first time in this court.

With respect to the second proposition, while it is true, as contended by counsel for defendant, that plaintiff admitted in his testimony that he knew that it was dangerous to walk between the cars while in motion, and that he had control of the train, he also stated that he made the coupling in a careful and prudent way; that the coupling could not have been made if the cars had been standing still, and that the way in which it was done was the customary and usual way. Plaintiff knew nothing of the hole in which he stepped, and which was the cause of the accident. Here the facts as disclosed by the evidence admit of different constructions and inferences as to contributory negligence by plaintiff, and that question was properly submitted to the jury. Mauerman v. Siemerts, 71 Mo. 101; Nagel v. Railroad, 75 Mo. 653; Huhn v. Railroad, 92 Mo. 440.

The instructions given on behalf of plaintiff are as follows:

*231 “1. The court instructs the jury, that it was the duty of the defendant railway company to exercise reasonable care in maintaining its roadbed in a reasonably safe condition, in order that its employees, in the exercise of ordinary care, or in the discharge of their duties, could use the same with safety.

“And if the jury believes from the evidence that’ on the third day of August, 1887, there was a hole in defendant’s roadbed, at a point about one hundred and twenty feet (120) south of the switch known as the ‘Sixth street switch’ in defendant’s yards, known as the ‘Cypress yards,’ and by reason of said hole said roadbed was not reasonably safe for the plaintiff in the exercise or ordinary care, to use in the discharge of his duties at the time of said injury, and that said hole existed such a length of time that the defendant railway company either knew, or by the exercise of ordinary care might have known, of its existence in time so' that by the exercise of ordinary care it could have put the said roadbed in a reasonably safe condition before the injury. And if you further believe fróm the evidence that the plaintiff, at the time and place aforesaid, was in the employment of the defendant, as switchman, and in the exercise of such care as ordinarily a prudent switchman would exercise under the same or similar circumstances, and that while so engaged in his work he stepped into said hole, and by reason thereof his hand was caught between the bumpers of the ears, and he was injured thereby, he is entitled to recover.

“2. If the jury believe from the evidence that the injury of plaintiff resulted from the failure of defendant to provide a'reasonably safe track for the use of plaintiff in the discharge of his duty, and he was in the exercise of ordinary care, then the injury was not the result of the ordinary risk and danger assumed by plaintiff when he entered into defendant’s services.

*232 “3.' If the jury find for the plaintiff, they will assess his damages at such sum as they believe, from the evidence, he has sustained, taking into consideration the pain and anguish, mental and physical, -if any, and the loss of his hand, not to exceed the sum of $15,000.”

■ The court gave, at the instance of defendant, the following instructions:

“1. The court instructs the jury that, before plaintiff can recover in this action, it devolves upon him to prove to the reasonable satisfaction of the jury, by a preponderance of evidence in the case.

“First. That there was a hole in defendant’s roadbed'at the point and of the character set forth in his petition.

“Second. That by reason of the existence of said hple, the defendant’s roadbed was not in a reasonably safe condition.

“Third. That the officers, agents, or employees of defendant, whose duty it was to keep defendant’s roadbed in a reasonably safe condition, either knew of the existence of said hole, or, by the exercise of ordinary and reasonable care, could have known -of the existence of said hole.

“Fourth. That, in undertaking to make the coupling in question, plaintiff stepped into said hole, and that this fact was the direct and proximate cause of his injury.

“And if the evidence in the case fails to satisfy the jury of the existence of any of these facts, their verdict should be for the defendant.

“2. The jury are instructed that the law governing the case is, that the plaintiff, when he entered into the employment of the defendant as one of its switchmen, took upon himself the ordinary risks and perils incident to that business.

*233 “3. The court instructs the jury that, if they believe from the evidence in the case, that plaintiff’s injuries were occasioned by a mere accident, and without fault on anybody’s part, then the verdict must be for the defendant.

“4. Although the jury shall believe from the evidence that defendant’s roadbed was out of repair, and that defendant, by the exercise or ordinary care, could have known of such defect in such roadbed, still defendant would not be liable in this action, unless it failed to repair such defect within a reasonable time after, by the exercise of ordinary care and prudence, it might have discovered such defect, and as to what would be a ‘reasonable time,’ as above used, would be such a length of time as a man of ordinary' care and prudence, engaged in managing and operating arailroad, would take under such, or like, circumstances.

“5. Even though the jury may believe, from the evidence in the ease, that there was a ditch across defendant’s roadbed, as stated in plaintiff’s petition, and defendant’s employees in charge of said roadbed either knew of the existence of said ditch or, by the exercise of ordinary care, might have known of it, although the jury may believe that plaintiff, in undertaking to make said coupling, stepped into said ditch and his injuries caused thereby, still, if the jury further believes, from the testimony in the cause, that the plaintiff, in going between the cars and trying to make the couplingwhile the cars were in motion, was not himself in the exercise of ordinary and reasonable care, and that such lack of ordinary and reasonable care on his part directly contributed to his injuries, then he is not entitled to recover and the verdict will be for defendant.

“6. The court instructs the jury that, by the term ‘ordinary and reasonable care,’ is meant such as an ordinary, careful and prudent person would exercise *234 under the - same, or similar, circumstances; and this definition applies as well to the care required of the plaintiff as to that required of defendant.

“7. The court instructs the jury that, while they are the sole judge of the credibility of the witnesses, and of the weight to be given to the testimony, yet it is the exclusive province of the court to define the issues to be determined by the jury, and to instruct the jury on the law applicable to such issues, and it is the duty of the jury, and they have promised in their .oaths, to follow the instructions given by the court.

“It is not their province, in determining the questions submitted to them, to indulge in any possible sympathy for the plaintiff, or in any possible prejudice against the defendant; nor should they consider what effect their verdict, in this case, will or may have in any other case against this or any other railroad company, but they are to consider and determine the issues submitted to them in the instructions, and should determine these issues in the same way in all respects as if this were a case between man and man.

“8. The court instructs the jury that, by the term, ‘preponderance of evidence’ is meant the greater weight of evidence; and, if the jury believe that the greater weight of evidence is on the side of the defendant, or if the testimony is of such a character or so evenly balanced that the jury are unable to determine on which side the greater weight of it actually is, then in either such event, the verdict will be for the defendant.”

The defendant, also, asked the court to give the following instructions, which were refused:

“10. The court instructs the jury that there is no evidence in this case that defendant knew that there was a hole or ditch across its track at the point where the alleged injury is said to have occurred, prior to the happening of said accident; and before plaintiff is enti *235 tied to recover on that account, they must find and believe from the evidence that said hole or ditch had existed for such a length of time, prior to the happening of said accident, that the defendant, by the exercise of ordinary care and prudence on its part, could have discovered the existence of such hole or ditch.

“11. The court instructs the jury that if they shall believe, from the evidence, that plaintiff set the pin with which to make the coupling of the train of cars in question, in a slanting position, relying upon the jar of the train of cars to make the coupling, and that that was the usual method and a safe method of making the coupling, and that the jar of the train of cars, upon the first trial, did not make such coupling, and that plaintiff controlled the movement and operation of the train of cars, and could have stopped the train of cars until he could have placed it in the position aforesaid the second time, and that he voluntarily undertook to make the coupling without exerting his control over the train of cars, and was injured thereby, then plaintiff voluntarily assumed all risks and dangers incident to the manner of so coupling cars, and, if injured in consequence of such risk, he is not entitled to recover, and your verdict must be for the defendant.”

“13. The court instructs the jury that ordinary care and prudence in this case would have required the plaintiff to have looked where he was walking when upon defendant’s track for the purpose of coupling its ears, and if you shall believe, from the evidence, he did not look where he was'walking when coupling defendant’s cars when he could have done so, and if, by doing so, he could have avoided the injury, then his failure to so look was such contributory negligence on his part as will prevent a recovery in this case, and your verdict must be for the defendant.”

*236 It is insisted by counsel that the first instruction given for plaintiff is erroneous; that it was calculated to mislead the jury in that it requires defendant to furnish appliances which will enable its employees to discharge their duties in absolute safety. It was the duty of the defendant to keep its track in reasonably safe repair so as to prevent injury to all persons who might lawfully be upon its track, and for failure to do so it is liable for the consequences. Lewis v. Railroad, 59 Mo. 495; Gibson v. Railroad, 46 Mo. 163. Nothing more was required of defendant by this instruction. Nor Is counsel correct in that there was no evidence upon which to predicate it.

There was no error committed in refusing the tenth instruction asked by defendant. It was, in substance, given in its first and fourth; and the issues presented by its eleventh and thirteenth refused instructions, were fairly and fully presented in other instructions already given. It is not error to refuse instructions when those given fairly present the law of the case. State to use v. St. Louis Brokerage Company, 85 Mo. 411; Baum v. Fryrear, 85 Mo. 151. The instructions, taken together, present the law of the case fairly to the jury.

But one other point remains to be disposed of; that is, with respect of the amount of the verdict, which is claimed by defendant to be excessive. The verdict was for $12,500. The court required plaintiff to remit $2,500, and upon that condition overruled the motion for a new trial. That the verdict was large, there is no question. The hand injured was the left. Plaintiff was thirty years of age at the time and had been a railroad brakeman for thirteen years. After the injury he was taken to the hospital and his hand amputated. He was then sent to Sedalia to the company’s hospital, where he remained for twenty-seven days. He stated that his *237 arm was of no nse to him; was cold all the time in winter and bothered him all the time. The case is free from malice or wanton misconduct on the part of the servants of defendant. There was very little evidence as to the plaintiff’s present or former capacity for labor and none as to the amount of his ordinary wages or earnings, either before or after the accident, or to show that he was not in good health. Nor didit appear how long he was laid up and incapacitated for labor; nor' the amount of his medical or other expenses.

In Murray v. Railroad, 47 Barb. 196, the plaintiff, who was a cooper by trade, and by occupation a driver or teamster in the employ of a brewer, received personal injuries resulting in the loss of a hand, for which he received a verdict for $8,000, and it was held that the verdict should be set aside for excessive damages, and a new trial granted, unless the plaintiff would reduce such damages to the sum of $6,000.

In Railroad v. Milliken, 8 Kan. 647, an action for injuries to the person where the only permanent disability was the loss of a hand and where there was neither lengthened sickness nor extraordinary suffering, a verdict of $10,000 was held to be excessive.

Under the authorities cited and the circumstances disclosed by the evidence in this case, we think the damages allowed for the injuries still excessive, and that the judgment should be reversed and cause remanded on the ground of excessive damages, unless plaintiff will remit $3,000 within thirty days.

All of this division concur, except as to the remittitur upon which there is a difference of opinion, in consequence of which the case is transferred to the court in lane.

*238 IN BANC.

Black, C. J.

— The opinion heretofore filed in this case is now approyed by court in "banc. The only question calling for further discussion is the one raised by the objection that the damages are excessive. The claim of defendant is that, when the court has reached the conclusion that the damages are excessive, the judgment should be reversed and a new trial ordered; while the plaintiff insists the court should indicate the excess and allow him to remit it and take a judgment of affirmance for the residue. There is certainly much conflict in the authorities on this question of practice. It is believed a review of all of them will accomplish no good at this time. Special mention will be made of a few recent decisions only.

Belt v. Lawes, 12 Q. B. Div. 356, was heard in the court of appeal in 1884. It was an action for libel. Beett, M. R., said:

“The first point in this ease is a pure point of law, namely, whether the judgment of the majority of the divisional court can in law stand as it is, if the verdict can not otherwise be impeached, it being founded on the consent of the plaintiff alone that the amount of the damages should be reduced from £5,000 to £500. In my opinion such judgment can stand. Where the complaint is only that the damages are excessive, and the verdict can not be otherwise impeached, and it is a case where the plaintiff is entitled to substantial damages, the court has power to refuse a new trial without the consent of the defendant, on the plaintiff’s consenting to the amount of the damages being reduced to such an amount as, if it had been given by the jury, the court would not have considered excessive. It has been argued that this can not be the right rule, because it is said that if the damages are excessive the court *239 must come to the conclusion that the verdict is wrong, and the inevitable result of that must be a new trial. But the court is asked to exercise its discretionary power, and to say that the jury have given larger damages than they ought to have given. The court does not give damages, but it only says that if the jury had given a sum which was a part of what they had given, the court would not have been dissatisfied. * * * j have not the least doubt that where, as in the present case, the jury have given damages which are challenged only as being too large, the court has power to say that if the jury had given less, as £500 and not £5,000, the court would have considered such damages not excessive, and, therefore, to say if the plaintiff; will consent to the verdict being for that amount, the defendant will really have no grievance. I see nothing in principle against reducing the damages un der such circumstances, and it has certainly for years been the iñvariable practice of the courts to do so.”

For a long time the rule in Wisconsin was that contended for by the defendant in this case, but it was much modified by the recent case of Baker v. City of Madison, 62 Wis. 150, which was a personal damage suit. There had been three verdicts, one for $3,000, one for $2,500, and the last for $6,000. The supreme court allowed the plaintiff to remit $2,500 and take an affirmance for $3,500. Lyon, J., in speaking for the court, alludes to the fact that the appellate courts of many of the states have adopted the practice of indicating the excess and giving, or directing the trial court to give, the plaintiff the option to remit such excess and take an affirmance for the residue. He then uses the following language:

“The main ground upon which the rule of Potter v. C. & N. W. R’y Co., supra, is rested, is that if the court assumes to fix a sum for which the plaintiff may *240 have judgment, it thereby usurps the functions of the jury. * * * Certainly, the, usurpation is the same if the trial court does the same thing. Yet the right of the trial court to allow the plaintiff to remit the excess, and then give him judgment for the residue, is almost universally recognized, and, so far as we are advised, such has always been the practice in this state. * * * All that we now do is to make the rule of Potter v. C. & N. W. R’y Go. sufficiently elastic to enable the court, in ■ a proper case, to relieve the plaintiff from the delay and expense of another trial, when the only fault in the verdict is that it gives him toó large an amount. If other material errors have been committed, prejudicial to the defendant, or if there is reasonable ground for belief that the jury were moved by improper motives or led astray by ignorance, or if any other grounds exist satisfactory to the court, a new trial will be ordered. In the present case the plaintiff’s light of action has been established by a verdict which is free from error affecting such right. The jury honestly awarded him too large damages. Other verdicts indicate the sum he ought to recover. We do not hesitate to give him the option to take his judgment for the proper sum, and thus end the litigation.”

The following cases will show that the trend of modern judicial opinion is in the same direction: Railroad v. Dwyer, 36 Kansas 58-74; Black v. Railroad, 10 La. Ann. 33-39; Mortimer v. Thomas, 23 La. Ann. 165; Belknap v. Railroad, 49 N. H. 358-374; Murray v. Railroad, 47 Barb. 196-205; s. c., 48 N. Y. 655; 3 Sedg. on Dam. [8 Ed.] sec. 1322, and cases cited.

In Loyd v. Railroad, 53 Mo. 514, the plaintiff was allowed to remit in the trial court, and, the remittitur there entered was held to be a valid answer to the objection that the damages awarded were excessive. A like objection was overcome by entering a remittitur *241 in this court in the following cases, which were personal damage suits: Waldhier v. Railroad, 87 Mo. 37; Smith v. Railroad, 92 Mo. 374. If, as these cases hold, the plaintiff can avoid the objection that the damages are excessive by remitting a part of the judgment of his own volition, no good reason can be seen why this court may not indicate the excess and then allow the plaintiff, if he desires to do so, to take an affirmance for the balance. Indeed, this course was pursued in Furnish v. Railroad, 102 Mo. 456, where there was a verdict for $15,000, which was deemed excessive and the court left it to the plaintiff to remit $5,000 or submit to a new trial. If these cases are to be respected, and they have never been overruled, they settle this much, at least, that this court will, in a proper case, where the only valid objection is that the damages are excessive, direct the plaintiff to remit the excess. It is true that some observations of a contrary import were made in the late case of Gurley v. Railroad, 104 Mo. 233, but in that case there was error in the instructions, so that the judgment could not have been affirmed had the plaintiff’s request to remit been granted.

An argument pressed upon our consideration in this case is this, that if this court has the right and power to reduce the damages when excessive, it has the right and power to increase them when inadequate. We do not see the force of this line of argument. In one case the court simply says the judgment may stand for apart of'the amount found by the jury, while in the other case it would add something never within the terms of the verdict.

If it can be seen and fairly said, the jury gave the excessive verdict by reason of prejudice, passion or any other improper motive, a new trial should be awarded; for the inference would be a fair one that *242 the finding for the plaintiff was also brought about by improper influences, and this is especially so when there is any doubt as to the right of the plaintiff to recover. Indeed, the verdict may be so large and out of all reason as, of itself, to furnish sufficient evidence that it was the result of passion or some other improper influence. But it does not follow that a verdict is necessarily the result of prejudice or passion because it is excessive. It might just as well be said that the mistakes made by appellate judges are the offspring of prejudice. Jurors, like other persons, may, and often do, err, though conscientious in the discharge of their duties. Common experience teaches us that verdicts differ widely, even in the same case, where the evidence as to the extent of the injury is precisely the same, and this, too, when there is' nothing whatever from which the conclusion can be fairly drawn that the jurors were under the influence of any improper motive. Nor is there anything strange in this when it is remembered that no exact guide can be given as to the amount of damages to be allowed. In the' very nature of things, the amount of damages must, to a large extent, rest with the jury. This court is constantly reviewing verdicts in this class of cases, and is in a position to be able to judge when a verdict is so far beyond those usually allowed in like cases as to be excessive, and litigants ought to have the benefit of its judgment.

When it is conceded, as it generally is, that an appellate court can say a given verdict is excessive, it follows that it can designate an amount which would not be excessive. If it possesses the power to say the one thing, it possesses the power to say the other. The law is a practical affair, and ought to be administered in a practical way, so as to work out substantial justice by avoiding, as far as possible, the long *243 delays and accumulated costs incident to reversals and repeated trials.

Indeed, second and third trials, as a general rule, result in increased verdicts. Where there is no just complaint, save that the damages are excessive, we are unable to see any good reason why this court may not indicate the excess and give the plaintiff: the option to remit that excess or submit to a new trial. Such a practice is in the interest of justice, and is the practice heretofore pursued by this court, and that now adopted by many of the state courts of last resort. In the case now in hand, the plaintiff, if entitled to recover at all, is entitled to recover substantial damages; the finding in his favor is well supported by the evidence; there is nothing in the record from which it can be said the jurors were actuated by any improper influence; and there is no error, save that the damages are excessive. In such a case this court should designate the excess, and allow the plaintiff to remit it and take an affirmance for the residue. The plaintiff having remitted $3,000, the judgment is affirmed for the residue.

Brace, Macparlane and Burgess, JJ., concur. Barclay, Gantt and Sherwood, JJ., dissent from what is said in this supplemental opinion.