Spohn v. Missouri Pac. Ry. Co., 116 Mo. 617 (Mo. 1893)

GUntt, P. J.

This case is here on a third appeal. The reports of the two former appeals will be found in 87 Mo. 74, and 101 Mo. 417.

The evidence now is substantially the same as ' it was on the first appeal. Without repeating it all, it will be sufficient to a proper understanding to say, that in the "year 1880, the plaintiff was living near the city of Philadelphia, Pennsylvania. He was German by birth. He was born in 1847, at Heilbron, in Baden. When about sixteen years old he went to Heidelberg and worked two years as a porter in a hotel in that ■city. In 1870 he left Mannheim on the Rhine, for America. He landed in NewYork and after three days went to Philadelphia. He lived in and near this city about ten years. In 1880, he bought a ticket for Salina, Kansas, and started west.

When he reached Columbus, Ohio, he' left the train and walked a day, and then resumed his journey. He was provided by his landlady in Philadelphia with a bottle of whisky. After indulging in a drink at Columbus, he gave the remainder to some coal miners. He reached St. Louis and then took passage on the Missouri Pacific Railway for Kansas City, about 8:50 P. M.

There were three white men in the car and two negro men. In due time the conductor came around and took up his ticket. He says, “When the conductor came in, he looked at the three white men and laughed, and then the men would look at the conductor .and smile; they would laugh and smile, and look at me. * I can’t tell exactly now what they said. It’s more than eleven years now and I can’t tell what was said when the conductor was in there.”

The conductor went about his duties, and then the three men lay down and went to sleep. “After, a while the train stopped at a little station, and then a man came in and sat down right behind me, and after a while the conductor came in and sat alongside of the man behind me, too. The conductor said:. ‘That man

must be an honery son of a bitch, he must be an honery man, he ought to be punished.’ Then the other man said, ‘Well, haven’t you got any straps we can tie him with; he must have a good deal of money.’

Q. “Who said that?” ■ A. “The conductor. ‘He ought to be punished, he must have a good bit of money.’ Then the other man wanted to know if he had a place to throw me out, and the conductor says, ‘Yes, I have got a good place to throw him out; we will tie him and throw him out of the window.’ “Then I put my hand in my pocket and says, ‘Here is my money if that is what you want.’ Then the conductor says, ‘put your money in your pocket; we don’t want it; we will get your money anyhow when we get you tied.’ After a little while the conductor went back through the train and the other man got up and went forward and I thought sure they were going to get straps to tie me with. When the conductor and the "other man left, I got up and went out there on the platform. I stood down on the lower step and held on. I didn’t want to jump; I didn’t like to jump. All at once the door went open, the door of the car where the conductor went in, was opened, I didn’t see who it was opened it, but I went out. I jumped about two feet away. I fell about two feet from where I jumped. ”

He got one of his feet under the moving train in some way, and it was cut off:. He was found by one of the track walkers and taken to the house of a neighboring farmer, Mr. Munger, who carefully nursed him. Physicians from Jefferson City, Drs. Davison and Elston, amputated the wounded leg. The conductor Gallagher, Connelly, the man who sat behind plaintiff, and a passenger, Mr. Little, of Pleasant Hill, Missouri, all contradicted plaintiff in a most emphatic manner, as to any one threatening to tie him or throw

him off the train. The conductor and Connelly say that plaintiff appeared to be asleep.

When he jumped up and said “If you don’t hurt me I will give you all I have got,” they told him to sit down, no one wanted his money and that he would not be hurt. He then sat down. Little remembered some one being disturbed and the conductor quieting him.

The train was running very fast, between forty and fifty miles an hour. The other facts will be discussed in the course of the opinion. Under this evidence, the jury found for plaintiff and gave him a verdict for eight thousand dollars.

The defendant has again appealed, and assigns as error, the refusal to sustain its demurrer to the evidence; erroneous instructions, and the admission of illegal eyidence.

I. When the conductor, Gallagher, was on the stand, he was asked by counsel for plaintiff, if he knew Wm. G. McCarty, of Jefferson City, Missouri. At first he said he did, but upon reflection, he said he did not.

He was then asked if he did not tell Wm. G. McCarty, sometime in December, 1881, or thereabouts, at the trial or about the time of the last trial, that you men told stories to this plaintiff and that you scared Mm, and that you didn’t think he was going to jump off, or words to that effect? To which he answered he did not. When Wm. G. McCarty was on the stand he was asked if he knew Gallagher, the conductor, and he said he did. He was asked this question: “State, Mr. McCarty, if you have any recollection of having a conversation with Mr. Gallaghar here in this city, at any time, in reference to how plaintiff in this case happened to jump from his train?” To which defendant objected, because no foundation was laid, if, for impeachment, and thát otherwise the declarations or

admissions of the conductor not made in the discharge of his duties were incompetent. Plaintiff then stated that his object was simply to impeach, and for no other purpose.

The court overruled the objection and defendant duly excepted. The witness then, without naming any place, said he had a recollection of a conversation with Gallagher. “The question was, how he came to jump off. It has been a long time since, in a conversation, I asked Mr. Gallagher how it happened that he jumped off the train, and Mr> Gallagher replied, as well as I remember, that the parties, whoever they were, on the train, were codding him, and were frightening him with bugaboo stories, and the fellow was frightened and jumped off the train. I am not positive when this conversation occwrred,. I think it occurred some, time in the fall of 1881; that is my recollection, as near as I can go back -chat far.”

It will be observed that no place whatever was named in the question to Gallagher, and the time was fixed in December, 1881. . When McCarty is called to impeach him, his attention is not called to a conversation in-December, 1881, md, he nowhere fixes the place of the conversation he details. More than that, the impeaching question and answer are most materially different in their subject matter to that propounded to Gallagher. The foundation in the cross-examination of Gallagher as to time and place, was sufficiently definite as the statement alleged to have been made to James Meyers, but the witness was asked if he did not state that he and the people on his train were playing the Jesse James dodge on plaintiff. When Meyers come to testify, the impeachment question was not limited to the conversation at the City Hotel, nor to December, 1881, nor to the matter about the Jesse James dodge. It is true, Meyer's fixed the place at the

City Hotel, but he would not say whether it was about the time of the first or second trial, and there is no evidence in this record when either trial occurred, nor- did he, in any way, contradict Gallagher as to the Jesse James dodge. Certainly, if an impeaching witness cannot fix the time and does not respond to the subject matter of the inquiry, to the witness whose evidence he would impeach, no protection is afforded any witness. Meyers’ evidence is as objectionable as that of McCarty, when closely scrutinized. ‘ ‘Where it is proposed to discredit a witness by proof-of prior contradictory statements, it is the well settled law of this and other states that, in order to lay the foundation for such evidence, the witness must first be interrogated as to time, place and persons to whom such contradictory statements were made. This is but fair and just to the witness, in order that he may be able to refresh his recollection in regard to such statements, and afforded an opportunity of making such explanations as he may deem necessary and just.”

Under this rule, the foundation for McCarty and Meyer’s evidence was wholly insufficient. Gallagher’s attention had never been called to the conversations detailed by either of them. That these contradictions of Gallagher were of vital importance cannot be questioned, and that the matter thus brought before the jury was most hurtful cannot be doubted. ' Certainly it was incompetent for any other purpose than that of impeachment. The universal rule in the practice in this state, so far as we are advised, is to call the witness’ attention to the place, time and language he is charged to have uttered, and to ask the same questions of the impeaching witnesses.

We think the court erred in admitting the evidence of McCarty and Meyers. In the report of this case in 101 Mo. 454, it is said evidence like this was admitted

because sufficient foundation was laid by proper reference to time and place in the cross-examination of Mr.-Gallagher.”

The record of that case is not in evidence here, neither is Mr, Gallagher’s cross-examination, but of course if, as we are bound to presume, the proper foundation was laid, no such question could arise as we are called upon to decide. It is stated in appellant’s brief that the objection was not made in the former trial and was not passed on by the trial court. It is very clear that upon this record no proper foundation was laid (for impeachment). Brown v. State, 72 Md. 468; Bank v. Kelley, 29 Neb. 590; 1 Greenleaf on Evidence [15 Ed.], sec. 462; The Queen’s Case, 2 Brod. & Bing. 313.

II. Among other instructions asked by plaintiff and given by the court is the following:

“3. If the jury believe from the evidence that the plaintiff was at the time and place mentioned in the petition a passenger on defendant’s train, and that without any fault or misconduct on his part, any person or persons on said train and in the presence and hearing of plaintiff made threats of violence to the plaintiff, or threats.'to rob or wrongfully take from plaintiff his money or to tie plaintiff and throw him from the train while in motion, and that the conductor in charge of said train either joined in with such persons in making such threats; or having knowledge thereof, he, the conductor, did not exert himself to the utmost of his abilty to restrain or prohibit such person or persons from making or continuing such threats and misconduct, then the defendant is liable to plaintiff in such sum as will compensate plaintiff for such alleged threats. And in estimating the damages therefor, the jury may take into consideration only the wounded feeling and mental suffering of the plaintiff caused by said alleged threats,

being governed by a sound discretion and good judgment in giving damages therefor.”

Defendant assigns this as error. This instruction entitled the plaintiff to recover damages of the defendant for threats whether any injury, fear or fright resulted therefrom to his person or property, or not, and without a petition framed with that view.

The instruction also permitted plaintiff to recover for mental anguish alone, unattended by any physical injury, In other words, although the jury under the instructions of the court might have found that plaintiff’s own recklessness was the cause of his injuries and that his conduct was that of a man recklessly imprudent, and that he had no reasonable cause to apprehend violence from the conductor or any other person, yet they may have believed that some person on the train made threats against plaintiff and they would be bound to award plaintiff damages therefor, irrespective of physical injuries he may have suffered.

We do not think any case in this court can be found which will sustain the doctrine announced in this instruction. We have so recently reviewed the kindred question in Connell v. Tel. Co., ante p. 34, that we think it is unnecessary to enter again upon the discussion. The great weight of authority is against such a rule. Trigg v. Railroad, 74 Mo. 147; Wyman v. Leavitt, 79 Me. 227; Lynch v. Knight, 9 House of Lords 577; Fox Borkey, 126 Pa. St. 164; Ewing v. Railroad, 48 Am. & Eng. R. Cases, 506; Canning v. Williamstown, 1 Cush. 451; Railway Commissioners v. Coultas, L. R. 13 App. Cases 222.

The instruction is not only bad as to these principies, but it is bad in that the damages are not limited to the amount sued for in the petition, and the jury were not eyen cautioned to have due regard to the attending facts and circumstances in evidence. They

were simply left to their own sound discretion and good judgment, based solely upon the wounded feelings and mental sufferings of plaintiff. All other elements were to be eliminated. This instruction stood alone- and it. announced a rule that finds no warrant in «the precedents of the common law or the decisions of this court and may have exerted no small influence in enabling the jury to reach the verdict they did in this case. In no sense can it be held harmless in view of the facts of this case. It constituted reversible error.

III. Lastly, it is earnestly contended by defendant that the demurrer to the evidence should have been sustained. When this case was here on the first appeal, Black, Judge, speaking for the majority, said: ‘ ‘Reluctant as we are and should be to interfere in such matters, as this record now stands, we can come to no other conclusion than this, that the verdict is the result of passion or prejudice, or that the instructions given by the court were wholly disregarded. A proper administration of the law demands a new trial.” Sherwood, Judge voted to reverse without remanding.

Since then another trial has been had, and another appeal upon substantially the same facts. Barclay, Judge, speaking of the point now under discussion, said: “His (plaintiff’s) story certainly borders closely on the marvelous.” His account of his experience “smacks somewhat of the incredible.” But in both instances the majority of this court refused to sustain the demurrer or hold that it should be given. The case is here again. This time it is shorn of all the threats save those alleged to have been made by the conductor and the witness Connolley.

The account given of these by the plaintiff is so utterly at variance with common experience, that one must be credulous indeed who should believe that they are anything more than the fantastic creations of a

bewildered brain. His account is so plainly refuted by the disinterested evidence of Connelly and Little, that it is beyond comprehension that twelve intelligent jurors should have reached the conclusion they have in this case.

It now appears that after the conductor and Connelly left the car, plaintiff went out and stood on the lowest step of the platform, and when the door opened, without waiting to see even that it was the conductor, or Connelley, plaintiff leaped in the dark at midnight from a train running from forty to fifty miles an hour. If he did this under an insane delusion, certainly the defendant is in no sense liable therefor. If he was not disordered in his brain, being a mature man of the age of discretion, he must be held responsible for whatever injury he thus inflicted on himself. Kline v. Railroad, 37 Cal. 400; Lovett v. Railroad, 9 Allen, 561. He has no one to blame but himself. There is nothing in the evidence that tends in the slightest degree to rebut the presumption that he was a man of ordinary mental capacity, prior to the moment he rose in the car and offered his pocket book to the conductor and Connelly. He was thirty-five years old. He had had quite a large experience with the world. He lived in Heidelberg with its great university. Had crossed the ocean and lived in and near the great city of Philadelphia, and at no time was it suggested that he had acted strangely, except when he concluded to walk a while after he reached Columbus, Ohio. But this may be viewed in different ways. It may be that his active habits as a farmer caused the continuous ride to become irksome, and he may have desired to take a closer observation of the country, or it may be he had partaken too freely of the bottle he had with him, and desired to rid himself in the open air and by exercise of the effect it had produced.

But, inasmuch as his time was his own, and no pressing engagement on hand, it cannot be claimed he was insane, on this account alone. On the' other hand, it is incredible that a grown man would, with no more provocation1 or cause than is evinced by his story, contradicted as it is by all the other testimony, throw himself in the dark from this rapidly running car, on any other theory than that of at least temporary alienation of his mind.

The case is not so strong for plaintiff as when this whole court agreed the verdict ought not to stand because unsupported by the evidence, and for this reason, with the other errors noted, it must be reversed and remanded.

Were it a case of first impression, all of this division would agree it should be reversed without remanding, but a majority of us feel constrained by the opinion of this court when the case was here on the last appeal. Judge Sherwood concurs as to a reversal, but does not think it ought to be remanded for reasons he gave in his separate concurring opinion, in 87 Mo. 74.

The judgment is reversed and the cause remanded for a new trial in accordance herewith.

Burgess, J., concurs; Sherwood, J., in reversing the case.