Loyd v. Hannibal & St. Joseph Railroad

Napton, Judge, delivered the opinion of the court. This suit was to recover damages sustained by Mrs. Loyd in getting off the cars'at Monroe City, where it is alleged the cars of defendant did not stop long enough to enable her and her child to get off with safety, and where, in her attempt to do so, she was thrown, upon the platform of the station and injured, to her damage in the sum of 5,000 dollars. It appears from the evidence; that the cars did not stop at Monroe City more than a minute; that when the signal was given, the plaintiff started with her child, and some bundles, for the door, and meeting some persons coming on the cars, could not immediately get down the steps, and before she could get off, the cars were in motion, and she jumped off and fell on the depot platform and was injured. There was testimony in relation to the amount of injury Mrs. Loyd received, and the xdefendant- moved that two respectable physicians and. surgeons should examine her condition, but the court refused such examination. The court instructed the jury, that if the plaintiff’s child stepped from the train before it was in motion, and the plaintiff stepped off while it was in motion, but without delay, the plaintiff was entitled to recover. The court also instructed the jury, that if time enough was allowed for the plaintiff to get off the cars, when the train arrived at Monroe City, the defendant was not liable, and that [513] R. R. passenger's, knowing that the train was in motion,were not entitled to recover for damages, if the train stopped a reasonable time. • The jury found a verdict for the plaintiff for $1,000, which Viras reduced on the suggestion of the judge, who tried the cause, to $2,500. There was a motion for anew trial, assigning the usual reasons, and the additional ones that the damages were excessive/ and that the plaintiff interrupted and embarrassed one of defendant’s witnesses, so that the witness did not tell all she knew about the matter, and because the counsel for the plaintiff did not state all his points in his opening argument, and in his closing address made statements of facts outside of the évidence, which tended to mislead and prejudice the jury. ■And in support of these latter grounds, affidavits were filed, on the part of the witness who was interrupted, and in regard to the details of the speech made by plaintiff’s attorney. " There was also a motion in arrest of judgment, because the petition did-not state facts sufficient to constitute a cause of action — there being no allegation of propereare and diligence on the part of plaintiff to avoid the injury received, and negativing any contributory negligence on her part. Both these motions were overruled. ■ As to the point that the petition failed to aver the exercise of due care on the part of plaintiff, and to negative the existence of any negligence contributory to the injury l’eceived, the case of Thompson vs. N. M. R. R. Co., 51 Mo., 190, upon an examination of the authorities, decides that such allegations are unnecessary. ■ The instructions given presented the law fairly to the jury, and all the law applicable to the matter in controversy; those, refused were mere abstractions, and had no application to the. facts in evidence. Whilst it may be the law, that a passenger, who jumps from a train when in motion, takes the risk of injury to life or limb; it does not follow that the plaintiff in this case could be expected, whilst standing on the steps of the Car, and after her child three years old had been lifted out, [514] to liave the presence of mind to deliberate on the propriety of following her child although the train immediately commenced to move, nor had she time to reflect on the danger of a straightforward movement at right angles to the train, instead of inclining in the direction .the train was moving. The fact appears in evidence, that- the train was behind time and that it did not stop a minute. All the witnesses compute the time by seconds. The verdict of the jury for the plaintiff, on the facts and under the instructions, was manifestly right. The amount of damages, as it originally stood, was large, perhaps greater than the injury sustained would seem to authorize ; but as this sum was by a remittitur reduced to a sum satisfactory to the judge who tried the ease, there is no ground for the interference of this conrt on that point. In relation to the affidavit of the bystander concerning the closing argument of the counsel for the plaintiff, it is to be observed, that an advocate, however unrestricted lie may and ought to be, in the use of all the forms of rhetoric, such as invective, satire, ridicule or humor, and every variety of illustration drawn from the facts in evidence or from facts hypothetically assumed, ought not to be allowed to make himself a witness, and state facts within his own knowledge, touching the case under discussion. It is no doubt the duty of the judge,who presides at the trial, to prevent such departures from the proper and legitimate sphere of the counsel; but the line of discrimination between legitimate illustration and comment, and the introduction of facts not in evidence, and having no bearing on the question at issue, is not always clear, since it is always'in the power of rhetorical ingenuity and fancy to put facts not in evidence hypothetically to the jury, and by commetits on such supposed facts do as much harm to the adverse party through the medium of inuendoes or insinuation, as by plain and unequivocal assertions of their truth. All these difficulties, however, were remediable under the [515] old system of charging juries at the close of the case. That power is not now given to the courts, for reasons doubtless satisfactory to the Legislature. The court cannot sum up the evidence, or comment on it, or draw the attention of the jury to the real points in issue, in any other way than by written instructions prepared and given to the jury before the arguments of counsel. To interfere with the latter, is therefore a delicate- matter without infringing on the province assigned by the Legislature to the courts. Undoubtedly, if this court is to assume as correct the version of the closing speech made by the counsel for plaintiff, portions of it are irregular, and should not have been allowed. But the judge who presided at the trial heard this speech as well as the bystander who reports it, and overruled the motion for a new trial. It may be because the speech Avas not correctly represented; or it may be because the court was satisfied that the verdict was right, notwithstanding the departure of the counsel from the strict line of his duty as an advocate. Of this that court is certainly better qualified to judge than this court can be, and in ordinary circumstances must necessarily be the sole judge. If this court should undertake to set aside verdicts whenever a bystander should report the argument or address of counsel, and assume the report to be correct, and as reported it appears to us to have gone further than professional duty to his client or the rules of law required, very few verdicts would stand, and jury trials would be an unnecessary and useless expense to suitors. The same observation will apply to the affidavit of the witness, Alice Johnson, concerning interruptions sotto voce made by the plaintiff. The judge who presided heard the evidence of this witness and so did the jury and counsel on either side. The judge could see whether the witness was embarrassed during her testimony. As the judge refused a new trial and certifies the verdict here, Ave see nothing in this ground disturbing it. The proposal to the court to call in tAvo surgeons, and have [516] the plaintiff examined daring the progress of the trial as to the extent oí her injuries, is unknown to our practice and to .the .law. There was abundant evidence on this subject on both sides: any opinion of physicians or surgeons at that time would have only been cumulative evidence at best, and the court had no power to enforce such an order. Judgment affirmed. The other Judges concur