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Comerford v. New York, etc., R. Co

struction complained of could not have worked any injury to the defense.

Other questions of minor importance have been raised by counsel and considered by the court, but we are unable to find that any substantial error was committed in the trial of the case. The judgment will therefore be affirmed. Judgment affirmed.

COMERFORD V. NEW YORK, N. H. & H. R. Co.

(Supreme Judicial Court of Massachusetts, Norfolk, May 23, 1902.)

[63 N. E. Rep. 936.]

Injury to Passenger-Sudden Starting of Train—Alighting from Moving Car.*

When defendant's train arrived at the station at which plaintiff desired to alight the car gate at the front of the car leading to the station platform was closed, and the passengers began alighting from the other gate. Thinking that all had alighted, the conductor started the train, and immediately afterwards, seeing that some still desired to alight, stopped it. Plaintiff's evidence tended to show that he was on the car platform when the car stopped, and was thrown off and injured by the sudden stop; while there was evidence tending to show that he stepped off the car while in motion, supposing it motionless: held, that the question of plaintiff's exercise of due care was properly submitted to the jury.

Same-Evidence-Harmless Error.

Where a written statement, made shortly after the accident, by a witness in a personal injury action, was excluded, but the witness was allowed to testify that the statement was made shortly after the accident, was correct, and that the signature was his, and the attorney was allowed to bring out the entire contents of the statement by questions, and there was no contention that the witness did not make the statement contained in the paper, its exclusion was without prejudice.

Same-Absence of Statutory Number of Brakemen-Instructions.

In an action for injuries alleged to have been caused by the negligent starting or stopping of a train, an instruction that, if the lack *Liability for death of passenger caused by jerking of train, see Sansom v. Southern Ry. Co., 111 Fed. Rep. 887, 24 Am. & Eng. R. Cas., N. S., 88. See also, Wait v. Omaha, K. C. & E. R. Co. (Mo.), 24 Am. & Eng. R. Cas., N. S., 98; Doolittle v. Southern Ry. Co. (S. Car.), 24 Am. & Eng. R. Cas., N. S., 105; Farnon v. Boston & A. R. Co. (Mass.), 24 Am. & Eng. R. Cas., N. S., 95; Southern Ry. Co. v. Vandergriff (Tenn.), 24 Am. & Eng. R. Cas., N. S., 104.

On general subject of carrier's liability where passenger jumps from moving train, see abstracts, 2 Am. & Eng. R. Cas., N. S., 257 et seq. See also, Chicago, B. & Q. R. Co. v. Hyatt (Neb.), 4 Am. & Eng. R. Cas., N. S., 44; Schiffler v. Chicago & N. W. R. Co. (Wis.), 8 Am. & Eng. R. Cas., N. S., 122; Louisville & N. R. Co. v. Depp (Ky.), 3 Am. & Eng. R. Cas., N. S., 440; Hodges v. Southern Ry. Co. (N. Car.), 8 Am. & Eng. R. Cas., N. S., 46; Atchison, Topeka & S. F. R. Co. v. Hughes (Kan.), 2 Am. & Eng. R. Cas., N. S., 248; Lewis v. President, etc., Canal Co. (N. Y.), 2 Am. & Eng. R. Cas., N. S., 192; McPeak v. Missouri Pac. R. Co. (Mo.), 2 Am. & Eng. R. Cas., N. S., 226. See notes, 12 Am. & Eng. R. Cas., N. S., 164; 12 Am. & Eng. R. Cas., N. S., 222.

Liability for injury to employee caused by sudden checking of train, see Louisville & N. R. Co. v. Smith (Ala.), 23 Am. & Eng. R. Cas., N. S., 218.

Comerford v. New York, etc., R. Co

of the statutory number of brakemen helped on the accident, the jury might consider that fact in determining whether defendant railroad was negligent, was not erroneous as allowing the jury to predicate liability on the separate substantive ground of nonobservance of the statutory requirement as to brakemen, but merely authorized consideration of that fact as an element going to make up negligence in the starting or stopping of the train.

Exceptions from superior court, Norfolk county; Charles U. Bell, Judge.

Action by Thomas J. Comerford against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

Geo. Fred Williams and James A. Halloran, for plaintiff. Chas. F. Choate, Jr., for defendant.

HAMMOND, J. Upon the evidence in this case the jury would be warranted in finding that, while the train was stopping at a regular station for the discharge of passengers, some of them, seated in the only ordinary general passenger car of the train, desiring to alight, passed out upon the front platform of the car, and, seeing that the right-hand gatewhich was the one leading to the station platform-was closed, and that the left-hand gate was open, proceeded to pass out by the latter, and in that way alighted from the car; that while this was going on, and while the plaintiff and others who desired to alight were yet upon the platform and steps, the conductor of the train, seemingly unaware of this action on the part of the passengers, and supposing that all who desired had left the train, caused it to be started; that immediately afterwards he saw that several had not left the train who apparently intended to do so, and caused the train to be stopped; and that (although upon this a finding the other way might reasonably have been expected) the plaintiff, being then upon the steps of the car, was thrown to the ground by the jar in stopping. They further might properly have found that the conductor should have known what was going on, and that, in consideration of the high degree of care required of common carriers towards their passengers, the sudden stopping of the car without any warning was, under the circumstances, a negligent act, and that it contributed to the injury. It is true there is much to be said in support of the theory that the plaintiff was not thrown from the car at all; that he supposed the car was at a stop, and hence voluntarily stepped from it; and this view of the evidence may seem to be the more reasonable,--but we cannot say that the jury were bound to take that view of the occurrence. Upon the question of due care of the plaintiff the case was properly left to the jury. It follows that the first request was properly refused. We understand that the exceptions to the refusal to give the other requests in the form presented are waived. We do not see how the defendant was harmed by the exclusion of the written statement made by the witness Bryant. The

Loker v. Southwestern Missouri Electric Ry. Co

language in the statement which the defendant desired to have introduced to the jury was as follows: "The train had gone about two car lengths, and was going as fast as a man could run, when Mr. Comerford attempted to get off. I would not want to swing off when the car was going as fast as it was when Mr. Comerford attempted to do so. After the witness had looked at the paper, and said that the signature to it was his, and that the statement was made shortly after the accident, and was correct, he was further examined as to its contents as follows: "Q. You said the train had gone about two car lengths, and was going as fast as a man could run, when Mr. Comerford attempted to get off, didn't you? A. Yes. Q. Didn't you then say, Mr. Bryant, this: 'I would not want to swing off when the car was going as fast as it was when Mr. Comerford attempted to do so?' A. I said so at that time, yes. "With the paper in his hands, the counsel thus was allowed to show its precise language by the answer of the witness, and no one contended that the witness did not use the language in the paper. The jury had, therefore, the fact that the paper contained those statements made in writing by the witness, and they knew the exact language. The exclusion of the paper under these circumstances could work no injury. As to the absence of brakemen, the jury were instructed that, if the absence of the statutory number of brakemen "had nothing to do with the accident, that is all out of the case," but, "if the lack of those brakemen in any way helped on this accident, then that is one of the things you may consider in determining whether this railroad was negligent in what took place there." The defendant contends that the effect of this was to give the jury the right to find for the plaintiff upon a new substantive ground of liability on the part of the defendant, namely, the nonobservance of a statutory requirement. We do not so understand it. The jury were distinctly told that the plaintiff must prove his case as set out in his declaration; or, in other words, that he was thrown from the car by a negligent starting or negligent checking of the train. The number of persons at work on the train, whether brakemen or not, might properly be considered by the jury upon the question whether proper care was exercised to ascertain the condition of things at the time the order to stop was given, and we do not see that the court went further than that.

Exceptions overruled.

LOKER v. SOUTHWESTERN MISSOURI ELECTRIC RY. Co.

(Court of Appeals of Kansas City, Mo., May 5, 1902.)

[68 S. W. Rep. 373.]

Personal Injuries-Excessive Verdict.*

Where, in an action against a street railway for personal injuries,

*See generally, 3 Rap. & Mack's Dig. 654 et seq.

Loker v. Southwestern Missouri Electric Ry. Co plaintiff's evidence tended to show that her right arm was broken, her spine and nose injured, her ankle sprained, and her injuries permanent, and it appeared that a former jury had awarded her $2,500, the court will not interfere with a second verdict for substantially the same amount.

Same-Extent of Injuries-Evidence.

Where, in an action for personal injuries, defendant introduced a witness who testified that he had dressed plaintiff's arm the night of the accident, and had waited on her from four to six weeks afterwards, refusal to allow him to testify as to the nature of the injury was not reversible error, in the absence of any statement of the object of the testimony, so as to enable the court to determine its materiality.

Appeal from circuit court, Jasper county; Joseph D. Perkins, Judge.

Action by Gussie M. Loker against the Southwestern Missouri Electric Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

McReynolds & Halliburton, for appellant.
Thomas & Hackney, for respondent.

BROADDUS, J. The plaintiff sued to recover for personal injuries received while a passenger on one of defendant's cars. The defendant operates an electric railway in the city of Carthage, Mo. The car on which she was a passenger was wrecked, it is admitted, by the negligence of defendant's motorman who was operating the car at the time of the accident. And it is further admitted that the plaintiff was injured by reason of said accident; but it is claimed that such injuries were slight, and that the verdict of the jury is excessive, and the result of bias and prejudice on the part of the jury. There is only one other objection made, and that is, the court erred in refusing competent testimony offered upon the part of the defendant.

The plaintiff's evidence tended to show that her right arm was broken, and that her spine was injured; that her neck was bruised and painful for several weeks after the injury; that she was injured in the loins; and that her nose was injured and ankle sprained. She stated at the trial that her arm was crooked, and that she did not have much use of it; that her hand was stiff, and her wrist would not bend; that she could not lift things with any weight; and that she could not grasp things. She further testified that her nerves had been seriously affected, and that she had not been able to sleep well since the wreck. She exhibited her arm to the jury, and stated that: "The bones on the third finger on my right hand lie a great deal lower than those of my left, on account of the bones in my wrist being pushed underneath the others, causing them to draw down." The plaintiff was evidently a fluent talker, and stated many other important facts; but we omit them, as the object is not to incorporate her entire evidence in this opinion. Witnesses Mrs. B. F. Thomas and S. M. Weddell tended in many particulars to corroborate the

Loker v. Southwestern Missouri Electric Ry. Co

evidence of the plaintiff. Dr. L. E. Whitney, who was her physician part of the time, and who had examined her recently, testified as to a tenderness in her spine, and, as a consequence, to a disturbance of her nerves. He also stated that her arm will never be like it was before the injury. On the other hand, the defendant introduced evidence strongly tending to show that the plaintiff was magnifying her injuries and feigning suffering; that she was seen to use her broken arm in getting on and off cars, and in handling goods in her husband's store. In reply she denied all this. The jury evidently believed her and her witnesses as to the extent of her injury and suffering. We are not prepared to say that, in view of all the evidence, the jury were influenced by prejudice against defendant or bias in favor of the plaintiff. It appears there was a former trial of the case, and verdict for $2,500, which the court set aside on the ground that it was excessive.

In the recent opinion in this court, in the case of Baker v. City of Independence (not yet officially reported), the plaintiff was injured by a fall occasioned by the defective condition of the defendant's streets. The jury returned a verdict for $1.933. The injury received was in her right hand and arm, and it was a question for the jury whether she would ever recover the full use of that limb. She was not injured in any other part of her body. There had been a previous trial, in which she had recovered the sum of $1,800, which was set aside because, in the opinion of the court, it was excessive. A similar motion was made as to the second verdict, but it was overruled, and this court sustained the action of the trial court in that respect, and in doing so followed the precedent furnished in Porter v. Railroad Co., 71 Mo. 66, 36 Am. Rep. 454. In that case there had been three verdicts, viz., the first for $10,000; the second for $12,000; the third for $10,000. In view of the fact that three juries had passed upon the case and rendered large verdicts, the court held that, under such circumstances, they could not with propriety say that the damages were excessive, and affirmed the finding. The evidence in this case, if credible, -and that was for the jury to determine,--showed that the plaintiff's injuries were serious, and most probably permanent; and in view of the fact that a former jury has rendered substantially the same verdict, we do not feel called upon to interfere with their estimate of the plaintiff's loss and suffering. The verdict of two juries, practically the same, ought to be conclusive of the case. The defendant introduced as a witness Dr. J. R. Freed, who testified that he had dressed plaintiff's arm the night of the accident, and had waited on her from four to six weeks afterwards. The defendant asked him the following question: "Q. Now, sir, I will ask this question, and you needn't answer it until the gentlemen on the other side have time to object. Can you explain to the jury the nature of the break

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