Sawyer v. Hannibal & St. Joseph Railroad

1. Bailees — Railroads—Negligence.—Carriers of passengers not being insurers of their safety, are not responsible where all reasonable care, skill and diligence, prudence and foresight, have been employed. They are not liable for mere accident, or misadventure, any more than for the act of God, or the public enemy, for any sudden convulsion of nature, or an unknown or unforeseen destruction, or an unknowable insufficiency of some part of the road. In addition to this, there must be some actual negligence, or want of strict care, diligence, and foresight. 2. Bailees — Railroads—Negligence.—In a suit by a passenger on a railroad train for injuries occasioned by the cars being thrown into a chasm, occasioned by the burning of a bridge by the public enemy, of which defect in the road the conductor of the train was prevented from receiving notice by the agents and servants of the road being driven off or overawed by the enemy, — an instruction confining the issue of negligence to the particular case in the running of the ears, and telling the jury that “if the train was conducted and managed with as much care and diligence as a very prudent and careful man would have conducted the same where his own interest and safety were concerned, taking into consideration all the circumstances surrounding the case, and that the injury complained of was the result of mere accident, then the carrier was not liable for the injury,” was improperly refused, as it presented to the j ury the principle that the defendant was not to be held liable for mere accident, in the absence of any want of that degree of care and prudence which the law requires. If it were not the negligence of the conductor of the train, or his want of care and foresight, that was the proximate or remote cause of the accident and injury, the carrier was not liable. 3. Practice — Instructions.—Instructions should not be so framed, nor given and refused, as to exclude from the jury the consideration of the points which are fairly raised by the evidence. 4. Practice — Jury—Misbehavior.—A traverse juror is not a competent witness to prove misbehavior in the jury. ITor a jury to make up the amount of the verdict by each juror naming a certain sum and then dividing the aggregate of the sums specified by the number of the jury, is an improper mode of making up the verdict, and is misbehavior on the part of the jury. 5. Practice — Excessive Damages — Verdict. — Verdict set aside for excessive damages.

Appeal from Buchanan Circuit Court. On the 19tli day of August, 1862, respondents commenced suit in the Circuit Court of Buchanan county, to recover the sum of 115,000 for injuries which Amanda, wife of Orlando Sawyer, received on the night of the 8d of September, 1861. Respondents state that said Amanda was a passenger on appellant’s railroad by virtue of a contract, and that the train of cars on which she was a passenger was precipitated into Platte river at a point where the appellant’s road crosses said stream in Buchanan county; that the disaster was caused by the negligence, recklessness and' unskilfulness on the part of the agents of the appellant in conducting and managing the train on which she was a passenger from Palmyra to the appellant’s depot in St. Joseph; that appellant’s road was defective and insufficient by reason of the railroad bridge spanning Platte river having been destroyed between the hours of one and five o’clock p. M. on the day aforesaid, and that by reason of the negligence and unskilfulness of the agents of the appellant and the insufficiency of said railroad and bridge the said respondent was injured in the head, shoulders and other portions of the body, destroying her health and rendering her incapable of performing any sort of labor whatever. The appellant denied that the train of cars described in the respondents’ petition was run carelessly, recklessly or at full speed at the time and place alleged in said petition. Appellant admitted that the bridge across Platte river on its railroad was destroyed at the time said train of cars approached, ran and was precipitated into said river ; but alleged that some time in the evening or prior to the regular passenger train of that day, to-wit, the 3d day of September, 1861, bound west from Hannibal to St. Joseph, a band of armed men, enemies to the Government of the United States and the Provisional Government of the State of Missouri, who had rebelled against and thrown off their allegiance to said governments, drove off the agents and employees of appellant on that part of said railroad where said bridge was standing, and set fire to and burned down said bridge, and whilst it was burning and after it was burned down ,until the arrival of said train at the place where said bridge' stood, guarded it, and that part of appellant’s railroad where said bridge had stood, so as to prevent, and actually did prevent, any of appellant’s agents or employees from giving warning or notice to the conductor or other agents or employees on said train. Appellant avers that by reason of the premises said train was run and precipitated into Platte river where said railroad crosses said river, and where said bridge had stood, although said train of cars was well manned and equipped, and the conductor in charge of said train of cars and the employees on it well, carefully and skilfully performed and discharged their respective duties in conducting, running and managing said train of cars ; that said train of cars was run and precipitated into said river as aforesaid without any negligence, unskilfulness, misconduct or fault on the part of the appellant, its officers, agents and servants, and could not have been prevented by any vigilance, diligence, practice, agency or foresight of appellant, its officers, agents or servants ; that said accident to said train of cars is the same accident of which respondents complain in their petition against appellant. Appellant says that the defect and insufficiency complained of in respondents’ petition is not a negligent defect and insufficiency, and denies that said respondent Amanda sustained any. damage in consequence of any negligence and unskilfulness of appellant, its officers, agents or servants, as is alleged in the respondents petition. The evidence on the part of the respondents tended to show that the bridge across Platte river on appellant’s road was burned down about 5 o’clock p. m. on the 3d day of September, 1861; that the respondent Amanda Sawyer was a passenger upon the train bound west that day to St. Joseph ; that it arrived at Platte river .about 11 o’clock at night, and ran and was precipitated into Platte river ; that in consequence thereof she received a good many bruises and a scalp wound on her head ; her shoulders and arms were bruised, but no fractures of any kind. The scalp wound was the principal one. She did not seem to have good use of her armá ; she could get up, stand up and walk; she was attended about ten days by a physician in St. Joseph, who testified that “ the scalp wound as well as all such scalp wounds are very easily cured, heal up and get well ver/ readily as a general thing, and I saw nothing about this to prevent such a result; and when I-quit attending the plaintiff, my opinion was she would soon get well; the wounds upon the arms and shoulders I considered only upon the muscles, not serious ; but her nervous system received a great shock from the jar she received.” She admitted on her way from St. Joseph and on the Sunday after she got home, that she was not seriously hurt. She commenced teaching school in two or three months after the accident, walking to and from the schoolhouse, a distance between a quarter and a half mile. The evidence on the part of the appellant tended to show that the country all along the line of the appellant’s railroad was at the time of the accident in question, and had been for'several months prior thereto, in a state of rebellion and open war with the Government of the United States and the Provisional Government of Missouri, established in July preceding; that the great mass of the citizens along the line of said railroad were hostile to the Government of the United States and the Provisional Government of Missouri and in sympathy with the rebels ; that the officers, agents and employees on said railroad, as a class, were loyal to the Government, State and National, and gave their aid and influence in favor of the Federal and State Governments in the great struggle with treason ; that said railroad after the inauguration of hostilities was used almost daily, on some part of the line, in transporting Federal troops and munitions of war over it; that in consequence thereof the appellant, and its officer’s, agents and employees, incurred the most bitter and unrelenting animosity of the rebels and their sympathisers, and by way of retaliation they perpetrated almost daily acts of hostility upon the appellant’s railroad and the agents and employees on the same, such as burning cars, bridges and culverts, tearing up the track, sawing ties, &c., and firing into passenger trains, commencing in June, 1861, and continuing from that until the burning of the bridge across Platte river on the afternoon of September .the 3d, 1861; but nearly all of thelfe depredations and acts of hostility had been done on the eastern division of said road; that the western division had been regarded as comparatively safe for trains and passengers during all of this period, there never having been any disturbance on the railroad so near to St. Joseph as the bridge across Platte river, prior to said accident ; that the passengers on the train in question were well aware of the state of the country and condition of things along appellant’s railroad. That a few days prior to the said accident a considerable body of armed rebels had rendezvoused about 13 to 15 miles north of the bridge across Platte river, and their camp was known as “ Patton’s Campalso a considerable body of armed rebels had rendezvoused about 6 miles south of said bridge, and their camp was known as “ Gibson’s Camp.” Small bands of armed men were constantly passing to and from these camps on the east and west sides of said bridge, reconnoitering, watching and reporting the movements of trains upon appellant’s railroad ; that the demeanor of these bands was so menacing and terrifying as to completely overawe the citizens in the immediate vicinity of the .bridge, who had any proclivities for the Government; that they were afraid to go away from their homes so as to give any information to the agents and employees of appellant of the burning of said bridge, lest they should be killed for so doing ; and said bands had threatened and so terrified the section hands on. the section extending to the bridge on the east side, and whose duty it was to watch the bridge and see that it was safe, that they refused on the day before the accident to go over .that part of the section lying between Easton (Similes east of bi'idge) and the bridge, the greatest portion of the distance being through timber and brush, which afforded good lurking-ground for the bushwhackers to way-lay and shoot them. The bridge was burned down by a band of 12 or 14 armed men between 2 and 5 o’clock in the evening of the 3d of September, 1861. They guarded the railroad in the vicinity of the bridge from the time they went to it until after the accident in question, which took place about 11 o’clock at night, so that there was no possible chance for any agent or employee to have gone to the bridge and ascertained that it was burned down, without running a great risk of losing his life. Three or four of these armed men were seen on the western abutment, looking down upon the wreck, after the disaster, and were called upon by the mail agent to come down and assist him and the baggage master (the only two on the train capable of rendering assistance to the wounded and dying) in extricating the passengers from the wreck; but they never said'a word — rendered no assistance. After the mail agent and baggage master had extricated all they could from the wreck, and then started towards St. Joseph for a relief train, these men struck out in a northwesterly direction. These, men found several ties thrown across the track, and found a small bridge on fire about f- of a mile from Platte bridge, from the light of- which they discovered about a half a dozen armed men concealed behind some brush near to said bridge, and when they returned about day-light with a relief train, they found another culvert, a short distance west of the first, on fire ; the next morning after the relief train arrived at the scene of disaster, the baggage master started east, to Brookfield, to give information. On his way he saw several small bands of rebels along the railroad, at short intervals, until he got a considerable distance from the scene of disaster. Some of the neighbors likewise saw one or two armed rebels very early the next morning a short distance west of the Platte bridge. There were seven men on the train in the employ of the appellant at the time of the disaster, conducting, running and managing it, five of whom were killed. Amongst the number were Stephen G-. Cutler, the conductor and-Clark, the engineer. Col. Hayward, the general superintendent of the appellant’s railroad, testified that Col. Curtis, on behalf of the Government of the United States, notified him in June preceding that the Government would take possession of the road and use it whenever it desired for the transportation of troops and munitions of war; that when the Government did not need it for this purpose, the company could use it for the transportation of passengers and property. The officers of the appellant at that time all resided in Hannibal. It.was the policy of the Government to keep the road open, and have trains run on it with as much regularity as possible, so as to show its power and majesty, and thus have its moral effect upon the citizens along the line. At the request of the respondent the court gave the following instructions to the jury : 1. That a railroad company which carries passengers for hire binds itself to carry safely those whom it takes into its cars, as far as human care and foresight will go ; that is, the utmost care and diligence of a very cautious person, and is responsible for even the slightest neglect. 2. If the jury believe, from the evidence, that defendant was such á railroad company, and that plaintiff Amanda Sawyer is the wife of Orlando Sawyer, and that she was a passenger on the cars of the defendant, under contract to carry her, over its railroad to the depot in the city of St. Joseph, and while she was such a passenger said defendant or its officers or agents in charge of said cars did not conduct and manage sqid cars with the care and foresight explained in the first instruction, and that in consequence of the want of such care and foresight said cars were precipitated into Platte river where said road crosses the same, and plaintiff Amanda Sawyer was injured thereby, they will find for plaintiff the damages said Amanda Sawyer sustained by reason of said accident. 3. If the jury find for plaintiff, they will, .in assessing damages, consider not only the bodily pain and injuries sustained by said Amanda Sawyer, but will also consider the alarm, nervous injury and mental anguish sustained by her in consequence of said injury. To the giving of which instructions the appellant at the time excepted. The defendant’s attorney then asked the court to give the following instructions to the jury : 1. That unless the jury believe from the evidence that the defendant’s road, or the bridge on Platte river, was, at the time of the grievance complained of, out of repair by the fault or negligence of the defendant or its agents, or that the train of cars in which plaintiff Amanda Sawyer was being transported was run and precipitated into Platte river, when the bridge over the same had been destroyed, by the negligence or mismanagement of defendant, or of its agents conducting or running the same, they will find for the defendant. 2. That negligence is a question of fact, which is to be ascertained by the jury taking into consideration all of the facts and circumstances connected with, or surrounding, the act complained of. The jury are not authorized in this case, if they should find for the plaintiff, to find exemplary damages, but they are confined to the actual or real and natural damages sustained by the plaintiff growing out of the injury complained of. 3. If-the defendant had agents running their locomotives and cars of competent skill, and said agents used all of the care and diligence that would be used by a very prudent and careful man under similar circumstances when his own safety was concerned, and without negligence, then the defendant would not be liable to the plaintiff for any accident which might happen while being transported under such circumstances. •4. The court instructs the jury that the defendant was bound, by the laws of this State, to receive and transport all passengers offered upon said road for transportation, at the time of the happening of the supposed injury named in plaintiffs’ petition. 5. If the defendant had agents running its locomotives and cars of competent skill, and said agents used all of the care and diligence that would be used by a very prudent man in his own affairs, then the defendant would not be liable to plaintiffs for any accident which might happen them while being thus transported on the road of defendant. 6. If the agents of defendant who were running the train of cars upon which Amanda Sawyer was a passenger at the time of the injury complained of, conducted and managed said train with as much care and diligence as a very prudent and careful'man would have conducted the same where his own interest and safety were concerned, taking into consideration all of the circumstances surrounding the case, and the injury complained of was the result of mere accident, then the defendant is not liable for the same, and the jury will find for the defendant. T. If the jury believe from the evidence, that at the time alleged in plaintiffs’ petition, a band of armed men, enemies to the Government of the United States and to Missouri, drove the defendant’s agents and employees off that portion of defendant’s road where Platte river bridge was then standing, and set fire to and burned down said bridge, and while said bridge was burning, and after it was burned down, until the arrival- of said train described in said petition, guarded that portion of defendant’s road where said bridge had stood so as to prevent, and actually did prevent, any of defendant’s agents or employees from giving any notice or warning to the conductor or agents or employees on said train that said bridge was burned down, and that said conductor and none of the other agents or employees on said train had any knowledge or information that said bridge was burned down, they will find for the defendant, notwithstanding they may believe that the plaintiff Amanda Sawyer was a passenger on said train, and that said train ran and was precipitated into Platte river in consequence of said bridge being burned down and the said Amanda Sawyer was thereby injured. 8. If the jury believe from the evidence that the accident in question could not have been prevented by -any vigilance or foresight of the defendant, its officers, agents or employees, they will find for the defendant. 9. If the jury believe from the evidence that the plaintiff Amanda Sawyer received the injuries complained of in plaintiffs’ petition in consequence of an act of the enemies to the Government of the United States and of Missouri, they will find for the defendant. 10. The jury are instructed that the defendant, at the time of the injury complained of in the petition, was a common carrier of passengers and property, and as such was required by a statute of the State of Missouri to carry the plaintiff Amanda Sawyer ; and if the jury believe from the evidence that said Amanda Sawyer was a passenger on the train described in said petition, and that the conductor and other agents and employees on said train, in managing, conducting and running said train, exercised that degree of care and diligence which a very prudent man would exercise under similar circumstances, and that a band of armed men, enemies to the Government of the United States and the State of Missouri, had burned down the bridge across Platte river on defendant’s road a few hours previous to the arrival of the train, and that said act was not known to said conductor or other agents or employees on said train, and that said train was run and precipitated into Platte river in consequence of said burning of the bridge, then the defendant was not guilty of negligence, and they will find for defendant notwithstanding they may believe from the evidence that said plaintiff was injured by being run and precipitated into Platte river. The first four of said instructions the court gave, but the balance of said instructions it refused to give; to which refusal of the court to give said instructions appellant, at the time, excepted. The case was then submitted to the jury, who found for the respondents, and assessed the damages at $6,900, for which the court rendered judgment. The appellant then filed a motion to set aside said verdict and grant a new trial, assigning the usual reasons and that the damages were excessive, and also that the jury had found their verdict as follows: “ Because the jury improperly ascertained their verdict by casting lots, or by setting down each one a different speculative amount and dividing the aggregate by twelve, and thus found an excessive verdict.” The affidavit of Jacob Hursch, one of the jurors, showed that said verdict had been found as above stated. The court overruled said motion, to the overruling of which the appellant at the time excepted and filed its bill of exceptions, and brings this case to the Supreme Court by appeal. On this record the following points arise : I. The appellant was a common carrier of passengers at the time of the grievances complained of, and as such bound to carry all who wished to be carried, unless there was some legal excuse for refusing. II. If the appellant had refused to carry the respondent Amanda Sawyer, the same as it did other passengers, it would have been guilty of a breach of duty, and liable to an action for damages. III. The relation of passenger and carrier "existed between said .respondent Amanda Sawyer and the appellant. IV. Common carriers of passengers are not insurers of the safety of their passengers as common carriers of goods and the baggage pf passengers are. For an injury happening to a passenger by a mere accident, without any fault, they are not liable; but they are liable only for the want of due care, diligence and skill. V. That part of the country where the accident occurred was in a state of furious civil war at the time of said accident; the bridge over Platte river, on appellant’s railroad, was burned down by public enemies, and that part of appellant’s railroad so guarded that no agent or employee could give warning to the conductor or any other agent or employee on the train of. that fact, and thus prevent said train from running and being precipitated into Platte river. VI. The agents and employees of defendant were not guilty of negligence in conducting, managing and running said train as they did at that time, as that part of the railroad was guarded by the -public enemy, so that it was impossible for any agent or employee to give them warning of the danger at Platte bridge, and, the whole line of the road being infested with enemies, it was safer, in the absence of positive information to the contrary, to run ahead and take the chances. VII. The instructions given to the jury at the request of the respondents entirely ignore the state of war then existing, and the difficulties and dangers (growing out of the state of war) which beset the appellant in running its trains. They exclude from the consideration of the jury the defence set up by the appellant; they are calculated to mislead, and hence do injustice. VIII. Even if a clear legal liability be fixed upon the appellant, the damages assessed are out of all proportion to the injury received, and hence they are excessive. IX. One or more managing men on the jury procured the guileless and unsophisticated members of the jury to agree to make their verdict by each one setting down the amount for which he was willing to render a verdict in favor of the respondents, and then divide the aggregate by the number of the jury; and after getting them into this agreement, said managing ones fraudulently set down the sum at an enormous amount and divided the aggregate by twelve, and thus secured a verdict for an excessive amount. It is admitted by the pleadings that the appellant was a common carrier of passengers at the time of the accident alleged in the respondents’ petition, and as such it was bound by a statute of this State to “ furnish sufficient accommodation for the transportation of all such passengers, baggage, mails, and express freight, as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting, at the junction of other roads, and at the usual stopping-places“ and shall be compelled to receive all passengers, personal baggage, mails, and- express freight, offered for transportation.” “Every such railroad corporation is hereby required to transport passengers,” &c. (Sess. Acts 1861, §§ 1 & 2, p. 58.) Here is a very rigid and onerous duty imposed upon the appellant by a statute of the State, “any violation or evasion” of which might be pleaded in bar to any suit brought by such railroad corporation, thus depriving it of its standing in court by depriving it of its capacity to prosecute suits. Superadded to this disability is a penalty of a thousand dollars for each and every violation of the provisions of said act — immaterial how trivial — to be recovered by civil action in the name of the* State. (Ib. §§ 10 & 11.) There are no exceptions nor limitations to the duty thus imposed as there were by the common law. It is to be performed anyhow and at all events. The appellant was bound, then, to carry the respondent Amanda Sawyer when she offered herself; otherwise it would have incurred the penalty and forfeiture provided by said act, and, in addition, she might have sued the appellant for a failure to perform its duty under said act. This act does not prescribe what degree of care and diligence should be exercised by the appellant in the discharge of this duty.' It is a principle of law that whenever a duty is imposed by law, the exercise of reasonable care and diligence in the performance of such duty is a sufficient compliance. The law does not require impossibilities. The relation of carrier and passenger existed between the appellant and the respondent Amanda Sawyer at the time of the accident in question. Did the appellant fully and faithfully perform the duty thus imposed by law ? It is affirmed that it. did, and hence it ought not to be held liable. But if the right to recover in this case be based upon the common law, the respondents must fail. There is a broad and palpable distinction between the liability of a common carrier of goods and baggage, and a common carrier of passengers. In the former case they are insurers of the safe transportation and deliveiy of the goods and baggage confided to them, with two exceptions, viz., the act of God, and the public enemy (Red. §§ 124,141; Ang. Carr. § 521); in the latter case, “ not being insurers, they are not responsible for accidents where all reasonable skill and diligence has been employed.” (Sto. Bailm. § 602; Red. § 149, and authorities there cited; Ingalls v. Bills et al. 9 Mete. 1; Smith v. Han. & St. Jo. R.R. Co., decided at the present term.) “ When everything has been done which human prudence, care and foresight can suggest, accidents may happen. The lights may in a dark night be obscured by fog; the horses may be frightened; the coachman may be deceived by the sudden alteration of objects on the road ; the coach may be upset accidentally by striking another vehicle, or by meeting with an unexpected obstruction, or, from the intense severity of the cold, the coachman, although possessed of all proper skill, and taking all due and reasonable care; may. at the time become physically incapable of managing his horses, or of otherwise doing his duty: in all these and the like cases, if there is no negligence whatsoever, the coach proprietors are exonerated.” (Sto. Bail. § 602.) Negligence is a relative term. What would be gross negligence in times of profound peace, frequently is the only true policy to be pursued in time of war. Now, were the appellant’s agents and employees on that train guilty of negligence in running on what they supposed to be Platte bridge that night, under the circumstances surrounding them? It is thought not. Were the passengers deceived, or did they not understand the true state of affairs along the line of the road ? That very train had been turned back not far from Palmyra in consequence of a bridge having been tampered with the day before so that it could not be crossed, and every passenger on it knew the fact. The fact is the passengers knew and understood the state of affairs along the line of the road just as well as the agents and employees, and they were willing to take their risks and stand their chances along with them without holding the appellant bound to carry them with safety as they would in times of profound peace. They certainly were willing to take, and actually took, all risks to which a state of war necessarily exposed them. The testimony of the surgeon who dressed the injured respondent’s wounds, and of her neighbors who saw her daily, together with her own admissions, establishes beyond all controversy that she was not permanently injured. A short time after the disaster we find her discharging, acceptably, the duties of a teacher, in Kansas, and ever since attending to her household duties as a mother and wife. We do not find, in her case, a helpless cripple, her life intolerable. Nor do we find her a charge upon private or public charity. Nor are her services and counsels lost to her husband or child. She still lives in the full vigor of body and mind, to cheer and counsel the one, rear and educate the other. Such being the case, the damages assessed are out of all proportion to the injury received — they are excessive; and to suffer the verdict and.judgment in this case to stand, would be to convert the courts of the country from instruments for meeting put even-handed and exact justice to parties litigant, engines * 0 of oppression and injustice. (21 Mo. 354 ; 12 Barb. 492 ; 19 Barb. 461.) Our Practice Act expressly provides for granting a new trial “ when the jury shall be guilty of misbehavior.” (R. O. 1855, § 4, p. 1286.) The affidavit of Jacob Hursch, one of the jury, clearly shows that the jury was “ guilty of misbehavior” — gross misbehavior' — in finding the verdict in this case. The policy of our law is to let in all the light upon a subject that can be obtained. It is immaterial whether it comes through a stained medium or not. It is for the court or jury to weigh it, and say what it is worth. If the appellant is not permitted to show the misconduct of the jury in finding this verdict by the testimony of one of their number, then the misbehavior of a jury can scarcely ever be shown. (“Breach of Duty,” see Bartlett v. Crozier, 17 Johns. 438) The instructions given by the court, on motion of plaintiffs, are correct. The first of these instructions is a literal abstract from Story on Bailment, and is the well established law. (Sto. Bail. § 601; 2 Kent’s Com. 600; Greenl. Ev. § 221; Stokes v. Salstonstall, 13 Pet. 181; Derby v. Philad. & Read. Railw., 14 How. 483; St. bt. New World v. King, 16 How. 469-74; Redf. Railw. 323.) The second instruction is but an application of the principle announced in the first instruction to the facts of the present case; and the first instruction being correct, the second instruction is correct also, as a matter of course. The third instruction states the measure of damages correctly. (Canning v. Inhab. of Williamstown, 1 Cush. 452; Morse v. Aub. & Syr. Railw., 10 Barb. 623; Redf. Railw. 337, n. 3; Seger v. Town of Barkhamsted, 22 Conn. 298; 20 Pa. 292.) The instructions of the defendant that were refused by the court were properly refused. The first of these instructions had no application to the issues of the case, and, besides, is not the law. It asserts that defendant was bound by law to transport all persons over its road- who offered for that pur pose, at the very time of the disaster, although it was unsafe and dangerous to do so. This is not the law. (Redf. Railw. 327.) The fourth and fifth instructions refused by the court are in direct conflict with the first instruction given for plaintiffs, and are not the law. (Sto. Bail. § 601; 2 Kent’s Com. 600 ; 2 Greenl. Ev. § 221.) The sixth and eighth instructions asked by defendant were properly refused. They assert the principle that if the public enemy destroy a bridge on a railroad, that the railroad company are not required to exercise any care to guard against accidents at that point, and may carelessly destroy the lives of their passengers, or injure them to any extent, with impunity. The seventh instruction was properly refused. The court had already declared, in two other instructions given for defendant, that plaintiffs could not recover unless Amanda Sawyer had been injured in consequence of the negligence or mismanagement of defendant’s agents. This instruction merely repeated this principle in different words, and was therefore unnecessary and improper. The court properly excluded the evidence of juror Hursch to impeach the verdict. ( Taylor v. Giger,Hard. 586 ; Heath v. Conway, 1 Bibb, 398; Philips v. Baxter, 1 Bibb, 400 ; State v. Baker, 22 Mo. 349; Dana v. Tucker, 4 John. 488 ; 1 Greenl. Ev. § 251; Phil. Ev. 4; Pratte v. Coffman, 33 Mo. 77; Graham on New Tr. 111-12.) The verdict is not excessive. The evidence makes a case of most outrageous carelessness on the part of defendant, and of most intense suffering on the part of Mrs. Sawyer. The motion for a new trial was properly overruled. (Redf. Railw. 347; Woodson v. Scott, 20 Mo. 272 ; Wells v. Sawyer, ,2-T.Mó.-357 ; 1 Graham & W. on New Trials, 418, s. p.)