*1 code, properly by a plea raised in abatement. Under the in such a matter Harrington, °i defense. v. [Little ^ case> 1 In the necessary instant case was 392.] 7 allege prove, for as an element of her action, that Avas cause of the “wife the deceased.” To meet allegation proof this defendants could have offered under general Arery they support denial the same evidence offered in part they plea of their answer which denominated abate ;ment that was obvious course for them to pursued, have one that v. Railways, supra. Avasfollowed in Johnson are Where there may, several issues trial court exercise of dis sound cretion, separate | 951. direct trials. R. S.. 1929. But. there [Sec. nothing Avas in either the nature or is the number of the justify sues involved in separate this case to trials. The press litigation City is such in the Circuit Court of the Louis, court, St. and in this that the time neither be should through aAvay multiple hearings frittered AA'here will one suffice. the, judgment is reversed cause circuit remanded.
All concur. City Company, Appellant. Service Kansas Public Cora Bales (2d) 40 S. W. 665. One, 1931.* Division June 31, 1931; motion Term, 1930, March Opinion filed at October
*NOTE: Term, 24, 1931. rehearing April June overruled *2 Tiplon Carr, appellant. Charles L. E. E. Ball E. M. *3 Kyle Harry G. Raymond and Walter respondent. A.
17.4 SEDDON, injuries C. Action damages personal recover suf- tor respondent (plaintiff) fered passenger while she upon was a an operated street electric ear controlled and of the the receivers City Railways along Company upon Kansas Prospect Avenue City, Railways Kansas Missouri. City The receivers the Kansas Company original were petition defendants in the action. The charges following .negligence the defendant receivers with respect: 1925, on November 1,
“That about seven i\ boarded m., Prospect one defendants’ northbound cars, Avenue street regular stopping stop Prospect had to a place come on Avenue just street, Twenty-third south of the intersection that street and public City, County, Missouri; both in Kansas streets Jackson paid thereon; she passenger her fare and walked became car; point that, into when forward said she had reached about car, agents five front of vestibule of said street feet rear charge and servants of the of the street defendants defendants’ negligently sudden, vio- car started said car forward with street jerk, of which thrown back- lent and unusual a result against vestibule, wards car into said rear out car, great violence,” as a the floor of said force result injuries. which plaintiff suffered certain detailed car operation control and street The answer admitted the every generally receivers, each by the and denied defendant petition. allegation other action, June trial of the on
At the commencement City agreed open respectivе court the Kansas parties corporation, purchaser become the *4 Company, a had Public Service by Railways Company, and, City the properties of Kansas of the agreed to purchase, that had and conditions of virtue of the terms Railways City of Kansas of receiver's the liabilities the assume the Company - City sub- be Company; Kansas Public Service the place of and stead the party the the defendant stituted. as sole in Railways Company; the City Kansas receivers of the aforesaid of voluntarily process waives service party defendant substituted cause; in the and that as the defendant appearance its enters the substituted defend- City Company, as Public Service Kansas the defendants, the original pleading of the the answer and ant, adopts Company. Railways City Kansas receivers of jury in a verdict nine resulted a the action to A of trial judgment $10,000, and sum of in of the jurоrs in favor the City Public defendant, Kansas against the substituted was entered jury. of After the the with verdict in accordance Company, Service judgment, and in arrest of new trial unavailing for a motions this court. appeal to an allowed defendant appellant assign Since the of its does not error in the refusal requested peremptory instruction, of a the nature demurrer to evidence,'tendered plaintiff’s at the close of at evidence renewed the close of all evidence, practically and since it is conceded appellant’s argument printed brief and there was sufficient and substantial evidence to of warrant the submission to negligence, part of upon operatives the issue of the street evidentiary leading car, up an to extensive statement of the facts plaintiff’s Briefly unnecessary. stated, evidence adduced o’clock following to show the facts: About seven tended evening son, plaintiff, on the of November her and her daughter, car, Prospect boarded a northbound Avenue street then being operated by City hallways Com- the receivers of the Kansas pany, regular stopping place passengers reception at the for the They Prospect Avenue. at. the southeast corner of 23rd Street pre- standing car, plaintiff street entered the rear vestibule being by plaintiff’s ceding daughter, daughter followed her and the son, stopped for a moment the conductor’s fare box who passengers, which of the three pay the fares rear vestibule order stepped from the rear box. Plaintiff deposited the fare the son part, car, and walked over body, or main into the vestible seat, some five right-hand car toward a side 1he east or lengthwise parallel extending with the car and length, six feet As seating herself. intention’оf thereof, with the middle aisle seat, preparatory to to the her back around with plaintiff turned testimony plaintiff’s wit- according thereon, taking a seat jerk sudden, unusual violent and was started with car nesses, the feet, and caused plaintiff off her lurch, of which threw the force the, rear vestibule into or more feet one to fall a distance her vestibule. the rear upon the floor of car, vestibule, car, rear seated near the who was passenger A fall, thus described viewed the occurrence get just she was around, like (plaintiff) turned “Just as she same: gave lurch, threw gave lunge, down, car ting ready to sit on the railing, fell back and she rod or against that iron back her you were you, as Q. have on effect did it What platform. back It, jerked over me A. started? seat, the car your there seated Q. Just that. just like me over (indicating), jerked way like your conclu thought, nor what your way you own describe —not Wеll, out A. it started car started.' howrthe just describe sion-—but *5 start noticed T ever it have any time other jerks, than more them.” riding on T was when starting movement and described thus son plaintiff’s beyond well, not was jerk a with “Well, it started — ear: gave jerk. Tt just kind an unusual it was jerk all, at a common quick"jerk; well, jerk, a it was a lurch wasn’t was, was what it naturally jerk at the end it kind of stopped and went again on its jerk on own just lunge motion. It didn’t out and smooth, quick but it made jerk a and kind of jump, go you a on, see, speed up to catch of the motors.” daughter
Plaintiff’s described the occurrence as follows: “Mother got first, on myself, and then my brother, and then and then mother in, on going went and she was to be seated on long one of the benches going —the car north,- going was long she was to be seated on the bench that was on [right] side ear, east I followed, and she had—she wasn’t in being seated, just . the act she was limbering up, she hadn’t yet, gave started be seated and the ear a lunging violent and threw.her down in the vestibule.” plaintiff thus just described the circumstance: “I turned around there, to sit down just but the car up started a such jerk sudden, unusual just my that it threw me clear off feet, and I just right down, my hip went call it step struck —I the —and just I- right went vestibule, down just into fell over into the vesti- bule, step, and this rod, or the or something, my had I struck head. just didn’t sit down and miss the seat. It started un- with such an jerk that it usual threw me clear to the floor and landed me out in the vestibule.” - plaintiff was from the lifted floor of the rear vestibule of the placed upon long car and at body seat the rear of main the car. car proceeded northwardly After the had some four or five plaintiff blocks, drug was removed from the car and carried a into store, where one of the employees telephoned defendants’ for an ambulance, in which plaintiff Hospital, was taken to the General emergency where received placed treatment and was in bed under surgeons. the care of two N-ra.y photographs Several on were taken day after hospital, arrival at which disclosed had, plaintiff impacted an sustained fracture of the neck of the just thigh bone, left femur or hip joint. inside of the One of the attending surgeons severity thus described the of the fracture: “It very is considered one of the fractures, severe reason joint get the fracture at occurs a it is difficult to union, where a leaving it is difficult to treat deformity, usually without some oc- people curring- past middle life.” After the reduction of the put hip, plaintiff plaster fracture of the left was a cast. After remaining week, hospital for- one about was removed to-her home, an ambulance she wa.s where confined for a bed expiration period period months, of about three which plaster attending surgeons, was time cast removed hip brace, was the fractured then- enclosed year using trial, injury. at the and half after time her After *6 having- been confined to bed for some plaintiff three months, was get "to able about her home with crutches, the aid of which con- use, tinued to as an in walking-, year. attending aid for about a The surgeon impacted testified that fracture in a resulted shorten- ing of the left femur bone which caused “a more or on less tension muscles, gives and that muscle tension [plaintiff] her muscle fatigue, in weather, and bad disagreeable cold or weather, she ex- periences pain, feeling and the pains, region.” of rheumatic in that surgeons The injury testified that widening had resulted in a separation of the bones or vertebrae of the joint, sacroiliac dislocation of the sacrum from ilium, which plaintiff caused pain region to suffer and tenderness about joint. of the sacroiliac injury derangement also cаused a in urinary the functions of the organs, resulting frequent in urination, too accompanied pain urinary organs. surgeons attending One of the that, testified hip while the union of the type bone was “a fair union for that good injury, of expected,” and as as could be there was some Imita- hip plain- in motion of the left trial, although tion at the time of the limp.” tiff did not walk with a attending physicians “marked injuries plaintiff’s testified that in had resulted in weakness the left in hip joint, resulting- thе sacroiliac and that such condition, in permanent. opinion, their Plaintiff testified that she easily, tired any length could not walk for time, and that she considerable any great distance; aid or without the of crutches or a cane. age fifty years injury. was at her
Plaintiff the time of She wagon, testified that she had fallen from a when she was thirteen years injured shoulder, age, injury her which in had resulted deformity slight physicians spine. and curvature of the injury testified, her howevеr, attended time of late injury bearing that the she-had suffered childhood had no injuries, physical her later aud that none effect resulting injury from the later bodily ailments and conditions was injury. Plaintiff testified that she had to her childhood attributable always good prior controversy, health been duties all of the usual household incident to her performed had washing including family ironing, that, but since her home, perform most such household been unable to du- injury, she had light work being only such as she do perform could ties, able sitting chair. while assigns giving- Instruc- Appellant
T. error 10, -whichreads as follows: tion No. you if find from court instructs the and believe
“The that, place question, as shown at the time 1he evidence evidence, question stopped purpose car'in street tlie taking passengers, so, on if and that boarded car, so, paid pas- street if her fare and became a tilere011) so, duty 'agents if then it was the genger charge аnd servants of the receivers said 'street car to start *7 gradually, starting said street ear and to avoid said street car with sudden, jerk.” a violent and unusual by greater appellant It is claimed imposes that instruction a said higher duty upon street-railway
or the defendant carrier than is required by purports jury law, in the instruction to tell the duty that it was the of operatives the the car to start the of street “gradually,” duty car appellant only- while im- insists that posed by operatives law car the street ear is not to start suddenly, jerk. no violently, perceive and with an unusual We erroneous statement or declaration of law in- in the criticised “gradually” struction. The term is but the antithesis of terms “suddenly” “violently.” “gradually,” and The use of the term in nothing by any view, way imposing our added to the instruction duty upon operatives pre- duty of the street car other than the by uniformly law, rules of the common announced and scribed as in court. declared numerous decisions of this duty obligation railway pas- or of a street carrier toward .a court, senger early by its street was this boards car declared Dougherty 325, Co., 330, v. Missouri 81 Mo. as follows: in Railroad. obligation respect “With to of the defendant say, while it is an insurer passenger, it is sufficient to not as by carrier, safety office, it bound such passengers, is its safely vigilance, transport so as to them. to exercise due care passengers . timе to enter and It should allow the reasonable straps or reasonable time to seize the seat, one, if there be take standing; may passengers and while it start its when furnished seat, or secure his passenger time to take a car has had before starting in so as strap, exercise the utmost care hold on the it must him.” our jar-or upset not own.] [Italics language Dougherty in foregoing opinion from the case was Wells, by case of Laible quoted this сourt the recent approvingly negligence to cause 141, 146, said: is wherein we “It jolt. jerk give jar, unusual This be a violent or car to a street No,r . . . places peril. are passengers such action cause prepared say liability if there is a there is no violent and to. we passenger, jerk simply causes unusual which because thought jerk’ necessary or unusual may that such ‘violent was be a car with a violent and unusual starting car. To start to the1 State, for which negligence this jerk always been denominated has accelerating speed of a Likewise, . . . liability. there moving jerk’ always ear a ‘violent or unusual been lias declared ac ’’ negligence, resulting tionable if injury. tliere was opinion case, the Laible supra, cites numerous decisions court, Appeals State, of this Courts the several this obligation prescribing wherein doctrine and rule law duty railway passenger, a street carrier toward a as announced Dougherty uniformly case, declared has been and con- sistently appellate followed our courts. Those decisions are case, collated in not the Laible and need be cited discussed herein. Moreover, plaintiff's No. Instruction 10 must be viewed and con instruction, sidered connection main numbered case, purported to cover which ver the entire authorized a provided dict in if plaintiff, favor should find agents from the “the and believe evidence that and servants of the charge negligently receivers’ car receivers the said started street sudden, jerk,” car forward with a street violent unusual injured. and that as direct result thereof When the single together, charge to two instructions are read and viewed as a *8 plaintiff’s “gradually,” as jury, the the term used Instruction No. 10 such can well state (if the use of term be said to and declare qualified duty broadly), too is and the carrier’s rendered harmless 9, required jury by plaintiff’s Instruction No. which the to such find clearly the carrier under a facts'as renders defendant liable state of long of law applicable doctrine and rule announced a line the beginning Dougherty supra. court, case, of this the of decisions instruction) general (in an of the A measure too broad statement qualified may by plaintiff to a be and legal duty owing a defendant a, instruction) (in another, by same, the or call rendered harmless facts, by jury, the liable finding the which renders defendant for a and subject. the v. rule law on Coal the [Garard under correct 260; Bradley Railway Co., v. 138 242, 259, l. c. 207 Mo. Co., Coke 371; 116 Mo. Trenton, 358, 308; v. Town 293, Burdoin Mo. (Mo. Stair 674; Hutson v. Missouri Co. Lusk, 663, 277 Mo.
Cassin v. 216,W. App.), 296 S. 218.] 9 10, numbered and the instructions that
We think together (as or viewed singly separately, when when viewed correctly properly single charge jury, be) to the they aas must case. The law the instant said rule of apрlicable the declared they conflicting; the nor do broaden issue not instructions are plaintiff’s petition. Neither negligence presented as defendants’ misleading were to that the said instructions can well be 9) find (by No. to jury required Instruction were jury, since leading fact to evidence, prerequisite aas from and believe question street car in operatives of that the plaintiff, verdict for unusual sudden, violent and “with a the car negligently started 380
jerk,” finding which fact rendered tiie defendant plaintiff passenger carrier liable to under the established jurisdiction. [Meyers settled law of this (Mo. 273 Sup.), v. Wells 114; S. W. 110, v. 317 Wells, Laible Mo. 141, and cases there assignment of error must be cited.] disallowed. urged by
TI. It appellant is the trial per- court erred in mitting plaintiff the medical witnesses on behalf of testify, to over objections, defendant’s that she injury had suffered an sacrum joint. ground and the sacroiliac assignment of error is injury pleaded that no such specified petition. or Among injuries pleaded specified several ‘‘ following: spine is the back, spinal Her Petition bruised, contused, sprained column wrenched, were ’’ twisted. medical testified that witnesses the sacrum and the sac- roiliac joint, part in the anatomical sense and meaning, are a back, and part spine, spinal constitute column. The “spine,” “spinal column,” in mankind, is described and defined Dictionary other, Webstеr’s New including, among International as together vertebrae, the five sacral which are sacroiliac fused joint. allegation regard general petition, quoted,
We
above
sufficiently
being
comprehensive
broad
permit
of the admis
testimony
sion of medical
injury
suffered an
n sacrum
joint.
recently
and the sacroiliac
This court has
ruled that
testimony
no
there is
reversible error in the admission of medical
joint,
suffered an
to the sacroiliac
where the
alleged
petition
generally
“plaintiff’s back,
spine, abdomen
seriously
wrenched, mashed, crushed,
.
bruised,
were
contused
Rogers,
inflamed and infected.”
[Rockenstein
*9
(2d)
See,
Bridges
(Mo.
792,
also,
App.),
S. W.
v. Dunham
801.]
proper
III. seeks a reversal of the herein because damages, No. 12, on the measure plaintiff’s Instruction informed any, amount, if allowed the cannot jury “the total that the $35,000, which sum of is the sued exceed the amount foregoing instruction im- clause of the is for.” cautionary by this clause: “Nam- mediately followed in this instruction not ing amount sued for should the amount, arriving verdict, any, its if is you or in at a influence informing purpose you of the a- only for the herein mentioned for which plaintiff mount urgеd has sued.” by It is appellant reference, in the instruction, large to the amount sued by plaintiff apparent attempt was an jury “to coerce the into re- turning very large verdict, proportion out of all to the by respondent.” sustained giving damages of an instruction on the measure of which
fixes jury may a maximum amount which allow, without dis closing jury any why to the reason the court has fixed the maximum particular figure at the in instruction, and amount named strongly criticisеd, if by condemned, not this court Bond Rail way Co., 987, 1007; following prec nevertheless, the old edents, giving we held that the of such instruction that case did error, not constitute reversible and that the excessive verdict therein by However, was curable remittitur. are unable to see wherein it we any good purpose jury, instructing or to serves useful inform the they damages, them the measure of cannot allow assess damages for, in excess of the amount sued and named in practice giving such form of instruction. We believe that the trial courts. struction should be discontinued conclude, however, instruction on the meas We that the criticised damages, given case, worked no harm or prej; as in the instant ure of minds, appellant herein, apparent to our is udice verdict,"that jury must have amount of the when we view the verdict, judgment in-arriving at amount own used their ignored suggestion invitation, may have any seemingly plaintiff’s damages instruсtion, at a to assess the lurked City Lamar, 322 Mo. larger [Thompson v. amount. much giv 299 W. 837. The 546; Stahlberg (Mo. App.), S. ] v. Brandes under reversible error does not constitute ing of such .instruction present case. the record .judg the verdict and urged appellant Lastly, it is
IV. testimony of light of the In the in amount. are excessive ment attending family, and her her members of several plaintiff, disclosing nature and extent physicians, period more to bed for injuries, confinement her per to inаbility get about, and months, three her than do, and formerly had been able duties, form as her household injuries, we of her a result suffering which pain followed cannot, excessive, is judgment verdict say that the amount The verdict remittitur. requiring a warranted or that we are ap evidence, had the by substantial supported her court, saw and heard proval of the trial *10 permitted trial, they upon the testified witnesses trial, for new motion in its stand, defendant, although verdict 382
cоmplained that the is recently verdict excessive. We have refused to disturb verdicts same amount as was returned herein, injuries in cases where the with, were almost identical fairly comparable injuries to, respondent suffered instant Rogers, (2d) 792, Keyes case. v. 31 S. 802; W. [Rockenstein v. Co., (2d) 66; Thompson City Lamar, Railroad 31 S. W. v. 548.]
Finding herein, judgment no reversible error of the circuit Ferguson court is Sturgisi, affirmed. C(l., concur. foregoing opinion PER by Seddon, C., adopt- CURIAM: The opinion judges All of concur. ed as court. Ridge Ray Casualty Fidelity B. Bank of Duncan & Oak Company (2d) W. S. York, of New 656. Appellants. One, 24, 1931.
Division June