154 Mo. 639 | Mo. | 1900
Lead Opinion
This is an action for damages for personal injuries alleged to have been sustained by plaintiff while a passenger on one of defendant company’s cars, in the city of St. Louis, on June 29, 1893, by reason of the negligence of the employees in charge of the car.
The petition alleges that immediately after plaintiff had stepped upon said step (referring to the running board of the
“Plaintiff further states that his face was turned from said wagon, and that he did not and could not see it. That said wagon was in full and plain view of defendant’s agents and servants in charge of said train, and that they saw said wagon, or by the exercise of reasonable care and diligence might have seen it before they started said train, as aforesaid. That plaintiff when he stepped upon the step of said grip car, as aforesaid, was in full and plain view of defendant’s agents and servants in charge of said train, and that they saw and knew, or by the exercise of ordinary care and diligence could have seen and known that plaintiff had not, and could not have seated himself in said grip oar, when they started the said train as aforesaid; and that defendant’s agents and servants in charge of said train knew, or by the exercise of reasonable care and diligence, could have known that their careless, negligent and wrongful act in starting said train as aforesaid, while plaintiff was standing on said step, and before he had had an opportunity to seat himself, would bring his body in contact with said wagon.”
The defenses were a general denial and contributory negligence.
Plaintiff was a witness in his own behalf, and testified that he would he sixty-eight years old in 189Y; that on the morning of June 29, 1893, he started out from his home in
Witness further testified that when he had barely gotten to the comer above mentioned one of defendant’s trains, consisting of a grip car and trailer, came along, going in a southerly direction, 'and that he signalled it to stop; ’that the train stopped, with the rear end of the front (or gx*ip) car opposite to where witness was standing; that the gripman was at the time at his post, in the middle of the grip-car, and that the conductor was on the east side of the front platform of the trailer, about seven or eight feet from witness; that witness then got upon the rear end of the running board, the board running along the side of the grip oar, and caught hold of the upright opposite the last seat, which was occupied by a man whom he afterwards learned to be Mr.' H. Mi Pollard; that'immediately after doing this and while he was catching hold of the upright, in fx’ont of Mr. Pollard, with his right hand, with a view of getting into the last seat but one, the cars started up violently and with a jerk, and witness, having let go his hold of the upright opposite the last seat and being in the act of stepping into the last seat but one, was struck on the hand by the rear end of a wagon which was standing near defendant’s track, south of, and concealed by
That he was put to bed when he got home, and that in the evening Dr. Lutz was telephoned for, but that Dr. Lutz did not call on him until 2 o’clock p. m. on the day after the 'accident; that Dr. Lutz had been recommended to him by the conductor of the cars on which the accident happened, because he was defendant company’s physician, and would therefore be cheaper; that witness remained in bed about two months as a result of the injuries received, and that Dr. Lutz attended him for the first two weeks of that time; calling on him' once a day during the first week; that Dr. Lutz found some of witness’s ribs fractured, and bandaged him, and that witness expectorated blood, “more or less,” for about six weeks after the accident; that witness consulted three other physicians after Dr. Lutz had ceased calling, making two visits
Witness further testified that he found a legal card of Mr. U. M. Pollard in his pocket when he reached home, and that he went to see that gentleman as soon as he was able to go out, and directed him to write to defendant company as his (witness’s) attorney. In answer to a question as to his occupation, witness then testified that- he sold buggy stock at the corner of Fourth street and Chouteau avenue before the accident, and explained that by buggy stock he meant “buggies, carriages, phaetons and all such things as that,” and on a question by the court he added to this “horses, harness and whips.” On objection of defendant, witness was not allowed to testify as to the net income from this business, as he had alleged in his petition that he had been engaged in the business of buying and selling “horses and mules,” and plaintiff thereupon asked leave to amend his petition in that particular, but, on the objection of defendant, withdrew the application. Witness was not able to state what his profits from dealing in horses prior to the time of the accident had been; he had previously testified that he had had no occupation since the time of the accident. As to his physical condition, witness said that he had been in good health before, but was “just-like a complete wreck, not able to do anything,” and had pains in his left side after the accident.
It was hereupon admitted by defendant that it was a corporation engaged in the business of carrying passengers for hire in the city of St. Louis along Eourth street, and that the point in question was a part of its track at that time. Plaintiff then rested.
John I. Moore, a witness for defendant, testified that he lived at 3825 Garfield avenue and that he was in business for himself as a huckster; that be bad been a conductor in de
Dominick Carr, a witness for defendant, testified that he was in business for himself as huckster in the city of East St. Louis, Illinois; that he had been in the employ of defendant company for eight year's prior to and up to April 1, 1896, two years as driver and the last six years as gripman, and that he was in charge of defendant’s grip ear on which plaintiff was injured on June 29, 1893’; that he saw plaintiff on that day standing on the southwest corner of Fourth and Pine streets, signaling to the cars -to stop; that two ladies had signaled witness as he was passing the northwest comer, and that they came across Pine street after he stopped; that plaintiff walked toward the grip-car and boarded it; that witness; noticing a wagon close to the track ahead, looked back to the conductor, after getting the first signal, for the signal that everything
At the close of plaintiff’s evidence, and again at the close of all the evidence, defendant interposed a demurrer to the evidence which was refused, and it duly excepted.
The court then instructed the jury in behalf of plaintiff, and over the objection and exception of defendant, as follows :
1. The court instructs the jury that in determining whether defendant’s agent or agents in charge of its said train did or did not stop same for a reasonable length of time to permit plaintiff to take a seat upon the grip car, as mentioned in the other instructions given by the court, you should consider the evident age and physical condition of plaintiff, as apparent to defendant’s agent or agents in charge of said train at the time plaintiff boarded said grip car.
3. The court instructs you that if you believe from the evidence that on the 29th of June, 1893, defendant was operating a system of railway tracks along Fourth street, in the city of St. Louis, and that it started a train of cars in a southerly direction along and on said tracks; and if you believe from the evidence that plaintiff, intending to become a passenger on said train, was standing on the southern line of Pine street at its intersection with said Fourth street, and that he signalled defendant’s agent or agents in charge of said train -to stop the same -on its tracks at the southern line of said intersection of said streets; and if you believe from the evidence that said agent or agents in response to such signal did stop said train (or slacked its speed to a slow rate, at said point, as if it was going to be stopped) for the purpose of permitting plaintiff to get on the same, and if you believe from the evidence that plaintiff was then and there exercising the same care as is customarily exercised by persons of ordinary prudence under'like circumstances, and that he stepped upon the running board of the grip car of said train, for the purpose of taking a seat in said car; and that the agent or agents in charge of said train knew, or by the exercise of reasonable care might have known, that plaintiff was then and there standing upon said running board (if you believe from the evidence such to be the fact), 'but that nevertheless, said agent or -agents suddenly and violently started the car forward and brought plaintiff’s body in contact with a wagon standing alongside of said track, and injured plaintiff, you will
4. ' If under the other instructions, you decide to find for plaintiff, you -will assess Ms damages at such sum as you believe from the evidence will be a reasonable compensation to Mm for the bodily and mental pain or suffering be has sustained in consequence of said injuries, as well as for any isuch permanent disability to labor as you may find from tbe evidence be has suffered by reason thereof. If, under tbe other instructions, you decide to find for defendant your verdict need merely state that you find for defendant on tbe issues joined.
At tbe request of defendant the court instructed tbe jury as follows:
1st. Or if, from tbe evidence, tbe jury believe that plaintiff bad fully boarded tbe car, and while said car was in motion, be stepped down again upon tbe running board of tbe car, and you also believe from the evidence that, with tbe car still in motion, tbe plaintiff then attempted to walk along upon said running board’and thereby brought bis body in contact with tbe wagon, then your verdict should be for defendant company.
2d. And if, from thq, evidence, tbe jury also believe that plaintiff just before or at tbe time when be was getting on the car, saw, or by tbe exercise of ordinary care, could have seen tbe wagon, and by tbe exercise of tbe same degree of care on Ms part could have so placed himself on tbe car or tbe running board thereof that bis body would not have come in contact with said wagon, then your verdict should be for defendant company.
3d. The court also instructs tbe jury that it was the duty of plaintiff to exercise ordinary care for bis safety, and if, from the evidence, tbe jury believe that plaintiff, on getting aiboard of defendant’s car, by exercising the car aforesaid, could have placed himself in a safe position on tbe car,
The jury returned a verdict in favor of plaintiff, assessing his damages -at three thousand five hundred dollars, for which judgment Avas rendered. After unsuccessful motion for a neAV trial defendant appeals.
There are but íavo questions presented for review by this appeal and they are Avith respect to the correctness of the first instruction given on behalf of plaintiff, and the excessiveness of the verdict.
It is insisted that the instruction was erroneous because it assumed that plaintiff Avas an old man at the time of the accident. Where the evidence is conflicting as to any material fact in litigation, an instruction AAdiich assumes the existence of such fact is erroneous, but where there is an assumption of -a fact in an instruction, as proved, when the evidence is all one way as to such fact it is not reversible error for the instruction to assume it. [First Nat. Bank v. Hatch, 98 Mo. 376; Walker v. City of Kansas, 99 Mo. 647; State v. Moore, 101 Mo. 316.]
The accident happened on June 29, 1893, and plaintiff testified that he would be sixty-eight years old in 1897. There Avas no other verbal testimony in respect to his age. It was not a controverted fact, and eAren if the instruction can be construed as assuming that he was an old man at the time of the accident, which was manifestly so, it was not reversible error.
This instruction is -also criticised upon the ground that it commented on the fact of plaintiff’s -age, and unduly directed the attention of the jury to that, fact by singling it out. The instruction Avas not, we think, a comment on the evidence, as it merely told the jury that in determining whether defendant’s agents in charge of its train did or did not stop the same for a reasonable length of time to permit plaintiff to take a
The question then is, was the instruction vicious upon the ground that it improperly directed the attention of the jury to the fact of plaintiff’s advanced age. An instruction which singles out and gives undue prominence to isolated parts of the evidence is not permissible, and should not be given. [Chouquette v. Barada, 28 Mo. 491; St. L. K. & N. W. R’y Co. v. St. L. Union Stock Yards, 120 Mo. 541.] This however is not an arbitrary rule, but like almost all other rules, there are exceptions to it. For instance, if the fact to which attention is unduly called, is immaterial to the issues involved, the judgment should not be reversed because of that fact. Or if it appears that the party complaining of the instruction could not have been prejudiced thereby the judgment should not be reversed. Plaintiff’s age was not a fact upon which the case turned, or that could have affected the result, whatever his ‘age may have been and we are unable to see how defendant’s rights were in any way prejudiced by the instruction. By section 2303, Revised Statutes 1889, this court is prohibited from reversing the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error and materially affecting the merits of the action.
Counsel for defendant in their brief say that under the physical conditions obtaining at the time the injuries complained of were received, plaintiff had ample time to seat himself before the cars reached the wagon by which he was struck; at the same time they admit that the testimony as to the cause of the injuries of which plaintiff complains, was exceedingly conflicting. This question was one of the issues presented by the instructions to which no objections are made,
Nor is it claimed that the verdict was not authorized by the evidence, except as to the amount, which defendant insists was excessive, and manifestly the result of prejudice on the part of the jury, and greatly in excess of any sum which the evidence justified, and that the judgment ought to be reversed upon that ground. That this court will reverse the judgment of a trial court based upon the verdict of a jury which is manifestly the result of prejudice, or passion, there can be no doubt, but there is nothing in this record to sustain this assertion. Clearly the amount of the verdict itself, under the circumstances attending the injury, and its consequent results would not justify such an imputation upon the jury.
The only question remaining is with respect to the amount of damages allowed by the jury, whether or not excessive, and if so if to such an extent as to justify a reversal upon that ground. Plaintiff was the only witness who testified as to the nature and extent of his injuries, pain and suffering, and, according to his testimony which was not contradicted, he remained in bed continuously for about two months after-wards; that his hand was bruised and his thumb dislocated; that his ribs were fractured; that he expectorated blood quite freely at first for about six weeks, and that for six months after the accident he was unable to sleep on his right side because of the pain it gave him to- do so; that at the time of the trial, two and one-half years after the accident, he was a nervous wreck, unable to do work of any kind, and that he then was suffering with pains on both sides; that his skin on his right sidé was mottled in appearance, and that previous to the time of the accident he was in good health for a man of his age, and was suffering no infirmity.
While plaintiff’s injuries were serious the damages assessed seem large, but the judge who tried the case gave the verdict his sanction, and, under such circumstances, the verdict is not
Dissenting Opinion
(Dissenting.) — I dissent from the majority opinion in this case for the following reasons:
I.
The refusal of the court to sustain the demurrer to the evidence is the first question presented by this record.
The petition is bottomed upon the averment that the train was slowed up, coming nearly to a stop when “upon the invitation of defendant’s agents and servants in charge of said train,” the plaintiff stepped upon the running board of the grip car, and before he had time to take a seat the car was started with a violent lurch, so that it threw plaintiff’s body-outwards and brought it into violent contact with a wagon, which was standing near the track, and which the defendant’s agents saw or could have seen by the exercise of reasonable care, but which the plaintiff did not see -because his back was turned towards it, whereby he was injured.
The plaintiff’s own testimony is, “that the new Planter’s Hotel had just been erected at the southwest corner of Fourth and Pine streets, and was not yet finished, and that there was a stack of bricks, on Fourth street, in front of the hotel, extending from the curb close up to the west rail of the -west track of defendant and north to within a few feet of the crossing, and being about twenty feet high and from fifteen to twenty feet long; that when he had barely gotten to the comer above mentioned one of defendant’s trains, consisting of a grip ear and a trailer, came along, going in a southerly direction, and that he signalled it to stop; that the train stopped, with the rear end of the front (or grip) car opposite to where witness
The testimony of H. M. Pollard, the only other witness as to the accident for plaintiff, was, “that he was on the grip car of defendant company on which plaintiff was injured at the time such injury occurred, and that he occupied the last seat or the last seat but one on the west side of the car; that he saw plaintiff board the car at the corner of Eourth and Pine on the day mentioned; that he did not remember whether the car came to a full stop, but that he believed it did not: that plaintiff got on the running board, right against and a little to the rear of where witness was sitting, and before he had had time to take his seat, the car started up suddenly and he was struck by a wagon and “thrown right back against” witness, witness reaching out his -arm and keeping' him from falling; that the wagon which struck plaintiff was the first of two or three brick wagons which were standing just south of a large pile of bricks which extended so close to the track as to leave barely room enough for cars to pass; that the
With the exception of the testimony of the defendant’s foreman, who was called as a witness for plaintiff, and who testified that from 4th and Pine to 4th and Chestnut (one block’s distance) it was up grade, about four feet to the block, and that cable cars can not be started with a jerk on an up grade, as the rope will slip through the dies several feet before a firm grip or hold can be taken on the rope on an up-grade, this was the whole of the plaintiff’s testimony.
Whether we take the plaintiff’s version, that the car stopped, or that of his witness, Pollard, that he did not remember whether the car came to a full stop, but believed it did not, the fact remains that the negligence charged in the petition, that the car was slowed up, coming nearly to a stop, when “upon the invitation of defendant’s -agents -and servants in charge of said train,” the plaintiff stepped on -the running board, the ear was started with a violent lurch before he could take a seat and the plaintiff was thrown outwards against a wagon which was standing near the track and which defendant’s servants saw or might have seen by the exercise of ordinary care, but which the plaintiff did not see because his back was turned,” is not -established by tbe evidence in this case.
There is no evidence that the plaintiff was induced to bo-ard a running train, “upon the invitation of defendant’s agents and servants in charge of the train,” as alleged in the petition, and which averment, as we shall directly show, was necessary -to state a cause of action. On the contrary the evidence clearly shows that plaintiff boarded the train while it was at a stop, as he testifies, or while it was slowed up, coming nearly to a stop, as he alleges in his petition, of his own free will and without invitation from or consultation with any person whomsoever.
But the gist of the matter lies just here. The plaintiff got on the rear end of the grip ear at a point just north of the pile of bricks. The pile of bricks was, according to plaintiff, fifteen feet long, and according to Pollard the length of the grip car. The wagon was south of the pile of bricks and concealed by the pile of bricks which came so close to the track as to leave barely room for the cars to pass. Plaintiff says he had let go his hold of the upright in front of the rear seat, with a view to getting into the last seat but one when the car started up violently and with a jerk and his hand was struck by the rear óf the wagon. If as plaintiff testified the car had stopped when he got on it, then the sudden start or jerk must have propelled the car forward at least fifteen feet (as the plaintiff states the distance) or the length of the car (as Pollard states the distance) before he could have struck the wagon, for he got on the car at the north end of the pile of bricks and the wagon was concealed behind the south end of the pile of bricks, and the plaintiff says the pile was fifteen feet long and Pollard says it was the length of the car. This, too, on an up-grade of four feet to the block, when, according to the undisputed evidence of the plaintiff’s witness, Mahoney,
The same condition is presented if the allegation of the petition that the car was slowed up, coming nearly to a stop or Pollard’s testimony that he did not believe the car had come to a full stop is taken as correct.
There are some physical facts, some laws of physics, which enter into the consideration of such cases as this, and we can not bring ourselves to believe that a grip-car, with a trailer attached, on a cable road, can be started, from a full stop or nearly so, by the strength of one man, applied to the lever which attaches the grip car to the rope, so suddenly or violently as to propel the train forward fifteen feet or the length of the grip car, on an up-grade of four feet to the block, before a man standing on the running-board can take his seat on the car.
It seems too plain to admit of argument that the plaintiff did not take a seat as promptly as he could have done or as he should have done in view of the dangerous proximity to the pile of bricks, but that he loitered on the running-board and was struck by the wagon because of its proximity to tire track and not because of any sudden lurch in starting the car, and hence that the plaintiff did not exercise that degree of care which a person of ordinary diligence would have exercised under the same circumstances, and therefore he was guilty of contributory negligence, which cuts off his right of recovery. Especially is this true in view of the plaintiff’s testimony that at the time of the alleged lurch he had let go of the upright opposite the last seat on the grip.-car while'1 standing on the running-board with a view to getting into the last seat but one.
This conclusion is, of course, reached without regard to the testimony of defendant’s witnesses, that the oar stopped and two ladies and a boy got on the east side of the grip-car,
A street railroad, like a steam railroad* “must allow reasonable time for passengers to enter and leave its car with safety, in the exercise of ordinary care. It should allow the passengers reasonable time to enter and take a seat, if there be one, or reásonable time to seize the straps furnished for passengers when standing; and while it may start its car before the passenger has had time to take a seat, or secure his hold on the strap, it must exercise the utmost care in starting so as not to jar or upset him.” [Dougherty v. Missouri Railroad Co., 81 Mo. l. c. 330.]
Eut no person has a right to board a moving train and hold the carrier for damages received in so doing, unless invited so to do by the carrier or his servants in charge of the train.
Hutchinson on Carriers (2 Ed.), sec. 641, says: “Thus nothing is more universally agreed upon, perhaps, than that the attempt to get upon a railway train whilst in motion, without a necessity for doing so induced by the conduct of the employees of the railway company, and without an invitation to do so from its agent acting in the line of his duty, is presumptively and generally, a negligent act per se, 'and precludes the passenger from the right to recover for the injury which may be thereby occasioned. Many eases have occurred in which passengers have received injuries in such reckless attempts, and it has been invariably held that, in the absence of circumstances to excuse such reckless conduct, the injured party is remediless. Nor will the refusal to stop the train, nor the custom of those in charge of the train to slacken its speed at the particular station, in order to take on passengers without coming to a stop, excuse "the negligence of
Most of these were cases of steam railroads, but there is no difference in principle between steam railroads and cable or electric street railroads that run at from seven to fifteen or twenty miles an hour, so far as the danger of boarding them while in motion is concerned.
The case of Reddington v. Traction Co., 132 Pa. St. 154. was a street railway ease, and it was developed on the trial from the plaintiff’s testimony, that “he hailed an open summer oar of defendant company......; that the driver applied -the brake and cheeked the speed of the car; that the plaintiff, having his coat and dinner bucket on his arm, stepped upon
Eliminate the coat and dinner bucket on the left arm and substitute the fact that the plaintiff had let go his hold on the upright opposite the rear seat with a view to taking the end seat but one and this opinion might well have been written for this case.
Hutchinson on Carriers, in section 642, points out, however, some excuses for attempting to board a moving train, as for example, where the train fails to wait long enough for the passenger to get aboard, thereby placing him in the dilemma
In Texas it is held that even where the conductor fells the passenger to “jump on” it is a question of fact whether it was negligence to make the attempt. [K. & G. Ry. Co. v. Dorough, 72 Tex. 108; Texas, etc., Ry. Co. v. Murphy, 46 Tex. 356.] And in New York is was held that the failure of the train to' stop on the invitation of the conductor to “jump on” will not excuse an attempt to board a train that is moving from four to six miles an hour. [Hunter v. Railroad, 112 N. Y. 371.]
In Alabama it was held to be contributory negligence, which barred a recovery, for a person with his arms full of bundles, to attempt to board an -electric oar while it was running from four to seven miles an hour. [Birmingham Electric Ry. Co. v. Clay, 108 Ala. 233.]
In Mississippi, an aged man, on a dark, cold night, made an attempt to board a moving train while having his valise in his hand. He missed his footing and was dragged one hundred and fifty yards. He was not allowed -to recover, al
In Massachusetts is was held an absolute bar to recovery for a person to board a train at a station after it began to move. [Harvey v. Railroad, 116 Mass. 269.]
In Pennsylvania the same doctrine is adhered to. [N. Y., etc., Ry. Co. v. Enches, 127 Pa. St. 316.]
Beach on Contributory Negligence (3 Ed.), "sec. 146, says: “Though the servants of the company fail to observe the time table notice as to the stopping of a train at a station, that fact does not entitle one to disregard the usual prudential considerations which should govern human action, nor does it subject the railroad company to liability for the consequences of an attempt to get upon a train in motion.”
In Iowa it is held that where the attempt is made by permission or direction of the conductor, the burden is on -the plaintiff to show that the permission or direction relied on was in accordance with the rules and regulations of the company. [Young v. Railroad, 100 Iowa 357.]
In Swigert v. Han. & St. J. R. R. Co., 75 Mo. l. c. 481. the proposition was disposed of in a line as follows: “Whether the plaintiff was guilty of negligence in attempting to get on the train was a question of fact for the jury, inasmuch as the testimony was conflicting in regard to that matter.” The negligence charged in that case, however, was in not stopping the train long enough for the plaintiff to get on and in starting the train suddenly while the plaintiff was attempting to board it. The case is made to depend upon the principles announced in Straus v. Railroad, 75 Mo.. 185, which was an action for damages for prematurely starting a train before the passenger had time to alight from it, and in which it was held that if sufficient time was not allowed to the passenger to' leave the train and he jumped from the train “while its motion was so
It is not necessary to consider the converse of the proposition, under what circumstances a passenger may jump from a moving train without barring a recovery. Eor it is plain from the petition that the pleader in this case attempted to bring the case partly within the rule laid down in the case of Straus v. Railroad, supra, and to justify his boarding the moving train, “while its motion was so slight as to be almost imperceptible,” or as he stated it in the petition, the train “slowed up, coming almost to a stop,” and partly within the rule of an “invitation of defendant’s agents and servants in charge of said train,” and that he has wholly failed to establish either proposition by the evidence -adduced, but on the contrary has proved by his own testimony that the train stopped before he boarded it, but started before he was seated, and he does not show that he had not been allowed sufficient time to be seated before the train started, while on the contrary the physical facts show that Be had sufficient time.
The following rules are fairly deducible from the adjudicated cases: 1, It is the duty of a carrier of passengers to stop a reasonable time for passengers to board the train, and for them to be seated; 2, the carrier may start the train before the passenger has time to be seated, but in so doing it must exercise the utmost care so as not to upset him; 8, a person who boards a train that is moving more than four miles an hour, is guilty of contributory negligence, which will bar a recovery, even if he is invited or directed by the persons in charge of the train to “jump on,” or if it is
Measured by these rules the petition stated á good cause of action, and if the evidence had tended to support the allegations of the petition we would not interfere, but the plaintiff proved a different state of facts from those -alleged, and waiving the question of variance, which the defendant did not timely object to, the facts proved do not show any negligence on the part of the defendant, but on the contrary show clearly that the plaintiff himself was negligent, and therefore the demurrer to the evidence should have been sustained.
II.
The first instruction given for the plaintiff is erroneous. Much has been written and said about the duty of a carrier -of passengers to stop for a longer time to enable sick, aged and infirm persons, delicate women and the lame, to board or alight from a train [Hutchinson on Carriers (2 Ed.), sec. 670 and cases cited], than is required for persons under ordinary conditions, but it will not profit us to discuss the proposition here, inasmuch as the plaintiffs correction of the otherwise concededly correct statement of facts made by the
III.
I think the damages are excessive. The petition claims $5,000 damages, of which $200 is claimed for medical services and medicines already paid, and $1,000 for the same hereafter to be expended, and $2,000 for loss of earning capacity. There was no testimony offered as to any money paid by the plaintiff for such medical services or medicines, nor that it will hereafter be necessary for him to incur such expense, nor that his earning capacity is permanently impaired, nor what his earning capacity was or the profits of his labor amounted to before the accident. Therefore his claim for $3,200 of the $5,000 damages claimed is eliminated from the case. This leaves only $1,800 of the $5,000 claimed, for his physical injuries, pain and anguish. The verdict is for $3,500, which therefore is $1,100 in excess of the damages claimed in respect to the only matter concerning which any evidence was introduced, and the verdict is therefore 'excessive to that amount, in any event. The plaintiff having separated his claim for damages in his petition, he is bound thereby.
Eor these reasons lj think the judgment of the circuit court should be reversed and the cause remanded.
