Cole v. Metropolitan Street Railway Co.

133 Mo. App. 440 | Mo. Ct. App. | 1908

JOHNSON, J.

Action to recover damages resulting from personal injuries alleged to have been caused by the negligence of defendant. Verdict and judgment were for plaintiff and the cause is here on the appeal of defendant, whose principal contention is that its request for a peremptory instruction directing a verdict in its favor should have been sustained.

The case was here before on defendant’s appeal and the judgment was reversed and the cause remanded on account of error in the instruction (121 Mo. App. 605). We decided that the facts then before us entitled plaintiff to go to the jury on the issue of defendant’s negligent failure to discharge the duty it owed plaintiff under the principles of the “humanitarian” doctrine and, therefore, that the trial court was right in overruling the demurrer to the evidence. Defendant argues that the facts in the present record differ in essential features from those considered on the former appeal, but we fail to discover any important difference and must hold, as we did then, that while the evidence most favorable to plaintiff convicts him in law of negligence which directly contributed to placing him in a perilous position, it further shows that defendant was guilty of negligence in not making a reasonable effort to stop the car after the peril of plaintiff should have become apparent to the motorman, had he been attending to his business properly. For the reasons given in our former opinion, we find no error in the refusal of the peremptory instruction. We further find that the learned trial judge, in the instructions given, correctly submitted the issue of negligence to the jury. Defendant is wrong in thinking that the contributory negligence of plaintiff, if continued to the moment of the collision, deprived him of a cause of action. The fact that his negligence may have been coincident with that of defendant in failing to perform its humanitarian duty is immaterial. That duty arises from the fact that the person endangered has negligently placed himself in peril and the obligation it imposes in no wise is dependent on the question of whether his negligence may be antecedent to or contemporaneous with the injury. Whenever it appears that the operator of the instrument of injury was warned, or if in the exercise of reasonable care should have been warned, by the appearances of the situation confronting him, that a human being was in peril, it then became his absolute duty to make every reasonable effort to avoid the injury, regardless of whose fault brought about the peril.

There is no merit in the contention of defendant that the court erred in authorizing the jury in the instruction on the measure of damages to take into consideration “the reasonable value of any loss of time from his business he has sustained on account of said injuries, if any.” Loss of earnings is a special damage which must be specially pleaded and proved to be properly included with the recoverable damages. It is alleged in the petition that “he (plaintiff) has been hindered and prevented by reason of such injuries from attending to his affairs and business and has been unable to earn for himself and family a livelihood.” The sufficiency of this allegation was not attacked, but defendant answered to the merits and at the trial offered no objection to the testimony of plaintiff (who followed the vocation of teamster), “that the value of his time and team was $5 per day,” during the period he was incapacitated from work by his injuries. The rule is Avell settled that after verdict the averments of the petitiori not challenged by demurrer or motion are to be liberally construed in favor of the pleader and, applying this rule, we are of opinion that the allegation in question should be deemed sufficient to support a recovery for loss of time.

The judgment is affirmed.

All concur.