211 Mo. 320 | Mo. | 1908
— This cause is now pending in this court upon appeal on the part of the defendant from a judgment of the circuit court of the. city of St. Louis in favor of the plaintiff for the sum of $12,000.
Plaintiff, at the time she received the injuries complained of in this action, was a young married woman, twenty-nine years old, and at the time of the institution of this suit she was still under coverture. Her husband died in July, 1903, pending the suit. After his death the plaintiff filed an amended petition which charged that defendant was a Missouri corporation, engaged as a common carrier of passengers by operating electric cars on the streets of St. Louis, and more particularly on double tracks on' Grand avenue, which latter street intersected with Finney avenue; that on September 4, 1902, she was riding as a pay passenger on one of defendant’s Grand avenue cars and was entitled to a very high degree of care and diligence in being carried safely; but that ‘ ‘ defendant so carelessly and negligently conducted itself that a car in which plaintiff was riding was caused to collide with another car belonging to defendant upon Grand avenue, near its intersection with Finney avenue, whereby plaintiff was thrown down, causing serious injuries to her back, arms, legs, hands, kidneys, spinal cord, nervous system and brain, and also causing many bruises, wounds and contusions upon her body, head,' spinal column, abdomen, breast and limbs, on account of which said several injuries plaintiff has been confined to her bed ever since said injuries, and has suffered excruciating physical pain and mental anguish and will in all reasonable
“That at the time said injuries occurred and this suit was begun, plaintiff was a married woman, but on the 1st day of July, 1903, her husband departed this life, and she is now a single person; that since July 1, 1903, she has incurred and will be compelled to incur in the future large sums of money for medical and surgical treatment, the amount whereof she is unable to ascertain, and that she has been and will be compelled to incur large sums of money for medicines and nursing on account of her said injuries, the amount whereof she is unable to state; that before her said injuries she was a strong, healthy, vigorous person, capable of earning at least fifty dollars per month, and would and could have earned that sum per month ever since July 1, 1903, and in the future, had she not been injured as aforesaid by the said negligence of the defendant, and that her loss in earnings ocasioned by her said injuries in the future will equal at least six hundred dollars per year for the remaining part of her life, as she is a confirmed invalid, and from the nature of her injuries she will, in all reasonable probability, never be better.
“Wherefore, plaintiff says she has sustained damages in the sum of thirty thousand dollars, for which and costs of suit she prays judgment.”
The answer of the defendant consisted of a general denial.
The facts developed at the trial of this cause on behalf of the plaintiff were substantially as follows:
On September 4, 1902, plaintiff was a passenger on a north-bound car operated by defendant on Grand avenue, returning home from the Delmar race-track about six o’clock p. m. Defendant had two tracks on Grand avenue, one for north-bound cars and the other
The plaintiff, Carrie Davidson, testified in substance as follows: That she is thirty years old and a widow, her husband died on the first day of July, 1903; that before she was hurt she enjoyed the best of health; that she had typhoid fever when she was a girl, about sixteen years old, but that she had no further serious illness that confined her to her bed before she was injured, except that typhoid fever. That on the 4th of September she had been to the Delmar track; took an Olive street car, paid her fare, rode east to Grand avenue, then took a Grand avenue car and rode north toward her home. It was about half past five or six in the evening when the cars collided. “I was thrown to the floor to my knees, my stomach and abdomen against the side. I was thrown back to
“Before you were hurt I will get you to state what work you were able to do? A. First I was employed as a seamstress—
“Defendant’s counsel objects to this testimony as ‘incompetent under the pleadings.
“The Court: Do you say that under the pleadings her right to recover earnings is not in issue, is that your position?
“Mr. Jourdan: No, sir; I say it is improper for •him to attempt to prove her earning capacity in 1899 .and then skip a period of three years.
“The court overrules the objection; defendant at 'the time duly excepts.
-“Question read, counsel adding: And what were •you able to earn?
“Mr. Jourdan: I want to- renew my objection to 'the question as now asked which covers the question ■of earnings. The first question, I understood, did not •cover the question of earnings.
“The Court: I am ruling on the question as it ■was originally asked.
“Mr. Taylor: Just strike out about the earnings. Before you were hurt I will get you to state what work you were able to do?
“Mr. Jourdan: I object further on the ground 'that it is wholly indefinite as to time.
“Mr. Taylor: Say from 1899 down to the time yon were hurt?
“Defendant’s counsel states that he makes the same objection as for the same reason; objection overruled; defendant at the time duly excepts.
“A. I did all my own housework, washing, scrubbing, sweeping, everything in my household duties.
“Q. Now, I will get you to state immediately before you were married, say in 1898 and 1899', what you were able to do, that is, do as a single woman?
“Defendant’s counsel states that he makes the same objection and for the same reason; objection overruled; defendant at the time duly excepts.
“A. I was employed at times as general manager of cafes, took full charge, had as high as from fourteen to sixteen girls working under me.
“Defendant’s counsel objects to the answer as far as it has gone as not being responsive to the question; objection overruled; defendant at the time duly excepts.
“Q. What were you able to earn and what did you earn in that capacity?
“Mr. Jourdan: I move to strike out that answer for the reason, first, it is not responsive to the question; and second, that it does not tend to prove any fact in the case, as wholly incompetent and immaterial, and third, that her earning capacity since the death of her husband last year cannot be shown in that way, her earning capacity or ability to work in 1898 or 1899.
“The court overrules the motion; defendant at the time duly excepts.
“Question read.
“Defendant’s counsel objects to the question for
“The Court: I think that objection is well taken for another reason: we have to deal only with the present and future; the jury cannot consider anything respecting her power of earning since her husband’s death.”
Upon cross-examination the record discloses the following:
“Q. Are you now able to answer these questions loud enough for the jury to hear you? A. I am talking as loud as I can; my heart hurts me now to talk.
“Q. Have you been able to talk louder than this during any portion of the last month? A. I don’t know as I have; I generally talk always the same without straining my voice.
“Q. Did you speak in such a tone of voice before the injury? A. No, sir; certainly not; my voice was very strong; I could speak as good as anybody did.
“Q. Have you been able to talk louder than this to Dr. Butler when he attended you last week? , A. Not ás I know of.
“Q. Mrs. Davidson, while you have been testifying you have been sitting in a rocking chair padded with pillows, have you not? A. Yes, sir.
“Q. With your feet raised and put in another chair just directly in front of you? A. Yes, sir,
“Q. The stenographer of the court has been moved from his customary place down to the counsel table within two or three feet of you, has he not? A. Yes, sir.”
Witness did not know that her counsel sits within a foot or two of her left; could not see any portion of his body, and did not know that her mother sat immediately behind her and had been holding her head and wiping her face during her examination in chief;
Dr. Robert M. Funkhouser testified that at the request of Dr. King he made an examination of plaintiff in September or October, 1903; examined her again on Wednesday or Thursday preceding the trial. On. the first examination plaintiff was in bed and witness found some slight fluid in the abdominal cavity; he then had plaintiff sit up and on experiment found that her tendon reflexes were exaggerated. This examination was made by making a hammer of his hand and striking the lower part of the knee cap. He stated that he found a slight discharge from the left eardrum, and that the left drum-head was ruptured; that plaintiff seemed to be in pain and gave evidence of neurasthenia — formerly called nervous prostration. That plaintiff claimed to be suffering pain and moved about apparently with difficulty; her face flushed and her pulse was rapid and weak. On the examination made last week witness discovered an increase in the knee jerk on the right side; on the left there was a little difference. That plaintiff’s pharynx was somewhat less than it should be in a normal state of health. Her body, judged of by subjective symptoms, was not as
“Q. You would hesitate to say they were temporary? A. Yes, sir. I would not like to say they are permanent, and I have greater hesitancy in saying that they are temporary. It is a difficult matter, your Honor, to decide these questions, becáuse we find so many elements that enter into a case of what we call traumatic neurasthenia or hysterio-neurasthenia, for sometimes after a number of years have elapsed, say four or five, the patient does get better.
“By the Court: I suppose another difficulty that you encounter is that these symptoms are chiefly subjective symptoms? A. They are subjective symptoms; sometimes they may become objective, depending on the effect that the shock may have on- the different organs of the body.
“By Mr. Taylor: Q. Suppose that up to the 4th
Upon cross-examination Dr. Funkhouser admitted that he had directed the attending physician’s attention towards Bright’s disease; said it was usual for physicians to send specimens of the urine to a specialist for analysis, and that he had made no such examination. Witness further stated that in his first examination he had discovered a symptom of lddney trouble in that there was some slight water in the abdominal cavity, but in his last examination he did not think he ■discovered any.
Dr. Robert M. King testified that he treated plaintiff from December 2, 1902, down to the date of the trial, the 17th of March, 1904; that he had been acquainted with her for several years before she was injured; that before her injuries her health was good; that he saw her in the latter part of August, 1902, and within a week of the time she was injured, and that she was in good health; that at the time he took charge ■of her case “she was in a state of great nervous prostration, with an irregular heart and irregular pulse, with considerable pain over her body, complained of a great deal of sleeplessness, had not been able to sleep for some time and had continued insomnia; there were considerable exaggerated reflexes, especially in “the knee-joint; a good many motor disturbances, some
Witness further testified that his charge for treating plaintiff since the death of her husband was about $100'.
TJpon cross-examination witness said that he had noticed no change in plaintiff’s condition since her case was reset for trial, except that she had worry and anxiety and a good deal of depression; to a certain extent that would be occasioned by the litigation, and in his opinion, after the worry and excitement were over her condition would improve; that plaintiff’s environment and associations would have something to do with the improvement; that he would not say she would improve but would say a large majority of cases do improve; that he made an analysis of her urine and found no albumen or sugar in it, and that he found no positive evidence of Bright’s disease. Witness further stated that the dropsical condition he found could
The evidence on behalf of the defendant was substantially as follows:
Dr. Simon testified that during the year 1902 he was employed by the defendant; that he went to see plaintiff on the night of her injuries and that on his ringing the front door bell, plaintiff came down stairs and let him in; that she carried a lamp or light in her hand; that she returned upstairs without assistance; witness was in the neighborhood of the accident and one of defendant’s claim agents directed him to see Mrs. Davidson.
Dr. Weinsberg testified that he visited plaintiff in December, 1902, at the request of two attorneys (not plaintiff’s present attorneys) who claimed to represent plaintiff at the time. Witness- testified that he examined plaintiff twice-, the first time he found her in bed; that he was not able to find any symptoms of any organic disease; that he examined her urine; on __ his second examination he testified that he was not able -to-find any organic trouble, or any symptoms of any -, -organic trouble, found her “just in a nervous- condition,” and-there was no sign of any affection of the spine and no sign of any fractures.
Dr. Baumgarter testified that he made a chemical and microscopical examination of plaintiff’s urine and found a small quantity of albumen’; that this might indicate Bright’s disease. He found a “very few 'casts.” Presence of casts indicates the presence of Bright’s disease; that in his opinion the condition in which he found the urine could not result from spinal trouble of any character.
Dr. L. P. Butler testified that on March 2, 1904, he was, by order of court, appointed to make a physical examination of the plaintiff; that he found her in bed, and that the thing that impressed him mostly was her nervous symptoms. He examined each of her organs
Upon cross-examination Dr. Butler testified that he did not mean by abortion that any improper means had been used to anticipate birth; that the difference between a miscarriage and abortion was that an abortion occurred prior to the beginning of the fourth month; after that, a premature birth was called a miscarriage. That miscarriages sometimes impaired the
■On re-examination witness stated that when he examined plaintiff she sat up and walked; that he asked her to turn over in bed; she said she could not move; that afterwards her mother helped her to turn over, but her limbs did not move, and her mother helped her to turn her limbs. After he had finished his examination he turned plaintiff back in bed with the assistance of her mother. One of her limbs was left uncovered. Her mother left the room to get a towel and plaintiff complained of being cold; witness told her to bring her limb in and he would cover it over; that she moved it in as quickly as a person would ordinarily move one foot; witness testified to other natural movements of her limbs. He did not notice her move her hands • or arms much; when she walked she used crutches and she was brought to the edge of the bed with the assistance .of her mother. When she sat down in a chair she put her arms down and moved herself back. Dr. Butler found some sensitiveness along the column of the spine, but not a great amount, this was in the cervical region and lumbar region; this sensitive
On recross-examination witness stated that it was plaintiff’s left foot that was exposed and which she drew in; that her mother assisted her off the bed and to get on crutches, but did not assist her any on the crutches, and that she moved some six or eight feet and eased herself down on the edge of a chair. Dr. Butler was asked by defendant’s attorney whether plaintiff’s injuries, in his opinion, were permanent; he answered that there was nothing to indicate a permanent condition as he found her — nothing to indicate a permanent injury. Witness made the same answer to a question in regard to her nervous condition. When questioned by plaintiff’s -attorney as to whether she would recover quickly, he answered that he would not state the time; that in the absence of any symptoms of organic condition “she may have hopes of regaining, not her health entirely, but a confortably good health, it depends a great deal upon the environment she is placed in, the surroundings. Q. And even then, in your opinion, it might take her a number of years ? A. Well, no; sometimes the change is very rapid. Frequently so. ”
Mrs. Wm. Bloyd testified that she occupied the flat below plaintiff; that she had seen plaintiff standing at the front door; had seen her standing on the front porch; saw her going down the rear stairway and out through the alley, the backway; that she had also heard plaintiff talk from the flat above and could hear her distinctly below.
■Plaintiff testified in rebuttal that she did not employ the attorneys who sent Dr. Weinsberg to examine her; that the only attorneys she had ever had were her present counsel.
At the close of the plaintiff’s testimony defendant requested an instruction in the nature of a demurrer
The cause being submitted to the jury they returned a verdict finding the issues for the plaintiff and assessing her damages, as heretofore stated, at the sum of $12,000. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment being entered in conformity to the verdict, defendant prosecuted its appeal to this court and the record is now before us for consideration.
,. OPINION.
The errors complained of, as indicated in the record before us, may thus be briefly stated:
1. The court erred in giving plaintiff’s instruction No. 1.
2. The court erred in giving plaintiff’s instruction No. 2.
3. The court erred in refusing to set aside the verdict as being excessive.
I.
Upon the complaints directed to the declarations of law numbers 1 and 2, we will, in the treatment of them, reverse the order and discuss first the legal propositions applicable to instruction number 2. This instruction, which was to guide the jury in assessing the damages which plaintiff was entitled to recover, was as follows:
“2. The court instructs the jury that, if under the evidence and instructions of the court, they find in favor of plaintiff, they should assess her damages at such sum as they believe, from the evidence, will be a fair compensation to her for the pain of body and
In our opinion this instruction was manifestly erroneous in submitting to the jury as one of the elements in assessing the damages sustained by the plaintiff “her probable impairment of earning capacity in the future,” for the reason that there was no testimony upon which to predicate such an instruction. There is an entire absence from the record now under consideration of any testimony whatever tending to show what the plaintiff was able to earn prior to receiving the injuries complained of; hence we are unable to conceive in what way the jury could fairly compensate her in damages for impairment of earning capacity in the future, if they were absolutely without any knowledge of her earning capacity prior to the infliction of any injuries alleged in the petition.
It must not be overlooked that plaintiff, in her petition, specifically alleges what her earning capacity was. It is there averred that “before her said injuries she was a strong, healthy, vigorous person, capable of earning at least $50 per month, and would and could have earned that sum per month ever since Jnly 1, 1903, and in the future, had she not been injured as aforesaid by the negligence of the defendant.” The conclusion is irresistible that the instruction complained of, in which the impairment of plaintiff’s earn
In treating of this proposition Judge Thompson, in his work on Negligence, vol. 6, sec. 7307, states the rule in this language: “Generally loss "of earning power can only be considered as an element of damages where there is evidence from which the pecuniary extent of such loss may be estimated, and where plaintiff asks damages because of his diminished earning capacity, but gives no evidence of his capacity before ■or after the accident, the question of such damages should not be submitted to the jury.”
The rule as applicable to this question is very •clearly stated in Voorhies on Measure of Damages, see. 54. In discussing this question the learned text-writer said: ‘‘ The burden of proof is upon the plaintiff to show that the injury has diminished his capacity to earn a living. How this may be done depends upon the nature of the injury, its effect upon the
In Duke v. Railroad, 99 Mo. 347, it was expressly ruled by this court that “where compensatory damages only are given, the recovery must he confined to the actual damages sustained. And when such damages are susceptible of proof with approximate aecuracy, and may be measured with some degree of •certainty, they should not be left to the guess of the .jury, even in actions ex delicto. When so left, it is impossible to tell to what extent the verdict may have been affected by the vague estimates the jury may have placed upon values concerning which there was no proof. ’ ’
In Slaughter v. Railroad, 116 Mo. 269, it was -averred that the injury was permanent and would render plaintiff a cripple for life. Upon this allega
In O’Brien v. Loomis, 43 Mo. App. 29, the trial court embraced in one of its instructions and submitted to the consideration of the jury the element of damages occasioned by the loss of earnings. The appellate court in a very brief way disposed of the error complained of in that instruction. It simply stated that it was conceded that there was no evidence tending to show what plaintiff’s earning capacity was, or how much time she lost in consequence of the injury; therefore, it was held that the giving of that instruction was erroneous.
Substantially the same rule is announced in Mammerberg v. Railroad, 62 Mo. App. 563, and Stoetzle v. Sweringen, 96 Mo. App. 592.
In McHugh v. Schlosser, 159 Pa. St. 480, it was sought to have included in the assessment of damages the loss to plaintiff of earning power. It was ruled by the appellate court that when the probable earnings of deceased are to be taken into account in fixing the damages it is the duty of the plaintiff to show the earning power of the deceased or give such evidence in regard to his business, business habits and past earnings as may afford some basis from which earning capacity may be fairly estimated. There was a verdict for the plaintiff and the court in its final conclusion said: “It will not do to permit such a verdict without some evidence from which the calculation of the pecuniary loss of the plaintiff may be made,” and the judgment in that case was reversed.
The law applicable to this proposition is nowhere more clearly stated than in McKenna v. Citizens’ Gas Co., 198 Pa. St. 31. The court in treating of this question used this language: “The seventh assignment relates to a part of the charge devoted to the question of damages. The learned judge in his charge said:
Our attention is directed by respondent to the case of Perrigo v. St. Louis, 185 Mo. 271, and it is earnestly insisted by learned counsel for respondent that the conclusion announced in that case is decisive of the proposition now under discussion. We are unable to give our assent to this contention upon this proposition so ably presented by counsel for respondent, and in our opinion the case of Perrigo v. St. Louis falls far short of furnishing decisive support to such insistence. That case can be clearly distinguished from the cases cited in support of the contention of appellant. In fact, a careful analysis of the Perrigo case will demonstrate that the learned and, esteemed judge who wrote the opinion clearly pointed out the distinction between the
It will be observed in the Perrigo case that the jury are not directed that they are authorized to com
The one case proceeds upon the theory that to impair the ability of plaintiff to work or labor is, as was said in the Perrigo case, an injury to a personal right wholly apart from any pecuniary benefit that might be derived from the exercise of the power to work or labor, and being a personal right affecting her person, that it was legitimate and proper for the jury in assessing the damages to take such fact into consideration. That is not this case. The court in the case at bar did not limit the consideration of the jury to the mere impairment of the power to work or labor, which was a personal right, but the instruction in effect directed them that they were authorized to compensate her for any loss of pecuniary benefit that might be derived from the exercise of the power to work or labor. This court, in discussing the instruction challenged in the Perrigo case, speaking through Judge Brace, fully recognized the marked distinction in the eases to which we have made reference. He said: “The jury were not authorized by the instruction in the case to allow damages for loss of time or services. They were simply told in determining the extent of her injuries they might take into consideration any diminution of her power to work. To impair the power of any person, whether of body or mind, is an injury to personal right wholly apart from any pecuniary benefit that might be derived from the exercise of the power.”
Chief Justice Bleckley, in Railroad v. Jacobs, 88 Ga. l. c. 652, clearly pointed out the reason which justifies the trial court in authorizing the jury in as
Emphasizing the correctness' of the conclusion that this court in the Perrigo ease recognized the distinction between an instruction which merely authorized the consideration of a fact that the plaintiff’s ability to work was diminished and one in which the jury were authorized to compensate the plaintiff for impairment to earning capacity, we find cases from the Courts of Appeals in' this State which clearly point out the distinction unqualifiedly approved and the views of such court quoted with approval. Ellison, J., in Cullar v. Railroad, 84 Mo. App. l. c. 346, thus discussed the proposition: “The husband is allowed to recover for the loss of his wife’s services, and she cannot include in her damages any loss of time wherein she might have rendered him service. But that will not prevent her from recovering for all those things which injure her, apart from a mere loss of service and society to which the husband is entitled. Physical disability is a personal loss apart from being a deprivation of a money-earning power. In Plummer v. Milan, 70 Mo. App. 598, and later in Wallis v. Westport, 82 Mo. App. 522, we held it improper to direct an allowance for damages for a married woman’s inability to perform her ordinary avocations of life. But this does not prevent her recovering for a physical disability which may perhaps be a constant source of discomfort, inconvenience and annoyance.”
In announcing the final conclusion in the Perrigo case this court said: “Human nature is so constituted that physical labor in some form is essential to health and happiness and to be deprived of the power to work
In our opinion, the very terms employed in giving expression to the views of this court in that case to- its final conclusion, clearly distinguish it from the case at bar.
Recurring to the instruction challenged in this case it will be observed that the court directed the jury to compensate the plaintiff in assessing her damages for impairment to earning capacity in the future,, if there was any such impairment. We repeat, that we are unable to conceive upon what theory the jury were to compensate plaintiff for any impairment of her earning capacity, in the absence of any basis from which to calculate the amount that such earning capacity was impaired. It will also be observed that the right of the jury to allow compensation for the impairment of earning capacity was conditioned that they found that such earning capacity was impaired, and there being no proof as to what her earning capacity was, prior or subsequent to the injuries complained of, we are unable to escape the conclusion that this instruction in the particulars pointed out was a misdirection to-the jury.-
As further emphasizing the correctness of the conclusions reached upon this proposition, we find upon examination of the treatment of this subject by the text-writers heretofore referred to, they use the same terms or similar terms as are used in the instruction now under discussion, such as “earning power ’ ’ and ‘ earning capacity, ’ ’ then they proceed to
This case does not fall within that line of cases to which our attention is directed where the earning capacity was not susceptible of proof. If plaintiff was entitled to compensation for any loss by reason of impairment to her earning capacity, what such earning capacity was is susceptible of reasonably accurate proof, and there being no proof upon that subject it must be held that the instruction was erroneous, and the giving of it constitutes reversible error.
II.
Instruction No. 1, the correctness of which is challenged by appellant, is as follows:
“1. The court instructs the jury that it was the duty of the defendant,' in conducting its business as a common carrier of passengers, as far as it was capable, by exercising a very high degree of care and foresight, to carry them safely, and the defendant is responsible for the injuries resulting to its passengers through the failure to exercise such care, and any-failure on the part of the defendant to exercise a very high degree of care and diligence of a very prudent person in operating its cars would be such negligence as to make the defendant liable for any injury to the plaintiff resulting from such neglect, unless you further believe there was negligence on the plaintiff’s part directly contributing to the injuries sustained by her, and. in passing upon the question as to whether the defendant was or was not negligent in operating its cars on the occasion in question, you should take into consideration all the facts' and circumstances as shown by the evidence to have existed at the time when, and the place where, the injury in question occurred,
The correctness -of this instruction is challenged .upon two grounds: First, that it assumes the existence 'of certain material facts which are essential to entitle plaintiff to recover, and which are put in issue hy the •answer, without submitting such facts to the jury and requiring them to make a.- finding- upon such facts. ¡Second, that the instruction is broader than the allegation in the petition charging negligence upon which it is predicated, and that it fails to limit and confine the consideration of the jury to the character of negligence which is specifically alleged in the petition. In other words, it is insisted that the negligence complained of in the petition of plaintiff was specifically alleged and that the instruction; now under consideration fails to confine the jury to the character of negligence' alleged, but authorized a recovery upon any ground of negligence whether embraced in the petition or not.
As this cause must be remanded for a new trial, -as heretofore indicated in the discussion of the first proposition treated of, we shall content ourselves with ■briefly discussing the propositions presented hy the •respective counsel and giving some expression to our •views as to. the correct rules of law applicable to the subject in hand.
That'the trial courts, under certain circumstances, may assume the existence of certain material’ facts, is well settled by a long line of-decisions in this court. ■We have reached that stage under our system of jurisprudence, and it affords us pleasure to make note of this advanced step in the administration of the law in controversies in court, to apply to such litigated con
This court in the case of Fullerton v. Fordyce, 121 Mo. l. c. 13, speaking through Maceae.lane, J., announced the rule that “the court may in its instructions to the jury assume the truth of a proposition which is established by the undisputed testimony, but it is manifestly improper to do so where there is any conflict in the evidence,” citing in support of the rule Hall v. Railroad, 74 Mo. 302; Barr v. Armstrong, 56 Mo. 589, and Caldwell v. Stephens, 57 Mo. 595.
In Taylor v. Iron Co., 133 Mo. 349, this court clearly indicated its views upon this proposition and it was there expressly held that it was not error for the court under- certain circumstances to assume the existence of certain facts. One of the questions in-volved in that case was as to the injuries received by ■ the plaintiff and the permanency of such injuries, and the court in its instructions assumed the existence of ■ certain facts concerning the injuries and the perman-.
in speaking for this court in Gayle v. Missouri Car & Foundry Co., 177 Mo. 427, cited approvingly the case of Taylor v. Iron Co., supra, and expressly ruled that it was not error to assume the existence of a fact over which there was no controversy.
In the comparatively recent case of Sotebier v. Railroad, 203 Mo. 702, the cases of Hall v. Railroad, Barr v. Armstrong, Fullerton v. Fordyce and Taylor v. Iron Co., supra, were cited with approval, and it was clearly recognized in that case that this court had many times held that the trial court may in its instructions to a jury assume the truth of a proposition which is established by the undisputed evidence in the case. On the other hand, it may be that in the trial of a cause a witness or witnesses may testify as to some material fact and the opposite party is unable to introduce any witness to contradict their testimony, yet there is no question but what he has a right to challenge the credibility of such witnesses and have the court or the jury to whom the cause may be submitted, determine such fact. However, it is clear that the trial court can readily observe as to whether there is a serious and real dispute as to the credibility of the witnesses testifying or as to the existence of the facts to- which they give testimony. It is but the •common observation of all courts that counsel ordi•narily in no uncertain terms indicate whether there is a real dispute as to certain facts involved in the proceeding, and the dispute, if seriously and really made, will always manifest itself during the progress of the trial in the examination and cross-examination of the witnesses and the instructions requested at the close of all the testimony.
It is manifest from the record before us in this cause that there was no dispute over the fact that the •defendant was a carrier of passengers and that there
The conclusion reached upon this proposition in no way conflicts with the conclusions reached in Gannon v. Gas Light Co., 145 Mo. 502. That case was simply one where the plaintiff by her testimony made out a prima-facie ease of negligence against defendant. The proof offered by the plaintiff in that proceeding was adequate and sufficient to cast the burden upon the defendant of showing the non-existence of negligence on its part. Witnesses were then introduced on the part of the defendant whose testimony, if true, would rebut the prima-facie case of negligence made out by the plaintiff, but it must be observed that in that case the vital question submitted to the jury was whether the facts testified to- by such witnesses were true, and at the close of all the evidence the defendant requested the court to instruct the jury that upon the pleadings- and all the evidence the plaintiff could not recover.. Counsel for plaintiff was there combating the propriety of such an instruction and the court refused to give it. That case clearly falls within that class of eases as heretofore indicated, where a party has a right to challenge the credibility of witnesses and have the question as to their credibility and the truth of the facts to which they give testimony passed upon' by the jury, and that such facts were clearly in dispute-in that controversy was plainly apparent upon the-record. That is not this case. . The examination and cross-examination of the witnesses during the progress of the trial in the case at bar clearly indicates that counsel were not seriously disputing the existence of
Emphasizing the correctness of the conclusion that the case of Gannon v. Gas Light Co., supra, is not to be regarded as in conflict with the views herein expressed upon the proposition under discussion, it is-significant and worthy of note that the same judge who wrote the Gannon case also- wrote the case of Taylor v. Iron Co., heretofore referred to and quoted from approvingly It is obvious that, the learned judge in the consideration of the Gannon case did not regard the final conclusion reached in that case as being in conflict with the Taylor case, and it is manifest that the two .cases are clearly distinguishable upon the ground as herein indicated.
Upon the remaining proposition involved in this instruction, that is, that the instruction upon the subject of negligence is broader than the pleading upon which it is predicated, it is sufficient to say that the trial court in framing said instruction in that particular was unmindful of the well-settled rules of law as announced by this court applicable to this subject. A recovery in this action is sought upon the negligence which is alleged to consist in the defendant’s so carelessly and negligently operating its cars that the car in which plaintiff was riding was caused to collide with „ another car belonging to defendant upon one of the avenues of the city of St. Louis. In other words, spe
In Roscoe v. Railroad, 202 Mo. 576; the authorities applicable to this proposition were exhaustively reviewed, and it was there expressly ruled that, if a recovery was sought upon the ground of specific negligence alleged in the petition, it was the duty of the court to limit the consideration of the jury to the specific negligence complained of. However, it may be said that this instruction even in this form, as applicable to this cause, does not constitute reversible error, for the reason that all the proof offered in evidence clearly established that whatever injuries the plaintiff received were by reason of the specific negligence complained of in the petition. Wé deem it unnecessary to express an opinion upon the proposition that if that error was standing alone in this cause as to whether this court would be warranted in reversing the judgment for that cause.
III.
This brings us to the consideration of the only remaining proposition in this cause, that is, that the verdict of the jury was excessive. It will, suffice to say upon this proposition that we have carefully read in detail all the testimony of all the witnesses, including the medical experts, applicable to the injuries received by the plaintiff by reason of the collision, and we are unaHe to escape the conclusion that the verdict as returned by the jury was grossly excessive. Whether this excessive verdict was returned by reason of the
This is a court of review and we have clearly indicated that the trial of this cause was not in conformity with the well-settled rules repeatedly announced by this court, and that such errors were committed as fully warrants this court in reversing the judgment and remanding the cause for a new trial.
Entertaining the views to which we have herein given expression, it is ordered that the judgment of the trial court be reversed and the cause remanded for a new trial.