99 Mo. 347 | Mo. | 1889
This is an action for damages, for personal injuries, alleged to have been sustained by the plaintiff, while a passenger on one of defendant’s passenger trains, caused by the derailment of the train, and the overturning of the car on which plaintiff was seated, and its precipitation down an embankment, through the negligence of the defendant’s servants. The jury found for the plaintiff, and assessed her damages at five thousand dollars.
I. No errors are assigned on the admission or exclusion of evidence. The instructions, as a whole, presented to the jury, not unfavorably to the defendant, the measure of care which a carrier of passengers is required to exercise, and defendant, in the argument, concedes that there was evidence given which, under proper instructions, would authorize a verdict for the plaintiff, but complains that “the amount of the verdict under the evidence is such as to justify the belief that the jury were misdirected.” So that, practically, the only questions to be enquired into in this case arise upon the instructions given upon the subject of damages and the amount assessed. The allegation of damages in the petition is “that, on account of said injuries, it was necessary for plaintiff to expend, and she did expend, a large sum of money for professional services of physicians and nurses, and for drugs, to-wit, one thousand dollars, and was damaged in bodily pain, anguish and suffering, and in the permanent injury of her hip and ankle and the loss of her suit of hair, in the sum of twenty-five thousand dollars.”
So much of the instruction for the plaintiff as bears upon the question of damages, and to which objections are urged, is as follows: “ And if you further believe
The criticism upon the wording of this instruction, that it authorizes the jury to allow for professional services, other than those of physicians and nurses, -is not well founded. The words, “physicians and nurses,” are in apposition with the words, ‘ ‘professional services,5 ’ in the sentence, and the meaning is the same as if the sentence read “professional services, i. e., physicians’ and nurses’ services,” and is no more than equivalent to the expression, “professional services of physicians and nurses” as used in the petition.
II. The principal objection urged against the instruction is, however, that it authorizes the plaintiff to recover for “large sums of money expended for such services, and for- drugs and medicines when, in fact, the evidence fails to show that any sum whatever was expended therefor.” A careful and critical examination of all the evidence in the case, as it appears in the one hundred and seventy-five pages of appellant’s printed abstract, has been made, and it must be conceded that this objection is well grounded. It appears from the evidence that the plaintiff, after the accident, was attended by physicians in a hospital in Kansas City, and that drugs and medicines were administered to her, and, from her condition and
“Instructions must be confined to the case made by the evidence within the issues defined by the pleadings.” 2 Thompson on Trials, sec. 2309; White v. Chaney, 20 Mo. App. 389; Waddingham v. Hulett, 92 Mo. 528; Lester v. Railroad, 60 Mo. 265. Where there is no evidence showing the amount, or the proximate amount, ■of expenses incurred for medicines, medical attention or like services, the jury have no basis upon which to form an estimate of the damages that ought to be assessed on account thereof, and damages of this kind cannot be found except upon such proof. Reed v. Railroad, 57 Iowa, 23; Eckherd v. Railroad, 70 Iowa, 353; Crowley v. Railroad, 24 Mo. App. 119; Shear & Redf. on Neg. [4 Ed.] sec. 759. Where compensatory damages only are given, the recovery must be confined to the actual damages sustained. Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582. And when such damages are susceptible of proof with approximate accuracy, and