Feddeck v. St. Louis Car Co., 125 Mo. App. 24

Feddeck v. St. Louis Car Co.

125 Mo. App. 24 | Mo. Ct. App. | 1907

BLAND, P. J.,

(after stating the facts). — 1. Whether or not the case should have been taken from the jury should be determined from all the evidence, for some of the facts and circumstances left in doubt by plaintiff’s evidence are made clear by that of the defendant; especially, does defendant’s evidence show that its employees knew the trolley wire was above the lintel and the joists; that they were inside the addition, went over the track and cleared it of obstructions, and viewed,.or had the opportunity to view, the entire surroundings and learn the exact situation. This was to be the first effort to push cars in after the joists were up, hence defendant’s servants were required to make observations and learn the situation; and we think they did this and knew the joists were not permanently in place but were on the girders in bunches, preparatory to being put in place. A description of the situation and knowledge of what was to he done, we think show that ordinary care should have been exercised by defendant’s servants in shoving the two carloads of brick into the addition, to avoid damage to the incomplete structure as well as injury to the men working thereon. [Sack v. St. Louis Car Co., 87 S. W. 79.] The principal question, therefore, on the demurrer to the evidence, is to determine whether or not the evidence was sufficient to authorize the circuit court to submit to the jury to find whether or not, in the circumstances enumerated, defendant’s servants exercised ordinary care in the performance of the work assigned to them by defendant. On the defendant’s evidence, that its servants knew the rear trolley pole would come in contact with the lintel, if it was not pulled down in time; and on that of plaintiff, that the pole was not *31pulled down but was allowed to come iu contact with the lintel, causing a shock sufficient to loosen the hook holding the front pole down, which pole flew up, when released, and pushed off the loose joists, causing injury to plaintiff, we think was sufficient to warrant the court to submit to the jury to find whether or not defendant was guilty of negligence; provided the negligence of defendant’s servants was the proximate cause of the injury.

Quoting from Freeman v. Accident Association, 156 Mass. 315, the Supreme Court, in Fetter v. Fidelity & Casualty Co., 174 Mo. l. c. 267-8, 73 S. W. 592, said:

“Where ’ different forces and conditions concur in producing a result, it is often difficult to determine which is properly to be considered the cause, and, in dealing with such cases, the maxim, causa próxima non remota spectatur, is applied. But this does not mean that the cause or condition which is nearest in time or space to the result is necessarily to be deemed the proximate cause. It means that the law will not go farther back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause of causes beyond seeking the efficient predominant cause, which following it no farther than those consequences that might have been anticipated as not unlikely to result from it, has produced the effect. An injury which might naturally produce death in a person of a certain temperament or state of health is the cause of his.death, if he dies by reason of it, even if he would not have died if his temperament or previous health had been different; and this is so, as well when death comes through the medium of a disease directly induced by the injury, as when the injury immediately interrupts the vital processes.”

In Paden v. Van Blarcom, 100 Mo. App. l. c. 192-3, *3274 S. W. 124, we said: “Where negligence is alleged as a cause of injury, the test of defendant’s liability is that the consequences of the act complained of were such as in the surrounding circumstances of the case might and ought to have been foreseen by the defendant. [Poeppers v. Railroad, 67 Mo. 715; Stanley v. Railroad, 114 Mo. 606, 21 S. W. 832; Railroad v. Hope, 80 Pa. St. 373; Railroad v. Stanford, 12 Kan. 354; Doggett v. Railway, 78 N. C. 305; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264.]”

In Aldrich v. St. Louis Transit Co., 101 Mo. App. l. c. 90, Goode, J., said: “We must guard against events which, according to experience, may be expected to happen, but not those due to strange and abnormal behavior, or those which are possible but quite improbable. [American Brewing Assn. v. Talbot, 141 Mo. 674, 42 S. W. 679; Fuchs v. St. Louis, 133 Mo. 168, 31 S. W. 115, 34 S. W. 508.]”

Where the particular consequences are not intended or foreseen, the meaning of proximate cause, says Pollock, “are those consequences which a person of average competence and knowledge, being in like case with the person whose conduct is complained of, and having th'e like opportunities of observation, might be expected to foresee as likely to follow upon such conduct.” [Webb’s Pollock on Torts, p. 32.] After noting the difficulty felt by the courts in attempting to lay down a rule to cover all possible cases, Shearman and Redfield say: “A person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they could have been ascertained by reasonable diligence or not) would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind.” [1 Shearman & Redfield on Negligence, sec. 29.] Whére there is doubt as to whether or not a reasonably prudent *33person would have thought it reasonably possible the consequences would follow that did follow from the negligence complained of, the question of proximate cause is one for the jury, if, as in this case, there was an unbroken connection between the negligent act of defendant and the injury to plaintiff, though the particular injury was not foreseen and would not ordinarily have occurred. We conclude that the case was one for the jury.

2. The court gave the following instruction for plaintiff:

“1. The court instructs the jury that if you believe from the evidence that on or about April 18, 1903, plaintiff was employed by defendant Eaterman Building & Contracting Company to work as a journeyman carpenter in a building being erected for St. Louis Car Company, that near the place where plaintiff was directed by his said employer to work, and was at work, joists had been placed loosely overhead on girders and underneath a trolley wire which was part of the equipment of an electric road operated in said building by defendant St. Louis Car Company, and if you further believe that while the joists were in position as aforesaid, and whilst plaintiff was at work at said place, defendant the St. Louis Car Company attempted to, and did, without the knowledge of plaintiff, negligently run its car under the said loose joists and girders in said building without warning plaintiff of its intention to do so, and through the negligence of defendant St. Louis Car Company, the trolley of said car came into contact with the girders aforesaid, causing the joists to fall and strike plaintiff, injuring him, then your verdict must be in favor of plaintiff and against defendant St. Louis Car Company, even if you also find that concurring negligence on the part of Eaterman Building & Contracting Company contributed to cause said injuries, provided you further find *34from the evidence that plaintiff was not himself guilty of negligence directly contributing to cause the injuries.

“And unless you so find for plaintiff your verdict should be for the defendant St. Louis Oar Company.”

The court gave the following instruction of its own motion.

“1. What constitutes ‘ordinary care’ as mentioned in these instructions depends on the-facts of each particular case. It is such care as a person of ordinary prudence would exercise (according to the usual and general experience of mankind) in the same situation and circumstances as those of the person or persons in this case with reference to whom the term ‘ordinary care’ is used in these instructions. The omission of such care is negligence in the sense in which that word is used in these instructions.”

Defendant objects to instruction No. 1 (asked by plaintiff) for the reason it does not define negligence. •The objection would be well taken but for the instruction given by the court of its own motion, which correctly defines the meaning of the term. It is also contended that the instruction ignores the averments of negligence in the petition. The instruction is predicated upon the specific act of negligence pleaded and set out in the statement of the case, the only negligent act of which any proof was offered and which in itself states a good cause of action. Plaintiff was not required to prove any other of the specified acts of negligence charged in the petition, nor was it the duty of the court to call the attention of the jury to those averments about which there was no evidence. It is further insisted by defendant that the instruction is erroneous for the reason there is no evidence tending to show defendant had any knowledge that plaintiff was in a dangerous situation or that the joists were loose from the girders. The evidence of defendant’s servants is opposed to this contention. They were both inside the addition before the cars were pushed *35in, made observations of the surroundings, as it was tbeir duty to do, and, as negligence is not to be imputed to them, in the absence of proof, tbe presumption should be indulged that they knew the joists were loose from the girders, and must have known that if struck by a trolley pole, they might be thrown down and injure some one. The instruction is faulty in submitting for the consideration of the jury the question of the negligence of the Raterman Company, as that question had been withdrawn by plaintiff’s nonsuit; and for the further reason there is not a scrap of evidence tending to show it was guilty of negligence. The error was a harmless one as it in nowise enlarged defendant’s liability. [Sack v. St. Louis Car Company, supra.]

3. Plaintiff’s second instruction is as follows:

“2. The court instructs the jury that if one by the negligence of another has been placed in a situation of apparent imminent peril, he is not required, in attempting to escape therefrom to use the judgment and discretion that is required of him when not dominated by terror or impending danger. And if you believe from the evidence that plaintiff, through the negligence of defendant, was in a position where, under the circumstances shown in evidence, he might and did reasonably apprehend peril from falling timbers and had no time or opportunity to deliberate, and while exercising such care to avoid the peril as a person of ordinary prudence would usually exercise under similar circumstances, he ran under the falling timbers and was injured by them; then the fact that he ran under said timbers instead of away from them will not constitute contributory negligence on the part of the plaintiff, even if yon believe from the evidence that if he had not run under the timbers, or had chosen another means of escape, he would not have been injured.”

Defendant contends that this instruction is a comment on the evidence and is otherwise erroneous. It is *36not a comment on the evidence. Evidently, it was given on account of the slight- evidence, that plaintiff, when he heard the crash and the warning to “Look out,” ran toward instead of away from the falling joists. Plaintiff’s evidence shows that he was startled by the sudden crash and the warning, and his first thought was to flee from the building, as he did not know what had or would happen. Under this state of the evidence, the instruction is in harmony with the ruling of. the Supreme Court in Kleiber v. Railway, 107 Mo. 240, 17 S. W. 946, where at page 247, the court said:

“It is as well settled as any other principle of the law of negligence that, if one, by the negligence of another, has been placed in a situation of apparent imminent peril, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not dominated by terror of impending danger; and if, without having time to deliberate, and acting upon the instinct of self-preservation, and as a prudent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true, though no injury would have resulted had no attempt to escape been made. [Beach on Contrib. Neg., p. 43, and cases cited; Whittaker’s Smith’s Neg., sec. 392; Jones v. Boyce, 1 Stark. 493; Stokes v. Salstonstall, 13 Peters 181; 2 Shearm. & Redf. on Neg., sec. 477.]”

4. The final contention of defendant is, that the damages are excessive. Plaintiff was earning twenty-five dollars a week. He was disabled from working for about eight weeks. He was not out anything for medicine, medical attention or for nursing. He earned the same wages after as before the injury. He testified that he suffered from dizziness after the injury, and on this account could not work on the roof or high places about a building; to the contrary, it was shown that he had *37done such work after the injury, without complaint or objection. He testified that he could not lift, .that to lift hurt his side where his rib had been broken. He testified that he was forty-eight years old and could not see to read by gas or lamplight after the injury, without using glasses but could see to work. He testified that he suffered a great deal of pain while in the hospital undergoing treatment for his injury. No physician testified as to the extent of plaintiff’s injury. The use of glasses to read by an artificial light, does not prove that plaintiff’s eyesight was 'damaged by the injury, as most men of his age have to do as he does — use glasses to read by gas or lamplight. Broken ribs, after they are properly healed, do not permanently impair one’s physical .strength. Doubtless, plaintiff suffered great physical pain for a few weeks. He lost about two hundred dollars in wages. The jury were not authorized to find present damages for future consequences of the injury, for the reason there was no evidence to justify the submission of this element of damages.' In this state of the case, it seems to us the damages are excessive, and while the writer feels a great reluctance to interfere with the verdicts of juries in such matters, and deprecates what to him seems to be an unwarranted practice established by the precedents in this State, of ordering remittiturs where the verdict is manifestly excessive, instead of sending the case back to the trial court to have the damages assessed by another jnry, we feel bound to follow the precedents and to order a remittitur in a proper case. We think two thousand dollars would amply compensate plaintiff for all the damages he suffered on account of the injury, therefore, it is ordered and considered that unless plaintiff remits one thousand dollars of his judgment within ten days from the filing of this opinion, the judgment will be reversed and the cause remanded; if the remittitur is entered as herein indicated, the judgment for two thousand dollars will be in all things affirmed, to bear the *38legal rate of interest from the date of its rendition in the circuit court.

All concur.