204 Mo. 704 | Mo. | 1907
This is an action for damages for personal injuries alleged to have been sustained by plaintiff on the 13th day of June, 1902, by being thrown) from defendant’s ear, by reason of its premature start, whilst plaintiff was in the act of alighting therefrom at the corner of Taylor and Washington avenues in the city of St. Louis. The action was instituted in the circuit court of the city of St. Louis, and afterwards, on the 18th day of April, 1903, on application of plaintiff for a change of venue1, the cause was transferred to the circuit court of Montgomery county, where plaintiff, upon trial had, recovered a verdict and judgment for the sum of thirty thousand dollars. Defendant filed motion for new trial, and afterwards, and within four days after the rendition of the verdict, filed a supplemental motion for a new trial, also motion in arrest ,of judgment, which motions were by the court overruled, and defendant appealed.
The petition is in the usual form of an action by an injured passenger against a carrier, and charged in substance that the defendant at the times alleged was a corporation by virtue of the law of Missouri and used and operated the railway and car mentioned for the purpose of carrying passengers for hire from one point to another in the city of St. Louis as a street railway company. “That on the 13th day of June, 1902, the defendant, by its servants in charge of its car, received the plaintiff as a passenger thereon, and for a valuable consideration by the plaintiff paid to the defendant, undertook and agreed with the plaintiff to carry her safely as a passenger on said car to her point of destination on defendant’s line, and to then stop said car, to-wit, at Washington Boulevard (or avenue) and Taylor avenue, in the city of St. Louis, and allow plaintiff a reasonable time and opportunity to alight in safety; avers that the defendant, unmindful of its undertaking and of its duty in the premises, did, by its servants in
The petition then sets up an ordinance of the city of St. Louis prohibiting conductors from allowing women to enter or leave cars whilst in motion and in disregard of this ordinance, and claimed that such violation of this ordinance contributed to cause plaintiff’s injuries, and alleges her injuries as follows: “That by her injuries, caused as aforesaid, the plaintiff has suffered and will suffer great pain of body and mind; has been permanently crippled; has been permanently disabled from carrying on her business as a keeper of boarders, and carrying on business as a saleswoman and other business, and has been permanently disabled from labor; has been made an invalid for life; has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, to her damage in the sum of fifty thousand dollars, for which sum she prays judgment.”
The answer was a general denial and a plea of contributory negligence on the part of the plaintiff in alighting from a moving car at a time and place when and where the same had not been stopped for the purpose of permitting passengers to alight therefrom.
The reply was a general denial.
Upon almost every salient fact in evidence in this
Plaintiff’s evidence tended to prove that she was fifty-two years of age, had lived in St. Louis about twelve years, and that her health had been perfect prior to the accident. She was connected with a medical firm, and traveled,' lectured, and sold a certain proprietary medicine, called G-ranagophone, for women only. Her earnings from' this employment averaged thirty or forty dollars per week. She also kept boarders, but there is no evidence as to the earnings or profits she derived from such business.
At about eight o-’clock on the evening of June 13th, 1902, at Spring and Olive streets in the city of St. Louis, plaintiff, accompanied by her daughter Marguerite, boarded one of defendant’s cars, whose course was west on Olive street, and north on Taylor avenue. The car had seats running crosswise from side to side, and a step or running hoard along the. sidé of the ear from end to end, for the use of' passengers in boarding the car or alighting therefrom.- At the end of each seat was an upright standard in which was an electric button by means of which passengers indicated to the conductor their desire to- have the car stopped. Plaintiff boarded the car at the right side and sat at the end of the third or fourth seat from the front, being thus close to the running board and on the east side of the car as it was going north on Taylor avenue. Just before reaching Washington Boulevard she rang the bell twice for the car to stop, whereupon her daughter asked her why she rang it the second time, and she replied, “The conductor is'doubly warned that we want to get off.” When the car stopped she- got up from the seat, stepped on the running board preparatory to alighting, and while in that position the car started, throwing her to the streét and into the gutter by the pavement. Plaintiff’s description of the accident was
When Dr. Witherspoon was called to treat plaintiff, two or three weeks after the accident, he found no broken bones and no marks of physical injury. She showed evidence of traumatic neurasthenia, such as sensitive points along the spine; she was subject to dizziness at times, and appeared to be losing strength. He diagnosed the case as traumatic or “railroad spine,” but as he was not a specialist in that line, he called in Dr. Crandall. The latter began treating plaintiff on July 10, 1902, about a month after the accident, and she was still under his care at the time of the trial. He found her condition was a nervous one, and on examination concluded that she had suffered concussion, of the spine. She complained of dizziness, headache and sleeplessness, and walked with great difficulty and pain, all of which were symptoms of concussion of the spine, which is caused by a severe jar of the spinal column. In his opinion plaintiff was an invalid and would never permanently recover, and there was a possibility of a more serious organic condition developing. The symptoms were characteristic of nervous prostrations of any kind. The witness testified that the value of a trained nurse’s service was three dollars; a day and three dollars a night. His own bill was about three hundred dollars.
Plaintiff next offered in evidence section 1760' of' the 'ordinances of the city of St. Louis, the fifth paragraph, which was the paragraph defendant was charged with having violated, providing that “conductors shall not allow ladies and children to leave or enter cars while the same are in motion. ’ ’
Defendant’s evidence tended to prove that the conductor, who was standing on the rear platform, gave the motorman a signal to stop' the car in .obedience to plaintiff’s signal that she intended to alight. While the car was slowing down plaintiff stepped off the car to the street, which was wet and slippery, and fell, the car continuing to run about eight or ten feet thereafter. The conductor did not see her as she got up from her seat and stepped onto the running board, but saw her .afterward when she was attempting to arise from the ground.
The court permitted plaintiff, over repeated objections by defendant, to ask the conductor as to> alleged statements as to how the accident occurred, made by him to plaintiff and others in the presence- of various witnesses after plaintiff had gotten up from the street. To contradict the answers made by the conductor to these questions plaintiff in rebuttal, over -defendant’s objections, was permitted to introduce the testimony
Dr.. Dinsbeer, a passenger on the ear sitting four or five seats behind plaintiff, saw her get up in the car and step to the ground before the oar had come to a stop at the crossing. In alighting, her back was towards, the front of the car and she fell backwards.
Charles S. Crawford, of Crawford & Newby, general paint manufacturers, who sat near the rear end of the car on the east side, testified that while the car was slowing up for the crossing he saw plaintiff deliberately step.off the car backward, keep.her equilibrium a second or two, and then fall over, the car run-: ning about ten or twelve feet before stopping.
J. D. Donnoway was sitting in the front seat (which was reversed), facing the rear of the car and near the running board. He saw plaintiff while the car was slowing down step off backward and fall to the street.
J. H. Brigham, sitting on the seat with Donnoway, testified that when the car was approaching Washington avenue, plaintiff got up to get off, and just before the car stopped'she stepped down to the running board and stepped off the car backward, the ear running six or eight feet further.
Dr. A. Y. L. Brokaw examined plaintiff the day after the accident and attended her about two weeks. A week or ten days after he ceased treating her he went to see her and when he reached the house she was sitting by the window. He waited a few minutes for someone to let him in and when he was admitted to the house he found that plaintiff had gone up stairs and gotten in bed with her clothes and shoes on. After that he did not go to see her any more.
Dr. Paul Y. Tupper was appointed by the St. Louis court to examine plaintiff. This he did ini the presence of plaintiff’s physician, Dr. Crandall, in
The first question presented for consideration upon this appeal is as to the action of the court in granting, upon the application of plaintiff, a change of venue from the circuit court of the city of St. Louis, where the action was first instituted.
It appears from the record that the case was called for trial on April 13, 1903, when the parties answered for trial, and, upon application of the defendant, a panel of special jurors was summoned for the trial of the cause. On the 17th day of April, 1903, the parties again answering ready for trial, the jurors composing the special venire were called into the jury box, and duly sworn by the clerk to true answers make to such questions as might be propounded to them touching their qualifications to sit as jurors in the trial of the cause; but being unable to finish the empaneling of the jury on said day, the court adjourned until the 18th day of April, 1903, when the panel was completed. Both parties then announced that they did not desire to examine the jurors further, but before the challenges were made and the panel of twelve selected to try the case, plaintiff filed an affidavit praying for a change of venue upon the ground that defendant had undue influence over the inhabitants of the city.of St. Louis; that she obtained information and knowledge of such influence on the 18th day of April,
Defendant objected to the consideration of the application for change of venue upon the ground that no notice had been given defendant or its attorney, and that the application was presented too late, which said objections the court overruled and awarded a change of venue, sending the cause to the circuit court of Montgomery county. It does not appear from the bill of exceptions that the defendant saved an exception at the time to the action of the court in awarding the change of venue, which defendant should have done in order to have the action of the court in that particular reviewed here. [Stearns v. Railroad, 94 Mo. 317; State ex rel. v. McKee, 150 Mo. 233.] Nor was any point made in this regard in the motion for a new trial, which was likewise necessary, and in the absence of which the action of the court will not be reviewed by the Supreme Court. [Klotz v. Perteet, 101 Mo. 213,]
One of the grounds for new trial assigned by defendant in its motion is that one of the jurors trying the cause was prejudiced and biased: The juror, Samuel A. Moore, upon his voir dire examination testified in effect that he had no business relations with or interest in the St. Louis Transit Company, and that he had no bias or prejudice against the parties, or either of them. Upon these statements he was accepted by both sides as a competent and qualified juror. After the case had been submitted to the jury it was learned that Moore was one of a large number of employees of the defendant company who went on a strike in the city of St. Louis in May, 1900, the strike continuing for several months, during which time feeling between the strikers and their employers ran high; defendant’s tracks were demolished by dynamite, and crimes, some
. “ Q. On the hearing of the voir dire, that is to say, on the inquiry of the jury as to their qualifications, was there any question asked you by me or by counsel for defendant as to whether or not you had ever been in the service of the défendant St. Louis Transit Company? A. There was not.
“Q. Do you remember the question I put to you was this,: ‘Have you any relation .of business or interest with the St. Louis Transit Company?’ Do yon remember that question? A. Yes, sir.
“Q. Well, what other question, if any, was asked you with regard to your relation with the Transit Company? A. There was none that I have any recollection of.
“Q. What further question was asked you as a juror? A. I don’t remember what was, asked; I don’t remember.
“Q. Do you remember whether or not you were asked the question as to whether or not you had any bias or prejudice against the parties, or either of them? A. Yes, sir; I think I remember that.
“Q. What was your answer? A. My answer was I was not prejudiced in any way.
“ Q. I will ask you if you did, as a matter of fact, have any prejudice either way in that ease? A. No, sir.”
The juror, however, did not admit or deny that he was an employee of the defendant at the time of the strike, or that he was one of the strikers.
It is insisted by defendant, that aside from the issue of fact arising out of the juror’s examination, the questions that Moore admitted were asked him required that he advise defendant’s counsel of his disqualifications. Upon the other hand, plaintiff contends . that although Moore may have been prejudiced against the defendant at the time of the strike, some three years before the trial, there was no evidence that he still retained the prejudice at the time of the trial, there having been a change in the management of the company in the meantime, and especially in view of the fact that on the hearing of the jury on the voir dire the said juror swore that he had no prejudice, and again swore on the hearing of the motion for a new trial that he had1 no such prejudice.
Moore admitted that he was asked upon his voir dire examination if he had any bias or prejudice against the parties, or either of them, and that his answer was, “I was not prejudiced in any way.” Nevertheless, the evidence clearly shows that this juror was, at the time of the strike, biased and prejudiced against the defendant; and when asked upon his voir dire examination if he had any bias or prejudice against the defendant, he should, in justice to himself and in. fairness to the defendant, have disclosed the fact of his connection with the strike. Would any sane person whose property rights were involved in a lawsuit knowingly, and without objection, permit a man to serve as a juror thereon who had, within three years next preceding, assisted in the wanton destruction of his prop
In the case of Heasley v. Nichols, 80 Pac. 769, similar in many respects to this case, it was said: “If the true condition of his [the juror’s] mind had been made known to the court before he was accepted ás a juror, he would have'been excluded at once. The parties had a right to rely upon his sworn statement, and waived nothing by accepting him as a juror. But when the attention of the court was called to’ the condition of the juror’s mind in a proper way, it was the duty of the court to rectify the mistake by granting a mew trial.”
In Theobald v. Railroad, 191 Mo. 1. c. 416, it is said: “ There is no feature of a trial- more important and more necessary to the pure and just administration of the law than that every litigant be accorded a fair trial before a jury, who enter upon the trial wholly disinterested and unprejudiced,” and “it is for the court, and not for the juror, to determine Ms qualification. The determination should not be made to depend upon the conclusion of the juror as to whether or not he could or would divest himself of a prejudice which the evidence shows existed.”
That the juror was prejudiced' against the defendant, and was not for that reason a competent juror, was shown by the affidavits filed in the court below,- and this fact was further emphasized by the exceedingly large and unjustifiable verdict rendered by the jury. That the defendant would not have permitted Moore to serve on the jury, without objection, had its
Plaintiff’s instruction number 5 is criticised upon several grounds, only one of which, the third, will it be necessary to notice. By this instruction the plaintiff was allowed to recover, by way of damages, “any expenses necessarily incurred for nursing.” The only persons who attended plaintiff as nurses were her daughters, members of her family. There was no express contract to pay them for their services, and defendant contends that the services are presumed to have been rendered gratuitously.
As' a rule such services involve no legal liability upon the part of the person for whom rendered, and, therefore, afford no basis for a claim. In Voorheis. on .Damages for Personal Injuries, sec. 18, it is said: “The injured person cannot recover as expenses the value of the services of any one of his family in nursing him, unless there was an express agreement by him to pay therefor. Such nursing involves no legal liability on his part, and therefore affords no basis for a claim against the defendant, as for expenses paid. In the absence of an express contract, the law will not presume one, so long as the family relation continues. An injured person may hire an adult member of his family to nurse him, or to prescribe for him as a physician, in the same manner and with like effect that he may hire a stranger. ’ ’
The same rule is announced in Goodhart v. Railroad, 177 Pa. St. 1. c. 14, in which it is said: “The plaintiff cannot recover for the nursing and attendance of the members of his own household, unless they are hired servants. The care of his wife and minor children administering to his needs involves the performance of the ordinary offices of affection, which is their
This cape was followed and approved by this court in Morris v. Railroad, 144 Mo. 500. That the authorities upon this subject are not entirely uniform may be conceded, but we think the rule announced in the Morris case and by the authorities which it follows is sustained by the better reason. It follows that said instruction is erroneous.
The verdict is so manifestly excessive and so out of reason when considered in connection with the facts in relation to plaintiff’s injuries, their nature and extent and their probable effect upon her health in the future, and the expenses'necessarily incurred for medical treatment, that the ends of justice will be best sub-served by reversing the judgment and remanding the cause for another trial.
The judgment is reversed and the cause remanded?