120 Mo. App. 194 | Mo. Ct. App. | 1906
Action by a passenger against a common carrier to recover damages for personal injuries sustained in consequence of tbe negligence of tbe carrier. Plaintiff had judgment in- tbe sum of $1,500 and defendant appealed.
Tbe negligence charged in tbe petition is, “that while plaintiff was a passenger as aforesaid and was standing on tbe rear platform of said car, by reason of tbe negligence of tbe defendant said car ran into another car of defendant standing on tbe same track. That tbe force of said collision threw plaintiff violently into tbe car on which be was riding and onto Ms bead, inflicting upon plaintiff injuries as follows,” etc. Tbe answer is a general demal.
Defendant, as a part of its street railway system, operates a double track railroad between Kansas City and Independence. Electricity is tbe power used in propelling tbe cars. On account of tbe presence in tbe roadway of a high embankment about one-fourth of a mile long, tbe tracks thereon are laid so close together that both occupy a lateral space only a few inches more than that covered by each, so that while tbe tracks are not merged, a car going eastward on one cannot pass a westbound car on tbe other in that section of tbe road.
On January 2, 1904, plaintiff, accompanied by bis wife and their two sons, became a passenger at Independence on one of defendant’s cars that was bound for Kansas City. His wife and sons seated themselves in tbe car, but plaintiff, who was chewing tobacco, stood in tbe rear vestibule to avoid spitting on tbe floor of tbe car, an act forbidden by tbe rules of defendant as well as by tbe dictates of common decency. The car proceeded on its way using tbe tracks for westbound cars and all went well until it reached tbe section of track described. At that time, an eastbound car was passing over that section and bad tbe right of way. It was tbe
The first instruction given on behalf of plaintiff is as follows: “The court instructs the jury that the burden of proof is on the plaintiff to establish his case by the preponderance of the evidence, and by a preponderance of the evidence is meant the greater weight of the credible testimony; but the'court instructs the jury that if you find from the evidence that plaintiff was a passenger lawfully on board of the defendant’s train at the time of the collision, appearing in evidence, and received injuries therein, then the burden of proof as to the cause
Counsel for defendant appear to think that plaintiff was at fault in choosing to stand in the vestibule instead of seating himself in the car. Defendant did not raise the issue of contributory negligence in its answer and therefore that issue is not in the case. But had it been presented, the fact suggested would not have sufficed to make plaintiff’s conduct an issue for the consideration of the jury. Plaintiff had the right to indulge in the use of tobacco during the transportation and was riding in the part of the car provided by defendant for such passengers. Defendant impliedly invited him to be there if he chose, and in no manner was relieved from the performance of the duty it owed him as a passenger by his acceptance of the invitation.
Defendant criticizes the instruction quoted because of the declaration that the burden of proof on the issue of negligence shifts to the carrier when the facts that plaintiff was a passenger and was injured by the collision of the car, in which he was riding, are made to appear, and argues that, when all the evidence was introduced, the burden was still with the plaintiff to show by a preponderance of the evidence the existence of all of the facts elemental to the cause of action asserted. The instruction under consideration was copied literally from one approved by the Supreme Court in the case of Clark v. Railway, 127 Mo. 197, and it was there said that “When the passenger suffers injury by the breaking down or overturning of the coach, the prima facie presumption is that it was occasioned by some negligence of the carrier, and the burden is cast upon the carrier to rebnt and establish that there has been no negligence
Defendant completely failed to produce any evidence that even tended to exculpate it from the presumption of negligence, and in the state of the proof before us the only issuable facts that remained in the case at the conclusion of all the evidence, were those relating to the measure of damages. The court would have been justified in peremptorily instructing the jury on all other issues presented by the pleadings and, therefore, the question of whether the burden of proof ever shifts is immaterial. Defendant’s witnesses all agree that plaintiff was a passenger, that the collision occured in the manner described, that - plaintiff was overthrown thereby and received physical injury therefrom. Instead of producing evidence tending to show that the collision was the result of inevitable accident, the facts adduced by defendant accuse its motorman, who was operating the westbound car, of -gross negligence. He must have seen the eastbound car when it was one-third of a mile away, for the motorman of that car saw his car at that distance. He must have known that the approaching car was on the embankment and therefore had the right of way and it became his imperative duty to stop his car before entering on the embankment and there wait until the other car had passed. Instead of doing this, he ap
It is insisted by defendant that the verdict was excessive. Plaintiff at the time of injury was forty-three years old and was a teamster. He sustained some slight injuries to the head and shoulder from his fall, but his serious injury was to the left hand. At the time of the trial, which occurred more than a year after the injury, the hand was so stiff that the fingers could not be closed. The injuries are thus described by a physician who treated plaintiff and who testified as his witness : “I found the worst trouble with the left hand; a. sprained wrist and the whole hand in fact. Some of the small bones were broken; and soreness of the left shoulder, partly in front and underneath the shoulder joint. I found the middle finger was fractured at this joint, right near the base joint. The third finger was dislocated at the metacarpo-phalangeal joint, the third joint. There was a fracture of this bone at that point and also the bone here in the hand back of the joint (indicating). The little finger was fractured at this third joint and it was a great deal more sore at the second joint; the soreness at that point continued much longer. I don’t believe it is well yet at that point. And the whole hand was badly swollen.” Shortly before going on the stand, witness examined the hand and found it in this condition: “Some irregularity in the outline, some crookedness in two fingers, the little finger and the one next to it, and a set of broken muscles and tendons there which prevents closing the fingers to the extent they should be in ordinary use.” Q. “Now, what in your opinion is the reason for this contraction there which prevents the closing of the hand?” A. “Well.
Defendant introduced as a witness the physician who first treated plaintiff for the injuries sustained. 1-Ie testified: “When I first saw it, it was not swollen to any extent. I got there immediately after he got home, at least he told me so. So I went down there and looked at the hand. I looked a,t the hand and examined it very closely and found the first phalanx of the ring finger, that is the first joint of the ring finger, up that close to the joint, was fractured, that is, within about half an inch of the first joint; that is, it was probably about that close, it might have run up tapering a little. The little finger was dislocated in the last joint-next to the hand.” Q. “Doctor, from your experience- in setting fractured bones and reducing dislocations, I will ask you to state if that hand had been left as you placed it what would have been the result of it?” A. “He would have had a good hand.”
That plaintiff suffered great pain from the injury and that his hand was seriously cripped when the case was tried are facts not denied by defendant and it is tacitly admitted in the guarded question and answer ■ above quoted that the injury to the hand is permanent. Plaintiff testified that he had been disabled from following his vocation or from doing any work that required the use of both hands.
Under such facts we cannot say that a verdict of $1,500 must be regarded as excessive. The learned trial judge and jury, who saw and heard the witnesses and
Defendant objects to the instruction on the measure of damages on the ground that the issue of plaintiff’s total disability to earn money in the future as a result of his injury is submitted, while no such issue is pleaded and no proof of total disability adduced. The petition alleges, “That said injuries are permanent and lasting in character and effect and have caused plaintiff in the past, and in the future will cause him, to suffer great bodily pain and mental anguish. That his earning capacity has heen impaired.” To impair is to diminish, decrease, or deteriorate, and to allege that' plaintiff’s ability to earn money has been impaired, coupled with the statement that the cause that produced that result is permanent, is the assertion of the fact that the impairment likewise is permanent and therefore raises the issue of a permanent deterioration in earning capacity and satisfies the rule that loss of earnings, being in the nature of special damages, must be specially pleaded. [Wilbur v. Railway, 110 Mo. App. 689; Gurley v. Railroad, 122 Mo. 151; Britton v. St. Louis, 120 Mo. 437; Mellor v. Railroad, 105 Mo. 462.], The instruction, in employing the expression “will in the future disable him from earning money and making a support” does not enlarge the scope of the issue pleaded. The word “disable” is not modified by the adverb “totally” as erroneously assumed by defendant and evidently is used to describe the condition of permanency in the impairment of earning capacity rather than the complete destruction thereof.
The instruction is not subject to the criticism that
The judgment is affirmed.