122 Mo. 141 | Mo. | 1894
This is an action for personal injury. This is the third appeal in this court. Plaintiff obtained a verdict and judgment in the circuit court, on the first trial, for $10,000, and the judgment was reversed and remanded. 93 Mo. 445. The second trial resulted in a verdict for $15,000, and the judgment was reversed and the cause remanded. 104 Mo. 211. At this last trial plaintiff recovered judgment for $6,000, and defendant again appeals. Sincb the appeal was taken plaintiff has died, and his administrator, B. A. Barnard, has been duly substituted on the record.
The injuries of plaintiff were received at Pleasant
On the defendant’s passenger train was the usual mail car and railroad postoffice. At the time of the injury plaintiff had started to the depot to deposit a
By reason of said injuries plaintiff was confined to his bed for nearly three months, and was not able to perform any kind of work for more than one year, and continued to suffer excruciating pain up to the time of the trial, and the testimony showed that he would continue to suffer, and that the injuries would grow worse until death. At the time of the injury plaintiff was a strong, healthy man; was earning about $5 per day as traveling salesman for the Missouri Glass Company. During the time of his sickness he incurred liabilities and expended large sums of money in attempting to cure himself of his injuries.
For the plaintiff, the court in its first instruction, in substance, directed the jury, that if this walk and crossing across its house track had been maintained and permitted by defendant for more than ten years without objection, and that defendant, during, that time, was in the constant habit of separating its cars at this walk so as to provide a crossing for footmen who might desire to pass that way, and that on the night of the accident plaintiff was attempting to go to defendant’s depot to mail a letter on defendant’s train, in a mail car therein, and that defendant had left an opening between said cars for the public to pass over, as it had for ten years,, and that defendant had been in the habit of ringing a bell or giving some kind of warning before closing said crossing or putting cars in on said track, and that when plaintiff came to this crossing these cars were so separated as to induce plaintiff and the public to believe defendant intended they should use it for a crossing, and that plaintiff did so believe, then plaintiff was justified in acting upon this implied invitation and defendant owed plaintiff the duty of giving some reasonable or suitable warning-before closing said opening 5 and that before venturing in, plaintiff stopped, looked and.listened for indications of movement of said cars, and that he heard none, and that in attempting to pass on said crossing he was
There was no error in the ruling of the court overruling the objection. The pith of the petition was that by a long continued course of action the defendant had led plaintiff to believe that it had opened this space between its cars over this much used sidewalk, in order that plaintiff and the public could pass that way, and to make this proof this evidence was offered to show, not only that the company constantly left an_Opening there, but that it always gave a signal or warning of its intention to close it up. We think the evidence was pertinent and competent, not only to show negligence
Indeed, in view of the evidence of Mr. Gowdy, who has been the station agent at Pleasant Hill since 1876, there would seem to be no question as to the custom of making the passage for the public. He testified that it was his custom to separate the cars so that the public could go through, and that this opening was there nearly all the time. He says that on the evening Mr.' Gurley was hurt, the space was open between the cars about three and one half to four feet; that he went to supper about 6 o’clock and returned about 7 o’clock, passing through this opening going and coming. He says, moreover, that the company laid planks between its rails to connect its platform with the sidewalk coming down from the hotel to its depot. The proof that it's agents generally obeyed the dictates of prudence and humanity by warning those who habitually used this crossing by thd consent and invitation of the companyr could not have injured defendant; and the same character of evidence was admitted, without objection from the witness Bennington and the plaintiff Gurley, but when this case was here on the second appeal, we held that if the company so arranged its cars at this crossing as to invite the public to pass between them, it was its duty to give some reasonable or suitable warning of its intention to close the opening, when it desired to move its cars over it, so that whether the company was in the habit of giving warning or not, it was its plain duty so to do, under such circumstances. The aver
“Q. Now, what effect, if any, has this injury had on your capacity and ability to follow your business, or to perform any kind of labor 1 A. As far as the business I have been in, through the kindness of 'the Missouri Glass Company, I have been permitted to work for them some, but I can’t earn more than $1 -a day on an average; some days I make a little more, but it will average about $1 a day.”
But there was no error in admitting the testimony. In Smith v. Railroad, 119 Mo. 246, the allegation was “and has been deprived of her means of support;” and it was ruled by this court, in an opinion by Chief Justice Black, that the plaintiff had a right to give in evidence her earnings in the usual course of her business. In Britton v. St. Louis, 120 Mo. 437, a similar ruling was made, where the allegation was that plaintiff was incapacitated from work and labor, and, besides loss of time, was put to great expense. Slaughter v. Railroad, 116 Mo. 269, is not in conflict herewith; neither is Coontz v. Railroad, 115 Mo. 672.
At common law, in an action for trespass for breaking and entering plaintiff’s house, he may give in evidence without, pleading it specially, under the general allegations of “other wrongs,” the debauching of his daughter, or the battery of his servants; but clearly we think in the light of this expert evidence that this was a natural result to be expected, and by one physician predicted as a consequence when he first examined and attended plaintiff after his injury. It was competent evidence. With the exception of the .statement of one of the physicians on cross-examination, that he had never known such a result in his practice, the burden of the testimony of the medical men was that this paralysis was the natural result of plaintiff’s injury.
The evidence is without contradiction that for twenty years the defendant not only permitted the public to pass over this crossing with its knowledge, ■and without protest, but its own agent, Mr. Howdy, testified that it constructed a sidewalk between its rails to conform to the walk coming down from the hotel to its depot; that he kept a space opened between the ears for the public travel. Indeed the great weight of evidence was that more citizens of Pleasant Hill used this ■crossing than any other crossing in the city. In view ■of the character of the evidence now, and it is unimpeached, as to the public use of this walk and crossing, no one could be charged with negligence in using it. The agent himself, who directed its opening, passed through it that evening going and returning from his supper as late as 7 o’clock. It was shown that two ladies walking side by side passed through it only ■a few minutes before Mr. Hurley was hurt.
"When he approached it, he testifies, he stopped, listened, heard-nothing and passed between the cars, when they were suddenly closed on him, crushing his
We have gone through the very carefully prepared brief and argument of counsel for defendant and we-find no material error in the action of the circuit court. The cause was carefully tried in accordance with the views we expressed on the former' appeal, and the verdict does nob, in the least, appear to be affected by passion or prejudice. The judgment is affirmed.