126 Mo. App. 70 | Mo. Ct. App. | 1907
— The plaintiff, Anna Latimer, sues to recover damages for an injury she received while a passenger on one of defendant’s street cars, alleged to have been the result of defendant’s negligence. Her husband, Prank Latimer, is merely joined as a nominal
As the parties do not differ materially in their statements as to the main facts in the case, we have adopted a part of that of plaintiff as a matter of convenience: “On December 28, 1904, the defendant Metropolitan Street Railway Company was operating a cable street railway line on Twelfth street in Kansas City, Missouri. The line runs through the business district on the west and through a residence district on the east. On the downtown or western end of the line the trains are operated by a cable running about seven miles an hour. On the residence or eastern end of the line the trains are operated by a cable running about nine miles an hour. The cables which move these trains run through a conduit below the surface of the ground. The grip runs along in this conduit and the trains are started or stopped by catching or releasing of the hold of the grip on the cable. The division point where these cables enter into and out of the powerhouse is at Twelfth and Charlotte streets. As the eastbound cable train reaches a point near the power house the gripman releases the west cable and permits his train to run by gravity until it reaches a point where he can take hold of the east end cable. If the gripman should negligently fail to release his grip and let go of the cable, and if there were no contrivance to prevent it, the grip would follow the cable until it came in contact with another cable which would result in the sudden stopping of the train and the cutting of such other cable. In order to prevent a
On December 28, 1904, the plaintiff, Anna Latimer, hereinafter called the plaintiff, was a passenger on one of defendant’s Twelfth street cable trains going from downtown to her home in the eastern part of the city. The train was crowded and plaintiff was standing on the front platform of the coach or rear car of the train. When the train approached the division point where the Avest-end cable goes into the power house, and the east end of the cable comes out of the power house, it was the duty of the gripman to release his hold on the west end cable. For some reason the grip was not released from the cable, and the train going at full speed ran against the dead-man which brought the train to an instantaneous stop. The gripman testified that he failed to let go of the cable because his mitt caught between the brass and the handle of the grip lever and he could not get it out. He admitted, however, that if he had been careful enough to see that the hand would not get in there his mitt would not have caught. The result of the train striking against the dead-man when the car was going at full speed was an instantaneous stopping of the
The trial resulted in a judgment for plaintiff for four thousand five hundred dollars from which defendant appealed. The defendant assigns the following errors of record, viz.:
“1. The petition did not state facts sufficient to constitute a cause of action.
“2. The trial court erred in permitting plaintiffs to prove the number and ages of their children, the nature and extent of Mrs. Latimer’s labors in the household prior to the accident and her inability thereafter to perform said labors.
“3. The trial court erred • in giving instruction number 1 for plaintiffs.
“4. General Boyle’s remarks to the jury were wrong and prejudicial.
“5. The verdict was excessive.”
On defendant’s first assignment of error, that the petition does not state a cause of action, defendant’s argument is: “A collision imports negligence, and hence an allegation that it was caused by the negligence of defendant is sufficient. But a stop or start or jerk of a cable train does not import negligence, and hence an
The plaintiff Anna was asked, “Of whom did your family consist at the time of the accident?” Defendant’s counsel objected because the matter was immaterial. Plaintiff’s counsel then said, “It is only for the purpose of showing the labor she performed and the extent of her ability to work; I want to show that she did her housework and cooking, and so forth.” The court said, “It will be admitted for that purpose.” Defendant excepted. She answered, “My husband, myself and five children.” She then stated that the children’s ages ranged from eight to nineteen years and that she took care of the family and house prior to the accident. She then went on to state that she was not able to do housework since the injury. In Stephens v. Railway, 96 Mo. 207, the plaintiff was asked if he was a married man and, if so, how many children he had. The court permitted him to answer, after saying to the jury that they must not consider the question and answer in fixing the amount of their verdict. The admission of the evidence in view of the verdict for eight thousand dollars was held to be error. And such was the holding in Dayharsh v. Railway Co. 103 Mo. 570; Mahaney v. Railway, 108 Mo. 191; Williams v. Railway, 123 Mo. 573. If the object and effect of the testimony was to create sympathy and thereby to enhance the amount of plaintiff’s verdict, it should have been rejected. In the cases cited the number of children that the plaintiffs had did not in any way, so far as the records show, relate to the issues on trial, and the obvious tendency of the proof that the plaintiffs were married men and the fathers of children could have only one effect, and that was to
But the object of the introduction of the testimony objected to in this case, was entirely different. It was for the purpose of showing that plaintiff was a strong, healthy woman before her injury, capable of taking care of her family and performing the many household duties imposed upon her as the mother of many children, from which she was incapacitated since she received her injuries. The evidence went to establish one of her legal rights, the right to the ability to perform the wifely and motherly duties of her household — a right of the most priceless value to every good wife and mother, the deprivation of which is a most serious loss. It is said “Human nature is so constituted that physical labor in some form is essential to health and happiness, and to be deprived of the power to work is one of the most serious personal injuries independent of the pecuniary benefits that such labor may confer, and from any standpoint, whether of statute or common law, a -married woman, like any other human being, ought to be compensated so far as may be for such deprivation, if wrongful, and we do not think the court committed error in so holding in this instruction.” [Perrigo v. Transit Co., 185 Mo. 274.] The holding in that case was that the plaintiff, a married woman, was not entitled to recover for the loss of her services, “but for the impairment of her body and mind.” In Becker v. Real Estate Co., 118 Mo. App. 74, the court used the following language: “The principle upon which a married woman is allowed compensation for impaired physical ability to labor would include mental distress, injury, deprivation —call it what you will — incident to inability to do any sort of labor which she was able to do before being injured, and ought to cover incapacity for household work as much as any other; though for loss of time from household service, as distinguished from inability to per
There is another reason why the objection to the question and answer should be disregarded. The objection, as we have stated, was on the ground that they were immaterial. The objection was not good, for the testimony. was certainly material, or we presume defendant’s counsel would not be urging that the admission of immaterial evidence, evidence that could not have effected any purpose in the case, was a sufficient ground for reversal. It is held that an objection of incompetency directed to a question “may be passed by as of no value.” [Bragg v. Railway, 192 Mo. 331.]
The defendant criticises plaintiff’s first instruction for the same reason that it appled to the want of a sufficient allegation in the petition in order to constitute a prima facie case of negligence. It follows that what was said in reference to the sufficiency of the petition applies with equal force to the objection to the instruction.
One of the grounds urged for a new trial was the misconduct of plaintiff’s counsel in his address to the jury wherein he referred to defendant’s motorman as being incompetent when there was no evidence of such incompetency. The facts in reference to the matter appear by affidavits. No exceptions were taken at the time when the remarks were made and no note was made of them by the stenographer. These affidavits have no place in the bill of exceptions proper and the matter to which they refer is therefore not subject to review on appeal.
Lastly, defendant contends that the verdict of four thousand five hundred dollars is excessive. Considering that plaintiff, who was a strong, healthy woman prior to her injuries capable of taking care of a numerous household, was as the result of such injuries rendered weak and incapable of labor, had her nose broken and had become a nervous wreck, Avith her mind weak