271 Mo. 111 | Mo. | 1917
Plaintiff sued for $20,000 as damages for alleged personal injuries caused by the fall of a -pássenger elevator in defendant’s department store in Kansas City in which the plaintiff was at the time a passenger. There was a verdict and judgment for the defendant, and the plaintiff has appealed. ' ’ ■
A previous suit' by the plaintiff’s husband against the same defendant for damages for loss of services' of the wife by reason of said alleged injuries is reported in' 191 Mo. App. 263.
It is sufficient for the purposes of this case to say that the evidence tends to show that on December 26,1911, said elevator, filled with passengers, including the plaintiff, on its way from the second to the first floor, could not be stopped, for some unknown reason, at the first floor; but passed on down to the bottom of the shaft in the basement, striking the bottom with a thud; that one or more of the passengers screamed; that no note was then taken of any
The evidence also tends to show that immediately after such falling of the elevator the plaintiff was suffering from a severe nervous shock, and that about two days thereafter there was blood in her urine, and. that she continued in a very nervous condition, losing at times, for considerable periods, all self-control, suffering greatly from pains in her' body.
Plaintiff’s third instruction was as follows:
“The term negligence as. used in these instructions means a failure to exercise ordinary care. Ordinary care is that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances. ’ ’
Among defendant’s instructions were the following:
“1. The court instructs the jury that the defendant did not undertake to insure or absolutely guarantee the safety of the plaintiff; that the defendant was not hound to have its passenger elevator and machinery absolutely safe, nor did the law require the defendant to adopt every. precaution to prevent plaintiff from being injured, and the defendant in operating and maintaining said elevator, was only required to use that degree of care which a prudent common carrier would exercise under like circumstances. .
“2. The court instructs the jury that there is no evidence in this case tending to show that any part of the elevator in which plaintiff was riding or any part of the elevator machinery connected therewith was defectively or improperly constructed.”
“8.' You are-instructed that the plaintiff cannot recover for any fright, terror,- alarm, anxiety or distress of mind caused by or resulting from the descent of defendant’s elevator if these were unaccompanied by some physical injury.
*118 “ You. are further instructed that if you believe from the evidence that plaintiff’s present condition is the result of a fright or scare only, then plaintiff cannot recover in this case.”
I. The second instruction for the defendant was error. It told the jury that there was no evidence that the elevator or its machinery “was defectively improperly constructed. ’ ’
Orcutt v. Century Building Co., 201 Mo. 424, was a suit for damages for an injury suffered by one who was being carried in a passenger elevator. It was there held that a corporation running such an elevator is a carrier of passengers the same as the operator of a stage coach or a railroad. It was also there said:
“Defendants by this instruction placed upon the plaintiff the burden of showing the cause of the accident, whereas in such cases it is sufficient to show the accident and the attendant circumstances and conditions, when negligence will be presumed, and thereupon the burden is shifted to defendant to show that there was no negligence in the operation and construction of the elevator.”
A long list of cases is there cited. It follows .that when it is shown that a passenger is injured by such failure of the elevator car to stop at the proper place, such fact is evidence of negligence, and it is so strong that it raises a presumption of such negligence on the part of the owner of the car. The law does not undertake to say at what point such negligence occurred, but it does say that it is presumed to be in permitting the existence of some defect in the construction of the car or its machinery, or some fault in the manner of its operation. That presumption throws on the defendant the burden of proving “that there was no negligence in the operation and construction of the elevator.” The glaring error of that instruction will appear when attention is called to the fact that defendant was just as much entitled to an.instruction saying that there was no evidence of negligence in the operation of the car. If defendant was entitled to one, it was entitled to both, and that would clearly mean that it was entitled
The respondent’s brief contains this language:
“Under the res ipsa loquitur doctrine, the sole infer-’ ence or presumption is that there was some negligence at the very time of the alleged accident, and that alone. Accordingly, the court committed no error in instructing the jury that there was no evidence that this elevator, constructed twenty-three years before, and shown to have been changed a number-of times since then, was defectively or improperly constructed, as this clearly refers to the initial construction.”
In answer to that we say that instructions, are supposed to be written in plain, non-technical language for the comprehension of laymen, the jury. We have no doubt that the instruction was understood by the jury to refer to the condition of the car as it was at the time of the occurrence in question. Even if the instruction has the meaning which respondent now seeks to give it, it was error.
Prom the fact that the elevator could not he controlled, or was not controlled, the law presumes negligence. It is presumed that such negligence consisted in the fact that some defect in the original construction was allowed to continue, or that some later defect appeared and was not corrected, or that there was fault in the operation of the car. The burden of covering that whole ground with evidence to refute the presumption rested upon the defendant, and it was not entitled to substitute such an instruction in the place of evidence. We do not mean that it was necessary for the defendant to furnish evidence as to the construction of the car many years before the time in question, hut it was necessary for it to show that there was no defect at the latter time, and that showing would refute the idea that there-were any defects in the car still
II. The first paragraph of the eighth instruction for the defendant which told the jury, in effect, that the defendant. is not responsible for mental suffering plaintiff unless it was accompanied by physical injury is correct. The rule in this State was laid down in Trigg v. Railroad, 74 Mo. 147, ■thus: “The general rule is that ‘pain of mind, when con-' nected with bodily injury, is- the subject of damages; but it must be so connected in order to be included in the es-túnate', unless the injury is accompanied by circumstances of malice, insult or inhumanity. ’ ”
That case is followed in Connell v. Western Union Tel. Co., 116 Mo. 34; Spohn v. Railway, 116 Mo. 617; Schmitz v. Railway, 119 Mo. 256; Crutcher v. Railroad, 132 Mo. App. 311; Smith v. Pullman Co., 138 Mo. App. 238.
III. The second paragraph of that instruction which told the jury that if the then present condition of the' plaintiff was the “result of fright or scare only” the plaintiff could not recover, is a'necessary result of the rule above laid down. If the defendant is not responsible- for the mental shock and suffering of plaintiff in the absence' of accompanying physical injury, it is not responsible for physical injury caused by such mental shock and suffering.
Spade v. Railroad, 168 Mass. 285, was like this in all material respects- It was there said:
“Not'only the transportation of passengers and the running of trains, but the general conduct of business and' of the ordinary affairs of life, must be done on the assumption that persons who are liable to be affected thereby are not peculiarly sensitive, and are of ordinary physical and mental strength. If, for example, a traveler is sick or infirm, delicate in health, specially nervous or emotional, liable to be upset by slight causes, and there*121 fore requiring precautions which are not usual or practicable for travelers in general, notice should he given, so that, if reasonably practicable, arrangements may he made accordingly, and extra care he' observed. But, as a general rule, a carrier of passengers is not hound to anticipate or to guard against an injurious result which would only happen to a person of peculiar sensitiveness. This limitation of liability for injury of another description is intimated in Allsop v. Allsop, 5 H. & N. 534, 538, 539. One may he held hound to anticipate and guard against the probable consequences to ordinary people, hut to carry the rule of damages further imposes an undue measure of responsibility upon those who are guilty only of unintentional negligence. The general rule limiting damages in such a case to the natural and probable consequences of the acts done is of wide application, and has often been expressed and applied.”
It was also there said:
“The law of negligence in its special application, to cases of accident has received great development in recent-years. The number of actions brought is very great.. This should lead courts well to consider the grounds on which claims for compensation properly rest, and the necessary limitations of the right to recover. We remain satisfied with the rule that there can he no recovery for .fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can he no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no Injury to the person from without. The logical vindication of this rule Is, that it is unreasonable to hold persons who are merely negligent hound to anticipate and guard against fright and the consequences of fright; and that this would open a wide door for unjust claims, which could not successfully he met. These views are supported by the following decisions: Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222; Mitchell v. Rochester Railway, 151 N. Y. 107; Ewing v. Pittsburg, Cincinnati, Chicago*122 & St. Louis Railway, 147 Pa. St. 40; Haile v. Texas & Pacific Railway, 60 Fed. 557.
“In the following cases a different view was taken: Bell v. Great Northern Railway, 26 L. R. (Ir.) 428; Purcell v. St. Paul City Railway, 48 Minn. 134; Fitzpatrick v. Great Western Railway, 12 U. C. Q. B. 645. See also Beven, Negligence, 77 et seq.”
The rule and the reason therefor as laid down by the Massachusetts courts is supported by sound reason and by far the greater weight of authority, and we follow it.
IY. Appellant calls attention to defendant’s first instruction, which told the jury that the defendant “was only required to use that degree of care which a Pradent common carrier would exercise under like circumstances,” and insists that such instruction requires too low a degree of care on the part of defendant.
The respondent calls attention to plaintiff’s third instruction which only required “that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances,” and insists that the appellant is bound by the theory of her own instruction, and cannot object to that same theory when it appears in the instruction for the opposite party.
We will not say whether the theories in those two instructions are exactly the same, but we do say that they are both wrong. The standard of care required of a common carrier of passengers is well stated in Jackson v. Railway, 118 Mo. 199, 1. c. 224, thus: “The utmost care and skill which prudent men would use and exercise in a like business and under similar circumstances.” Almost that identical language is used in Magrane v. Railway, 183 Mo. 119, and in Redmon v. Railroad, 185 Mo. 1.
The judgment is reversed and the cause is remanded.
The foregoing opinion of Roy, C., is adopted as the opinion of the court.
