*1 properly re- (c) No. instruction 6 was Defendant’s by covered instruction was The substance of fused. gave No. which the'court '5, instruction RUT- by de- (d) No. is covered Defendant’s given jury, with to the No. fendant’s instruction reading: “although exception you may part fur- pay promised to ther Curtiss had find said James by signed by Richard Curtiss had been other notes which au- affixing without the Curtiss said James name of in- thority not think this Curtiss.” do We said James Richard Curtiss, on the evidence. Even is based struction signing continued testified he witness defendant, doing, just had been notes like he his father’s name to the signed part time he evidence shows that' his presence. notes in father’s name to the his father’s his assumption warrant The evidence not does signed name to Richard Curtiss James Curtiss’ authority. in- This notes James his, Curtiss’,- without properly refused. struction was judgment be
The Commissioner recommends reversed remanded for the reasons stated. opinion foregoing PER CURIAM:—The Davis, judgment adopted opinion of the court. The
C., is accordingly is and remanded of the circuit court reversed by Allen, J., for the reasons stated the Commissioner. P. BecJcerand Daues, JJconcur. Respondent, THE M. PULLMAN O’NEIL,
URSULA Appellant. COMPANY, Opinion April Appeals. Filed St. Louis Court Sleeping Companies: Car OF PASSENGERS: Breach 1. CARRIERS Alleged Not Proximate Cause of Berth: of Contract Furnish Injury passenger’s Injuries. back caused at- sneezing,- brought tempting to have claimed been APPEAL REPORTS, O'Neil Pullman Co. operated by
because she had travel in chair car unheated company railroad cannot be be the and natural said to sleep- result of a ing contract breach to furnish berth defendant *2 company, active, being car efficient cause cause which sets’ in sequence train motion a of events that expected in their natural might ought produce injury to be to an by any independent intervening undisturbed cause. Speculation Conjecture: 2. DAMAGES: or Not Permitted in Deter- mining Injury Wrongful Whether Resulted From or Other Act Causes. speculation conjecture pur- Where pose to be for or has resorted determining injury wrongful whether the results from the cause, act fromor some then the rule law excludes al- injury. for lowance of Companies: Sleeping 3. CARRIERS OF Car PASSENGERS: Breach of Damages: etc., Pain, Contract to Furnish Berth: Mental Not Element. sleeping company, A breach of contract to furnish berth car necessary passenger car, which made for to ride in a chair did injured feelings, humiliation, not anxiety entitle and mental of mind. distress Wholly Though 4. INSTRUCTIONS: Instruction Erroneous: Error Requested. No Additional Instruction plained Where an instruction com- erroneous, wholly appellant is contention hav- request any ing subject additional failed on the is complain, in cannot be maintained. Sleeping Companies: CARRIERS OF PASSENGERS: Car Breach of Damages. Berth: Contract Furnish Nominal Where because company’s sleeping breach of defendant berth, plaintiff contract to furnish compelled car, to ride a chair the trial court peremptory properly defendant, refused a instruction offered plaintiff being damages. event to nominal entitled City Appeal Court, Circuit St. Louis.—Hon. Benjamin Judge Klene, J. and remanded.
Reversed Reyburn ap- Lehmann Lehmann S Thos. pellant. cause act Proximate an is" sets motion sequence might
a ought in their train of events that produce expected to be as undisturbed 285 v. The Co. Pullmnn intervening con- by any independent canse. The causal alleged plaintiff’s and defendant’s nection between wrong conjecture spec- be the merest cannot based exactly point. is Ame- v. Pullman Co. ulation. Smith App. v. 138 Powell 238; Mo. Co., v. Pullman lia Smith v. 196 ex rel. Lusk Ellison, State 532; S. Walker, Majors 222 S. Co., Power Water v. Ozark & W. 1088; S. v. Hospital, S. 104;W. Washburn Davis v. 501;W. Strayer Quincy, &Kan- Omaha 410; G-as Co., App. Society, City Ry. 514; Mo. Cole v. Loan sas 149; Union, Fitch v. Western 113; Fed. Hannibal 171 Mo. Howell v. St. & Louis Terry Hogan, Benson v. Central P. R. R. Sira v. R. Co., 98 Cal. Wabash 176; Schaff v. Boat- R. R. 106 Gra. Pierce, Central Co. v. Indianapolis right, B. & R. 243 S. W.
Binney, Southwestern R. 111. St. R. Co. v. 71 Louis 391; (2) plaintiff damaged 419. The 27 S. W. Thomas, cost a ticket not sued to the of the extent jury basing misled the into a for. The first instruction damage. (3) In the absence of malice, verdict on such recovery inconvenience, there and suf- can be unaccompanied by injury. fering physical instruc- The damages omitted the last tion on the measure of element. App. Mo. v. 238; Crutcher Co., Smith v. Pullman 138 App. Railway, 132 Mo. 311.
Taylor Young Stahlhuth and Marsalek <& for re- spondent. plainly
(1) a convicted The evidence defendant of legal plaintiff duty that defend- this, of its breach wrongfully unlawfully fur- failed refused to ant pro- agreed the accommodations nish thereupon became liable to her. Defendant vide probable she suffered as a for. the consequence wrong. dam- recoverable physical ages incon- included not discomfort, imposed hardship her, but also mental venience and 286 214 APPEAL REPORTS, v. The Pullman Co. thereby. Railways Com- Ferguson caused v. distress App. pany, S. Dalzell Hotel 616; 177 W. v. 393 Mo. Co., Hartridge Railway, Lusk, Davis v. 190 S. v. 379; 362; W. Dye App. 59; 254-5; 196 v. 135 Mo. Braun Railroad, S. W. Mise, Ap- 243; v. 31 N. Y. Mise. affid. N. Y. Webb, 794, 32 lington App. v. Pullman N. Y. 250; 110 Div. App. 41 Co. v. Tex. Civ. Hocker, 607, In addition to the above, recover entitled to for the to her back, which was result wrong, (a) wrongdoer liability of defendant’s aof depend upon for the result of his misconduct does not his precise ability complained to foresee the result he of, but is liable for result after the which, is com- plete, appears probable consequence to be natural and wrongful Railway, act or omission. 222 Gott v. 827; S. W. Powell v. v. 229 Mo. Railroad, Schafer 283; App. 419; 233 S. Estes Sieben, v. 110 Railroad, Mo. City, 725; Benton v. Mo. Dean 248 v. 98; Railroad, Graney Mo. 411; Railroad, McDonald v. 219 Mo. v. 491; (b) A Railroad, carrier who breaches transportation pas- the contract of liable to becomes senger exposure, suffered from or otherwise, ] Dye App. Railroad, as a result of the breach. v. 35 Mo. App. 254-55; Smith v. Pullman 238; 138 Mo. Davis 190 S. Drew v. Lusk, 362; Railroad, 129 Mo. 465 ; 720; Green Railroad, Mo. Adams v. Railroad, Winkler v. Railroad, Hughes v. Pullman 74 Fed. Pullman Co. Meyer (Ala.), So. Case v. Pa. *4 Terry, Railroad v. 62 Tex. Railroad v. Hartnett (Tex.), Railroad S. W. v. Kieth, 11 Ind. Thompson 290; Railroad v. 119 Ind. Lucas, 583; on p. Corpus Negligence, sec. (3) 154, 838. Juris, correctly 1 and 2 Plaintiff’s instructions Nos. declared the (a) finding by jury bodily A law. of a to prerequisite finding any not a their was to dam- supra, (b) 3, ages under Point favor. Authorities in her duty, if it instruction believed the defendant’s It was general, request to to be too measure 1924. MARCI' ^BM, y. ‘Co. Pullman. The subject, having de- so, failed to do and, on the complain. Lusk, to Winston fendant is 535, Railway, 390; Barth v. 186 Mo. Browning regard- The facts peti- pleaded detail ing plaintiff’s in the were part there- motion made to out but no strike tion, objec- subject in without The on this of. evidence went estop- exception by is now defendant. Defendant tion or ped urge jury could not find that to bodily wrong sus- cause of Bragg Street 1512, her. R. S. tained Sec. 331, to recover action This is an BRUERE, C. consequence plaintiff alleges she suffered of de which breach of the terms contract to fendant’s sleeping re occupy car. berth on its The trial her to judgment for two thousand dol in a verdict and sulted appeal of defendant here on the and the cause is lars, judgment. from that by plaintiff, appears, evidence
It from the introduced Railway agent Company, that an of Wabash at St. through plaintiff a railroad to ticket from issued Louis, Winfield, via Missouri, Kansas, St. to the Wabash Louis, City Topeka Atchison, & and via Santa Pe Kansas City agent Kansas Pull- wired to Winfield. Said City, Mis- man Kansas accommodations reply Kansas. wire called souri, Winfield, and on this wire he 6, 4,” for “lower berth car also issued plaintiff, agent Company, for the Pullman a Pullman sleeping called for lower in Pullman ticket, 6, car which p. leaving City September at Kansas 10:15, m., 30, specify ticket did not This Pullman the road over passage, take there was but leaving City Kansas one train for Winfield night p. company, 10:15, Atchison, m. The defendant Topeka Railway Company & Fe Santa and the Wabash Railway Company corporations. are all distinct City in Kansas on the her husband arrived *5 214 MISSOURI REPORTS, AUREAL
O’Neil Pullman. v. Tñe p. September Plain- Wabash train 9:30, m., at on 20th. expected stop City few tiff’s to in husband over Kansas days join They all later at Winfield. wife sent his clothing City, their valises their in Kansas with to hotel except waiting by plaintiff. a small valise retained After gate opened, permit at the station to them to until p. reach the Santa Fe train for 10:15, m., Winfield, Kan- charge they went sas, conductor, to defendant’s presented the train, Pullman car attached to said also the railroad to him. ticket, ticket, After examining- plain- the Pullman conductor to ticket, the said “you tiff, can’t ride this ticket calls for car; previous previous the train this, to to there is this; ’’ no number car. four on this further told conductor plaintiff that went to Winfield, the train and that Kansas, day she coach could ride in the the chair car. Not wishing people disappoint to who her were to meet morning Kansas, the next Winfield, at did not acv company her to the but hotel, husband boarded chair journey car and to Winfield. continued her pláintiff Regarding alleges she suffered on account refusal her sleeping substantially, said ear, testified, enter she that very the only afternoon; weather was warm that she piece prepared a little neck with her and not sleeper; travel other car but a that en route everything going along nicely Winfield, until about morning; go sleep two o’clockthe next she did not began very get o all from two to four that it ’clock; suppress cold and that sneezed she and tried to it, passengers; waking thought fear that she taking she was a terrible and that when cold she tried she felt a crick her back be- thought possibly lung trouble; came alarmed it was up stood for a minute she and felt better; that she again sat pinching down and from that time on felt a sufficiently back; not she was clothed and that this caused her to further sneeze. She testified that when she Winfield, arrived at about o nine ’clock,the follqwing 1924.' v. The Pullman Co. morning, *6 she and hack hurt her so that she was cold her Dr. that was under the care of down; conld not lie Pugh she February September the until or March of Bailey, following year; an that she also consulted Dr. displaced osteopath, put place, but into vertebra who swelling and that she suffered that there was some still pain. severe testified that chair
On cross-examination she the open every were was not body that the windows all and heated; got wraps every that when it colder herself; had but body got before but that she a draft closed the windows request other the that she did not closed; windows were they passengers well to close their windows because were wrapped they preferred thought' to have and she open; perfect windows that she was health she when nothing boarded the chair car and matter with her at all been the had that all back; her were caused a sudden lurch from the sneeze; that given never before her crick in her and back, sitting manner in which she trying up crouched keep trying warm and sneeze, caused Replacement in her back, a of one of the vertebrae.
In the view we take of this it will case, not be neces- sary to state the other evidence adduced at the No trial. question except will be considered relates to proper damage. rule of bearing ques- As tion the gave asked following and the court instruction: ‘ ‘ jury.that The court you instructs the if find favor you plaintiff, will damages, award her, as- any, you-believe if sum, fairly as and find from the will evidence reasonably compensate incon- her for such suffering, you any, venience, if believe as find from the evidence she has suffered or will suffer as probable consequence natural and of defendant’s (if any) provide failure, her with said berth.” excepted The defendant to the action of the court giving giving said instruction, here that and contends of same was reversible error. App.—19. REPORTS, APPEAL snch recoverable in case are consequence proximate defend- natural are the plain- the-injury to then
ant’s breach of contract. Was proximate and natural result the breach? tiff’s back We think not. “which
Proximate cause is the active efficient cause their sets in a train of motion events expected produce sequence ought might to be intervening independent as undisturbed [Powell 532.] cause.” 185 S. W. Walker, con- breach of it be said that the defendant’s Could injury, tract was the cause of the reasonably ought plaintiff’s injury to back to have been anticipated likely *7 from to ensue the refusal to as plaintiff the be to ride on the car? It would say rea- sheer nonsense to that the defendant could have sonably anticipated that the natural result of the refusal permit in to ride the Pullman ear would drafty day be not would ride a coach, operated by that she defendant; would not have sufficient wraps; posi- in a that she would sit strained huddled and trying keep tion warm; cold; that she would take try the cold Wouldcause her to that she would sneeze; in- this would cause an jury displacement to her a of one back, of the vertebrae. plaintiff’s
According manner version of the injured, injury which she was oc- to her back was Topeka casioned the act of the & Fe Atchison, Santa Company, Railroad over which the con- defendant had no allowing of the chair car to remain trol, windows open and the car to become cold. There inter- was the independent intervening- an of cause. The breach was, defendant’s contract not therefore, injury. her cause of said
Again, it is a well-settled rule of law that “where speculation conjecture 'has or to be resorted to for the purpose determining whether the results from wrongful act from cause, some then the rule the allowance law excludes in- 291 v. The Pullman Co. plaintiff’s jury.” between Here connection the causal her to ride refusal to and defendant’s only by resort determined the Pullman car can be conjecture. speculation merest for the recover hold cannot We alleges nor bach, sustained which she she may have suffered. which she mental distress App. 1072; 238, 119 Mo. S. W. v. Pullman [Smith Co., App. Transfer Evans 7; Francis v. 5Co., St. Louis App. Ry. 11 Mo. 472; v. St. I. & S. St. Louis, M. Ry. 419; S. Louis S. Boatright, Co. v. Schaff Thomas, W. Telegraph Company, 1116; Fitch v. S. W. Rawlings 44; v. Wabash 149, 130 Murdock v. 511, 71 S. Boston Albany Fow 133 Mass. Palace Car Co. v. & Hadley 6 Tex. Ex ler, Baxendale, Civ. chequer, (1881) B. Q. McMahon v. Field, Railway Q. Hobbs London and Western South p. Hutchinson 117; 3 sec. Carriers, p. ; 1428, 1722.] 1609 sec. presents petition evidence in case a perform
mere breach contract—the of a refusal to clearly distinguishable all. It is cases where to breach of the there is a contract added the element of trespass person passenger, such where negligently been has set down reach before beyond ing his station, or carried or where he it, has been *8 unlawfully ejected compelled car, or where to leave the or accompanied the breach of by the contract is in abusive, langnage sulting humiliating are or conduct. Such Ferguson the cases of v. Railroad, 177 S. Davis W. v. Lusk, 190 S. Morris v. Dalzell v.
65, 379, Hotel Aplington 186 S. Pullman 110 N. Y. plaintiff. Div. cited counsel for cases injured In can the recover cases for feel pain ings, anxiety humiliation, mental distress or mind, be one of can made an element of dam age in the instant case. REPORTS, APPEAL Pullman
O’Neil v. The that been said heretofore from wliat has It follows giving measure instruction on the the the court erred it damages. erroneous in is The plain- suffering permits recovery the for might as may future, in the suffer have suffered tiff consequence probable of defendant’s natural and the contract. breach of appellant, plaintiff contend for
Learned counsel any request instruction on the having additional failed complain. instruc- subject, This in no is now contention wholly and, therefore, erroneous tion is cannot be maintained. defendant further contend
Learned counsel peremptory defendant instruction offered given. To should have been of all the evidence close plaintiff agree. this cannot entitled we damages. event to nominal knowing that the case the defendant
In this transportation Pullman -train, to which Winfield, car and intended to travel on it to attached, anticipated reasonably result that the natural could háve permit plaintiff to ride in the of the refusal to physi- put he that the would he to real would physical hardship in some cal inconvenience and endure pass night having without a comfortable berth damage [3 entitled to recover. for such she is Hutchin- 1424; Hobbs v. London & South son on sec. Carriers, Railway Hadley Q. Western Exchequer, Baxendale, 353.] It set also contended that the verdict is should be grossly aside because it is excessive. Inasmuch alleged injuries cannot recover for the back, these and as were the substantial com- plained we of, are constrained to hold that verdict large grossly rendered is so and excessive that cannot he and for sustained, reason alone we would deem duty it our to order a new trial. judgment of the circuit court should be reversed proceeded
and the cause trial new to he remanded *9 1924. TEEM, F. St L.-S. Lowther opinion. Commissioner with
with accordance so recommends. opinion is C., of PEE CUEIAM:—The Brxjere,
adopted opinion judgment of the the court. The of accordingly re- city circuit of of St. court Louis is pro- a trial to he remanded for versed and the cause new opinion. P. Allen, J., ceeded with accordance with this concur. Danes, JJ., and Becker Respondent, ST. LOWTHER, EVANGELINE COMPANY, RAILWAY LOUIS-SAN FRANCISCO Appellant. Appeals. Opinion May 6,
St. Louis 1924. Court of Filed Degree Maintaining Negligence: RAILROADS: Platforms: 1. Station duty Required. company passengers of Care A railroad owes exercising ordinary keep maintain its railroad care to reasonably platforms in a safe condition. station Injury Station --: -:--:--: Platform Admissibility. Stepping on Evidence Other Nails: In an Nail: injuries personal by plaintiff action for for sustained rusty stepped upon depot platform nail when she a on defendant’s waiting passing intending to board while she room platform train, upon other nails were when a evidence that competent par- show received her platform on located nail which caused the ticular ’ knowledge length for to have had a time sufficient- defendant thereof. Duty Appellate Court to Reconcile APPELLATE PRACTICE: Not appellate duty Conflicting Testimony. court to It is not testimony. conflicting reconcile Passengers: Injury at Station Platform
4. RAILROADS: Carriers Question Jury. by Stepping Negligence: for the on In an Nail: stepping personal for caused action platform depot passing rusty while from the* nail train, waiting as to or not defendant room to board whether keep requires degree the law its of care which exercised that platform safe, jury. question held a