124 Mo. App. 613 | Mo. Ct. App. | 1907
Tbe suit is for personal injuries received by tbe plaintiff, a United States mail-carrier, while he lay in an unconscious condition upon the defendant’s street car tracks. Plaintiff was not rendered unconscious by contact with the car, but was stricken with disease probably, while in the act of walking on the street, instantly became unconscious, and fell across the defendant’s track, where he lay helpless, when he was run upon and seriously and permanently injured soon thereafter by defendant’s car. The suit is predicated and prosecuted upon the theory that defendant failed to exercise ordinary care to discover his presence on the track and stop the car so as to avert the injury when, by the exercise of due care on its part, it had ample time and means to do go. The jury awarded plaintiff $8,500 damages and defendant appeals.
The material facts are as follows: Plaintiff was walking on Kingshighway at the point where it crosses St. Louis avenue, en route to the postoffice substation in order to commence his day’s labor as a letter-carrier. Saint Louis avenue runs east and west, .Kingshighway, north and south; both streets are public thoroughfares of the city of St. Louis. At the point where Kings-highway crosses St. Louis avenue, the defendant maintains a double-track street railway. The track on the north is occupied by its west-bound cars, and the track on the south, by its east-bound bars. As plaintiff approached the track, he stopped while one street car passed immediately in front of him, and looking down the track toward the center of the city, although it was not yet sunrise, he saw the defendant’s car approaching some seven or eight hundred feet distant. Seeing
“Mr. Miller: I think the evidence for the defendant will show that this accident occurred at 6:25 on the 11th of February, and the sun didn’t rise until 6:56, nearly half an hour after the accident. There had been some snow on the ground, and the tracks were ‘slippery’. We will explain what is meant by that more fully by the evidence. The effect of it is that when the wheels of the car are locked they slide on the track, and you will
“The motorman, we claim, couldn’t see him within a sufficient distance to stop his car. The plaintiff was dressed in a regular uniform of mail-carriers, and you know how near that would be the color of the earth; and the morning was foggy. And the policeman ran out there, and tried to stop the car, and the motorman saw the policeman and began to stop. His first thought was that the policeman wanted the car to stop so he could get on or for some purpose, and he then began trying to stop the car and he couldn’t, and the car picked plaintiff up on the fender, and ran on for quite a distance. On our theory, it is just a question of the motorman not being able, after he saw this man, to stop the car in time.
“Fortunately, the fender worked, and the plaintiff was picked up and he was taken away. I believe the evidence will further show that there was quite a pool of blood at the place the plaintiff had originally fallen, which may in some way account for him falling there— blood that was not the result of the wound inflicted by the car. Those are the facts in connection with this unfortunate accident. It seems to be a pure accident to me, and from the testimony those are the facts I expect to be developed by Hie witnesses here, and if they are such I will expect a verdict at your hands.”
The evidence on behalf of the plaintiff tended to
The injury was received on the 11th day of February, 1905, after daylight and before sunrise, about 6:30 o’clock in the morning. It was sufficiently light to enable a policeman whose attention was directed in that direction by the sounding of a gong, upon looking, to see the plaintiff’s form upon the track. His first impression was that it .was a mail bag, inasmuch as he noticed a government mail wagon near and was expecting the mail car which, it seems, passed on defendant’s road at about that hour. The officer, after his first impression, recognized the form on the track as that of a man, however, and ran forward toward the approaching car, waving his arms' and shouting to themotorman, “Stop, stop!” etc.; that the car was, when he first recognized the form as that of a man, one hundred and fifty feet east of the plaintiff’s prostrate form, and approaching at a rate of about fifteen or sixteen miles an hour; that it did not stop but continued to approach and ran into the plaintiff, carrying or dragging him with its fender about sixty-six feet across to the west side of Kingshighway, wbere it came to a stop. He and others removed plaintiff in an injured and unconscious condition, conveyed him to and placed him in the care of a physician. Another witness who resided in the neighborhood, said it had snowed a day or two before and there was still some snow around there; that the tracks were frosty, bright, and more or less slick as they are on cold mornings; that the track on which the car was running was on a slight incline but level at the point of collision; on the question of how far pne might see and distinguish the form of a man, said that he came out of his gate immediately after the injury, three hundred and fifty feet west of the point where the parties were assembled, removing
The defendant introduced no proof whatever. It requested the court to peremptorily direct a verdict in its behalf, which was refused over its exceptions, and this refusal is the first point advanced by it in this court. Other relevant facts will appear in the opinion.
1. There was no direct evidence introduced tending to prove defendant either owned or operated the railroad or car, and for this reason defendant now argues its demurrer to the evidence should have been sustained. Indeed, were it not that the entire conduct of the case by defendant’s learned counsel in the court below was such as to convey the impression to the court, jury and opposing counsel, that this were a conceded fact, we would be compelled to reverse the judgment because of the absence of substantial proof on this matter. It is said, however, that where the case proceeds in the trial court as though no issue is made and no contest is had with respect to the matter of ownership or operation, as in this case, full proof of this apparently uncontroverted or conceded fact, is not required, and slight evidence tending to support the inference that defendant owns or operates the road will be sufficient when it is not combated and the entire case is conducted by defendant upon a. theory indicating its responsibility, except for other causes which are relied upon solely for acquittal of the negligent act, as where no intimation is made that
Doyle, an ex-motorman, was introduced by plaintiff and after qualifying as an expert, gave evidence tending to prove the car could have been stopped within eighty or ninety feet, when running at sixteen miles per hour. The sufficiency of the hypothetical question propounded to this witness is challenged. It will be unnecessary to consider this assignment, however, in view of the fact that there was an abundance of evidence which, perforce of the law on demurrer, is admitted to be true, to the effect that the light was sufficient for the motorman to distinguish the object on the track to be a man from one hundred to two hundred feet, when the car was approaching at the rate of from fifteen £o sixteen miles per hour until its actual collision with the plaintiff. The speed was not checked until the point of collision was reached, after which it was stopped in a distance of sixty-six feet by the motorman. The police officer testified, after the first impression, he recognized the form on the track as that of a man. The car was
2. The deposition of Mrs. Shoemaker, formerly a resident of St. Louis but now said to reside in Philadelphia, had been taken in the case. She did not state therein that she would be absent from, or a non-resident of the State at the time of the trial, nor did the notary certify such fact in his certificate as permitted by the statute, and therefore the plaintiff undertook the burden
3. On the measure of damages, the court instructed as follows:
“If the jury find for the plaintiff, they will, in assessing his damages, award him such sum of money as shall fully compensate him for the mental and bodily pain and suffering endured by him consequent upon the injury, if any; for the loss of earnings occasioned thereby, if any; for such expenses as the plaintiff may have necessarily and reasonably incurred for physician’s services, if any; and for the mental and bodily pain which may be suffered by plaintiff in the future by reason of such injuries, if any; and for any permanent injuries suffered
It will be observed this instruction authorized the jury to allow damages “for the mental and bodily pain which may be suffered by plaintiff in the future by reason of such injuries, if any, and for any permanent injuries suffered by plaintiff, if you find from the evidence that he suffered such permanent injury.” Now it is the accepted rule for the admeasurement of present damages for future consequences of an injury, that such damages shall be .reasonably certain to result from the injury and the doctrine is universally recognized by the courts and text-writers, as will appeal by reference to the following authorities. [Reynolds v. Transit Co., 189 Mo. 408, 88 S. W. 50; decided by our Supreme Court, and the following cases by this court: Schwend v. Transit Co., 105 Mo. App. 534, 80 S. W. 40; Walker v. Railway, 106 Mo. App. 321, 80 S. W. 282; McKinstry v. Transit Co., 108 Mo. App. 12, 82 S. W. 1108; Holden v. Railway, 108 Mo. App. 665, 84 S. W. 133; Haas v. Railway, 111 Mo. App. 706, 90 S. W. 1155; and the cases of Albin v. Railway, 103 Mo. App. 308, 77 S. W. 153; and Ballard v. Kansas City, 110 Mo. App. 391, 86 S. W. 479; by the Kansas City Court of Appeals. See also 1 Sutherland on Damages (3 Ed.), sec. 123; Watson on Damages and Personal Injuries, sec. 302; Yoorheis, Measure of Damages, sec. 46; Joyce on Damages, sec. 244.] In view of this established principle, learned counsel challenge the employment of the word “may” in the instruction last quoted, with respect to present recovery for future pain, and future impairment, by reason of the permanent injury suffered. It is argued the word “may” in this connection permits the jury to disregard the principle that such future pain and permanent impairment must be reasonably certain to follow as a result of the injury and opens to them a field of pos
Finding no reversible error in the.record, the judgment is affirmed. It is so ordered.