*1 MISSOURI, SUPREME COUNT OF ítigley v.
GEORGE RIGLEY B. v. EDWARD et PRYOR Re al.,
ceivers Ap of WABASH RAILROAD COMPANY, pellants. Two,
Division October 1921. Change Testimony 1. NEGLIGENCE: plaintiff on Second A Trial. by who on a former trial was induced the skillful cross-examina- attorney contrary tion of defendant’s to make statements to the telling be facts not nonsuited the truth should about the matter the trial. second the usual duties of Where were to track, engaged walk the but when not he so assisted the section repairing track, injured inmen the he and was on a while hand- going upon ought track, awith section crew to work he car* not because be nonsuited on former trial he testified in answer leading questions defendant’s counsel track- that he was a #to walker, especially where also he testified on direct examination duty part it that of his to be was a at the time hand-car injured, although Appeals, appeal, he was Court of held that track-walker, being the evidence showed was a and such he not recover because it was look out for could the train which struck the hand-car. Fog: -: Collision With Hand-car: Sufficient
2. Evidence. The very foggy, morning and six was section men on hand-car ahead; twenty thirty proceeded see could feet train, coming opposite direction, mile or so when a ran hand-car, track, upon it off knocked five of the men killed injured necessary plaintiff; pass was and along it section men to hand-car, foggy weather on a the track and such cars trainmen; expected practice was the usual fogs through passing continuously, to sound the for trains bell hour; frequently run ten or twelve the whistle miles an blow twenty-five miles; speed at a train run testi- trains, listening looking for and the crew that he fied a half when it was that he could whistle mile hear the sounded distance; that he did hear and had that either heard fireman, bell; engineer, conductor and brake- whistle or the continuously rung men testified that the whistle just intervals, definite but none of them as to sounded sounded, engineer testified how the whistle often twice in could recall' sounded whistle that near as he Yol. APEIL TEEM, y. Pryor.
ítigley running quarter, positive a mile and a there was but no collision, plain- that it was sounded within half mile of the testimony positive tiff’s sounded within *2 Held, properly distance. that a demurrer to the evidence could not sustained, question negligence have been the of and defendant’s jury for the was one to decide. Hearing Negative 3. - — :-: —-: Not or Whistle Bell: Tes- timony. foggy, morning the Where hand-cars on the track expected, practice to were be the usual tvas of trainmen at such slowly continuously ring run train times the and and to the bell frequent intervals, the whistle at and sound six men on the hand- directly intensely hearing car and interested the whistle bell, hearing, depending testimony their lives on their the of and one of them that could the a have half mile and heard whistle either that he listened and not hear did the bell or whistle is ordinary negative evidence, like that an inattentive of witness signal noticing given, who not interested in whether certain is is rung positive was not or evidence that the bell the whistle is but jury sounded, to and its is for the decide. truth Speed: -: -: Proximate Cause. -: Excessive Where 4. very morning foggy, on to hand-cars the track the thirty twenty expected feet or on the could see men hand-car practice ahead, run trainmen to the usual of at such times it was ring continuously and hour to the train ten twelve an miles frequent and there is sound the intervals the bell and whistle done, testimony being positive the run that train was neither was hour, twenty-five speed from and is inferable an of at a miles speed customary the run at the train been that if the had facts destination and the track been have its off would hand-car reached speed arrived, inference that the excessive the train before justified facts; proximate collision cause of the is speed running assumption pure train at half that a it is and injury, train run- if the had been for caused would same have speed ning on hand-car would have the men at half lives,' jump the collision their and force of double necessarily less. have been would Frequent An instruction Instruction. Bell Whistle: and -:5. duty “frequently jury telling that defendant’s and whistle,” also told sound the bell which intervals short warning “as have sounded been whistle should that them hand-car,” approach on those said of train to said “frequently.” the word failure to define erroneous Assumption Negligence: An of Fact. Damages: Contributory -:6. damages authorize a does not of which the measure on instruction HUPBEME COURT OF MISSOURI, 1£_ any whatever, finding verdict simply hut calls the attention jury contributory negligence defense and tells them necessary prove what recovery in order defeat that ground, assumption cannot be into twisted that defendant negligent or plaintiff’s negli- into an elimination idea gence injury. could have been the cause of sole his Opinion Appeal. opinion 7. EVIDENCE: on Former of the Court Appeals appeal, reversing judgment on the former and re- manding trial, pure hearsay, case for a new not com- petent any theory.- evidence on Damages: Earning INSTRUCTION: Measure of Loss of Power:- earnings totally Present thing Cash Value. A loss of is a different oarning power; from loss and an instruction which tells the they may present damages award as “the cash value sum” as shall find and believe from the will fairly reasonably compensate plaintiff past for his future physical pain, expense, pecuniary and mental “his medical resulting directly impairment earning any power,” loss of his *3 does authorize them to estimate loss of earnings at by present earnings timo of the accident standard of when wages up- higher, are much but directs them to their estimate base present disability, permanent curable; on his and if whether directing jury vague in make instruction is somewhat how to present suffering, for and future defendant cannot estimate subject. complain instruction on the unless offers an Compelled $12,500: 9. EXCESSIVE plain- VERDICT: Remittitur. . tiff, fifty-three years age, traveling a of with a section crew hand-car, by train was struck defendant’s thrown tree; lodged against physician an' and a down embankment region of him found a hernia in who examined stomach and lump the-right inguinal spine of hernia and a side also an kidney; urine, there was blood in his and he near the treated trial, years months; later, five the time for several of the inguinal hernia, nearly cured, evidence of no visible and right side; “impulse” on the of observed difference but some owing left on the side /of the muscles become disuse condition, weak, atrophied a nervous and there was and somewhat perspiration; profuse a is unnatural difficult manifest made although injuries permanent, painful; he was not believe the are earnings, anything pain loss for allowed recover impairment suffering endure and the of his and will endured considered, except earning power his medical were all that (cid:127) excessive, $12,500 expense He,Id, $200, that a verdict required as a condition affirmance. a thousand is remittitur five TERM, Yol. y.
Rigley by WalkeR, J., dissenting, Held, arbitrarily the custom exer- by appellate reducing cised courts is amount verdicts deprecated, proportion if a to be verdict is out of all inflicted, compensation injury ample opportunity for the intelligent court, in the, for an reduction trial afforded appellate if is not done the court hesitate in- this should excessive, terfere, glaringly of the verdict unless the amount judgment event the be reversed and cause in which should a new trial. remanded for
Appeal from Circuit Harris Rob- Jackson Court.—Hon. Judge.
inson,
ApfiRMtsd condition). (on
N. Homer & Brown, S. Hall Sebree Sebree appellants.
(1) give refusing-to error in court committed instruction the nature asked demurrer, evidence, (a) at the close defendants, Plaintiff, explanation changed or excuse, without reasonable gave testimony which he a former which testi trial, Pryor, mony Rigley did not make case. v. S. W. 737; Co., 124; Faith Ins. 208 W.' Steel v. v. Home S. City Kansas 265'Mo. v. Boston Ele Southern, 97; Smith Mo, Klusmeyer, Ry., 387; vated 184 Fed. Moses v. App. City Ry. 109 N. v. York 634-640; Adams New negligence proved against (b) Y. 1019-1022. No S. ring the hell and First, defendants. on the failure Pryor, 737; blow the whistle. 204 W. Woods S. *4 Railway, Armstrong
v. Rail 11; 187 D. & R. S. W. v. Gf. way, Railway, 481, McNeil v. 944; 190 182 S. W. S. W. Ry. Second, v. Mo. 424. on'the (cid:127)489; Co., Sanders 147 speed of Anderson. Third, of the train. on the action Railway,"Í87 (c) Plaintiff Woods v. W. 111. assumed S. (2) Pryor Rep. 41 36. risk. v. Williams, IRS. C. giving" instructions The action of the court erroneous, (b) (a) A. Instruction Instruction- was B. Ry. Penn.’ Co., 191'; Smith K. 279 Mo. Burns v. v. C. S. Chesapeake 207; 239 Pa. & Railroad Railroad, Ohio v. MISSOURI, 14 SUPREME COUBT OF Rigley v.
Kelly,
v.
485;
U.
Goodhart
Railroad,
1;
241
S.
Pa.
177
(d)
v. Penn.
238 Pa.
Railroad,
Reitler
1.
Instruction
App.
D. Hamheide v. Transit
104 Mo.
Co.,
333.
323,
(3)
excluding
The court erred
from the evidence the
opinion
Appeals
City
of the
Court
Kansas
for-
the,
(4)
mer trial of this case.
verdict
excessive.
Dryez
Packing-
v.
Co.,
Hammond
194
761;
S. W.
U. P.
Sheeley,
Laughlin
Railroad v.
Atwood, & Wichersham, Hill ent.
(1) By overwhelming weight of the evidence it is shown that in the line of his employment receiving injury; at the time of habitually defendants their ran trains and hand-cars in opposite during foggy same or directions weather; protec- that the use means defendants for operating tion moving through of section men hand-cars fog where the curves section men’s view was using obstructed was the trainmen the track to blow frequent the whistle and sound at such inter- employees ap- vals would warn on hand-cars proach of a train in time enable them to remove place themselves and their hand-car from the track to a safety. of defendants’ trainmen failure to so ring sound whistle and bell was a direct and proximate cause of the collision and death Anderson, being and such facts shown, entitled to re- Boyd cover. Honea v. 621, 637; 245 Mo. Railroad v. Mo. 249 Schroeder v. & A. R. Railroad, 110, 128; C. Boyd
108 322; Mo. v. Mo. 54, 80; 236 Smith Railroad, p. Railroad, v. A. & E. Anno. 1913A, Cases, 434; Hard- App. wick Railroad, 156; v. 181 Mo. Greenwell v. Rail- 224 road, 1. c. 404, 407; S. W. Lancaster T.A., v. & S- App. F., 163; 143 Mo. Nelson 148 Pac. Railroad, v. Dersberry, 516; Mont. M. O. & G. v. Railroad 167 S. Ry. 881;W. Saunders v. 83 S. E. Railroad, Co. 573; 559; McGraw, W. Williams v. S. Railroad, S. *5 1921. IS TERM, Yol. 290] 1- — Pryor; Rigley v. Ky. L. & N. 313; Mullins, Railroad 203 v. S. 292,181
W. Ky. Bennett v. A. T. & Fe Rail- 1058, 148; W. 181 S. Ry. N. 798; v. Erie 123 N. W. O’Brien
road, 174
y.
Supp.
95;
132 W.
Hofford
1040;
Brooks,
Gulf
S.
Y.
(N. S.)
A.
797;
110 N.
16 L. R.
v.
446,W.
Railroad,
Ry.
Fed.
W.
360;
205
Norfolk &
Smith,
L. &(cid:127) N.
Co.
y.
Earnest,
1097;
114,
229
S.
L. Ed.
XT.
57
Railroad v.
also
Utali, 26,
970;
47
150 Pac.
see
Railroad,
v.
Grow
244
61
Punecker,
320-322,
Erie Railroad v.
L. Ed.
U. S.
(2) Appellants’ point No.
that there was
1,
1166-1167.
ring
or
the whistle,
failure to
the hell
blow
no evidence of
positive testimony
without
merit,
because
George Rigley,
surviving
member
section
including
rest of
section
An-
crew,
crew,
and the
warning
listening
sig-
foreman,
derson,
being
slowly,
none.
car was
nals, and heard
The
rtyi
than,
eight
per
little bit faster
a man
hour,
sis
miles
similarly situated,
At
times
about
walks.
other
place
question, Rigley
the identical
of the collision
warn-
and other
men testified
had heard
section
ing signals
customary way,
given in
had removed
safety.
place
track
themselves
car
give
jury
the warn-
found that defendants
did fail.to
ing signals
and that
the collision was caused
plaintiff.
justified
finding
Kirk-
failure, and this
Bixby,
Rail-
Hardwick v. "Wab.
462;
land
222 S?
v.
W.
testimony
App.
(b)
of the fail-
181
156.
road, Mo.
-
engine
frequently
slow and
ure of
men
run
to.
merely negative,
warning signals, was not
but
sound the
positive,
clearly
issue.
Jones
made a
p.
Stotler v.
399;
sec. 898,
on Evidence,
Commentaries
Harvey, 204
Miller
S. W.
137;
Mo.
v.
Railroad,
107,
200
correct,
(a)
(3)
Nor-
926.
Plaintiff’s instructions
L.
114, 57
229
S.U.
Earnest,
folk & W. Railroad v.
409;
224
P.,
&
S. W.
v. C. M.
St.
1097;
Ed.
Greenwell
Vicksburg Ry.
30
Ed.
L.
U.
S.
Putnam,
Co. v.
Washington
(b)
Rail-
p.
&
257;
1917F,
R.
373.
L. A.
App.
Defendants
D.
C.
road Co.
La Four,
v.
damages, and hence
on measure
no instruction
asked
SUPBEME
MISSOURI,
COURT OF
*6
position
complain
arc in no
to
instruction
on this
Powell v.
issue.
255
Railroad,
Mo. 420, 456;
By.,
(4)
v. Met.
Waddell
St.
plaintiff judgment recovered the Circuit Court of County, Jackson November 21, for the 1919, sum of plaintiff employ $12,500. The inwas defend- ant, and lived north Missouri River about seven City, Randolph, Clay miles east of Kansas or near at County. seven-thirty morning, January About in Randolph 19, 1914, boarded a with hand-car crew at repair and started westward to some track between that point City. and Kansas The crew consisted a Mi*. plaintiff, Anderson, who and four foreman, other propelling men. The assisted the hand-car. morning very foggy; the men could see a dis- twenty thirty They tance of about or feet ahead. proceeded Randolph had a mile more westward from bridges crossed termed the twin what are coming fog, in the train, Wabash west ran upon killing the hand-car and knocked it all the off, oth- upon plaintiff, inflicting injuries er men, brings which he this suit.
Vol. 290] TERM,
Rigley v. introduced evidence sliow along heavy fog's hang over track was usual point year; that time of the river at and that at through passing fog for trains at custom continuously, to sound blow the such times whistle slowly. slowly frequent Running run intervals an hour. meant ten or twelve miles river Across City, about five miles from Kansas dolph, west Ran- signals Block whence termed what is Randolph indicating trains in the sent to block. While Randolph waiting train was the crew was passed until before block, and waited eastward starling. paralled two There were tracks used *7 Burlington, Rock Island, and Railroad Wabash companies. on those the north The trains tracks used going going oast; south and the track west, track track met the train hand-car on the south was Shortly going the collision train on the east. before a passed going the hand-car. track west north plaintiff they proceeded that he testified as listening heard no trains, the crew were ran them down. He no train which whistle from half a he could have the whistle mile testified that heard listening distance; he was it that that and had heard position whistle. the bell and the Other hear plaintiff that crews evidence offered show always through fog going listened and hand-cars on might them trouble. that cause watched for trains running twenty- rate of at the about The train was introduced hour. defendant miles an five blown about intervals of whistle was to show twice once or after train minutes, two three bridge, passed was about a mile the Milwaukee which place quarter and that the collision, west of the and a continuously. rung bell was judg- returned that evidence the verdict,
On appealed. defendant stated, and the ment rendered as $4500, returned for find former trial a verdict On a 290 Mo. —2 SUPREME COURT OF MISSOURI, appeal City
on to the Appeals Kansas judg- Court of ment was reversed and the cause remanded. appellant judgment
I. The asserts that the should plaintiff changed he testimony reversed because the his app from what it atwas the first trial. On (Rigley from the first trial v. Wabash eall Changing Testimony Ry. 737), City S. W. Kansas Court plaintiff Appeals held that the could not recover on grounds: nothing two because First, there was to show belonged why that the crew of car or appeared merely he it; to have he was with no been there suggestion that he there; was ordered his duties employee company the railroad as an were those of therefore he the line track-walker, of his injury. duty at time of Second, his could not being recover because track-walker it his look out for trains. testimony
In his at the last trial the said company been at work for the for twelve or he had teen four- years; morning injury engaged of the he was working repairing at track on that work—was section walking track; that business consisted of the track, morning injury working but on the he was track repairer man; that a track-walker section walks the —a and he never walks the track on a hand tracks, car; *8 particular had worked on that section six or for seven years, being and besides track-walker he did section going section work out on the work; consisted in track gang, laying doing’ keep anything with to the rails, a up. morning track that on the He further testified repair injury going with he to the the crew was track bridge, near the he knew beforehand what and Milwaukee to be The evidence that was done there. before showed starting Randolph the foreman went into the station agent, customary and talked to the station it was and that in the foreman to ascertain about the trains. case plaintiff permitted testify to himself not as to was given any by because the fore- orders him the foreman, TERM, Yol.
Rigley v. at the time the trial. man was of* It was shown dead plaintiff testified, the two sons of who who and present former at the trial because France, with the A. F. in that con- E. work going working over the track and on the track sisted going purpose, and on for that out a hand-car that and put part in his time as section man. a a One he plaintiff present he was Ran- witness said dolph morning and hand-car when it saw the Anderson, foreman; he Mr. he-saw started; knew put get car, on the car the track crew and on get He Anderson instruct to heard Mr. on. and putting on he heard Ander- car, them say, tools saw everything boys, go, clear, let’s is son “Come got everything they all on the safe,” car, and will including Rigley, off. This and evidence, and moved plaintiff sufficiently, shows that morning uncontradicted, duty that and he the line of his that was was in working as a track-walker. point appellant that made testimony changed trial he testi- from the first where his cross-examination he a track-walker. On fied that was leading questions Rigley, in answer to at first trial business that defendant’s testified his counsel, good along see that the track track and walk up that he all walked did; that he condition, the rails and bolts track lookéd down repair if it everything, see that» reported répair it was not his someone else, not in he repair duty it. he showed
In re-direct examination part that it former trial testified on the also morning that duty go hand-car down that his time. at that that he was on changes present testimony so his
It is claimed ought not to recover. then that what swore plaintiff on a second if court has held This changes explanation, testi- without reasonable trial, ma- given to facts trial mony first from that *9 SOTEEME MISSOUEI, COUET OE y. right ought action, terial to Ms he not to be credited telling ordinarily with truth, should non- suffer suit. 265 Mo. [Steele l. c. Railroad, 110-111.] In plaintiff, this ease the statement where he said he was a track-walker and that was he did, all and that reported repair work to else, someone were all an questions leading, by swer to asked defendant’s counsel. simply, He answered “Yes, and, “No, sir” sir” to the questions asked. He said at same that it was duty go morning. to on hand-car that out present sufficiently
The evidence at the trial shows that while he was duty track-walker he had the additional repairing
to track; assist in that he did section part regular work also of his work. This shown by plaintiff. attempt witnesses than the No other made defendant to show that it true, and de- fendant must have known whether duties in- question cluded section work or not. The at issue was whether he was in the line of his time he injured. The showed evidence without contradiction that lie was.
If on former trial the was induced skillful attorney cross-examination of defendant’s contrary make statements facts, should bo telling nonsuited about truth the matter now. Appellant II. claims demurrer should have been proof neg sustained because there was no of actionable ligence part defendant. show without
ed contradiction that there awas heavy fog the'morning of the accident, and Demurrer to Evidence. fogs frequent that such were of occurrence along point; necessary the river at that that it pass along foggy section men track weather expected in a hand-car hand-cars Avereto be upon running track; the custom for trains through fogs slowly, run ten or twelve miles frequent ring sound a hour, intervals, and whistle continuously. objected defendant the word *10 (cid:127) Vol. TEEM, Pryor. Rigley v. but all defendant’s witnesses
“custom,” testified that “practice” to it the uniform was blow whistle and bell sound the at such times. One of witnesses the custom to blow said was the whistle at times seventy-five every fifty yards. or says appellant now there no is substantial evi failing negligence, in
dence to show observe the custom argued practice. is also that the noise or It hand prevent car extent some those would from hear ing passed and that the train whistle, bell which prob immediately on the other track ably before the collision a made such noise as drown the sound of the testified bell and whistle. that he could hear a when it half mile sounded. He whistle said propelling listening the crew were looking the hand-car and’ not hear for trains. lie did either the whistle or Appellant including witnesses, the bell. introduced engineer, testify brakeman, conductor and fireman, rung. the whistle was sounded Some of rung continuously them that the bell testified was intervals. the whistle sounded None them was were just very or how often definite as the whistle engineer sounded. The he sounded whistle said running intervals of minutes. He two or three twenty-five nearly miles an hour. As as could “re the whistle twice after he he sounded crossed call” bridge, quarter a mile a Milwaukee which place positive evidence on of collision. There is no part defendant that the whistle sounded at place mile of the collision. The testi all within a half positive mony that it not is sounded. negative ordinary given evidence, such as This is noticing rvho interested inattentive is witness testimony signal given, whether a frequently certain —such bystander given cases where railroad [Dutcher boil. whistle, didn’t hear a or a v. testifies he men on a 169.] l. Mo. Here six Railroad, c. intensely every directly inter- hand-car, one of them SUPREME COURT OF MISSOURI, hearing any might ested whistle or bell that be sound- depended upon their hearing; ed; their lives purpose listening hearing. for the That none of them any heard is a reasonable if inference, because, one of them had heard or the the whistle bell the others would have been and the hand-car notified removed from the Upon question track. jury, for the this negligent failing whether defendant was to sound frequency parties the whistle with sufficient to warn the any employee might danger- on a hand-car, or who inbe *11 position ous on the track. negligence alleged act of
Another was the excessive speed. appellant speed twenty-five the claims of proximate miles an not the hour was of cause the col- lision, because it is not thatf shown it could have been running avoided if train the had been at a lower rate speed. pure assumption say of to It that a train run- speed ning at half the jury, or have would caused the same in- running one If train like it. the had been speed half the from the time it crossed the the river, hand- car would have been to and off its destination the track. If men the on not, the hand-car would have had double jump they for their the which to lives after saw fog; appearing train the the the force of the collision, necessarily been one, if would have been there much question jury It the less. as whether an speed injury. cause the of excessive rate the possible the that noise of hand-car and It is the just confusion which of sounds caused the train had' passed prevented may have those on hand-car from hearing locating they heard if bell, it, its or, jury but consider direction; all that was proper determining was exercised. whether care appellant assigns giving III. The error^ to the given principal Instruction on behalf A, the instruction jury plaintiff, told the it was which Frequentl y. frequently defendant "t o and at and whistle said short intervals to sound train.”
Yol. TERM,
Rigley v. objection is that instruction did'not define the “frequently” jury word nor tell the what was meant jury it. The tell the instruction did whistle warning approach should sounded “as a of said apparent train to those on said It hand-car.” that the frequently enough whistle be should sounded to serve that purpose. say jury It for the whether or not that done. If jury was frequently instruction had told the every yards,, quarter every
meant hundred or anything kind, of that counsel mile, defendant’s objection urging would been have in- more valid to the struction. damages In
IV. on the measure instruction plaintiff told that found if failed safety, ordinary then exercise care for his own damages, any should awarded, if Damages: . accordingly a further Then diminished plaintiff, given for the Contributory Negligence. de instruction, D, contributory negligence a failure fined ordinary any part care, exercise negligent concurred omission of which act or any, causing negligence, if of defendants, with the *12 injury, instructed, are further continued: “You then yóu the that find from if 'should that however, plaintiff contributory yet negligence, the guilty of pro brought, Congress this suit under Act which of contributory negli you instructed, are vides and injury, not de gence, the does of the sole cause unless damages, any altogether, recovery award if but the feat proportion jury in the the be diminished ed, shall plaintiff any, negligence, contributory if of which plain negligence, any, if of‘both the combined bears finding your accord shall in be defendants, tiff and ’’ ance herewith. appellant “con- of the words that the use asserts The neg- appellants negligence” tributory assumes that neg- ligent eliminates at idea once ligence of the accident. cause could be the sole SUPJREMK COUNT MISSOURI, OF
Rig'ley v. jury bud been the. other told instructions that guilty negligence must find the of defendant was in sev particulars eral in order authorize a verdict for plaintiff. attributing jury It is to the subtlety unusual suppose they apply would such refinement of reason ing interpretation “contributory.” to the of word solely This instruction is based con defense of tributory negligence. It does not a verdict on authorize any finding simply It jury calls atiene ion to that whatever. necessary prove and tells the defense what is recovery ground. in order to defeat on that It does not purport affect to affect main of issues the case put jury as to the in the other is not instruction erroneous. opinion
V. The defendant offered evidence the City Appeals, of the Kansas Court of same re ported, rendered when the case was before that court- appeal on opinion from the former trml. In that: on Appeal. Appeals analy m Court its Opinion plaintiff sis of the finds that the facts discharge track-walker not his injured. Appellant time he has offered no au- thority why any nor this reason evidence suould ad- only pure hearsay, It is mitted. from the facts not hut a conclusion competent theory. any evidence m appellant' complains YU. the instruction given damages. on measure Thin telling jury they after instruction, sirenId take inlo injuries, pain bodily account the nature anguish, any, if and mental suffered Present plaintiff, as the aid and such she find Cash Value. and would after in has suffered s expenses, exceeding medical “im future, $200, his any, money pairment ability, if work and earn resulting injuries,” directly then from such directed them *13 plaintiff, present of “the cash value such sum award damages jury as the shall believe find and from the fairly reasonably compensate and him for will Yol. 1921. APRIL TERM,
Rig'ley v. physical any, pain, Ills if mental and bis medical ex pense, any, pecuniary any, resulting if and bis if loss, directly impairment, any, any earning if of bis power, resulting all as above restricted set and and out, directly injuries, any, from sucli if so received.” objection Tbe instruction tbe is use of tbe ‘‘ ’’ expression present Appellants argue cash value. jury earnings it allows tbe to estimate loss of earnings present -wages in 1914 of standard when higher. analysis much An of tbe are instruction shows damages that tbe of award authorized account physical (a) pain, past (b) of mental future; expenses; (c) impairment earning power. medical of jury damages give plaintiff Tbe wore authorized to “earnings/’ totally tiling for loss of a different from loss earning power. of awarding damages impairment ability
In of money, jury necessarily earn tbe must base tlioir esti upon present permanent disability, mate tbe whether They probable or curable. must tbe estimate duration just expectancy of as death claim estimate the it, person pecuniary killed, life loss lump They give or children. must sum their widow mpasure present [8 value the loss. R. C. L. p. 479; Co., Morton v. Tel. & Tel. 280 Mo. 360, S. W. 327; l. Bush, Hurlburt v. 224 S. c. 835; W. W. S. McW c. v. C. & A. R. R. l. 830, 836.] hirt 187 W. Co., S. applied by It the rule this court the case of Ry. Green well v. C. M. & St. P. W. S. power earning
l. loss was estimated c. allowed, compensation present value such com pensation. applied estimating rule com
'Should a different be pensation pain continuing when suffering, might suffering wholly past it If in the well compensation to direct the to consider reason suffering able the time But was incurred. present suffering past,
the estimate must include covering long period trial— before future, *14 MISSOURI, OP
26 SUPREME COURT Pryor. Rigley v. Esti years to do? in case—what five this compensation in 1914, and of the mate the cash value separately? time in subsequent divide the years Or pain suffering figure monthly periods out the indicating present value month? Instructions of each proper. suffering compensation have been held of the 420.] [Reynolds sum as 189 Mo. Such Co., Transit v. compensate reasonably him” correct was held “will you c. 393. “Such sum as 199 Mo. l. Railroad, v. Dean find and approved compensation to her for mental will be reasonable future) suffering” (past physical pain proper in Krinard v. Wester measure reasonably l. 942. “Will 279 Mo. 216 W. c. S. man, compensate” any cannot mean and “will reasonable” he present thing value. cash else measured than directing vague in If the instruction is somewhat complain appellant how to make the estimate, cannot subject. [Hurl no instruction on because offered Powell 327; Railroad, l. c. burt v. 224 W. Bush, S. Rys. Mo. l. l. c. 454; c. Breen v. United S. W. 523.] that the excessive. The
VII. It is claimed verdict is fifty-three years old shows was not allowed to recover the time of the trial. He earnings. pain anything suffering The for loss impair which he incurred and Excessive Verdict. capacity earning all that could ment of except expenses jury, medical he considered that was thrown down evidence showed The of $200. lodged physician tree. The against an embankment region in the a hernia of the him found who examined inguinal a discolored hernia and and also stomach spine region right lump of the side kidney. urine after- There was blood months. At the several treated for wards. He nearly there was no evidence cured; trial he was physician, inguinal however, hernia. visible of the “impluse,” difference in some had observed stated TERM, Yol.
Rigley v. Owing other the disnse of from the side. on that side atrophied they some- the left side had become muscles what. of that a weakness the muscles side. There tendency physician in a noticed break also out perspiration. profuse that to attributed He unnatural Physicians for the defendant testi- condition. a nervous nothing wrong with to found fied *15 that liis It is difficult believe the trial. the time of injuries painful. permanent, although they were only thing the trial at the of that remained partially and a certain weakness was some discomfort making atrophied it difficult side, the left muscles on things. Considering the elements him to lift for damage account, to take into allowed which injuries, we think and the verdict nature of thousand dollars. If five excessive to the amount of days delivery ten will, therefore, within judgment opinion of h.s from the of this remit amount ju igment, date of the five thousand dollars as judgment reversed it will be affirmed; otherwise, bewill sitting; Mosley, Bailey, G., con- C., and remanded. curs. foregoing opinion White,
PER CURIAM:—The by opinion adopted the court. All of the C., as opnion judges except in concurs Wother, J., who concur, filed. opin- (concurring). this concur WALKER, J. —I except upon entry the affirmance conditional as to
ion, [ deprecate of a remittihw the amount of the verdict. arbitrarily, by the custom I construe it, exercised appellate reducing the amount verdicts. courts, fairly qualified pass triers of the fact are much better sitting upon question judge smugly in his than a this nothing judgment or -influence chambers with to direct his except If chis verdict the cold record. conclusion, pro- in that it out of all shocked the moral sense, ample portion injuries compensation infr fled, as a for the SUPREME COURT OF MISSOURI, ex State rel. Roll Ellison.
opportunity intelligent was afforded for ail reduction of having same in trial court. This not been done, we should hesitate to interfere, unless the amount of glaringly verdict is excessive, which event the case should be reversed new remanded for a trial. THE STATE ex rel. HATTIE al. ROLL et v. JAMES Judges City
ELLISON et al., Kansas Court of Appeals. Banc,
In October 1. DEED BY ENTIRETIES: by Divorce: Purchase Price Advanced paid money Husband. Where the husband’s for the land and grantees, thereby deed creating named him wife as and his entireties, subsequently divorced, estate there- are by changing common, husband, the estate into one in in a sub- sequent partition, him, entitled to the amount advanced Appeals deciding holding and the Court of in so and in balance, *16 deducting money advanced, may after be divided them, Bender, between contravened decision Bender resulting Mo. since that a there decided trust must arise, all, taken, if at the instant the deed is cannot subsequent created occurrences. Property Rights. 2. -:-: Effect on Divorce not restore does parties respects; to their former condition in all it vests changes.an moiety, wife her estate with entireties into tenancy common, resulting but does not raise trust paid money favor of who for a to her and deed husband grantees, resulting ::s the no trust him arises in his favor unless the trust arose at the deed taken.
Certiorari. quashed. Record
Pope, petitioners. & Lohman for (1) Appeals opinion directly Court long in conflictwith a line of decisions of this court, which