152 Mo. 382 | Mo. | 1899
This is an action for damages alleged to have been sustained by plaintiff by reason of the negligence of defendant in failing to keep its depot platform in a reasonably safe condition, and the negligence of its servants and agents in assisting her on one of its trains.
There were originally two counts in the petition, but the second one was dismissed, and the case tried upon the first. It alleges that plaintiff, intending to become a passenger on one of defendant’s trains, and having purchased a ticket for that purpose of said defendant, at Wakenda station, Carroll county, Missouri, on the line of said defendant’s road, and while walking over and upon the’platform of said defendant’s station as aforesaid, after dark, and. for the purpose of taking-passage east on the first evening train of defendant’s, on or about the twenty-sixth day of September, 1895, stepped one of her feet, wholly or partially, into a hole or crack in or between the plank or planks, of which said platform was constructed, and by so doing her shoe caught and held fast in said hole or crack as aforesaid. That at said time of getting her foot fast and confined in said hole or crack, the train of defendant on which she intended to take passage as aforesaid, and upon which she did take passage at that time, had about arrived at the platform of defendant’s station as aforesaid, being late and behind schedule time. Upon the arrival of the train as aforesaid, and while her foot was confined and fastened in the said hole or crack as aforesaid, the trainmen, agent and servants of said defendant aboard of and in charge of said train, in the performance of their respective duties thereon, approached this plaintiff with loud and urgent exclamation and entreaties to her to make haste and get aboard of said train, as it was behind time,.and by their said acts and conduct to her at that time gave her to understand and believe that said train was about to pull out from said station, thereby
The plaintiff further alleges and charges that said defendant, its agents and servants at said date did not have and keep its said station platform in a reasonably safe condition for the passage of persons over it in going to and upon and from its said cars and trains as passengers; that said defendant, its agents and servants permitted and suffered its said platform to be and remain out of repair at said time, so that the same became and was dangerous and unsafe for its said passengers to go upon and over it for the purpose of going from and upon its trains as passengers; that defendant, its agents and servants negligently permitted the said hole or crack as aforesaid, and into which her foot was caught and held as aforesaid,.to be and remain in said platform in a dangerous and unsafe condition, of which said defect and dangercras and unsafe condition of said station platform, at the time and in the manner aforesaid, said defendant, its agents and servants had notice.
' The plaintiff further alleges and charges that defendant’s trainmen, agents and servants, by seizing her as aforesaid, and at the time and in the manner aforesaid, wore guilty of negligence and want of proper care in assisting her over said platform and upon the train, at the time and under the circumstances aforesaid. That by reason of the unsafe and dangerous condition of said platform as aforesaid, and the negligence
The answer was a general denial.
At the time of the accident complained of, and at the trial, plaintiff was an unmarried lady. She was born in 1854. She had been lame in one limb since childhood, and it is somewhat shorter than the other. At the time of the injury she was at Wakenda, a station on defendant’s road, where she had gone in the interest of a publishing house by which she was employed establishing agencies, and having purchased a ticket for that purpose left there that evening, between eight and nine o’clock, after dark, on one of defendant’s passenger trains for DeWitt, a station east on the same road.
There was no evidence of any misconduct or negligence on the part of the trainmen.
No evidence was offered by defendant.
At the close of the evidence defendant asked an instruction in the nature of a demurrer thereto, which was refused, and defendant excepted.
At the request of plaintiff the court over the objection of defendant instructed the jury as follows:
“1. It was the duty of the defendant to keep and maintain its platform at the depot at Wakenda station on its line of road in a reasonably safe condition for the use of passengers in getting on and off its trains at that station; and if the jury believe from the evidence that said platform on the 26th day of September, 1895, was in an unsafe and dangerous condition because of a crack or hole, in said platform, and that defendant knew of the existence of said crack or hole, or might have known of its existence by the exercise of ordinary care, and that plaintiff did not know of its existence, and that plaintiff, while attempting to get upon defendant’s train as a passenger at that station, and without fault upon her part stepped into said*389 crack or hole and was injured thereby, then you will find for the plaintiff.
“2. If the jury believe from the evidence that on the 26th day of September, 1895, the platform of defendant’s depot at Wakenda station on its line of road was in an unsafe condition, and out of repair because of a crack or a hole in said platform, and that defendant knew -of the existence of said crack or hole, or might have known of its existence by the exercise of ordinary care; and that plaintiff did not know of its existence, and .if the jury further believe from the evidence that plaintiff then and there, while attempting to get upon defendant’s train as a passenger at said station, and without fault on her part, stepped into said crack or hole and was injured thereby, then plaintiff is entitled to recover.
“3. If the jury find for the plaintiff they will assess her damages at such sum, not exceeding $5,000, as they may believe from the evidence she has sustained by reason of the injuries to her foot and ankle resulting from the injuries complained of. And in assessing her damages the jury may take , into consideration any evidence in the case as to any pain and suffering resulting from said injuries and any evidence as to the character and extent of such injury and any evidence as to any expense she has necessarily incurred in being treated for said injuries.”
The jury returned a verdict in favor of plaintiff assessing her damages at $3,000, and after an unsuccessful motion to set the same aside, and, for a new trial, defendant appeals.
The first contention is that the demurrer to the evidence should have been sustained. The argument is that as the act of negligence charged is that there was a hole or crack in the depot platform, at the time when and the place where the plaintiff got upon defendant’s train, in which her foot was caught, thus inflicting the injury sued for, and as the evidence showed that at that time the depot platform where plaintiff got upon the train was in first-class condition, with no holes or cracks
It is next claimed that error was committed in permitting the plaintiff to testify with respect to her doctor’s bills. There was no proof that she had ever paid her physician anything, or had agreed to do so, or that she had incurred any liability, on account of such services, further than that which might be implied from their rendition.
In Duke v. Railroad, 99 Mo. 347, it was ruled, that one could not in an action for personal injuries, recover for expenses incurred “ for professional services of physicians,” in the absence of evidence, showing the amount of such expenses, or that any were ever paid, or any liability incurred therefor.
So in Smith v. Railroad, 108 Mo. 243, it was held that damages will not be allowed in an action for personal injuries for medical services in the absence of evidence as to their value.
The same rule was announced in the recent case of Morris v. Street Ry., 144 Mo. 500.
But plaintiff contends that this evidence was competent as far as it went, and that if these expenses had not been paid by plaintiff or liability incurred therefor by her, it would have been proper for defendant on cross-examination to draw out tho^e facts, and then for the court to instruct the jury at the request of defendant for what expenses there could or could not be a recovery. This position is untenable, and for this reason. It devolved upon plaintiff to make out her case, and in order to entitle her to recover for medical services rendered her, to prove their value. Otherwise how could the jury form any conclusion with respect thereto? In every case it devolves upon the plaintiff to make out his case by proof, and until he does so the defendant can remain passive if he chooses to do so, as defendant did in fact do in regard to these services.
The statement was'general in its character, and clearly inadmissible.
The first instruction given on behalf of plaintiff is criticised upon the ground that it ignored the material allegations in the petition, and authorized a recovery by plaintiff upon a cause of action other than that stated in the petition, and did not cover the whole case.
The petition seems to blend two causes of action, that is, the negligence of defendant in failing to keep its depot platform in a reasonably safe condition for the safety of passengers taken upon or departing from its trains, but permitted a hole or crack to remain therein, which rendered it dangerous, after it had notice thereof, or might have known of its existence by proper care in time to have repaired it, in consequence of which plaintiff without negligence upon her part stepped with her foot therein, and, was injured. And, the negligence of defendant’s servants in pulling her foot out of a hole in the platform into which sbe had stepped, and her foot had
The instruction under consideration covers the first cause of action and is not bad because it ignores the other. In Haynes v. Town of Trenton, 108 Mo. 123, the petition charged that by reason of a defective sidewalk plaintiff was precipitated into a dangerous excavation alongside of it, and fractured his leg, and the evidence supported this state of facts and no other, and it was held error to instruct the jury that if plaintiff was precipitated or fell from said sidewalk onto some rock in the street he could recover, regardless of the depth of the hole or excavation, or whether there was in fact any such hole or excavation — this court holding that the instruction permitted a recovery for negligence neither pleaded nor proved. It will be observed that that case is different from the one at bar, in this; in the case in hand the allegations of negligence with respect to the unsafe condition of the. platform were not only made, but the evidence adduced tended to prove them to be true, while in the Haynes case plaintiff was permitted to recover for negligence neither pleaded nor proved. So in the case of Burger v. Railroad, 112 Mo. 238, the two negligent acts in the petition were not independent of each other, while in the case at hand they were.
The second instruction given on the part of plaintiff is faulty in that, it in effect told the jury that plaintiff was entitled to recover if the depot platform was in an unsafe condition and out of repair, in consequence -of which, she was
Plaintiff’s third instruction is also crticised upon the ground that it furnished the jury no guide by which to estimate the damages plaintiff was entitled to recover in the event of their finding for her; besides, it authorized a recovery for medical expenses when none were proven. We see no objection to the instruction except that part of it which authorized a recovery for medical expenses, to which our observations, with respect to the admission of evidence upon that question, applies with equal force to the instruction. With this exception the instruction is good as far as it goes, and if defendant desired to restrict plaintiff’s right to the damages that she was entitled to recover to more limited bounds than was done by the instruction it should have asked an instruction to that effect. [Browning v. Railroad, 124 Mo. 55; Matthews v. Railroad, 142 Mo. 645; Barth v. Street Ry., 142 Mo. 535.]
A final contention is that the judgment should be reversed because of the misconduct of one of the counsel for plaintiff in addressing the jury. In Evans v. Town of Trenton, 112 Mo. loc. cit. 400, there is quoted with approval the following from Brown v. Swineford, 44 Mo. 282: It is the duty of counsel to make the most of the case which his client is able to give him; 'but counsel is out of his duty and his right, and outside of the principle and object of his profession, when he travels out of his client’s case, and assumes to supply its deficiencies.”
While it appears from the record in this case that counsel went beyond the legitimate scope of all argument, by stating and commenting on facts not in evidence, we are not
Nor these considerations we reverse the judgment, and remand the cause.