133 Mo. App. 202 | Mo. Ct. App. | 1908
This plaintiff recovered a judgment of two thousand dollars against the defendant company for the fracture of his arm. The accident occurred on July 25,1904. Plaintiff was on said date a passenger on one of defendant’s west-bound cars on Market street. He was seated on the south side of the car, nest to a window with his elbow resting on the window sill. According to the petition his elbow projected two inches outside the car he was in and a car passing in the opposite direction on a parallel track struck his elbow and broke the arm.
“If the jury find for plaintiff, they should assess his damages at such sum as they believe from the evidence will be fair compensation to him:
“ (1) For any pain of body and mind that plaintiff has suffered, or will suffer by reason of his injuries, and directly caused thereby;
“(2) For any loss of earnings of his labor that he suffered, or will suffer by reason of his injuries and directly caused thereby.”
Two grounds are urged against the propriety of the foregoing instruction; one is that it authorized an award of damages for a loss of earnings previously sustained by plaintiff, when there was no proof he had lost any earnings in consequence of his injury, and the other is that the petition does not allege plaintiff had lost earnings, but only that he would lose them in the future. This portion of the petition may be quoted:
“That as a direct result of the injuries thus sustained, plaintiff’s arm has been rendered permanently stiff, and its use greatly and permanently impaired; that he has and will suffer great pain of body and mind; he has incurred and become obligated for, and will incur and become obligated for, large expenses for medical attention, medicines and nursing, and his earning capacity has been permanently impaired, and he will in the future lose greatly from the earnings of his labor, all to his injury and damage in the sum of four thousand five hundred ($4,500) for which sum he prays judgment against defendant and for his costs.”
We have quoted from the second amended petition, which was filed after the case was reversed and remand
The judgment is affirmed.