198 Mo. 546 | Mo. | 1906
This is an action by Lawrence Wise, a minor, by his next friend, against the St. Louis Transit Company, to recover damages on account of personal injuries sustained on the evening of October 30, 1902, whilst he was on a public crossing leading across Laclede avenue from the north to the south side thereof in the city of St. Louis, by being struck by one of the defendant’s west-bound cars on Laclede avenue.
The crossing on which plaintiff was when he was struck was a raised brick crossing between two cross streets in a long block, and used by the public as a foot crossing, and a place where the defendant’s cars stopped to receive and discharge passengers. The plaintiff at the time of his injury was a few months past the age of seven years, and lived with his parents at number 4213 on the north side of Laclede avenue near said crossing. He was sent across the street to order milk for the house at or near half past six on the evening of October 30, 1902. It was just getting dark. The boy was proceeding across Laclede avenue
The petition in substance alleges that Laclede avenue, at the places mentioned, was at the time the injuries are alleged to have been received, an open public street within the city of St. Louis; that on the 30th of October, 1902, plaintiff was passing southward across Laclede avenue upon a crossing between Sarah and Boyle avenues, when defendant’s west-bound car in charge of its motorman and conductor was caused and suffered by said motorman and conductor to strike and greatly injure the plaintiff, causing a concussion of the brain of the plaintiff, a permanent injury to his nervous system, breaking the bones of his right leg and causing other injuries and bruises on his body, and permanent internal injuries. That the defendant and its motorman and conductor were negligent in causing said car to strike and injure the plaintiff, in this; that at the time of the plaintiff’s injury they were causing
The answer was a general denial.
The plaintiff testified that it was not yet dark, but was getting dark; that he had started south over the crossing from the north to the south side of Laclede avenue; that he saw a car coming from the west going east, there was plenty of light, he could see the car plainly. There was light on the street where he was standing. He stopped to let the east-bound car pass bim before attempting to cross the track. He stepped in the middle of the west-bound track waiting for the other car to pass east, that car came to a stop at the crossing, and just as it began to start east a car going
The Vigilant Watch ordinance was read in evidence.
Dr.' Haverstick was called immediately after the boy was removed to his home, and testified that the boy was perfectly unconscious and had a concussion of the brain, an injury to his right arm, a bruise and a compound complicated fracture of his right leg. Both bones in the foreleg were broken, the bones had run out through the flesh at least four inches, and they were broken in more than one place. There were pieces of bone broken off of the large bone of the leg. He exhibited some of the pieces of bone that came- out of the limb, some of them four weeks after the injury and some three months afterwards. The boy was perfectly unconscious for eight or nine days after the injury, and had that peculiar breathing and was in that serious condition that you always have after a profound nervous shock. He treated the boy until the next July. He testified that he was assisted by Dr. Lutz in setting the limb, and that fairly good results had followed. The bones ha¡d united. He testified that the boy was more nervous and more excitable from the concussion of his brain. He testified to the suffering of the boy from his injuries; that it was impossible to keep him quiet
Miss Minnie Wright, a trained nurse, attended the hoy from the next evening after he was hurt for twenty-one days. She testified that he was in an unconscious condition for nine and a half days; that he suffered intensely; that he was kept under the influence of opiates all the time as nearly as could be.
Miss Rosa Wise testified that she was a sister of the plaintiff; that the family resided at 4213 Laclede avenue and had lived there about two years and a half before the injury. There was a crossing made of brick on Laclede avenue between Sarah street and Boyle avenue, and the street cars stopped at this crossing. She was at home on the evening of October 30th, and the plaintiff left the house to go across the street to order milk to be sent the next day. He started about half past six. When she next saw him he was lying in the street near the defendant’s track with his foot near the track and on the south side of the east-bound track. His head was lying near the curb. When she reached him, plaintiff was unconscious. A gentleman helped her carry him home. She had been told that a little boy was lying there and she went to see and found it was her brother. This was about twenty minutes after he left the house to go for the milk. He was confined to his bed three months or more. Prior to his injuries he was a strong and healthy boy. After he got up his limb was still in plaster of paris. It was about four months before he could use his leg to step upon it. Asked as to whether there were any indications of pain, she testified that he screamed all the time while he was unconscious, and after he regained consciousness he complained constantly of suffering. A man came to their house and notified her that there was a boy lying down there. Their house was the only one that was right near there, and he told her that there was a boy injured there. When she reached her brother, there was a man
Mr. E. H. Wise, the father of the plaintiff, testified that he was ont of the city on the evening that plaintiff was hurt, and reached home the next day and remained with him daring the period of his serious illness. When he came home the boy did not recognize him. He was unconscious until the ninth day. Prior to his injury he was a strong and healthy child.
At the close of the plaintiff’s evidence, the defendant prayed the court to instruct the jury plaintiff could not recover, which instruction the court refused and defendant excepted.
On the part of the defendant Charles Medlock testified that he was a driver for the Trinidad Asphalt Company on the 30th of October, 1902; that he was the man that came and told plaintiff’s sister that there was a boy out there hurt. He thought it was about 7:30, or about that time. It was dark. When he first saw the plaintiff he was lying south of the east-bound track with his head towards the track. He did not pay any particular attention to the time but thought it was near 7:30. He drove by and notified a man.
A. W. Davis testified that he was the conductor on the car on the evening of the 30th of October that passed this location about 6:36 and knew nothing of the accident.
Edward McKinzie was a motorman on the car bound west about 6:40 p. m. that day and knew nothing of the accident. He first heard of it that night about 8 or 9 o’clock. His car did not strike the little boy. Their usual speed was about eight or ten miles an hour. About that time of day it was getting dusk, could not remember whether it was real dark or not, but they would have a headlight on their car at that hour.
This was all the testimony in the case. The other facts and the instructions that are complained of will be noted in the discussion of the case.
I. The first insistence is that the demurrer to the evidence should have been sustained. The case was not submitted to the jury on the theory of excessive speed. The charges as to the violation of the Vigilant Watch ordinance, and as to the failure to give warning of the approach of the car, were submitted to the jury in the two instructions given for the plaintiff.
As to the failure to keep a vigilant watch and to stop the car on the first appearance of danger to the plaintiff, the defendant urges that there was no evidence as to where the car which struck plaintiff was, when plaintiff first approached the track, and no evidence as to the distance in which the car could be stopped, and no evidence as to the speed of the car, and as it was dark there was nothing to sustain this charge. We cannot agree to this contention. The evidence discloses that the plaintiff was a boy of about seven years of age; that he was standing on a crossing, or in the middle of the west-bound track. The testimony is that the boy had reached the crossing before the east-bound car came to that crossing, and stopped to wait for that car to pass before attempting to cross the south track; that there was plenty of light where he stood; he was then in plain view of the motorman going west on that west-bound track if the motorman was attending to his duty of keeping a vigilant watch as required by the ordinance for persons on the track, especially children. The east-bound car came to a full stop at this crossing and the boy stood still between the rails of the westbound track during the stop of this east-bound car and until it started east.
Nor can we accept the predicate of the defendant that there was no evidence that the plaintiff was in a position of peril for any length of time. Counsel concede that if there was light, it might be inferred that a position of peril should have been discovered. The evidence shows that there was plenty of light. Moreover, the evidence tends to show that no bell or other signal was given the boy of the approach of the car which struck him. Human instinct exists in a boy of the age of seven or eight years, and if he had heard a
II. The second proposition advanced is, that the plaintiff’s second instruction was erroneous in that it ignored the plaintiff’s contributory negligence. In the first place, contributory negligence was not pleaded. The rule has ever been in this State that contributory negligence must be pleaded to be of any avail as a defence. A child is only to be held responsible for such care as children of his age, experience and discretion ordinarily use, under the same and similar circumstances. This was submitted to the jury under the first instruction given for the plaintiff. The second instruction submitted the humane doctrine to the jury, where, of course, if the facts predicated were found, contributory negligeuce was immaterial, and no defense. [Reardon v. Railroad, 114 Mo. 1. c. 406; Klockenbrink v. Railroad, 172 Mo. 1. c. 687; Scullin v. Railroad, 184 Mo. 1. c. 707.]
There was no error in the second instruction. There was no issue of contributory negligence tendered by the pleadings, and if there had been, it would have been immaterial if the jury found the facts required by the second instruction.
III. The defendant prayed the court in effect to instruct the jury that the Vigilant Watch ordinance was invalid. It is now conceded by the counsel for the defendants that in the light of Sluder v. Railroad, 189 Mo. 1. c. 136, this instruction was not the law.
IV. Defendant prayed an instruction as follows: “The phrases ‘first appearance of danger’ and ‘becoming aware of the danger’ or other like expressions, used in the ordinance read in evidence and these instruc
This instruction, it is perfectly clear, was utterly inapplicable to the facts developed in this case, and the court very properly refused to give it; independently of the fact that it was wholly foreign to the situation developed by the testimony, it was bad in various other parts. It is in conflict with the law declared in Bunyan v. Railroad, 127 Mo. 1. c. 22; Eckhard v. Railroad, 190 Mo. 618; Livingston v. Railroad, 170 Mo. 1. c. 471.
V. The defendant requested the court to instruct that unless the jury found from the evidence that plaintiff was injured by one of defendant’s west-bound cars, and his injuries were directly due to the negligence of defendant’s servant, plaintiff could not recover. The court had already given two instructions for the plaintiff and one for the defendant incorporating this requirement of proof of negligence on the part of the defendant, but this instruction went further, and the court was asked to instruct the jury, that if the jury believed that plaintiff’s injuries were due to mere acci
VI. The fourth instruction given on behalf of the plaintiff was as follows:
“If the jury find for the plaintiff they should assess his damages at such sum as they may believe from the evidence will he a fair compensation to him:
, “1st. For any pain of body or mind which the jury may believe from the evidence he has suffered or will suffer by reason of said injuries and directly caused thereby.
“2nd. For any loss of the earnings of his labor after he shall have arrived at the age of twenty-one years which the jury may believe, from the evidence, the plaintiff has sustained by reason of said injuries and directly caused thereby.
“But you will not allow any sum for any earnings of his labor you may believe he may lose up to the time he becomes twenty-one years of age, and you will not allow any sum for loss of earnings of his labor thereafter unless you believe and find, from the evidence, that he will be disabled from labor and lose the. earnings of his labor after he arrives at the age of twenty-one years as a direct result of his alleged injuries.”
The sole objection to this instruction is that there was no evidence that his earning capacity had been in any way impaired. The evidence showed that both bones of the right leg of plaintiff were broken, and that
In Rosenkranz v. Railroad, 108 Mo. 1. c. 15-17, the jury were instructed among other things, that “they could take into consideration loss of earnings after he shall have attained the age of twenty-one years,” and that instruction was assailed on the ground that there was no evidence from which the jury could infer what physical capacity for labor plaintiff would have possessed if he had not been injured, but this court said: “It is well settled that prospective damage to adults, on account of impairment of earning capacity in the future, is a proper element of damages in cases of personal injuries. [Whalen v. Railroad, 60 Mo. 323; Pry v. Railroad, 73 Mo. 124; 2 Sedg. Dam. (8 Ed.), sec. 485.] Ordinarily, damages will not be awarded to compensate for losses not yet experienced on mere conjectural possibility that such loss will occur. In the case of an adult proof should be made of ‘previous physical condition and ability to labor, or follow his usual avocation, as well as his condition since the injury, to enable the jury to properly find the pecuniary damage.’ [5 Am. and Eng. Ency. Law, 41, and authorities cited.] What may or may not be done by anyone in the future depends upon so many contingencies that prospective loss of earnings cannot be susceptible of direct and
We think the instruction is not obnoxious to any just criticism in view of the well-settled law of this State.
We have been unable to find any reversible error, and the judgment is therefore affirmed.